Cv08-01709 Carpentier Flanagan Ocr Opt

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Case Information Case Description: CV08-01709 - J CARPENTIER, ETAL/ AAMES FUNDINGCORP., ETAL(D7) - Non Jury -Filing Date: 26-Jun-2008Case Type: FC - FORECLOSUREStatus: NEF - Proof of Electronic Service

Case Cross Reference Cross Reference Number

Case

Parties (top) Seq Type Name2 PLTF - Plaintiff CARPENTIER, JAMES S3 PLTF - Plaintiff CARPENTIER, JOAN E5 DEFT - Defendant AAMES FUNDING CORPORATION

DBA AAMES HOME LOAN,7 DEFT - Defendant WINDSOR MANAGEMENT CO.,8 DEFT - Defendant RESIDENTIAL CREDIT SOLUTIONS,

INC,9 DEFT - Defendant QUALITY LOANS SERVICE

CORPORATION,12 ATTY - Attorney Zimbelman, Esq., Eric13 ATTY - Attorney Zimbelman, Esq., Eric18 ATTY - Attorney Schuler-Hintz, Esq., Kristin A.20 PROP - Pro

Per-Pltf/Pet/AppellantProPer Person,

Event

Information (top) Date/Time Hearing Judge Event Description Outcome1. 12-Jul-2012 at14:40

HonorablePATRICK FLANAGAN

S1 - Request for Submission

S200 - Request for Submission Completfiled on: 21-Aug-2012 Extra Text:

2. 12-Mar-2012 at

16:50

Honorable

PATRICK FLANAGAN

S1 - Request for

Submission

S200 - Request for

Submission Completfiled on: 20-Apr-2012 Extra Text:

3. 12-Jul-2010 at10:35



S200 - Request for Submission Completfiled on: 15-Jul-2010 Extra Text:

Notice: This is NOT an Official Court Record



4. 16-Nov-2009 at10:00


H844 - TRIAL - NON JURY

D845 - Vacated filedon: 15-Jun-2009 Extra Text: Notice

of Bankruptcy and

Automatic Stay filed

05.20.09

5. 24-Jun-2009 at

09:00

Honorable

PATRICK FLANAGAN

H756 -

PRE-TRIALCONFERENCE

D845 - Vacated filed

on: 15-Jun-2009 Extra Text: Notice

of Bankruptcy and

Automatic Stay filed

05.20.09

6. 19-Mar-2009 at13:00


H820 - STATUSHEARING

D435 - Heard ... filedon: 19-Mar-2009 Extra Text:

7. 06-Mar-2009 at13:30


H816 - STATUSCONFERENCE

D844 - Vacated-Resetfiled on: 06-Mar-2009

Extra Text: PLAINTIFF FAILED

TO APPEAR

8. 13-Feb-2009 at15:30


H820 - STATUSHEARING

D435 - Heard ... filedon: 13-Feb-2009 Extra Text:

9. 13-Jan-2009 at14:50



S200 - Request for Submission Completfiled on: 22-Jan-2009 Extra Text:

10. 08-Dec-2008 at10:20

HonorableCONNIE STEINHEIMER


S200 - Request for Submission Completfiled on: 13-Jan-2009 Extra Text: CASE

TRANSFERRED TO

DEPARTMENT 7

11. 17-Jul-2008 at15:00


H764 -PRELIMINARYINJUNCTION

D425 - Granted filedon: 17-Jul-2008 Extra Text:

$1,000.00 BOND TO

REMAIN IN EFFECT

12. 17-Jul-2008 at15:00


H364 -HEARING...

D802 - Set in Error filed on: 07-Jul-2008 Extra Text:

13. 07-Jul-2008 at16:30


H364 -HEARING...

D425 - Granted filedon: 07-Jul-2008 Extra Text: TRO

GRANTED; ONE

THOUSAND DOLLAR

BOND TO BE

POSTED. HEARING




TO EXTEND TRO SET.

Docket Entry

Information (top) Docket Description Date Filed Extra Text1. CHECK - **TrustDisbursement

09-Sep-2013 Extra Text: A Disbursement of $1,000.00 on Check

Number 25723

2. NEF - Proof of Electronic Service

05-Sep-2013 Extra Text: Transaction 3973125 - Approved By: NOREVIEW : 09-05-2013:09:06:28

3. 2985 - Ord ReturnFunds on Deposit

05-Sep-2013 Extra Text: TEMPORARY RESTRAINING ORDER

BOND - Transaction 3973100 - Approved By:

NOREVIEW : 09-05-2013:09:02:41

4. 2540 - Notice of Entry of Ord

22-Aug-2012 Extra Text: Transaction 3168375 - Approved By:

NOREVIEW : 08-22-2012:13:49:28



NOREVIEW : 08-22-2012:13:50:42

6. NEF - Proof of

Electronic Service


NOREVIEW : 08-21-2012:09:32:487. 3370 - Order ... 21-Aug-2012 Extra Text: [GRANTING DEFENDANTS' MTN FOR

SANCTIONS; AND DENYING PLAINTIFFS' MTN

TO ALTER OR AMEND ORDER, OR NEW TRIAL,

OR PLED IN THE ALTERNATIVE, MOTION TO

SET ASIDE ORDER GRANTING SUMMARY

JUDGMENT - ks]

8. F140 - AdjSummary Judgment

21-Aug-2012 Extra Text:

9. NEF - Proof of

Electronic Service


NOREVIEW : 08-21-2012:16:38:16 10. 4300 -Withdrawal of Counsel

20-Aug-2012 Extra Text: MOTION TO WITHDRAW AS COUNSEL

OF RECORD. ZACHARY COUGHLIN, ESQ.

WITHDRAWS AS COUNSEL OF RECORD FOR

PLAINTIFFS, JAMES AND JOAN CARPENTIER

ETAL - Transaction 3162061 - Approved By:

LMATHEUS : 08-21-2012:09:17:44

11. 1325 - ** CaseReopened

12-Jul-2012 Extra Text:


12-Jul-2012 Extra Text: Transaction 3078448 - Approved By:

NOREVIEW : 07-12-2012:14:17:11

13. 3860 - Requestfor Submission

12-Jul-2012 Extra Text: REQUEST FOR RULE 11 SANCTIONS

AND OPPOSITION TO MOTION TO ALTER OR

AMEND ORDER, OR NEW TRIAL OR PLED IN

THE ALTERNATIVE MOTION FOR

RECONSIDERATION - Transaction 3078304 -

Approved By: AZION : 07-12-2012:14:14:58

DOCUMENT TITLE: REQUEST FOR RULE 11

SANCTIONS AND OPPOSITION TO MOTION TO

ALTER OR AMEND ORDER, OR NEW TRIAL OR




PLED IN THE ALTERNATIVE MOTION FOR

RECONSIDERATION PARTY SUBMITTING:

KRISTIN SCHULER-HINTZ ESQ DATE

SUBMITTED: 07-12-12 SUBMITTED BY: AZION

DATE RECEIVED JUDGE OFFICE:


05-Jun-2012 Extra Text: Transaction 2996834 - Approved By:

NOREVIEW : 06-05-2012:10:11:04

15. 2650 -Opposition to ... 05-Jun-2012 Extra Text: OPPOSITION TO REQUEST FORSANCTIONS ETC. - Transaction 2996151 - Approved

By: LMATHEUS : 06-05-2012:10:09:32


17-May-2012 Extra Text: Transaction 2961790 - Approved By:

NOREVIEW : 05-17-2012:16:35:36

17. 3870 - Request 17-May-2012 Extra Text: RESIDENTIAL CREDIT SOLUTIONS,

INC AND QUALITY LOAN SERVICE CORP'S

REQUEST FOR RULE 11 SANCTIONS AND

OPPOSITION TO MOTION TO ALTER OR AMEND

ORDER, OR NEW TRIAL, OR PLED IN THE

ALTERNATIVE, MOTION FOR RECONSIDERATION - Transaction 2961529 -

Approved By: SHAMBRIG : 05-17-2012:16:31:03


08-May-2012 Extra Text: Transaction 2938457 - Approved By:

NOREVIEW : 05-08-2012:11:30:42

19. 2250 - Mtn Alter or Amend Judgment

07-May-2012 Extra Text: MOTION TO ALTER OR AMEND

ORDER, OR NEW TRIAL, OR PLED IN THE

ALTERNATIVE, MOTION FOR

RECONSIDERATION - Transaction 2937348 -

Approved By: LMATHEUS : 05-08-2012:11:25:36


23-Apr-2012 Extra Text: Transaction 2906618 - Approved By:

NOREVIEW : 04-23-2012:14:58:14



NOREVIEW : 04-23-2012:14:55:09

22. 1315 - ** CaseClosed

20-Apr-2012 Extra Text:



NOREVIEW : 04-20-2012:15:52:33

24. 3370 - Order ... 20-Apr-2012 Extra Text: Transaction 2903883 - Approved By:

NOREVIEW : 04-20-2012:15:50:22

25. NEF - Proof of

Electronic Service

12-Mar-2012 Extra Text: Transaction 2817403 - Approved By:

NOREVIEW : 03-12-2012:10:47:4126. 3860 - Requestfor Submission

12-Mar-2012 Extra Text: PLTFS EMERGENCY MOTION FOR

TRO/INJUNCTION OR PLED IN THE

ALTERNATIVE, MOTION TO SET ASIDE ORDER

GRANTING SUMMARY JUDGMENT - Transaction

2817321 - Approved By: MLAWRENC :

03-12-2012:10:45:06 DOCUMENT TITLE: PLTFS

EMERGENCY MOTION FOR TRO/INJUNCTION

OR PLED IN THE ALTERNATIVE, MOTION TO

SET ASIDE ORDER GRANTING SUMMARY




JUDGMENT PARTY SUBMITTING: KRISTIN

SCHULER-HINTZ ESQ DATE SUBMITTED:

03-12-12 SUBMITTED BY: MLAWRENCE DATE

RECEIVED JUDGE OFFICE:


12-Mar-2012 Extra Text:

28. 4105 -

Supplemental ...

13-Jan-2012 Extra Text: SUPPLEMENT TO REPLY TO

OPPOSITION TO PLAINTIFF'S EMERGENCY MOTION FOR TRO/INJUCTION; OR PLED IN THE

ALTERNATIVE; MOTION TO SET ASIDE ORDER


2698406 - Approved By: LMATHEUS :

01-13-2012:08:55:58


13-Jan-2012 Extra Text: Transaction 2698706 - Approved By:

NOREVIEW : 01-13-2012:08:58:45



NOREVIEW : 01-11-2012:16:44:13

31. 3790 - Replyto/in Opposition 11-Jan-2012 Extra Text: REPLY TO OPPOSITION TO PLAINTIFF'S EMERGENCY MOTION FOR

TRO/INJUNCTION; OR PLED IN THE

ALTERNATIVE; MOTION TO SET ASIDE ORDER


2695149 - Approved By: LMATHEUS :

01-11-2012:16:41:28



NOREVIEW : 01-04-2012:09:46:06

33. 2645 -Opposition to Mtn ...

04-Jan-2012 Extra Text: RESIDENTIAL CREDIT SOLUTIONS,

INC AND QUALITY LOAN SERVICE COR'S

REQUEST FOR RULE 11 SANCTIONS AND

OPPOSITION TO EMERGENCY MOTION FOR

TRO/INJUNCTION OR IN THE ALTERNATIVE

MOTION TO SET ASIDE ORDER GRANTING

SUMMARY JUDGMENT - Transaction 2679368 -

Approved By: AZION : 01-04-2012:09:44:26



NOREVIEW : 01-03-2012:08:48:40

35. 2222 - Mtn for TRO

31-Dec-2011 Extra Text: EMERGENCY MOTION FOR

TRO/INJUNCTION OR PLED IN THE

ALTERNATIVE, MOTION TO SET ASIDE ORDERGRANTING SUMMARY JUDGMENT - Transaction

2676622 - Approved By: AZION :

01-03-2012:08:45:55

36. 2520 - Notice of Appearance

27-Oct-2011 Extra Text: ZACH COUGHLIN, ESQ. / JONI &

JOHN CARPENTIER

37. F140 - AdjSummary Judgment


38. 3370 - Order ... 15-Jul-2010 Extra Text: Transaction 1600783 - Approved By:

NOREVIEW : 07-15-2010:11:22:08






NOREVIEW : 07-15-2010:11:25:26



NOREVIEW : 07-15-2010:16:12:44



AZION : 07-15-2010:16:04:14

42. NEF - Proof of

Electronic Service


NOREVIEW : 07-12-2010:09:58:5943. 3860 - Requestfor Submission

12-Jul-2010 Extra Text: DEFT'S RESIDENTIAL CREDIT

SOLUTIONS INC, AND QUALITY LOAN SERVICE

CORPORATION'S MOTION FOR SUMMARY

JUDGMENT - Transaction 1591509 - Approved By:

AZION : 07-12-2010:09:57:40 DOCUMENT TITLE:

DEFT'S RESIDENTIAL CREDIT SOLUTIONS INC,

AND QUALITY LOAN SERVICE CORPORATION'S

MOTION FOR SUMMARY JUDGMENT PARTY

SUBMITTING: KRISTIN SCHULER-HINTZ ESQ

DATE SUBMITTED: 07-12-10 SUBMITTED BY: AZION DATE RECEIVED JUDGE OFFICE:




23-Jun-2010 Extra Text: Transaction 1559076 - Approved By:

NOREVIEW : 06-23-2010:12:03:58

46. PAYRC -**Payment Receipted

23-Jun-2010 Extra Text: A Payment of $200.00 was made on

receipt DCDC278200.

47. $2200 - $Mtn for Summary Judgment

23-Jun-2010 Extra Text: DEFT'S RESIDENTIAL CREDIT

SOLUTIONS, INC AND QUALITY LOAN SERVICE

CORP'S MOTION FOR SUMMARY JUDGMENT -

Transaction 1559053 - Approved By: AZION :

06-23-2010:12:01:34

48. 1360 - Certificateof Service

05-Aug-2009 Extra Text:

49. 1315 - ** CaseClosed

15-Jun-2009 Extra Text: NOTICE OF BANKRUPTCY AND

AUTOMATIC STAY FILED 05.20.09 BY

DEFENDANT AAMES FUNDING CORP.

50. 1030 - Affidavitin Support...

09-Jun-2009 Extra Text: AFFIDAVIT IN SUPPORT OF MOTION

TO DISMISS OR INT THE ALTERNATIVE FOR

SUMMARY JUIDGMENT

51. 2315 - Mtn toDismiss ...

09-Jun-2009 Extra Text: DEFENDANTS' RESIDENTIAL CREDIT SOLUTIONS, INC., AND QUALITY LOAN SERVICE

CORPORATION'S MOTION TO DISMISS OR IN

THE ALTERNATIVE FOR SUMMARY JUDGMENT

52. 2610 - Notice ... 09-Jun-2009 Extra Text: NOTICE OF LODGMENT IN

SUUPPORT OF MOTION TO DISMISS OR IN THE

ALTERNATIVE FOR SUMMARY JUDGMENT

53. 2610 - Notice ... 20-May-2009 Extra Text: NOTICE OF BANKRUPTCY FILING

AND AUTOMATIC STAY




68. 1120 - Amended...

10-Oct-2008 Extra Text: PLAINTIFF'S AMENDED NOTICE OF

NRCP 16 EARLY CASE CONFERENCE AND

DEMAND FOR PRODUCTION - Transaction

405944 - Approved By: SSTINCHF :

10-10-2008:14:25:26

69. 1120 - Amended...

10-Oct-2008 Extra Text: AMENDED NOTICE TO SET TRIAL:

10-23-08 AT 11:00 - Transaction 405944 - Approved

By: SSTINCHF : 10-10-2008:14:25:26 70. 2529 - Notice of Early Case Conferenc

01-Oct-2008 Extra Text: PLAINTIFFS' NOTICE OF NRCP 16

EARLY CASE CONFERENCE AND DEMAND FOR

PRODUCTION - Transaction 389664 - Approved By:

NDELGADO : 10-01-2008:09:24:32

71. 2605 - Notice toSet

01-Oct-2008 Extra Text: NOTICE TO SET TRIAL - Transaction

389664 - Approved By: NDELGADO :

10-01-2008:09:24:32


30-Sep-2008 Extra Text: A Payment of -$124.00 was made on

receipt DCDC212733.

73. $PLTF - $AddlPlaintiff/Complaint 29-Sep-2008 Extra Text: QUALITY LOAN SERVICE CORPORATION

74. $1560 - $Def 1stAppearance - CV

29-Sep-2008 Extra Text: RESIDENTIAL CREDIT SOLUTIONS

INC

75. 1817 - InitialAppear. FeeDisclosure

29-Sep-2008 Extra Text: DEFENDANTS' QUALITY LOAN

SERVICE CORPORATION & RESIDENTIAL

CREDIT SOLUTIONS, INC'S INITIAL

APPEARANCE FEE DISCLOSURE

76. 1130 - Answer ... 29-Sep-2008 Extra Text: DEFENDANTS' QUALITY LOAN

SERVICE CORPORATION & RESIDENTIAL

CREDIT SOLUTIONS, INC'S ANSWER

77. 2610 - Notice ... 25-Sep-2008 Extra Text: NOTICE OF INTENT TO TAKE

DEFAULT - Transaction 382076 - Approved By:

CGALINDO : 09-25-2008:13:25:19

78. 3696 - Pre-TrialOrder

19-Sep-2008 Extra Text:



MPURDY : 08-28-2008:13:17:35

80. A120 -Exemption fromArbitration

20-Aug-2008 Extra Text: INJUNCTIVE RELIFE

81. 3105 - OrdGranting ...

19-Aug-2008 Extra Text: PRELIMINARY INJUNCTION


29-Jul-2008 Extra Text: A Payment of -$124.00 was made on

receipt DCDC206537.

83. $1560 - $Def 1stAppearance - CV

22-Jul-2008 Extra Text: WINDSOR MANAGEMENT CO.




84. 1130 - Answer ... 22-Jul-2008 Extra Text: ANSWER AND AFFIRMATIVE

DEFENSES OF WINDSOR MANAGEMETN CO.

AND ACCREDITED HOME LENNNDERS, INC. AS

SUCCESSOR IN INTEREST TO AAMES FUNDING

CORPORATION DBA AAMES HOME LOAN

85. $DEFT - $AddlDef/Answer -

Prty/Appear

22-Jul-2008 Extra Text: AAMES FUNDING CORPORATION

DBA AAMES HOME LOAN

86. MIN -***Minutes

21-Jul-2008 Extra Text: 07/17/08 PRELIMINARY INJUNCTION -

Transaction 289706 - Approved By: NOREVIEW :

07-21-2008:11:00:19

87. MIN -***Minutes

21-Jul-2008 Extra Text: 7/17/08 EXHIBITS TO PRELIMINARY

INJUNCTION HEARING - Transaction 289717 -

Approved By: NOREVIEW : 07-21-2008:11:03:59

88. 1695 - **Exhibit(s) ...

17-Jul-2008 Extra Text: PLAINTIFF'S 1 -12

89. 3720 - Proof of

Service


NDELGADO : 07-17-2008:08:10:1390. 3720 - Proof of Service

15-Jul-2008 Extra Text: SUMMONS, COMPLAINT AND EX

PARTE APPLICATION FOR TRO SERVED ON

QUALITY LOAN SERVICE CORPORATION ON

07/09/08 - Transaction 283117 - Approved By:

MPURDY : 07-15-2008:13:02:06

91. 3720 - Proof of Service

15-Jul-2008 Extra Text: SUMMONS, COMPLAINT, EX PARTE

APPLICATION FOR TRO, OSC, TRO AND NOTICE

OF FILING BOND SERVED ON RESIDENTIAL

CREDIT SOLUTIONS, INC. ON 07/09/08 -

Transaction 283117 - Approved By: MPURDY :

07-15-2008:13:02:06

92. FIE -**Document Filed inError

15-Jul-2008 Extra Text: 07/28/2008 - TPRINCE

93. TRO - **TROCash Bond


94. 3355 - Ord toShow Cause

08-Jul-2008 Extra Text: ORDER TO SHOW CAUSE AND

TEMPORARY RESTRAINING ORDER (PLAINTIFF

TO POST SECURITY IN THE SUM OF $1,000.00)

95. 2610 - Notice ... 08-Jul-2008 Extra Text: NOTICE OF FILING BOND: BOND IN

THE AMOUNT OF $1, 000. 00 JAMES M. WALSH ESQ.

96. 3720 - Proof of Service

08-Jul-2008 Extra Text: AAMES FUNDING CORPORATION dba

AAMES HOME LOAN SERVED ON 07/01/2008 BY

DELIVERING A COPY TO RESIDENT AGENT

NATIONAL REGISTERED AGENT and WINDSOR

MANAGEMENT COMPANY SERVED ON

07/01/2008 BY DELIVERING A COPY WITH

RESIDENT AGENT CORPORATION TRUST OF

NEVADA - Transaction 274235 - Approved By:




TPRINCE : 07-08-2008:13:51:50


27-Jun-2008 Extra Text: A Payment of $171.00 was made on

receipt DCDC203383.

98. 1665 - Ex-ParteApplication...

27-Jun-2008 Extra Text: EX PARTE APPLICATION FOR

TEMPORARY RESTRAINING ORDER JAMES

CARPENTIER, ET AL

99. 4090 - **

Summons Issued

27-Jun-2008 Extra Text:

100. $1425 -$Complaint - Civil

26-Jun-2008 Extra Text: JAMES S CARPENTIER - Transaction

261699 - Approved By: ASMITH :

06-27-2008:08:18:46

101. $DEFT - $AddlDef/Answer -Prty/Appear

26-Jun-2008 Extra Text: JOAN E CARPENTIER - Transaction

261699 - Approved By: ASMITH :

06-27-2008:08:18:46




CASE NO. CV08-01709 TITLE: J. CARPENTER, ET AL. VS. AAMES FUNDING CORPORATION, ET

AL.

DATE, JUDGE

OFFICERS OF

COURT PRESENT APPEARANCES-HEARING CONT'D

7/7/08HONORABLECONNIE

STEINHEIMERDEPT. NO.4R. Cotter

Clerk)Not Reported

Reporter)

PRELIMINARY INJUNCTIONJames Michael Walsh, Esq., present on behalf of the Plaintiffs.Discussion ensued regarding Ex Parte Application for Temporary

Restraining Order previously filed by counsel Walsh, and status of theDefendant Windsor Management Company.COURT ENTERED ORDER granting Temporary Restraining Order. Plaintiff

shall post a One Thousand Dollar (1,000.00) bond and Counsel Walsh shallserve the Order on all parties no later than July 14, 2008. Preliminary

Injunction hearing set.

7/17/083:00 p.m.

PreliminaInjunction

F I L E DElectronically

12-09-2008:04:32:40 PMHoward W. ConyersClerk of the Court

Transaction # 491152



CASE NO. CV08-01709 J CARPENTIER ET AL V AAMES FUNDING CORP ET AL

DATE, JUDGEOFFICERS OFCOURT PRESENT APPEARANCES-HEARING ______________2/13/09HONORABLEPATRICKFLANAGAN

DEPT. NO. 7M. ConwayClerk)

S. KoettingReporter)

STATUS HEARINGJ. Carpentier was present in Court acting in Proper Persona.Kristin Schuler-Hintz, Esq. was present telephonically on behalf of DefendantsResidential Credit Solutions who were not present.

Eric Zimbelman, Esq. was present telephonically on behalf of Defendants WindsorManagement Co and Aames Funding Corporation.4:02 p.m. – Court convened with Court, counsel and the plaintiff present.Joan Carpentier addressed the Court and advised that she plans on retaining newcounsel.Counsel Schuler-Hintz addressed the Court and feels that a settlement conference mbe beneficial. Counsel Zimbelman concurred.COURT ORDERED: Matter continued for Status Hearing, set for March 6, 2009 at1:30 p.m. to report on counsel and to set a settlement conference. Counsel Schuler-Hintz and Zimbelman may attend telephonically.4:10 p.m. – Court stood in recess.







10-14-2008:07:31:22 AMHoward W. ConyersClerk of the Court




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Kristin A. Schuler-Hintz, Esq., Nevada SBN 7171Christopher M. Hunter, Esq. Nevada SBN 8127McCarthy & Holthus, LLP9510 West Sahara, Suite 110Las Vegas, NV 89117

Phone (702) 685-0329 Ext. 3748Fax (866) [email protected]

Attorney for DEFENDANTS’Residential Credit Solutions, Inc. & Quality Loan Service Corporation

DISTRICT COURT

CLARK COUNTY, NEVADA

JAMES S. CARPENTIER; and JOAN E.CARPENTIER,

Plaintiffsvs.

AAMES FUNDING CORPORATION DBAAAMES HOME LOAN, a Californiacorporation; WINDSOR MANAGEMENT

CO. , a California corporation;RESIDENTIAL CREDIT SOLUTIONS, INC.,a TEXAS corporation; QUALITY LOANSERVICE CORPORATION, a CaliforniaCorporation; and DOES I – XX, inclusive,

)

Defendants

)))))))))))

))))))

Case No.: CV09-01709

Department No: 4

DEFENDANTS’ RESIDENTIAL CREDITSOLUTIONS , INC. AND QUALITYLOAN SERVICE CORPORATION’S

MOTION FOR SUMMARY JUDGMENT

COMES NOW Defendants, Residential Credit Solutions, Inc. (“RCS”), and Quality Loan

Service Corporation (“QLS”) (collectively “Defendants”), by and through its counsel of record,

Christopher M. Hunter, Esq., of McCarthy & Holthus, LLP, and moves the Court to enter

summary judgment in favor of Defendants.






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This Motion is brought pursuant to NRCP 56(b) based upon the assertion that there is no

justiciable issue of fact. Pursuant to D.C.R. Rule 13 any Response and/or Opposition to this

motion must be filed with the court and served within 10 days after service hereof. Any Reply

must be filed with the Court and served within 10 days after service of any response or

opposition. Failure to file a timely opposition may result in the granting of the instant motion

without hearing.

This Motion is based upon this Notice, the attached Memorandum of Points and

Authorities, and upon all pleadings and documents herein, as well as any argument that may be

presented at the hearing of this, or any other motions/matters; the Court is requested to take

judicial notice as appropriate.

Dated: 6/23/2010

/s/ Christopher M. Hunter Christopher M. Hunter, Esq.

MEMORANDUM OF POINTS AND AUTHORITES

FACTUAL BACKGROUND

Plaintiffs’ claim arose from a loan and deed of trust securing real property located in

Washoe County, Nevada. Defendants assert that the following facts are material to the

disposition of this motion and are not genuinely in issue:

1. This action concerns real property in Washoe County, Nevada known as 2873 Sunny

Slope Dr., Sparks, Nevada (“Subject Property”). The Subject Property was financed through the

execution of a note and deed of trust by Plaintiffs promising to repay the sum of $170,800 in

monthly installments to Aames Funding Corporation DBA Aames Home Loan. The deed of

trust was recorded on May 4, 2005 in the official records of Washoe County as document

number 3208651. A copy of the deed of trust is attached as Exhibit 1. Subsequently, on March

10, 2008, Aames Funding Corporation DBA Aames Home Loan assigned the deed of trust to



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Deutsche Bank National Trust Company as Trustee for Aames Mortgage Investment Trust 2005-

2. The assignment was recorded on May 9, 2008 as document number 3648603. A copy of the

assignment is attached as Exhibit 2. At all times, RCS was the servicer of the loan.

2. Thereafter, Plaintiffs defaulted on the above referenced loan. On April 18, 2008, a

substitution of trustee, dated March 10, 2008, was recorded as document number 3641716. The

substitution was signed by Deutsche Bank National Trust Company as Trustee for Aames

Mortgage Investment Trust 2005-2 and appointed QLS as the foreclosure trustee. A copy of this

document is attached as Exhibit 3. Quality then commenced a foreclosure by recording a notice

of default and election to sell on March 12, 2008 as document number 3629741. A copy of the

notice of default is attached as Exhibit 4. Quality next recorded a notice of sale on June 19, 2008

as document number 3661497. A copy is attached as Exhibit 5.

3. Plaintiffs filed this action on July 8, 2008. The foreclosure was never completed.

Defendants previously filed a Motion to Dismiss or in the alternative Motion for Summary

Judgment. Before this Motion could be heard Plaintiffs’ attorney withdrew from the case and a

notice of bankruptcy filing and automatic stay was filed by Aames Funding Corporation DBA

Aames Home Loan staying further action in this case. Defendants then moved for an order

lifting the stay and on June 18, 2010 an Order was entered in the United States Bankruptcy Court

for the District of Delaware lifting the stay. A copy of the Order is attached as Exhibit 6.

All exhibits referenced herein are attached to this Motion. Quality respectfully requests

judicial notice of the deed of trust, as well as the other exhibits. Under Federal Rule of Evidence

201, a court may judicially notice matters of public record. Mack v. S. Bay Beer Distrib., 798

F.2d 1279, 1282 (9th Cir. 1986). All exhibits hereto should be judicially noticed because they are

a public record in the Washoe County Recorder's office.

4. Plaintiffs have not raised any material facts which would preclude entry of summary

judgment in favor of Defendants.



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LEGAL ARGUMENT

Summary Judgment is appropriate and is authorized by NRCP 56 when no genuine issue

remains for trial.1 Summary Judgment is available to resolve issue of law where the facts are not

in dispute.2

Nevada Rule of Civil Procedure 56 (b) allows a defending party to move the Court for

Summary Judgment at any time.3 Summary Judgment is appropriate when the moving Party is

entitled to judgment as a matter of law, and there are no genuine issues remaining for trial.

Shepard v. Harrison, 100 Nev. 178 (1984). The purpose of Summary Judgment is to avoid

unnecessary trials when they would serve no useful purpose, because there is no real dispute

about the facts of the case. Short v. Hotel Riviera, Inc., 79 Nev. 94 (1963). The Summary

Judgment procedure is not to decide any issue of fact which may be presented, but to discover if

any real issue of fact exists. Dougherty v. Wabash Life Ins. Co., 87 Nev. 32 (1971). The

function of the Summary Judgment proceeding is not to test the legal sufficiency of the

complaint to state a claim. Force v. Peccole, 74 Nev. 64, (1958). Rather, it is to pierce the

pleadings and to test whether, under the uncontroverted facts, one party is entitled to judgment

as a matter of law. Nev.R.Civ.P. 56(c). The moving party bears the initial burden of establishing

the nonexistence of any genuine issue of material fact. Pacific Pools Constr. Co. v. McClain’s

Concrete, Inc. 101 Nev. 557 (1985).

Once the moving party has met its burden, an adverse party may not rest upon the mere

allegations or denials of the adverse party’s pleadings, but the adverse party’s response, by

1 Shepar d v. Har r i son 100 Nev. 178, 678 P. 2d 670 (1984) ; Paci f i c Pool Const r .Co. v. McCl ai n’ s Concr et e, I nc. 101 Nev. 557, 706 P. 2d. 849 ( 1985) .2 Mol i no v. Asher 96 Nev. 814, 618 P. 2d 878 ( 1980) .

3 Cummi ngs v. Ci t y of Las Vegas Mun. Corp. 88 Nev. 479, 499 P. 2d. 650 ( 1972) .



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affidavits or as otherwise provided in this rule, must set forth specific facts demonstrating the

existence of a genuine issue for trial. Nev.R.Civ.P.56(e). When this rule speaks of a "genuine"

issue of material fact, it does so with the adversary system in mind. The word "genuine" has

moral overtones; it does not mean a fabricated issue. Aldabe v. Adams, 81 Nev. 280, 402 P.2d 34(1965). In addition, the adverse party must come forward with documentation admissible in

evidence in the form of specific facts to show the existence of a genuine issue of material fact;

otherwise the court is required to enter judgment according to the law. Nev.R.Civ.P.56(e);

Posadas v. City of Reno, 109 Nev. 448, 452 (1991). Conclusory statements along with general

allegations do not create an issue of material fact. Michaels v. Sudeck, 107 Nev.332 (1991). Not

only must the party opposing the motion set forth specific evidence, that evidence must be

admissible as well. Posadas v. City of Reno, 109 Nev. 448, 452 (1991). The opposing party is

not entitled to build a case on the gossamer threads of whimsy, speculation and conjecture.

Collins v. Union Fed. Sav. & Loan Ass'n, 99 Nev. 284, 662 P.2d 610 (1983).

PLAINTIFFS FAIL TO STATE ANY VIABLE CAUSE OF ACTION AGAINST

MOVING DEFENDANTS AND AS SUCH SUMMARY JUDGMENT IS APPOPRIATE.

A. The First Claim for Unfair Lending Practices Cannot be Stated Against Answering

Defendants

Plaintiffs’ first claim apparently asserts three causes of action: negligence, unfair

lending practices under NRS 598D. Plaintiffs’ Complaint does mention a possible claim for

negligence but only that “each of the Defendants designated herein as DOE is negligent or

responsible in some manner for the events herein” and does not allege that RCS or QLS were

negligent.4 In fact, virtually all of the allegations are made against Aames and concern matter

occurring at the time the loan was originated. Plaintiffs’ Complaint contains no allegations of

unfair lending practices by QLS. No particular misrepresentation by RCS is alleged with

4 Cplt. ¶ 2.



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specificity or otherwise. Plaintiffs only allege against RCS that when they contacted Aames and

RCS to refinance, “Defendants AAMES and/or RESIDENTAL offered to provide them with

false or fraudulent W2 Forms in order to meet financial requirements. CARPENTIER declined

to participate in loan fraud.”5 The Complaint fails to allege the who, what, where, and when,

and how as to any affirmative conduct by RCS.

B. NRS 598D and Deceptive Trade Practices

a. NRS 598D is inapplicable to this loan

The general rule is that is that statutes are prospective only; unless it clearly, strongly,

and imperatively appears from the act itself that the legislature intended the statute to be

retrospective in its operation. See, e.g, State Ex Rel. Progress v. Court , 53 Nev. 386, 2 P.2d

129 (1931).6 No such retroactive intent appears in the amendments to NRS 598D.100(1)(b).

Nor does any retroactive intent appear in the plain language of the statute, itself. It is a long

recognized tenet of statutory construction that "when the language of a statute is plain and

unambiguous, a court should give that language its ordinary meaning and not go beyond it." 7

The language of NRS 598D.100(1)(b) states as follows:

It is an unfair lending practice for a lender to: …. (b) Knowingly orintentionally make a home loan, other than a reverse mortgage, to a borrower, including, without limitation, a low-document home loan, no-document home loan or stated-document home loan, without determining,using any commercially reasonable means or mechanism, that the borrowerhas the ability to repay the home loan…..

Said language requiring using a commercially reasonable means of verifying repayment

was added in 2007 and made effective October 2007. It is impossible for any lender originating

a loan prior to have violated NRS 598D.100(1)(b) as the statutory requirement did not exist until

then. As such NRS 598D.100 (1)(b) is inapplicable to the case at bar. NRS 598D is inapplicable

5 Cplt.¶ 17. 6 Quoting from, Eggleston v. Costello ( In re Estate of Thomas), 116 Nev. 492 (2000) 7 City of Henderson v. Kilgore, 131 P.3d 11 (2006) quoting from City Council of Reno v. Reno Newspapers 105 Nev. 886, 891 (1989)



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because the statute relates to matters occurring at or before the origination of a loan. Here, the

loan was originated in April, 2005, long before the legislature adopted the current form of NRS

598D. NRS 598D is simply inapplicable.

b. There is no successor liability under NRS 598D

Plaintiffs have also failed to provide this Court with any basis to conclude that NRS

598D allows for successor liability. NRS 598D.100 clearly states that "it is an unfair lending

practice for a lender to . . . knowingly or intentionally make a home loan to a borrower . . . "

NRS 598D. 100(b) (2003) (emphases added). Here, the Complaint shows that Aames was the

original lender, and thus NRS 598D.100 is not applicable to Defendants. Furthermore, there is no

legal authority to conclude that NRS 598D.100 allows for successor liability, similar to TILA

claims. As a result, Plaintiffs have no basis to allege a claim based on NRS 598D.100 against

Defendants.

c. Plaintiffs’ claims under NRS 598D.100 are time barred

NRS 598D.110 provides that a lender is liable for treble damages for willfully engaging

in unfair lending practices. NRS 598D.110. The title of this section specifically states "criminal

and civil penalties". NRS 11.190(4)(b) imposes a two-year statute of limitations for "[a]n action

upon a statute for a penalty or forfeiture, where the action is given to a person or the state, or

both, except when the statute imposing it prescribes a different limitation." NRS 11.190(4)(b);

Edwards v. Emperor 's Garden Restaurant, 122 Nev. 317, 327-28, 130 P.3d 1280, 1286-87

(2006).

In the case at bar, it is undisputed that Plaintiffs’ claim against Defendants was not filed

until July, 2008, which is more than two years after the loan was originated in April, 2005.

Dismissal of Plaintiffs’ claims will be appropriate, as the facts alleged by Plaintiffs establish that

the applicable statute of limitations for this type of action bar recovery. Bank of Nevada v.



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Friedman, 82 Nev. 417, 422, 420 P.2d 1, 4 (1966) ("When the complaint shows on its face that

the cause of action is barred, the burden falls upon the plaintiff to satisfy the court that the bar

does not exist.").

The Second Claim for Temporary Restraining Order, Preliminary Injunction, and

Permanent Injunction Cannot be Stated Against Answering Defendants

Plaintiffs’ second claim does not state a cause of action; it only asserts that

“CARPENTIER is entitled to a temporary restraining order, preliminary injunction and

permanent injunction precluding Defendants from conducting a foreclosure sale of the

PROPERTY.”8 The complaint must be dismissed because injunctive relief is not an independent

claim. Injunctive relief is a remedy, not a cause of action. See, e.g., In re Wal-Mart Wage &

Hour Employment Practices Litig., 490 F. Supp. 2d 1091, 1130 (D. Nev. 2007) (claim for

injunctive relief is not a separate cause of action); see also Mamo v. BP P.L.C ., No. 05-1323,

2006 WL 269056, at *3 (E.D. Va. Jan. 30, 2006) (same); Noah v. Enesco Corp., 911 F. Supp.

305, 307 (N.D. Ill. 1995) (injunctive relief is a remedy, not an independent cause of action).

Since the first cause of action fails to state a viable claim, the remaining claim for injunctive

relief likewise fails.

CONCLUSION

Accordingly, for all the foregoing reasons, Defendants pray that the Court grant the

Motion for Summary Judgment.

Respectfully submitted:

Dated: 6/23/2010

/s/ Christopher M. Hunter Christopher M. Hunter, Esq.

8 Cplt.¶ 27.



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LIST OF EXHIBITS

1. DEED OF TRUST

2. ASSIGNMENT OF DEED OF TRUST

3. SUBSTITUTION OF TRUSTEE

4. NOTICE OF DEFAULT

5. NOTICE OF SALE

6. ORDER LIFTING SALE



x

June 23, 2010 /s/Christopher M. Hunter

C r stop er M. Hunter, Esq. NSBN 1

Residential Credit Solutions & Quality

Loan Servic Corporation

Defendants' Residential Credit Solutions,Inc. and Quality Loan Service

Corporation's Motion for Summary Judgment



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CERTIFICATE OF MAILING

I hereby certify that on the 23rd day of June, 2010, a true and correct copy of the

foregoing DEFENDANTS’ RESIDENTIAL CREDIT SOLUTIONS, INC. AND

QUALITYLOAN SERVICE CORPORATION’S MOTION FOR SUMMARY JUDGMENT

was forwarded by United States Mail, postage prepaid to the addresses listed below.

Eric B. Zimbelman, Esq.3333 E. Serene Ave., Suite 200Henderson, NV 89074

James and Joan Carpentier2873 Sunny Slope Dr.Sparks, NV 89434

/s/Ellen McAbee _____________________ An Employee of McCarthy & Holthus, LLP



EXHIBIT 2

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EXHIBIT 3

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EXHIBIT 4

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EXHIBIT “2”

EXHIBIT “ 2”

EXHIBIT

xxxxxxxxxx



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EXHIBIT 6

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EXHIBIT



CASE NO. CV08-01709 J. CARPENTIER et al. vs. AAMES FUNDING CORP et al.

DATE, JUDGEOFFICERS OFCOURT PRESENT APPEARANCES-HEARING ______________3/19/09HONORABLEPATRICKFLANAGANDEPT. NO. 7

K. OatesClerk)S. KoettingReporter)

STATUS HEARINGPlaintiff Joan Carpentier was present in Court, acting In Proper Persona.Eric Zimbelman, Esq., and Kristin Schuler-Hintz were present in Court via telephone, behalf of Defendants.1:06 p.m. – Court convened with Court, counsel and Plaintiff present.

The Plaintiff addressed and advised the Court that she has contacted the State Bar foreferral to an attorney, and was told she would have difficulty getting an attorney for thmatter, and further, the Plaintiff advised she spoke to Bob Hager, Esq., and he isreviewing her case.The Court advised that the trial will proceed as scheduled, and required nothing furtheat this time.1:14 p.m. – Court stood in recess.






EMERGENCY MOTION FOR TRO/INJUNCTION; or PLED IN THEALTERNATIVE; MOTION TO SET ASIDE ORDER GRANTING SUMMARY

JUDGMENT

Nevada is one of the Western States of the US that are Non-Judicial States. In these

states, foreclosures are governed by State Civil Code. These homeoners have it the

toughest being in a non-!udicial state, "enders need not #rove anything, some might say,

but it seems #retty clear they at least N$$% T& S$N% T'$ (&TI&N )&*

SU((+* JU%($NT T& S&($&N$ &T'$* T'+N +N +TT&*N$ W'&

'+% *$/I&US" 0$$N *+NT$% +N &*%$* +""&WIN 'IS

EMERGENCY MOTION FOR TRO/INJUNCTION; or PLED IN THE ALTERNATIVE; MOTION TO SET ASIDE ORDER GRANTING SUMMARY

JUDGMENT 1

2%ocument Code34ach Coughlin, $s5. N/ 0ar No3 678917:: $. 6th St. ;:*eno, N/ <6=>1Tele3 88=-::6-?898)a@3 676-??8-87>:

ro #er +##ellant4achCoughlinAhotmail.com+ttorney for Joni and James Car#entier

J+($S C+*$NTI$*, $T +",laintiff

v.

++($S )UN%IN C&* $T+",%efendant

Case No3 C/><->18>6%e#t No3 8

EMERGENCY MOTION FORTRO/INJUNCTION; or PLED IN THEALTERNATIVE; MOTION TO SETASIDE ORDER GRANTINGSUMMARY JUDGMENT

IN T'$ S$C&N% JU%ICI+" %IST*ICT C&U*T &) T'$ST+T$ &) N$/+%+ IN +N% )&*

T'$ C&UNT &) W+S'&$


12-31-2011:04:45:40 PMCraig Franden

Clerk of the Court




WIT'%*+W+" )*&( T'IS (+TT$* B+N% %& "I$WIS$ )&* T'$ +%%*$SS

"IST$% IN T'$ C*$%IT&* (+T*ID IN T'$ %$"+W+*$ 0+N*UTC

T'+T ST+$% T'IS (+TT$* )&* &/$* &N$ $+*E, T'+T T'$ N$$% T&

UT T'$ C&**$CT C+S$ NU(0$* +N% C&U*T IN T'$ C+TI&N )&*

SUC' "$+%INS, $TC., $TC W'I"$ S&($ (+ C*ITICI4$ T'$

UN%$*SIN$% W&* IN T'$ )I"IN, CITIN T& )&*(+TTIN ISSU$S,

$TC., N& &T'$* +TT&*N$ W&*IN &N T'IS C+S$, ++*$NT",

%ISC&/$*$% T'$ )+CTU+" ISSU$S *$"+T$% T& %$)ICI$NCI$S IN T'$

N&TIC$FS$*/IC$F%U$ *&C$SS ISSU$ W*&U'T 0 T'$ )+I"U*S &)

&&SIN C&UNS$" T& +*&*I+T$" +%%*$SS T'$I* *&&)S &)

S$*/IC$FUT T'$ C&**$CT IN)&*(+TI&N IN T'$ C+S$ C+TI&NF"IST

T'$ C&**$CT +%%*$SS IN T'$ %$"+W+*$ 0 C*$%IT&* (+T*ID....

C&($ N&W, laintiffs J+($S S. C+*$NTI$* and J&+N $.

C+*$NTI$*, by and through their attorney, 4ach Coughlin, $s5, and asGs this

court to #ut on ice the Trustee Sale allegedly set for )ebruary =th, :>11 via an

in!unction. &n July 1=, :>11 a Notice of $ntry of &rder as entered in the courtHs

docGet shoing an &rder granting *$SI%$NTI+" C*$%IT S&"UTI&NS INC,

+N% U+"IT "&+N S$*/IC$ C&*&*+TI&NHS (&TI&N )&* SU((+*

JU%($NT. Counsel Coughlin admits at the outset that this motion is somehat

thron together in a rush, due largely to an allegedly rongful summary eviction

from the undersignedHs la office, based on a No Cause $viction notice and

involving a commercial lease, even though N*S 7>.:=9 bars the use of summary

eviction #roceedings in such circumstances, and here, even if the *eno Justice

Court found Coughlin as a residential tenant, it denied Coughlin the stay, hich

ould seem one of the automatic variety, accorded to residential tenants ith a

monthly rental value under 21,>>> #ursuant to N*S 7>.9<=. To com#ound the


JUDGMENT :



obstacles, o##osing counsel in that eviction matter *ev:>11->>18>< is a##ly hat

the undersigned feels is an unlaful rent distraint u#on clientHs files and #ersonal

#ro#erty, including materials and e5ui#ment essential to CoughlinHs #ractice of la.

To that e@tent, Coughlin has herein cited to )ederal authority for basic things, such as

the standard for a (otion for *econsideration Band barely, if any tolling authority to

get #ast the :> day re5uirement of W%C* 19B8E and *ule 1: is included herein,

hoever, Coughlin commits to curing such deficiencies in short order and to maGe

great efforts not to #re!udice o##osing counsel ith unsu##orted argument or

allegations hilst still ealously #rotecting his clients rights. This is easier said than

done given the the inordinately ve@atious conduct the undersigned has been sub!ected

to lately incident to a rongful eviction stemming from a Commercial "ease here

non-#ayment of rent as not alleged, yet a Summary $viction roceeding tooG #lace

anyay, and to to# it off, a rent escro de#osit as forced u#on the undersigned to

the tune of 2:,:8? in the middle of the Summary $viction roceeding, in direct

violation of N*S 7>.:=9B?E, and JC*C <9. I in #re#aring this filing and in relation

to the date of the TrusteeHs sale, set for %ecember :1, :>11 Bo##osing counsel

Schuler-'int did send an email to the undersigned late in the night of %ecember 1<,

:>11, asserting that the Trustee Sale has been #ost#oned again to early )ebruary,

:>1:, and, not to im#ugn (s. Schuler-'int credibility, nor that of (r. 4imbleman,

but there does seem to be authority to suggest that Trustee Sales and the attendant

scheduling changes, es#ecially those not reduced to a ritten sti#ulation, are a very

hard thing to #in don and that verbal or email assertions by the Trustee or banGs

re#resentatives or counsel are largely not something one can legally rely u#onE. This

is the second time the undersigned has sent o##osing counsel some eleventh hour


JUDGMENT 9



corres#ondence, only to me told, basically, Koh, the sale as moved a cou#le days

agoL des#ite the fact that neither the undersigned or either of his clients Bthe timing of

hose divorce dovetailed 5uite nicely ith this foreclosure matterE as $/$*

informed of either of these #ost#onements of the scheduled TrusteeHs Sales and here

the undersigned has no reason to believe that these sales are being #ost#oned for any

reason other than the undersignedHs s5uaGing, and here o##osing counsel has

continually failed to #rovide any #roof that these #ost#onements occurred #rior to

said s5uaGing Bthe undersigned does recognie that it is #ossible that such

#ost#onements are a matter of the #ublic record and that such a hunch by the

undersigned might be !ust #lain rongE. 'oever, a collection of materials and

notices from the Washoe County *ecorderHs *ecords available online hich indicate

that they Trustee Sale that as a##arently scheduled for %ecember :1, :>11 as not

recorded, and some of the notices and recordings in this matter seem sus#ect ith

res#ect to the date they ere filed versus the date of service indicated on them, etc.,

etc., much liGe the #leadings in the instant case.

The undersigned hereby re5uires the trustee to verify a com#rehensive list of

issues related to the legal nature of the foreclosure #roceedings enacted by the lender,

hich as a by#roduct, Car#entier as homeoner still retains full onershi# of the

#ro#erty and lives there. The Trustee assumes the liability in auctioning the #ro#erty,

and should not foreclose on the #ro#erty if there is a #otential violation #ointed out

to them #rior to the +uction Sale %ate as they could face sanctions and ultimately

lose their license. To that end, the undersigned seeGs a definite e@tension of time to

verify these matters Band the overcome the deleterious effect rought on the

undersigned life and la #ractice by the rongful eviction and alleged a##lication of


JUDGMENT 7



an unlaful rent distraint and other bad faith conduct by the defendant and his

counsel in *eno Justice Court case *ev:>11->>18><. While Trustees are incredibly

busy and generating huge #rofits and often continually #ost#one the sale date to

#rovide themselves ade5uate time to research and res#ond to the issues raised by the

undersigned to #rotect themselves, such has not been reduced to a ritten sti#ulation,

as such this filing is necessary.

$@hibit 9 s#eaGs to some of the enormous obstacles the undersigned has faced

in litigating this matter, including the e@tremely bad faith conduct of the o##osing

attorneyHs and landlord in the Summary $viction from the undersignedHs commercial

tenancy, his home la office in *JC *ev:>11->>18><.

However, as Mr !"#$e%#a& 'rov"(e(, )*e A'r"% +- .a&r0')12 3"%"&4

"& De%aware $2 !"#$e%#a&5s 1%"e&) %"s)e(, "& )*e Cre(")or Ma)r"6, a 7Cre(")or

No)"1e Na#e8 o3 9a%s*, .aer, : Rosevear, )*e Car'e&)"ers )*e& 3or#er

a))or&e2, as Ja#es 9a%s*5s Mo)"o& )o 9")*(raw as Co0&se% *a( $ee& 4ra&)e(

$2 )*"s 1o0r) O& Ja&0ar2 ++, +-, w")* 9a%s* 3"%"&4 a No)"1e o3 E&)r2 o3 )*a)

Or(er o& Ja&0ar2 +, +-, "& '%e&)2 o3 )"#e 3or !"#$e%#a&5s 1%"e&) )o 0'(a)e

)*e 7Cre(")or No)"1e Na#e8 a&( a((ress )o re3%e1) )*e 3a1) )*a) 9a%s* was &o)

a))or&e2 o3 re1or( 3ro )*e Car'e&)"ers a&2#ore, a&( )*a) )*ose &o)"1es s*o0%(

*ave $ee& se&) ("re1)%2 )o )*e Car'e&)"ers

Indeed, (r. 4imbelmanHs C$*TI)IC+T$ &) S$*/IC$ ursuant to N*C =BbE, for his

(ay 16, :>>6 filing of N&TIC$ &) 0+N*UTC )I"IN +N% +UT&(+TIC ST+

reads3 KI certify that I am an em#loyee of $$" 0*I("$ "" and that on this 16th day of

(ay, :>>6 I caused the above and foregoing document entitled N&TIC$ &)

0+N*UTC )I"IN +N% +UT&(+TIC ST+ to be served as follos3 @ by #lacing

same to be de#osited for mailing in the United States (ail, in a sealed envelo#e u#on hich


JUDGMENT =



first class #ostage as #re#aid in "as /egas, NevadaM andFor @ to be sent via facsimileM to

the #artyBiesE andFor attorneyBsE listed belo at the address andFor facsimile number

indicated belo3

Ja#es M 9a%s*, Es<

9a%s*, .aer : Rosevear, PC

-=> Do0$%e R .%v( S0")e ARe&o, Neva(a >-?+@

A))or&e2s 3or Ja#es S Car'e&)"er a&( Joa& E Car'e&)"er

F0r)*er, Ms S1*0%erH"&)B 3a"%e( )o res'o&( a''ro'r"a)e%2 )o )*e Or(er Gra&)"&4

9a%s*5s 9")*(rawa% as A))or&e2 o3 Re1or(, a&( )*e s0$se<0e&) No)"1e o3 E&)r2 o3

)*a) Or(er o& Ja&0ar2 +, +- H"&)B5 Mo)"o& )o D"s#"ss or "& )*e A%)er&a)"ve For

S0##ar2 J0(4#e&) %"s)e( 9a%s* 3or )*e Proo3 o3 Serv"1e as we%% 7 I *ere$2 1er)"32

)*a) o& )*e =)* (a2 o3 J0&e a )r0e a&( 1orre1) 1o'2 o3 DEFENDANT5s

RESIDENTIAL CREDIT SOLUTIONS, INC, AND UALITY LOAN SERVICE

CORPORATION5S MOTION TO DISMISS OR IN THE ALTERNATIVE FOR

SUMMARY JUDGMENT was 3orwar(e( $2 US Ma"% w")* 'os)a4e 're'a"( )o )*e

a((resses %"s)e( $e%ow

Ja#es M 9a%s*

9a%s*, .aer : Rosevear

-=> Do0$%e R .%v( S0")e A

Re&o, Neva(a >-?+@ A))or&e2 3or P%a"&)"33

F0r)*er, )*e 1a')"o& o& Ms H"&)B Mo)"o& "&("1a)es )*e 1ase "s "& De'ar)#e&) =,

(es'")e )*e 3a1) )*a) '# Fe$r0ar2 @@, +-, a Case Ass"4&#e&) No)"3"1a)"o& E&)r2 was

e&)ere( "& )*e (o1e) 3or )*"s 1ase CV>@-, "&("1a)"&4 )*"s CASE REASSIGNED

TO DEPARTMENT FROM DEPARTMENT = PER ADMINISTRATIVE ORDER

T*e&, 3or so#e reaso& )*a) "s &o) <0")e 1%ear, (es'")e *"s 1o 1o0&se% S1*0%erH"&)B

*av"&4 3"%e( a Mo)"o& 3or S0##ar2 J0(4#e&) o& J0&e =)*, +- "& )*e Se1o&( J0("1"a%

D"s)r"1) Co0r) 3or 9as*oe Co0&)2 "& )*"s a1)"o&, CV>@-, C*r"s)o'er H0&)er,

Es< F"%e( a so#ew*a) s"#"%ar Mo)"o& 3or S0##ar2 J0(4#e&) "& CV-@-, $o%(

e#'*as"s a((e( "& a Mo)"o& w*"1* $ears a 3ro&) 'a4e *ea("&4, a$ove )*e 1a')"o&,


JUDGMENT ?



)*a) rea(s

7DISTRICT COURT

CLAR COUNTY, NEVADA8

F0r)*er, )*e 1a')"o& o& Mr H0&)er5s J0&e +r(, +@, Mo)"o& For S0##ar2

J0(4#e&) "&("1a)es )*e 1ase "s "& De'ar)#e&) =, (es'")e )*e 3a1) )*a) Fe$r0ar2 @@,

+-, a Case Ass"4&#e&) No)"3"1a)"o& E&)r2 was e&)ere( "& )*e (o1e) 3or )*"s 1ase

CV>@- #01* %ess )*e 304")"ve or 3"1)")"o0s 1ase CV-@- )*a) Mr H0&)er

%"s)e( "& )*e Ca')"o&, "& a C%ar Co0&)2 D"s)r"1) Co0r) 1ase 3"%e( "& 9as*oe Co0&)2,

"&("1a)"&4 )*"s CASE REASSIGNED TO DEPARTMENT FROM DEPARTMENT

= PER ADMINISTRATIVE ORDER So, )*e Car'e&)"ers were $0r(e&e( w")* $o)*

a))or&e2s se&("&4 "#'or)a&) '%ea("&4s )o o&e w*o was &o %o&4er A))or&e2 o3 Re1or(

3or )*e Car'e&)"ers, (es'")e a No)"1e o3 E&)r2 o3 )*a) Or(er Gra&)"&4 9")*(rawa% o3

Ja#es 9a%s*, Es<, "& a((")"o& )o Mr H0&)er '0))"&4 )*e wro&4 1o0r) a&( )*e wro&4

1ase &0#$er o& a Mo)"o& 3or S0##ar2 J0(4#e&) )*a) wo0%( *ave &o&e)*e%ess

A4a"&, "& *"s A040s) ?, +- Cer)"3"1a)e o3 Serv"1e 3or *"s Mo)"o& 3or S0##ar2

J0(4#e&), Mr H0&)er '0)s "& )*e 1a')"o& )*e wro&4 1ase &0#$er a&( )*e wro&4

De'ar)#e&) &0#$er, %"s)"&4 CV-@- a&( De'ar)#e&) = w*ere CV>@- a&(

De'ar)#e&) s*o0%( $e F0r)*er, )*e J0&e -, +- No)"1e o3 Lo(4e#e&) was se&) )o

o&%2 !"#$e%#a& F0r)*er "& *er Cer)"3"1a)e o3 Serv"1e 3or )*a) No)"1e o3 Lo(4e#e&),

3"%e( se'ara)e%2 o& A040s) ?, +-, Ms H"&)B '0)s "& )*e 1a')"o& )*e wro&4 1ase

&0#$er a&( )*e wro&4 De'ar)#e&) &0#$er, %"s)"&4 CV-@- a&( De'ar)#e&) =

w*ere CV>@- a&( De'ar)#e&) s*o0%( $e I&)eres)"&4%2, E6*"$") )o H0&)er5s

J0&e +, +@ Mo)"o& 3or S0##ar2 J0(4#e&), w*"%e 1o&)a"&"&4 )*e )e6) o3 )*e

De%aware Co0r)5s Or(er re#ov"&4 )*e s)a2, (oes&5) 1o&)a"& )*e De%aware .a&r0')12

Co0r)5s Proo3 o3 Serv"1e 3or )*a) Or(er 0'o& )*e Car'e&)"ers

Ne6), o& J0%2 @+)*, +@ REUEST FOR SU.MISSION OF DEFENDANTS


JUDGMENT 8



RESIDENTIAL CREDIT SOLUTIONS , INC AND UALITY LOAN SERVICE

CORPORATIONS MOTION FOR SUMMARY JUDGMENT, H0&)er a4a"& '0)s

De'ar)#e&) = "& )*e 1ase 1a')"o& w*ere De'ar)#e&) s*o0%( $e

> F"&a%%2, o& J0%2 @?, +@@ )*"s Co0r) 4ra&)e( D"s)r"1) Co0r) R0%e @ 'rov"(es,

KFa"%0re o3 )*e o''os"&4 'ar)2 )o serve a&( 3"%e *"s wr"))e& o''os")"o& #a2 $e

1o&s)r0e( as a& a(#"ss"o& )*a) )*e #o)"o& "s #er")or"o0s a&( a 1o&se&) )o 4ra&)"&4 )*e

sa#eK T*0s, "& )*"s 1ase, )*e 1o0r) 1o&s)r0es P%a"&)"33s5, JAMES S CARPENTIER

a&( JOAN E CARPENTIER, a&( De3e&(a&)s5, AAMES FUNDING

CORPORATION a&( 9INDSOR MANAGEMENT COMPANY5S 3a"%0re )o o''ose

De3e&(a&)s5 RCS a&( LS5s Mo)"o&/or S0##ar2 J0(4#e&) as a(#"ss"o& )*a) )*e

Mo)"o& "s #er")or"o0s8

T*e J0%2 @?, +@ No)"1e o3 E&)r2 o3 Or(er "&1orre1)%2 %"s) De'ar)#e&) = "&s)ea( o3

De'ar)#e&) "& )*e 1a')"o&

T*e 9as*oe Co0&)2 Re1or(er5s we$ s")e (oes &o) %"s) a No)"1e o3 Tr0s)ee

Sa%e 3or )*e a%%e4e( Tr0s)ee sa%e )*a) was se) )o )ae '%a1e o& De1e#$er +@s),

+@

FACTS

1. +t all times mentioned herein, laintiffs James S. Car#entier and Joan $.

Car#entier, hereinafter collectively referred to as KC+*$NTI$*,L are husband and

ife residing in the County of Washoe, State of Nevada.

:. %efendants, %&$S I through DD are fictitious namesM that laintiffs are

ignorant of the true names of the individuals, cor#orations, co-#artnershi#s, and

associations so designated by said fictitious names, and hen the true names are

discovered, laintiffs ill seeG leave to amend this Com#laint and #roceedings

herein to substitute the true name of said %efendants. laintiffs believe that each of

the %efendants designated herein as %&$ is negligent or res#onsible in some manner

for the events herein referred to and negligently, carelessly, recGlessly and in a


JUDGMENT <



manner that as grossly negligent and illful and anton, caused damages

#ro@imately thereby to the laintiffs as herein alleged.

9. +t all times mentioned herein, C+*$NTI$* is the oner of certain real

#ro#erty commonly Gnon as :<89 Sunny Slo#e %rive, S#arGs Nevada <6797,

Washoe County +ssessors arcel Number >9>->61-1:, hereinafter referred to as the

K*&$*T,L and more #articularly described as follo3

"&T ? &) "$WIS '&($S-S+*S N&. =-+, +CC&*%IN T& T'$ (+

T'$*$&), )I"$% IN T'$ &))IC$ &) T'$ C&UNT *$C&*%$* &)

W+S'&$ C&UNT, ST+T$ &) N$/+%+ &N JU"16, 168?, +S )I"$ N&.

718916 +N% +S T*+CT (+ N&. 1=<8.

7. &n or about (ay 7, :>>=, C+*$NTI$* had an e@isting mortgage

against the *&$*T in the a##ro@imate #rinci#al amount of 21=>,>>>.>>

=. &n or about (ay 7, :>>=, C+*$NTI$* as in default and in financial

trouble ith regard to the e@isting first %eed of Trust in that James S. Car#entier

became in!ured, as unable to orG, as receiving only orGmans com#ensation

#ayments, and Joan $. Car#entier at that time as unem#loyed.

?. &n or about (ay 7, :>>=, C+*$NTI$* as unable to meet their

current obligations under the first Note and %eed of Trust.

8. C+*$NTI$* received a mail solicitation to refinance their #ro#erty

from %efendant +ames )unding Cor#oration dba +ames 'ome "oan, hereinafter

referred to as K++($S.L

<. C+*$NTI$* contacted %efendant ++($S, ++($S did re#resent to

them that ++($S could cure their financial troubles by refinancing the e@isting first

obligation on the *&$*, that they ould 5ualify for such a loan, and that they

ould generate sufficient funds to meet their obligations even though Joan $.

Car#entier as unem#loyed and James S. Car#entier received only disability income.


JUDGMENT 6



6. In furtherance of the refinance, %efendant ++($S as re5uired to maGe

a loan a##lication. Said loan a##lication as filled out by the re#resentatives by

%efendant ++($S and intentionally misstated the income of C+*$NTI$* to be

in e@cess of 2?,>>>.>> #er month.

1>. The true fact as C+*$NTI$* received only 2:7>>.>> #er month, and

the true fact as Gnon to %efendant ++($S.

11. %efendant ++($S made a loan to C+*$NTI$* in the amount of

218>,<>>.>>.

1:. The loan made by %efendant ++($S as an ad!ustable rate hich

ould re5uire #ayments in e@cess of 217>>.>> #er month.

19. +t the time of maGing the loan and filling out the loan a##lication by

%efendant ++($S, %efendant ++($S made the loan ithout determining or using

any commercially reasonable means or mechanism to determine C+*$NTI$*s

ability to re#ay the loan and in fact Gne or should have Gnon that C+*$NTI$*

did not have the ability to re#ay the loan.

17. The 218>,<>>.>> loan closed on or about (ay 7, :>>=, and, on or about

that date, C+*$NTI$* did maGe, e@ecute and deliver a %eed of Trust securing

re#ayment of the ne loan. Said %eed of Trust having been given to %efendant

Windsor (anagement Co., a California cor#oration, as Trustee by James S.

Car#entier and Joan $. Car#entier, husband and ife as !oint tenants, as Trustors in

favor of %efendant +ames )unding Cor#oration dba +ames 'ome "oan, as

0eneficiary. Said %eed of Trust as recorded (ay 7, :>>= as %ocument No.

9:><?=1, &fficial *ecords of Washoe County.

1=. Since the recordation of said %eed of Trust, C+*$NTI$* has been

unable to maGe all #ayments called for under the terms and conditions of the %eed of

Trust and romissory Note hich it secures and have made Gnon their inability to

#ay to %efendant ++($S.


JUDGMENT 1>



1?. %efendant ++($S has assigned the right to collect under the terms and

conditions of the romissory Note and the %eed of Trust to %efendant *esidential

Credit Solutions, Inc., hereinafter referred to as K*$SI%$NTI+",L as of (ay 91,

:>>8.

18. C+*$NTI$* has contacted %efendants ++($S and *$SI%$NTI+"

in an attem#t to again refinance but informed %efendants ++($S and

*$SI%$NTI+" of their inability to 5ualify, and %efendants ++($S andFor

*$SI%$NTI+" offered to #rovide them ith false and fraudulent W: )orms in order

to meet financial re5uirements. C+*$NTI$* declined to #artici#ate in this loan

fraud.

1<. +s a direct result of C+*$NTI$*s inability to maGe #ayments calledfor under the refinanced loan, uality "oan Service Cor# on behalf of %efendant

*$SI%$NTI+" and on further behalf of %efendant ++($S did record a Notice of

0reach and %efault and of $lection to Cause Sale of *eal ro#erty Under %eed of

Trust on (arch 1:, :>>< as %ocument No. 9?:6871, &fficial *ecords of Washoe

County.

16. Subse5uent to the recordation of the Notice of 0reach and %efault,

%efendant ++($S has recorded a Notice of Trustees Sale scheduling sale on the

*&$*T for July 6, :>>< at the hour of 113>>am at the County Court 'ouse

located at /irginia Street and Court Street in the City of *eno. The Notice of

Trustees Sale as recorded June 16, :>>< as %ocument No. 9??1768, &fficial

*ecords of Washoe County.

:>. The actions of %efendant ++($S in failing to maGe a determination of

C+*$NTI$*s ability to re#ay the loan and inducing them to enter into said loan

constitutes an unfair lending #ractice #ursuant to the #rovisions of N*S =6<%.1>>.

:1. C+*$NTI$* has been damaged as a direct and #ro@imate result of

unfair lending #ractices of %efendants ++($S and *$SI%$NTI+", and


JUDGMENT 11



C+*$NTI$* is entitled to damages and treble damages #ursuant to the #rovisions

of N*S =6<%.11>.

::. C+*$NTI$* is entitled to their attorney fees #ursuant to the #rovisions

of N*S =6<%.11>B:EBbE.

:9. C+*$NTI$* is further entitled to an offset against all sums oed under

the romissory Note secured by the %eed of Trust as herein alleged #ursuant to the

#rovisions of N*S =6<%.11>B9E.

:7. C+*$NTI$* is further entitled to have this court cure any e@isting

default of the home loan and cancel the #ending foreclosure and Trustees Sale

#ursuant to the #rovisions of N*S =6<%.11>B9E.

:=. 1laintiffs incor#orate herein by this reference all #a#ers and #leadings on

file in this action.

:?. +s a direct and #ro@imate result of the actions of %efendants ++($S

and *$SI%$NTI+", C+*$NTI$* is in danger of loosing their interest in uni5ue

real #ro#erty by virtue of the foreclosure sale.

:8. C+*$NTI$* is entitled to a tem#orary restraining order, #reliminary

in!unction and #ermanent in!unction #recluding %efendants from conducting a

foreclosure sale of the *&$*T.

:<. C+*$NTI$* lacGs ade5uate remedy of la due to the uni5ue character

of their interest in real estate.

:6. C+*$NTI$* received a Notice of Sale indicating that their lender ould

sell their home at auction on &ctober :1, :>11, folloing their default in their

mortgage #ayments. The home remains occu#ied by the title oner. The Notice of

Sale did not give Joni or James Car#entier the re5uisite notice of the date of the

foreclosure sale. ursuant to N*S 1>8.><>, the foreclosure trustee must record a

Notice of Sale and give notice of the time and #lace of the sale by B1E #ersonally


JUDGMENT 1:



serving or mailing the notice by registered or certified mail to homeoner and others

Oentitled to noticeOM B:E #osting the notice in a #ublic #lace here the #ro#erty is

located for :> successive daysM B9E #ublishing a co#y of the notice 9 times Bonce a

eeG for three eeGsEM +N% B7E #osting the notice on the #ro#erty 1= days before the

sale date. The Notice of Sale as recorded on &ctober 9 ith a sale date of &ctober

:1. This is only an 1< day notice #eriod. This fails to com#ly ith at least section B:E

above, and #erha#s section B7E should they fail to #ost the notice on the #ro#erty on

or before &ctober ?, de#ending u#on hether section B7E re5uires that action to occur

ithin 6> days or to occur only after the #assing of 6> days.

9>. The substitution of uality "oan Servicing as the foreclosure trustee as not

recorded. Under the %eed of Trust *ecorded on +#ril 1<, :>>=, Windsor

(anagement Co. as named as the Trustee. No document could be found ith the

*ecorderHs &ffice indicating any entity substituted uality "oan Servicing as the

foreclosure trustee under the %eed of Trust.

91. %efendantHs have substantially de#arted from the notice, manner of service,

and #rocess re5uirements of various la, including, but not limited to N*S 1>8.><>.

When in5uiry as made ith %efendantHs as to the basis, reasoning, and !ustifications

for the de#artures, laintiffHs ere told that Kits your ord against oursL and

otherise res#onded to in a hostile, aggressive, and dece#tive manner. (ore

discovery is in order in this regard.

+ However, as Mr !"#$e%#a& 'rov"(e(, )*e A'r"% +- .a&r0')12 3"%"&4 "&

De%aware $2 !"#$e%#a&5s 1%"e&) %"s)e(, "& )*e Cre(")or Ma)r"6, a 7Cre(")or No)"1e

Na#e8 o3 9a%s*, .aer, : Rosevear, )*e Car'e&)"ers )*e& 3or#er a))or&e2, as Ja#es

9a%s*5s Mo)"o& )o 9")*(raw as Co0&se% *a( $ee& 4ra&)e( $2 )*"s 1o0r) O& Ja&0ar2

++, +-, w")* 9a%s* 3"%"&4 a No)"1e o3 E&)r2 o3 )*a) Or(er o& Ja&0ar2 +, +-, "&

'%e&)2 o3 )"#e 3or !"#$e%#a&5s 1%"e&) )o 0'(a)e )*e 7Cre(")or No)"1e Na#e8 a&(

a((ress )o re3%e1) )*e 3a1) )*a) 9a%s* was &o) a))or&e2 o3 re1or( 3ro )*e Car'e&)"ers


JUDGMENT 19



a&2#ore, a&( )*a) )*ose &o)"1es s*o0%( *ave $ee& se&) ("re1)%2 )o )*e Car'e&)"ers

I&(ee(, Mr !"#$e%#a&5s CERTIFICATE OF SERVICE P0rs0a&) )o NRCP

?$, 3or *"s Ma2 @-, +- 3"%"&4 o3 NOTICE OF .ANRUPTCY FILING AND

AUTOMATIC STAY rea(s 7I 1er)"32 )*a) I a# a& e#'%o2ee o3 PEEL .RIMLEY

LLP a&( )*a) o& )*"s @-)* (a2 o3 Ma2, +- I 1a0se( )*e a$ove a&( 3ore4o"&4

(o10#e&) e&)")%e( NOTICE OF .ANRUPTCY FILING AND AUTOMATIC STAY

)o $e serve( as 3o%%ows 6 $2 '%a1"&4 sa#e )o $e (e'os")e( 3or #a"%"&4 "& )*e U&")e(

S)a)es Ma"%, "& a sea%e( e&ve%o'e 0'o& w*"1* 3"rs) 1%ass 'os)a4e was 're'a"( "& Las

Ve4as, Neva(a; a&(/or 6 )o $e se&) v"a 3a1s"#"%e; )o )*e 'ar)2"es a&(/or a))or&e2s

%"s)e( $e%ow a) )*e a((ress a&(/or 3a1s"#"%e &0#$er "&("1a)e( $e%ow

Ja#es M 9a%s*, Es<

9a%s*, .aer : Rosevear, PC

-=> Do0$%e R .%v( S0")e ARe&o, Neva(a >-?+@

A))or&e2s 3or Ja#es S Car'e&)"er a&( Joa& E Car'e&)"er

= F0r)*er, Ms S1*0%erH"&)B 3a"%e( )o res'o&( a''ro'r"a)e%2 )o )*e Or(er

Gra&)"&4 9a%s*5s 9")*(rawa% as A))or&e2 o3 Re1or(, a&( )*e s0$se<0e&) No)"1e o3

E&)r2 o3 )*a) Or(er o& Ja&0ar2 +, +- H"&)B5 Mo)"o& )o D"s#"ss or "& )*e

A%)er&a)"ve For S0##ar2 J0(4#e&) %"s)e( 9a%s* 3or )*e Proo3 o3 Serv"1e as we%% 7 I

*ere$2 1er)"32 )*a) o& )*e =)* (a2 o3 J0&e a )r0e a&( 1orre1) 1o'2 o3 DEFENDANT5s

RESIDENTIAL CREDIT SOLUTIONS, INC, AND UALITY LOAN SERVICE

CORPORATION5S MOTION TO DISMISS OR IN THE ALTERNATIVE FOR

SUMMARY JUDGMENT was 3orwar(e( $2 US Ma"% w")* 'os)a4e 're'a"( )o )*e

a((resses %"s)e( $e%ow

Ja#es M 9a%s*

9a%s*, .aer : Rosevear

-=> Do0$%e R .%v( S0")e A

Re&o, Neva(a >-?+@ A))or&e2 3or P%a"&)"33

F0r)*er, )*e 1a')"o& o& Ms H"&)B Mo)"o& "&("1a)es )*e 1ase "s "& De'ar)#e&) =,

(es'")e )*e 3a1) )*a) '# Fe$r0ar2 @@, +-, a Case Ass"4&#e&) No)"3"1a)"o& E&)r2 was

e&)ere( "& )*e (o1e) 3or )*"s 1ase CV>@-, "&("1a)"&4 )*"s CASE REASSIGNED


JUDGMENT 17



TO DEPARTMENT FROM DEPARTMENT = PER ADMINISTRATIVE ORDER

? T*e&, 3or so#e reaso& )*a) "s &o) <0")e 1%ear, (es'")e *"s 1o 1o0&se% S1*0%er

H"&)B *av"&4 3"%e( a Mo)"o& 3or S0##ar2 J0(4#e&) o& J0&e =)*, +- "& )*e Se1o&(

J0("1"a% D"s)r"1) Co0r) 3or 9as*oe Co0&)2 "& )*"s a1)"o&, CV>@-, C*r"s)o'er

H0&)er, Es< F"%e( a so#ew*a) s"#"%ar Mo)"o& 3or S0##ar2 J0(4#e&) "& CV-

@-, $o%( e#'*as"s a((e( "& a Mo)"o& w*"1* $ears a 3ro&) 'a4e *ea("&4, a$ove )*e

1a')"o&, )*a) rea(s

7DISTRICT COURT

CLAR COUNTY, NEVADA8

F0r)*er, )*e 1a')"o& o& Mr H0&)er5s J0&e +r(, +@, Mo)"o& For S0##ar2

J0(4#e&) "&("1a)es )*e 1ase "s "& De'ar)#e&) =, (es'")e )*e 3a1) )*a) Fe$r0ar2 @@,

+-, a Case Ass"4&#e&) No)"3"1a)"o& E&)r2 was e&)ere( "& )*e (o1e) 3or )*"s 1ase

CV>@- #01* %ess )*e 304")"ve or 3"1)")"o0s 1ase CV-@- )*a) Mr H0&)er

%"s)e( "& )*e Ca')"o&, "& a C%ar Co0&)2 D"s)r"1) Co0r) 1ase 3"%e( "& 9as*oe Co0&)2,

"&("1a)"&4 )*"s CASE REASSIGNED TO DEPARTMENT FROM DEPARTMENT

= PER ADMINISTRATIVE ORDER So, )*e Car'e&)"ers were $0r(e&e( w")* $o)*

a))or&e2s se&("&4 "#'or)a&) '%ea("&4s )o o&e w*o was &o %o&4er A))or&e2 o3 Re1or(

3or )*e Car'e&)"ers, (es'")e a No)"1e o3 E&)r2 o3 )*a) Or(er Gra&)"&4 9")*(rawa% o3

Ja#es 9a%s*, Es<, "& a((")"o& )o Mr H0&)er '0))"&4 )*e wro&4 1o0r) a&( )*e wro&4

1ase &0#$er o& a Mo)"o& 3or S0##ar2 J0(4#e&) )*a) wo0%( *ave &o&e)*e%ess

A4a"&, "& *"s A040s) ?, +- Cer)"3"1a)e o3 Serv"1e 3or *"s Mo)"o& 3or S0##ar2

J0(4#e&), Mr H0&)er '0)s "& )*e 1a')"o& )*e wro&4 1ase &0#$er a&( )*e wro&4

De'ar)#e&) &0#$er, %"s)"&4 CV-@- a&( De'ar)#e&) = w*ere CV>@- a&(

De'ar)#e&) s*o0%( $e F0r)*er, )*e J0&e -, +- No)"1e o3 Lo(4e#e&) was se&) )o

o&%2 !"#$e%#a& F0r)*er "& *er Cer)"3"1a)e o3 Serv"1e 3or )*a) No)"1e o3 Lo(4e#e&),

3"%e( se'ara)e%2 o& A040s) ?, +-, Ms H"&)B '0)s "& )*e 1a')"o& )*e wro&4 1ase


JUDGMENT 1=



&0#$er a&( )*e wro&4 De'ar)#e&) &0#$er, %"s)"&4 CV-@- a&( De'ar)#e&) =

w*ere CV>@- a&( De'ar)#e&) s*o0%( $e I&)eres)"&4%2, E6*"$") )o H0&)er5s

J0&e +, +@ Mo)"o& 3or S0##ar2 J0(4#e&), w*"%e 1o&)a"&"&4 )*e )e6) o3 )*e

De%aware Co0r)5s Or(er re#ov"&4 )*e s)a2, (oes&5) 1o&)a"& )*e De%aware .a&r0')12

Co0r)5s Proo3 o3 Serv"1e 3or )*a) Or(er 0'o& )*e Car'e&)"ers

Ne6), o& J0%2 @+)*, +@ REUEST FOR SU.MISSION OF DEFENDANTS

RESIDENTIAL CREDIT SOLUTIONS , INC AND UALITY LOAN SERVICE

CORPORATIONS MOTION FOR SUMMARY JUDGMENT, H0&)er a4a"& '0)s

De'ar)#e&) = "& )*e 1ase 1a')"o& w*ere De'ar)#e&) s*o0%( $e

> F"&a%%2, o& J0%2 @?, +@@ )*"s Co0r) 4ra&)e( D"s)r"1) Co0r) R0%e @ 'rov"(es,

KFa"%0re o3 )*e o''os"&4 'ar)2 )o serve a&( 3"%e *"s wr"))e& o''os")"o& #a2 $e

1o&s)r0e( as a& a(#"ss"o& )*a) )*e #o)"o& "s #er")or"o0s a&( a 1o&se&) )o 4ra&)"&4 )*e

sa#eK T*0s, "& )*"s 1ase, )*e 1o0r) 1o&s)r0es P%a"&)"33s5, JAMES S CARPENTIER

a&( JOAN E CARPENTIER, a&( De3e&(a&)s5, AAMES FUNDING

CORPORATION a&( 9INDSOR MANAGEMENT COMPANY5S 3a"%0re )o o''ose

De3e&(a&)s5 RCS a&( LS5s Mo)"o&/or S0##ar2 J0(4#e&) as a(#"ss"o& )*a) )*e

Mo)"o& "s #er")or"o0s8

- T*e J0%2 @?, +@ No)"1e o3 E&)r2 o3 Or(er "&1orre1)%2 %"s) De'ar)#e&) = "&s)ea( o3

De'ar)#e&) "& )*e 1a')"o&

= T*e 9as*oe Co0&)2 Re1or(er5s we$ s")e (oes &o) %"s) a No)"1e o3

Tr0s)ee Sa%e 3or )*e a%%e4e( Tr0s)ee sa%e )*a) was se) )o )ae '%a1e o& De1e#$er +@s),

+@

II LA9 AND ARGUMENT

I. The &rder ranting Summary Judgment $ntered +gainst laintiff Should be

Set +side or /acated %ue to it being /oid )or "acG of Jurisdiction iven the Numberous %eficiencies in Service of $ssential leadings and Notices U#on thelaintiffs, $@cusable Neglect, )raud on The Court, an Intervening %ecision of the Nevada Su#reme Court, To of them, from July 8, :>11, and The &verly "ongassing of Time 0eteen No and the ranting of the Summary Judgment &rder.

The e@cusable neglect argument is 5uite strong given 'itn and 4imblemanHs


JUDGMENT 1?



continual failure to a##ro#riately address their roofHs of Service an or #ut the correct

case number or Court in the Ca#tion for im#ortant filings Bsuch as the (otion for

Summary JudgmentE. (ight be a voidness basis for Setting +side the &rder +s

Well, lacG of !urisdiction here im#ortant #leadings, such as the (otion for

Summary Judgment ere not a##ro#riately served or noticed, no 1<> limitations

#eriod under N*C ?>BbEB7E void basis for setting aside, further tolling arguments

and facts are #resent in this matter ith res#ect to the N*C ?>BbEB1-9E basis due to

the alleged failure of #revious attorney (ahan Bho a##arently never filed a notice of

a##earance des#ite getting a Nissan Dterra signed over to her, though, according to

Jim Car#entier, she did have her mother accom#any (r. Car#entier to former

attoreny WalshHs office to have it e@#lained to Car#entier that his case as a lost

cause by the attorney ho had ithdran from Car#entierHs case already. (ahan

a##arently failed to s#ot the deficiencies in serviceFnotice, addressing mailings to one

ho as no longer attorney of recordFlisting an inccorect address in the creditor

matri@, rong case numberFrong court in ca#tion, etc., etc. that the undersigned

s#otted. )urther, (r. Car#entier a##arenty had some dealings ith another attorney,

a Shan atterson, ho allegedly counseled (r. Car#entier, only to Kcall a friend of

his in the industryL for some in#ut, '&W$/$*, T'$ )*I$N% IN T'$ IN%UST*

JUST S& '+$N$% T& 0$ &&SIN C&UNS$" &N (*. C+*$NTI$*HS

C+S$, *ISTIN SC'U"$*-'INT4, hereu#on the KdiscoveryL of that

circumstance Band after, a##arently, a good deal of #erha#s #rivleged information

as relayed to o##osing counselE, (r. atterson informed (r. Car#entier that he as

needed to a#ologie to (r. Car#entier as he Kas afraid he had aaGened a slee#ing

giantL in light of his, a##arently, inadvertently contacting o##osing counsel in an

attem#t to seeG advice from a Kfriend in the industryL, hereu#on (r. attersonHs

contacting (s. 'int a##arently resulted in immediate aggressive action by 'int

against Car#entierHs interest in this matter Bostensibly the &ctober :>11 Trustee Sale

as set in #lace, ith a causal correlation evident ith res#ect to (r. attersonHs call


JUDGMENT 18



to o##osing counsel 'int. (aybe the Car#entierHs have some of these things rong,

and attorneyHs atterson and (ahan deserve an o##ortunity to rebut any allegation of

conduct that ould #rovide a N*C ?>BbE basis for setting aside the &rder ranting

Summary Judgment in this matter. )urther, the &rder granting Summary Judgment is

void given the lacG of !urisdiction #ossessed by this Court here so many essential

deficiencies e@ists in this matter related to the most #ertinent filings and notices

#ossible. There is, a##arently, some indication that the &rder ranting Summary

Judgment is too old, and that 'int, et al, have taGen far too long to act on it, and

therefore it is legally unenforceable. )urther, a N*C ?>BbE basis for setting aside

the &rder may e@ist ith res#ect to all the fraudulent activity that #ermeates this

industry, #articularly ith res#ect to lenders seeGing to bring actions here the lacG

standing, cannot #roduct the note, etc, etc.

What follos are useful selections from something called the K)oreclosure %efense'andbooGL3

Kerfection of Chain of Title

In January :>11 , the (assachusetts Su#reme Court issued a decision in U.S.

0+N N+TI&N+" +SS&CI+TI&N /S. +ntonio I0+N$4 in hich all the

Justices unanimously agreed. In order for the banG to be able to foreclose,

they must sho a #erfection of chain of title, both in the %eed of

TrustF(ortgage and the romissory note. It as also ruled that a blanG

assignment as not acce#table #roof of #erfection of title for the #romissory

note.

This is 'U$. ou should be referring to this case and motion the court to

taGe Omandatory !udicial noticeO for the ruling decision in your case if you are

considering doing any sort of litigation, hether as a defendant in a Judicial

State or as a laintiff in a Non-Judicial State.

'ere are the im#ortant #oints you need to understand from this Su#reme Court

decision 3

1E + %efective Title cannot be fi@ed .

The (assachusetts Su#reme Court ruled that the banG has to demonstrate

#erfection of title at the time the Notice of %efault is issued .


JUDGMENT 1<



+ defective title is liGe bad food . &nce food has gone bad , you can never fi@ it.

The same goes ith the %eed of TrustF(ortgage. The OlenderO cannot retro sign

or Oreverse engineerO the Chain of Title after the fact. 0ut most of the time this is

the case hen it is handled by a foreclosure mill. They have robo-signers hose

!ob is to sign bogus assignments and reverse engineer titles.

It is your !ob to challenge this #oint hen your lender #resents su##osed O#roofH before the court. &ftentimes, they ill bring in a #hotoco#y of the %eed of Trust

made years ago at the time you closed on your loan . The #hotoco#y does not

and cannot attest to ho the current real and beneficiary #arty in interest

is.

:E The 0anG must sho a #erfection of the Chain of Title for the %eed of

TrustF(ortgage

This means that any assignments of the romissory note must also be reflected

at the county recorderHs office Band not ith ($*S- I ill talG about ($*S in a

bitE.

If an assignment of the romissory Note is not recorded on the County *ecords,

then #erfection is not achieved.

What this means is, if you can #rove that your note has been securitied or sold

to another #arty aay from your original lender, and that they did not record this

assignment at the County *ecorderHs &ffice, then bifurcation occurred . This

leads to a defect In the chain of title, maGing the %eed of TrusU(ortgage

unenforceable.

9E The 0anG must sho a #erfection of the Chain of Title for the romissory

Note

If e have a situation here you closed ith 0anG + and 0anG + sold the note to

0anG 0, ho then sold the note to a *$(IC Bsecuritied the noteE, then it as

ruled that there must be a chain of endorsement follo ing Uniform Commercial

Code P 6-:>?. Ty#ically, this is done in the form of a stam# on the bacG of the

#romissory note from 0anG + to 0anG 0 as Oay to the &rder of 0anG 0 Without

*ecourseO.

Title must sho this chain of Oay to the &rder ofH on the bacG of the note, !ust

liGe it ould on a checG, all the ay to the last #erson trying to collect on the

note. If the banG cannot sho this chain of title ending in a #oint as the #erson on


JUDGMENT 16



the title, it does not have #erfection of title and is not eligible to collect.

In order to collect and enforce the note under UCC P 6-9>1 , the #arty enforcing

the note must demonstrate that it has the #osition of 'older in %ue Course or

having authority from the 'older. )ailing that, the banG is committing theft.

7E 0lanG +ssignments are Not +cce#table

It is ST+N%+*% 0+N *+CTIC$ to maGe blanG assignments to avoid the #roblem of having to maintain #ro#er chain of title on the #romissory note. In

#revious situations, the courts have alloed blanG assignment and #ossession to

be acce#table forms of #roof of claim.

With the (assachusetts Su#reme Court ruling , th is is no longer true. 0lanG

assignments are no longer acce#table forms of #roof of erfection.

"et me re#eat th is if you missed it.

If your note has been securitied, then the banG that is handling the securitiation

+"W+S creates a 0lanG +ssignment to be used in the event a foreclosure

action is initiated and #roof of title needs to be #roduced . +ll they do is to give the

blanG assignment #romissory note to the #arty ishing to foreclose and voila Q

With your nefound Gnoledge, you no Gno ho to build an ob!ection to this

#ractice.

If you refer to #oint 1E, the banG cannot reverse engineer these assignments.

&nce the instrument is defective, it is forever defective. ro#er assignment must

be done in con!unction and at the time of the deed , not retros#ectively....

Illegal Trustee Argument

There have been two instances in which a Federal Court Judge issued a

statewide injunction freezing all foreclosures against homeowners against Bank

of America and Recontrust !ne was in "tah in late #$%$& and more recentl'& in

Januar' #$%% in (evada& because in both instances& Recontrust is not registered

to do business in that state

If a com)an' wants to do business in a state& it needs to register within that state

as an entit' This wa'& if someone within that state wants to sue them& the' can

look u) who the owners are& and where the' live& so the' can be )ro)erl' servedwith a summons

In almost all instances& these foreclosure mills are not registered to do business

in the state the' are attem)ting to foreclose in

*an' homeowners have used this defense to at least forestall foreclosure It is


JUDGMENT :>



not enough to sto) a forectosure& but it is another claim the homeowner can

make in a +uiet Title Action defense making the argument that the Trustee is a

,non-entit' ,.

The Reconve'ance Argument

This strateg' comes from an attorne' in California who is doing this with his own

house

If 'ou look at 'our /eed of Trust or *ortgage& 'ou will invariabl' see language

that covers the clause of ,reconve'ance, The language t')icall' goes like this0

,#1 Reconve'ance ")on )a'ment of al2 sums secured b' this 3ecurit'

Instrument& 4ender shall re5uest Trustee to reconve' the 6ro)ert' and

shall surrender this 3ecurit' Instrument and all notes evidencing debt

secured b' this securit' agreement to trustee n

7hen 'ou have a situation where0

a8 The note can be )roven that it was securitized& then it can be )roven that

the lender has& in fact& been )aid in full

b8 The note has been sold from Bank A& to Bank B& and then to Bank C& who

is tr'ing to foreclose

In an' event& this strateg' involves bringing a civil action against the !riginator9

Bank A& re5uiring them to do their job in a breach of contract civil action

:ou see& a /eed of Trust secures the )romissor' note It is the /eed of Trust

that gives the 4ender the ,)ower of sale, clause to foreclose If the original lender

is forced to issue a reconve'ance& then the /eed of Trust has colla)sed

This is a ver' effective& 'et eas'& method some )eo)le have used to sto)foreclosure& reason being that0

a8 The originator is often out of business and cannot res)ond to the civil

action& thus the homeowner wins b' default

b8 The !riginator had alread' sold the note with ,no recourse, This means

the R;*IC or the servicer can (;<;R go back to the originator

c8 If the !riginator loses the civil action b' default& nothing bad ha))ens to

them

d8 If the !riginator wins the civil action& nothing good ha))ens to them

=ere>s the kicker If the !riginator is still in business and the' lose the civil action

in court& then there are ver' s)ecific dire conse5uences that results If the' lose&

then it can be )roven that ever' loan the' have ever originated that has lost their

home is the result of their gross negligence to )erform their dut' This means

ever' homeowner who has lost his or her home can sue the !riginator


JUDGMENT :1



It is for this reason that the !riginator often doesn>t show u)& or settles when

confronted with this strateg'

If 'ou are interested in learning more about this strateg'& we have a sam)le kit

that will guide 'ou through the )rocess on our site at0

htt)022wwwconsumerdefense)rogramscom 4ook under the 6roducts tab for the

,+uick Reconve'ance *ethod /

The /ebt <alidation 4etter

4et>s anal'ze the Fair /ebt Collections 6ractices Act& and s)ecificall' the )ortion

governing the validation of debt "nder "3C Title %? 3ection %@#g8& 'ou are

entitled to ask a debt collector for the verification of the debt ")on dis)ute of the

debt& all collection activities must cease until the debt collector can validate the

debt 3adl'& the consumer has onl' 1$ da's to dis)ute the debt or else the'

admit to the debt

If 'ou have received a (otice of /efault (!/8 from 'our ,lender&, 'ou will see

that there is language s)ecificall' that sa's ,If 'ou do not dis)ute this debt within

1$ da's& then 'ou admit to owing this debt, o on o grab 'our letter and take

a good look

If 'ou have not received a (otice of /efault letter or if 'ou have received it within

1$ da's8& 'ou can still send a (otice of /ebt validation letter to 'our ,lender, to

dis)ute the debt I have included a sam)le (!/ /is)ute letter on

htt)022wwwconsumerdefense)rogramscom

=owever& this does not mean 'ou waive 'our rights to challenge 'our lender if

'ou are more than 1$ da's )ast default :ou can still do it :ou can write 'our lender and 'our Trustee in a non-Judicial 3tate8 demanding that the' )roduce

)roof of claim under the F/C6A under "3C Title %? 3ection %@#g8 :our

,lender, is re5uired to res)ond within 1$ da's Failure to do so results in a

violation of the F/C6A& which carries a )enalt' of u) to D%$$$ )er violation 'ou

sim)l' have to sue them to collect8 The F/C6A also has s)ecial damage

)rovisions for class actions %? "3C E%@#k Recover' of statutor' damages

for the class is limited to % of the debt collector>s net worth or D?$$&$$$&

whichever is less

:ou will know when the debt collector doesn>t have the note when a res)onse is

sent back giving the Borrower either a ,7e don>t recognize 'our re5uesf or

stating the information is ,6ro)rietar', /on>t let them get awa' with that The

F/C6A rules are clearG In most cases& the 4enderl3ervicer will send 'ou

an'thing but the items re5uested *ost of the time& debt collectors will send the


JUDGMENT ::



following0

H 3ome )a)ers )rinted from a com)uter& not sure what the' are

H (othing certified notarized8 and es)eciall' not dated recentl'

H (othing showing the name and signature of the original lender or )ast

note holder

H (othing )roving the notification of a transfer

H 3im)le co)ies of some kind of billing statement etc

All of which are unacce)tablel The 4enders& 3ervicers and /ebt Collectors

AB3!4"T;4: know what the legal re5uirements are The' will challenge

an'one who dis)utes a debt to see if 'ou know the law This is wh' it is so

im)ortant for 'ou to know the law as wellG

"nder the "niform Commercial Code 3ection 1-#$& the name and the

signature of both the beneficiar' and the original creditor must be disclosed in the

same document E 1-#$ d8 The signature of the borrower must be included as

well into the assignment or transfer9 unless a clause in the deed of

trust2mortgage waives that most deeds of trust disclose this at clause #$8

title to the debt obligation& whether through a )urchase& assignment& or

other transfer& and who ac5uires more than one mortgage loan in an'

twelve-month )eriod For )ur)oses of this section& a servicer of a

mortgage loan shall not be treated as the owner of the obligation if the

servicer holds title to the loan or it is assigned to the servicer solel' for

the administrative convenience of the servicer in servicing the

obligation:ou will also note that the sco)e does not cover the servicer if the servicer was

assigned the note for administrative convenience in servicing the obligation

This means& the servicer is not treated as and does not have the rights of a

lender or owner of the obligation8

As I discussed eartier& even if the servicer was to bu' the note back after it has

been securitized& reattachment of the loan2note to the /eed of TrustI*ortgage is

im)ossible

:ou Cannot *ake Carrots from Carrot Juice

!nce a loan has been written off& it is discharged !nce a loan has been

securitized& reattachment is im)ossible

Reattachment is im)ossible for the following reasons0

%8 6ermanent conversion

The )romissor' note had been converted into a stock as a )ennanent fiKture


JUDGMENT :9



Its nature is forever changed It is now and forever a stock It is treated as a

stock and governed as a stock under the 3;C

3ince the /eed of Trust secures the )romissor' note& once the )romissor'

note is destro'ed& the /eed of Trust secures nothing Therefore& the Trust is

invalid

#8 Asset has been written off

!nce an asset is written off& the debt is discharged& since the owner of the

asset has received com)ensation for the discharge in the form of taK credits

from the IR3 The debt has been settled

The servicer ads as a debt co"ector of an unsecured note The servicer is

deceiving the court& the count'& and the borrower when it tries to re-attach the

note to the /eed of Trust as if nothing has ha))ened Irs called adhesion

The funn' thing about the law is& it is legal until or unless the other )art'

objects 3ince this scam is so devious& it is be'ond the com)rehension of

most )eo)le including that of law'ers and judges It takes someone who has

studied accounting& securities and law to unravel this dece)tion *ost )eo)le

in the legal )rofession onl' take the arguments on face value

18 Broken chain of assignment

"nder the "niform Commercial Code "CC8& the )romissor' note is a one of

a kind instrument All assignments much like endorsements on the back of a

check8 have to be done as a )ermanent fiKture onto the original )romissor'

note The original )romissor' note has the onl' legall' binding chain of title

7ithout a )ro)er chain of title& the instrument is fault'-

Rarel' can a lender ,)roduce the note&, because b' law& the original note has

to be destro'ed RememberL The note and the stock cannot eKist at the

same time !ftentimes& the lender would come into court with a )hotoco)' of

the original note made 'ears ago

Another )o)ular method of deceit lenders )refer is to use the 3tate Civil Code

in non-judicial states to state that ,there is no law re5uiring a lender to

)roduce the note or an' other )roof of claim, T=;: /!(>T =A<; IT and

CA((!T 6R!/"C; IT

!ftentimes& the lender would do blank assignments of the !riginal )romissor'

note into the R;*IC Then& when the' need the note to )erform the

foreclosure& the' will magicall' )roduce a blank assignment Again& this is not

legal and is bringing fraudulent documents before the courts and the count'


JUDGMENT :7



records

4efs be ver' clear here !nce a loan has been securitized& the note is no

more An'thing the lender brings to court as evidence is )rima facie evidence

of fraud The attorne' for the lender is either an accessor' to fraud through

ignorance or willful intent ;ither wa'& as an informed borrower& it is 'our job

to bring this dece)tion to light so these law'ers can be sanctioned

3o& 'our lender would close 'our loan& sell it to R;*IC and get )aid

!nce 'our loan goes into default& the loan is written off The loan is then bought

b' the same lender in the o)en secondar' market as a dead2unsecured note To

be able to )ull this stunt off& ever' lender involved in this scheme is re5uired to

act in collusion

!nce the servicer bu's the dead note& the' then claim to be the true holder in

due course of a written off asset The' then )resent to the world that the' are

who the' claim The' rel' on the homeownerlborrower to be ignorant of this

dece)tion and clean u)& allowing them to take )ossession of a house for )ennies

on the dollar

This is the eKtent of the fraud done to the American )ublic ever' 3ingle da'

As a homeowner defending 'our rights& it is im)erative 'ou understand the

nature of this fraud so 'ou can use these arguments to defend 'our home

As a legal )rofessional& it is im)erative that 'ou understand these arguments so

'ou can raise the )ro)er objections and interrogatories when re)resenting 'our

clients in a foreclosure defense

6ractical *attersIn this cha)ter& we go through s)ecific )ractical things 'ou can do right awa' to

challenge 'our lender

At its heart& there are four classes of )eo)le that are affected b' foreclosures

% 3omeone who is about to lose his or her home in a (on-Judicial 3tate

California& (evada& Arizona& !regon& 7ashington& etc8

# 3omeone who is about to lose his or her home in a Judicial 3tate (ew

:ork& (ew Jerse'& !hio& Florida& etc8

1 3omeone who has alread' lost his or her home

3omeone who is hanging b' their teeth& who is u)side down or can no

longer )a' their mortgage& tr'ing to get a loan modification& or someone in

good standing

;ach class of )erson has different o)tions and )rocedures available to them

This cha)ter will outline in brief some of these o)tions !f course& this is just a


JUDGMENT :=



book and is no substitute for com)etent legal advice& so )lease consult counsel

before doing an'thing that could affect 'our home

(on-Judicial 3tate =omeowners

*ost 7estern 3tates of the "3 are (on-Judicial 3tates In these states&

forecfosures are governed b' 3tate Civil Code

These homeowners have it the toughest Being in a non-judicial state& 4enders

need not )rove an'thing The' can sim)l' notif' the homeowner of the default&

then after a certain number of da's& as defined under 3tate Civil Code& the

)ro)ert' then )roceeds to a Trustee sale at a )ublic auction

The onl' o)tion available to 'ou if 'ou are a (on-Judicial 3tate resident is for 'ou

to file a civil action against 'our lender to com)el them to )rovide )roof of claim&

and therefore standing

The other o)tion is to declare bankru)tc' also known as BIM8 In bankru)tc'&

generall' s)eaking& 'ou have two o)tions& Cha)ter N no asset BIM8 or a Cha)ter

%1 asset BIM8 7hat some homeowners do is to declare Cha)ter N and list their

)ro)ert' as an unsecured asset and wait for the lender to object This then )uts

the burden of )roof on the lender If 'our loan was dosed with 4ender A and is

being foreclosed on b' 4ender B or C there must be b' law8 a valid chain of

assignment to show that 4ender C is the real and beneficial )art' of interest As

we disaJssed& because of the )roblem of securitization& this is never done This

creates a real )roblem for the 4ender who is frankl' doing this fraudulentl'

an'wa'8

For those with a lot of assets such as e5uit' in their homes8& the' can do aCha)ter %1 "nder a Cha)ter %1 bankru)tc'& 'ou can file an Adversar'

6roceeding where 'ou sue 'our lender to com)el them to )roduce valid )roof of

claim The beaut' with Bankru)tc' Court is that 'ou have the law on 'our side

Rule 1$$% d8 of the Federal Code of Bankru)tc' re5uires that 'our lender )rovide

evidence of ,)erfected title,

If 'ou choose to file a civil action against 'our lender& 'ou better have )roof as

we discussed earlier The best )roof 'ou can bring is a securitization audit to

)rove that 'our loan has been securitized Then& work with 'our law'er to build

an argument around the )oints outlined in this book "nfortunatel'& this will set

'ou back at the minimum D?$$$& and more likel' closer to D%$&$$$ to D#?&$$$

Another o)tion 'ou could do is to do a ,5uick reconve'ance method, as

discussed in Cha)ter This can be ver' effective in sto))ing 'our servicer>s

abilit' to foreclose because it closes out the /eed of Trust2*ortgage This


JUDGMENT :?



method is onl' a))licable when 'ou have clear evidence of movement or

securitization :ou can find out more about this method on our website under the

6roducts tab

Alternativel'& if 'ou cannot afford a law'er& 'ou could tr' to do this 'ourself reat

)laces to start are 4iving4iescom and sto)foreclosurefraudcom These are

blogs with lots of articles& sam)le )leadings and lots of other resources I used

during m' research

Another o)tion is to join our foreclosure defense membershi) )rogram 7e

realized that there are 3! *A(: homeowners needing hel) That is wh' we

develo)ed a coaching membershi) )rogram with s)ecific information and

resources to hel) homeowners with their foreclosure defense !ur membershi)

)rogram has sam)le )leadings& sam)le res)onses& forms and )rocedures others

have used in their foreclosure defense :ou will also be able to network with

other homeowners local to 'ou meet with them to have coffee& and su))ort

each other For more information about this )rogram& come to our website at0

htt)022wwwconsumerdefense)rogramscom

A good )lace to start& if 'ou are in a (on-Judicial 3tate& is to start writing to 'our

lender to demand that the' )roduce valid )roof of claim :ou can find a cou)le of

sam)le letters on our site This will be a good )lace to get started

Judicial 3tate =omeowners

In a Judicial 3tate& 'our lender has to sue 'ou to get a judgment before the' can

foreclose on 'our house As we discussed earlier& the burden of )roof is on the

)laintiff This means that if 'ou are in a Judicial 3tate& 'ou have the advantage of re5uiring the lender to )roduce )roof of claim

The )roblem in most cases is that homeowners in Judicial 3tates do not know

the nature of foreclosure fraud The' either don>t show u) or if the' show u)&

don>t know how to argue their )oints& and thus end u) losing their homes

an'wa'

The other )roblem in Judicial 3tates is that because there are so man' cases&

judges end u) forgoing their !ath of !ffice to the )eo)le the' serve Instead of

dis)ensing justice fairl' to all& the' rubber-stam) judgments without a second

glance This is not fair to the homeowners& but if homeowners don>t know their

rights& nor know how to argue their )oints& then sadl'& there>s little justice for

them As the' sa'& 'ou have no rights unless 'ou know what those rights are

3o& the best thing to do if 'ou are a resident of a Judicial 3tate then is to arm

'ourself with education 4earn the nature of loan fraud 4earn the )rocedure of


JUDGMENT :8



rules of court and on how to defend 'ourself in answering a summons and

com)laint

:ou should know b' now that 'our best course of action is to )ush the Federal

Rules of Civil 6rocedure %N& ,an action has to be taken in the name of a real

)art' in interesf> in other words& 'ou are to challenge 'our lender>s 3tanding

and their right to foreclose If the' are not a real and beneficial )art' in interest&

then the' do not have the right to foreclose Allowing them to )roceed with their

foreclosure without 3tanding amounts to nothing more than theft and eKtortion&

both of which are illegal

!ther homeowners in Judicial 3tates choose to take a more )roactive a))roach

Instead of waiting to be sued b' their lender& the' do a forensic audit& gather

evidence of loan securitization and then sue their lender to get a +uiet Title

Action to remove the *ortgage from their )ro)ert'& since no one can come forth

to )roduce valid )roof of claim

For members of our foreclosure defense membershi) )rogram& we have sam)le

tem)lates that homeowners can use to take matters into their own hands

=omeowners 7ho =ave 4ost Their =omes

For those homeowners who have alread' lost their homes& there are two

situations There are those who have lost their homes due to a sale& but are still

sta'ing in their homes and there are those who have been forced to move out

*an' law'ers and )eo)le in the media are advising homeowners who have lost

their homes but are still living in them to sta' in their homes It could take

months sometimes for the lender to come around to actuall' force thehomeowner out

T')icall'& in order for a lender to force a homeowner to move out& the' 7Ill need

to file for an ,unlawful detainer> This takes a while to be granted and this gives

the homeowner additional time 3ta'ing another month or three at home means

another few more months the' do not have to )a' rent elsewhere

Another techni5ue homeowners do is to challenge the lenders standing to

foreclose& even after the fact& to fight the unlawful detainer This is something 'ou

will likel' need to consult with an attorne' about for more information

The 7rongful Foreclosure Action

=omeowners who have alread' lost their homes but believe their loans have

been securitized might want to see if the' can do a 7rongful Foreclosure civil

action against their ,)retender lenders,

=ere are some hints that 'our loans have been securitized0


JUDGMENT :<



- There is a com)an' called *;R3 *ortgage ;lectronic Registration 3'stems8

involved in the (otice of 3ubstitution of Trustee& or on the original /eed of

Trus"*ortgage this is usuall' on the first # )ages of 'our documents8

- :our loan is with one of the following institutions0 *AC& Countr'wide =ome

4oans& Bank of America& 7ells Fargo& or Chase

- :ou closed with a small no name bank& and 'ou are now being serviced b' a

more well-known institution like the ones named above

If 'ou can gather sufficient evidence that 'our loan has been securitized& then

'ou might be able to build a case using the arguments )resented in this book to

bring a civil action against 'our lender for a wrongful foreclosure and2or fraud

;ssentiall'& 'ou are accusing 'our lender of committing fraud in that the' did not

have 3tanding to foreclose on 'our )ro)ert'

In a civil action in which 'ou have suffered damages as a result of something the

other )art' has done against 'ou& t')icall' 'ou are entitled to three times the

damages three times the value of 'our loan8 This is t')icall' called ,)unitive

damages, It means there are damages other than documented realO

K+ccordingly, hen this court issues an intervening decision that constitutes a

change in controlling la, courts may de#art from the decided la of the case and

a##ly the ne rule of la.L 'su v. County of ClarG. See, e.g., 'o#Gins v. %yer, 1>7

&hio St.9d 7?1, <:> N.$.:d 9:6, 999 B:>>7E Bholding that an intervening o#inion

issued by the &hio Su#reme Court constituted a change in controlling la

necessitating de#arture from the la of the case doctrineEM %edge v. State, <9: So.:d

<9=, <9? B)la.%ist.Ct.+##.:>>:E Bnoting that a decision by the )lorida Su#reme

Court to enact a ne #rocedural rule constituted a change in controlling laE.

K0ecause e determine that the change in controlling la e@ce#tion to the la of the

case doctrine a##lies, e do not consider hether this court should also formally

ado#t the Ksubstantial ne evidenceL or Kclear error resulting in manifest in!usticeL

e@ce#tions to the la of the case doctrine. R 'oever, e observe that, des#ite thelandonersH contentions, discovery of a relatively minor factual error in our order in

'su I suggesting that the landonersH had obtained a =>-foot height variance for

construction of a billboard on their #ro#erty does not constitute Ksubstantial ne

evidenceL that !ustifies de#arture from the la of the case doctrine. R &ur


JUDGMENT :6



determination in 'su I that the landoners had not demonstrated the futility of

e@hausting their administrative remedies rested on several #ieces of evidence besides

the erroneous Kbillboard variance,L indicating that this Kne evidenceL ould have

little bearing on our #revious decision. R See Suel v. Secretary of 'ealth and 'uman

Services, 16: ).9d 6<1, 6<? B)ed.Cir.1666E Bstating that Kthe ne evidence relied

u#on to override the la of the case must be substantial, even conclusive, before it

is a##ro#riate to reo#en a !udgment on hich subse5uent #hases of the case have

been decidedL Bciting 1< Charles +lan Wright, et al., )ederal ractice and rocedure

PR778<, at <>> B:d ed.16<1EEE. R We liGeise re!ect the #ro#osition that our decision

in 'su I as based on clear error such that adherence to the decision ould orG a

manifest in!ustice. R See In re City of hiladel#hia "itigation, 1=< ).9d 811, 8:> B9d

Cir.166<E Bnoting that if a decision is not clearly erroneous, enforcement of that

decision ill not generally orG a manifest in!usticeE.+s this a##eal and our decision

in 'su I are #art of a single continuous suit, e also re!ect the CountyHs assertion that

the doctrine of res !udicata #rohibits this court from revisiting the merits of the

landonersH taGings claim. R See )lorida %e#t. of Trans#. v. Juliano, <>1 So.:d 1>1,

1>= B)la.:>>1E BKWhere successive a##eals are taGen in the same case there is no

5uestion of res !udicata, because the same suit, and not a ne and different one, is

involved. R Under these circumstances, the doctrine of the la of the case a##lies.L

Bcitation omittedEE.L

&n motion and u#on such terms as are !ust, the court may relieve a #arty or a

#artyHs legal re#resentative from a final !udgment, order, or #roceeding for the

folloing reasons3 B1E mistaGe, inadvertence, sur#rise, or e@cusable neglectM B:E

nely discovered evidence hich by due diligence could not have been discovered in

time to move for a ne trial under *ule =6BbEM B9E fraud Bhether heretofore

denominated intrinsic or e@trinsicE, misre#resentation or other misconduct of an

adverse #artyM B7E the !udgment is voidM or, B=E the !udgment has been satisfied,

released, or discharged, or a #rior !udgment u#on hich it is based has been reversed


JUDGMENT 9>



or otherise vacated, or it is no longer e5uitable that an in!unction should have

#ros#ective a##lication. The motion shall be made ithin a reasonable time, and for

reasons B1E, B:E, and B9E not more than ? months after the #roceeding as taGen or the

date that ritten notice of entry of the !udgment or order as served. In some

instances KtollingL may be a##licable to the ? month limitations #eriod.

The Nevada Su#reme Court recently addressed a critical issue involving the

)oreclosure (ediation *ules in the case of "eyva v. National %efault Servicing

Cor#., +##. No. ==:1?, +##eal from the ClarG Co. %istrict Court, +-1>-?>>-?=1,

1:8Nev. , .9d B+dv. &#. No. 7>, July 8, :>11E. The issue relates to the

obligation of the lender to bring documents to the mediation that reveal ho is the

oner of the deed of trust and mortgage note. The Courts ruling in this case ill

immediately arm homeoners ith a serious ea#on against the big banGs and their

servicers. Used in the correct ay, many foreclosures may be sto##ed because of this

recent o#inion.

The State of Nevada )oreclosure (ediation rogram as created in :>>6. )acing

foreclosure, the homeoner may re5uest mediation through hich a modification to

home loan may be achieved. &nce the homeoner re5uests mediation, no further

action may be taGen to e@ercise the #oer of sale until the com#letion of the

mediation. The Nevada Su#reme Court created the )oreclosure (ediation *ules

BK)(*LE to govern those mediations.

The "eyva case #resented the Nevada Su#reme Court ith an o##ortunity to

inter#ret a critical #ortion of the mediation #rogram re5uirements. N*S 1>8.><?B7E

and )(* = B<E BaE both #rovide3 KIn addition to the documents re5uired by *ule <

herein, the beneficiary usually the lending banG must bring to the mediation

#rogram the original or a certified co#y of the deed of trust, the mortgage note and

each assignment of the deed of trust and the mortgage note.L N*S 1>8.><7B=E

#rovides that Kif the beneficiary of the deed of trust or the re#resentative fails to


JUDGMENT 91



attend the mediation, fails to #artici#ate in the mediation in good faith or does not

bring to the mediation each document re5uired by section 7 or does not have

authority or access to #erson ith authority re5uired by section 7, the mediator shall

#re#are and submit to the (ediation +dministrator a #etition and recommendation

concerning im#osition of sanctions against the beneficiary of the deed of trust or the

re#resentative, as the court deems a##ro#riate, including, ithout limitation,

re5uiring a loan modification in the manner determined #ro#er by the court.L

The Nevada Su#reme Court faced the issue of hether the lenders failure to

bring the re5uired assignments and other documents as re5uired by N*S 1>8.><?B7E

constituted bad faith under N*S 1>8.><?B=E. The anser to the 5uestion is not clear

from the language of the statute or the )(*.

+t the mediation in "eyva, the lender failed to deliver the assignments of the

deed of trust and the mortgage note. 'oever, the mediator did not find that the

lenders failure to #rovide the documents or other actions constituted a bad faith.

"eyva disagreed and a##ealed the decision of the mediator to the ClarG County

%istrict Court, Judge %onald (osely. Ultimately, Judge (osely agreed ith the

lender and entered an order finding that Kthere is a lacG of shoing of bad faithVL

"eyva a##ealed the decision of Judge (osely to the Nevada Su#reme Court. The

Nevada Su#reme Court issued its ruling on July 8, :>11 and re!ected the lenders

arguments that it had #artici#ated in the mediation in good faith. The Nevada

Su#reme Court determined that since the statute used the ord KshallL in reference to

the obligation to bring certain documents to the mediation, strict com#liance, not

substantial com#liance, as re5uired. The Su#reme Court ent on the rite KThe

legislative intent behind re5uiring a #arty to #roduce the assignments of the deed of

trust and mortgage note is to ensure that hoever is foreclosing actually ons the

note and has the authority to modify the loan.L

The Su#reme Court did not sto# there. It felt com#elled to then discuss hat


JUDGMENT 9:



constitutes a valid assignment of deeds of trust and mortgage notes. 0y reaching this

issue, the Su#reme Court set the obligations for each lender ith regards to their

obligation to #roduce documents at mediation.

The Su#reme Court then discussed the la regarding the assignment of a deed of

trust. Since an assignment of an interest in land must be in riting, the Su#reme

Court concluded that Kto #rove that (ortgageIt #ro#erly assigned its interest in land

via the deed of trust to Wells )argo, Wells )argo needed to #rovide a signed riting

from (ortageIt demonstrating that transfer of interest.L

The Su#reme Court then analyed the method by hich the interest in a mortgage

note may be transferred and looGed to Nevadas Uniform Commercial Code X

Negotiable Instruments. The Su#reme Court rote Kthe obligor on the note has theright to Gno the identity of the entity that is Kentitled to enforceL the mortgage note

under +rticle 9, see N*S 1>7.99>1, Kotherise, the homeoner may #ay funds to

a stranger in the case.L BCitation omitted.E

The Su#reme Court re!ected the arguments of Wells )argo that mere #ossession

of the mortgage note as sufficient. KWe conclude that +rticle 9 clearly re5uires

Wells )argo to demonstrate more than mere #ossession of the original note to be able

to enforce a negotiable instrument under the facts of this case.L To meet its

obligation under the Uniform Commercial Code, Wells )argo had to sho both

endorsement of the mortgage note to it by the original lender and #ossession of the

note.

+lternatively, Wells )argo could have also demonstrated a transfer of the note to

it. To demonstrate a transfer, Wells )argo as obligated to #rove that it as given

the mortgage note for the #ur#ose of enforcing it.

The Su#reme Court then concluded that since Wells )argo had failed to #roduced

documents to demonstrate either a valid endorsement or transfer, Wells )argo had

neither demonstrated that it as entitled to foreclose on the #ro#erty nor that it had


JUDGMENT 99



authority to mediate ith regards to the note. The Su#reme Court, relying on its other

o#inion issued the same day, asillas v. 'S0C 0anG, 1:8Nev. , .9d , +dv.

&#. 96, July 8, :>11E, ruled that the failure of Wells )argo to bring the re5uired

documents Kis a sanctionable offense under N*S 1>8.><? and the )(*s.L The

Su#reme Court then remanded the case to the district court for determination of the

a##ro#riate sanction.

This o#inion seems to indicate that the Ktoo big to failL banGs have met their

match ith the Nevada Su#reme Court. The ramifications of this o#inion ill maGe

the huge banGs thinG tice before they allo the Nevada Su#reme Court to hear any

other issues concerning their foreclosure #rocesses. This o#inion arms homeoners,

and es#ecially their counsel, and creates an o##ortunity to sto# the banGs and their

servicers from moving forard ith a foreclosure ith less that the full

documentation #roving their onershi# of the mortgage note, and the authority to

foreclose under the terms of the deed of trust.

The true sco#e and im#act of the "eyva and asilla o#inions on the foreclosure

and mediation #rocess in Washoe County ill not be revealed any time soon. The

banGs ill liGely taGe any ste#s necessary avoid sanction as ell as #revent the

Nevada Su#reme Court issuing any other o#inions regarding the foreclosure #rocess

or the mediation #rogram.

the Su#reme Court of Nevada issued to o#inions on July 8, :>11 hich finally

com#el foreclosing #arties in Nevada to #roduce material documentation as to chain

of title to the Note and %eed of Trust in order to be #ermitted to continue ith a

foreclosure action hen mediation is re5uested. in "eyva v. National %efault

Servicing et al., No. ==:1?, 1:8 Nev. +dvance &#inion 7>, the Su#reme Court held

that strict com#liance is re5uired ith Nevada statutes governing the #roduction of

certain documents including any assignment of the %eed of TrustM that a foreclosing

#artys failure to do so Kis a sanctionable offenseM and the district court is #rohibited


JUDGMENT 97



from alloing the foreclosure #rocess to #roceedL. Wells )argo as also the cul#rit

in this case.

Significantly, in discussing the transfer of the Note, the Su#reme Court of

Nevada cited to the recent In *e /eal decision from the 6th Circuit 0anGru#tcy

+##eals anel Bhich as #reviously discussed on this ebsiteE, holding that the

borroer Khas the right to Gno the identity of the entity that is entitled to enforce

the mortgage note under +rticle 9 Bof the Uniform Commercial CodeE.L The Court

concluded that +rticle 9 Kclearly re5uires Wells )argo to demonstrate more than mere

#ossession of the original note to be able to enforce a negotiable instrumentL. The

court found that there as no endorsement and no assignment, and reversed the

%istrict Court.

The o#inion in "eyva cited to the Courts o#inion in asillas v. 'S0C 0anG as

Trustee, No. =?969, 1:8 Nev. +dvance &#inion 96 Balso decided July 8, :>11E,

hich also reversed the %istrict Court and also cited to /eal , setting forth the

re5uirements for #roduction of evidence of chain of title to the note and %eed of

Trust in a foreclosure.

The multi#le citations to /eal, hich is a )ederal 0anGru#tcy a##ellate court

o#inion, by the state Su#reme Court of Nevada, is more than im#ortant. It

demonstrates that sim#ly because a foreclosure issue is decided by a 0anGru#tcy

court does not mean that it is not a##licable to a non-0anGru#tcy Bor non-)ederalE

foreclosure case. Time and again, hen e argue that an issue in a state foreclosure

case has already been decided by a 0anGru#tcy court in the foreclosure conte@t,

attorneys re#resenting foreclosing KlendersL and servicers argue KWell, Judge, that

as a 0anGru#tcy case, and e are not in 0anGru#tcy CourtL. "eyva and asillas

have no #ut that argument to bed. If a )ederal 0anGru#tcy decision is good enough

for the Su#reme Court of Nevada in to se#arate o#inions, it should be good enough

for any state court.


JUDGMENT 9=



+ttorney (isconduct (ay Su##ort Setting +side the &rder, )or a ood )aith

0asis for Changing the "a (ay +uger Toard 'olding &##osing CounselHs )ailur

to Withdra the (otion for Summary Judgment or &therise +lert the Court as to

the "iGely $ffect of /ery ro@imate Time *elease of to (andatory and Controlling

Nevada Su#reme Court %ecisions Issued &ne WeeG 0efore This CourtHs &rder (ay

*ise to ositive (isconduct iven the rimacy of the Sub!ect (atter of This

"itigation to these, +t That Time, ro Se "itigants.

In Staschel v. Weaver 0rothers, "td., 6< Nev. ==6, ?== .:d =1< B16<:E,

the Nevada Su#reme Court held that attorney neglect amounting to misconduct is not

#ro#erly im#uted to the client in determining hether a default !udgment should be

set aside. BOTo characterie the attorneyHs failure to re#resent his client as

Hine@cusable neglectH ould be charitable but hardly candid. 'is dereliction of the

#rofessional obligations oed a##ellant constituted actual misconduct.OE. See

generally, S. 0ernstein, +nnotation, +ttorneyHs Inaction as $@cuse for )ailure to

Timely rosecute +ction, 1= +.".*.9d ?87 B16?<E. California acGnoledged this

#roblem in the 16?>s, and concluded that inaction and sloth by an attorney should not

be grounds for a circuit court to inflict suffering u#on an innocent client of the

attorney, by dismissing the clientHs case. In %avey v. County of 0utte, ::8

Cal.+##.:d 9<>, 9< Cal.*#tr. ?69 B16?7E, an intermediate court of a##eals e@amined

a situation here the %efendantHs layer filed a lasuit, and then dadled for nearly

to years, only s#oradically doing discovery or filing #leadings. When the

%efendantHs layer failed to sho u# for several scheduled court hearings, the circuit

court dismissed the %efendantHs com#laint due to inactivity. The court recognied the

general rule - similar to that in this State that the Ogeneral doctrine charges the client

ith the neglect of his attorney but gives him redress against the latter.O ::8


JUDGMENT 9?



Cal.+##.:d at 961, 9< Cal. *#tr. at 8>>. 'oever, the court ent on to alter this

harsh rule, holding that Othere are e@ce#tional cases in hich the client, relativel free

from #ersonal neglect, ill be relieved of a default or dismissal attributable to the

inaction or #rocrastination of his counsel. O Id. The court found that the %efendantHs

attorneyHs neglect as ine@cusable and e@treme, amounting to #ositive misconduct.

The attorneyHs consistent and long continued inaction as so visibly and inevitably

disastrous, that his client as effectually and unGnoingly de#rived of

re#resentation. 0y his refusal to get on ith the lasuit or get out of it, the

%efendantHs attorney inflicted severe damage on his clientHs case. She had legal

re#resentation only in a nominal and technical sense.

Under these unusual circumstances, here the client as unGnoingly

de#rived of effective re#resentation, she ill not be charged ith res#onsibility for

the misconduct of her nominal counsel of record. ::8 Cal.+##.:d at 961-6:, 9<

Cal.*#tr. at 8>>. The court then stated the rule - Gnon as the O#ositive misconductO

rule - that here an attorneyHs inaction rises to a level of active, #ositive misconduct,

the OattorneyHs authority to bind his client does not #ermit him to im#air or destroy

the clientHs cause of action.O ::8 Cal.+##.:d at 961, 9< Cal. *#tr. at 8>>. The

reasoning for such a rule is obvious3 Clients should not be forced to act as haG liGe

in5uisitors of their counsel, sus#icious of every ste# and 5uicG to sitch layers.

The #rofession Gnos no orse headache than the client ho mistrusts their

attorney. The lay litigant enters a tem#le of mysteries hose ceremonies darG,

com#le@ and unfathomable. retrial #rocedures are cabalistic rituals of the layers

and !udges ho serve as #riests and high #riests. Gnos nothing of their tactical

significance.


JUDGMENT 98



'e Gnos only that his case remains in limbo hile the #riests and high

#riests chant their lengthy an arcane #retrial rites. 'e does Gno this much3 that

several years fre5uently ela#se beteen the commencement and trial of lasuits.

Since the la im#ose this state of #uled #atience on the litigant, it should #ermit

him to si bacG in #eace and confidence ithout sus#icious in5uiries and incessant

checGing on counsel. ::8 Cal.+##.:d at 961-6:, 9< Cal.*#tr. at 8>>-8>1. The

California Su#reme Court ado#ted the #ositive misconduct rule stated in %aYey in

CarroYY v. +bbott "aboratories, Inc., ?=7 .:d 88= B16<:E. The court stated the

general rule that a client is charged ith the neglect of his counsel, and that the

clientHs usual redress for that neglect is an action for mal#ractice. 'oever, an

e@ce#tion to this general rule has develo#ed. $@ce#ted from this rule are those

instances here the attorneyHs neglect is of that e@treme degree amounting to #ositive

misconduct, and the #erson seeGing relief is relatively free from negligence. The

e@ce#tion is #remised u#on the conce#t the attorneyHs conduct, in effect, obliterates

the e@istence of the attorney-client relationshi#, and for this reason his negligence

should not be im#uted to th client. ?=7 .:d at 88< Bem#hasis in originalE. The court

ent on to state that Othe issue, therefore, becomes hether counselHs conduct

amounted to H#ositive misconductH by hich %efendant as Heffectually and

unGnoingly de#rived of re#resentation.HO Id.

In accord, "ords v. Neman, ?<< .:d :6>, :67-6= B(ont. 16<7E Bholding

that hen case is dismissed due to attorney negligence, Ono great abuse of discretion

need be shon to arrant reversalO because the Ycourt has been hesitant to im#ute

the neglect of an attorney to his clientM and has been loathe to #ermit this neglect to

bar a hearing on the merits.OEM Staschel v. Weaver 0ros. "td., ?== .:d =1<, =16

BNev. 16<:E BOTo characterie the attorneyHs failure to re#resent his client as


JUDGMENT 9<



Hine@cusable neglectH ould be charitable but hardly candid. 'is dereliction of the

#rofessional obligations oed a##ellant constituted actual misconduct.OE. See

generally, S. 0ernstein, +nnotation, +ttorneyHs Inaction as $@cuse for )ailure to

Timely rosecute +ction, 1= +.".*.9d ?87 B16?<E. BJames (iYton Covington and

JeraYdine I. Covington v. (ichael John Smith, Walter "ee )orbis, *yder TrucG

*ental, Inc. and %.T.). TrucGing, Inc. BCase 9>897, Su#. Ct of +##eals, West

/irginia July, 11, :>>9E . order andFor !udgement that as clearly erroneous and

contrary to la on the ?>BbE motion hich laintiffs submitted to this court to set

aside !udgement andFor order of the ?>BbE motion for e@cusable neglect #redicated on

multi#le medical issues and the #recedent setting case of ioneer Investment Services

v. 0runsicG +ssociates "imited artnershi# et.al. =>8 U.S. 9<>3 119 S.Ct. 17<6M

1:9 ". $d :d 87M1669 U.S. "$DIS :7>:M ?1 U.S.".W. 7:?9M := )ed *.Serv. 9d

BCallaghanE 7>1M 0anGr. ". *e#. BCC'E 8=, 1=8+M :< Collier 0anGr.Cas. :d B(0E

:?8M:7 0anGr Ct %ec.?9M 69 Cal %aily &# Service :>6?M 69 %+* 98>=M 8 )"+ ".

WeeGly )ed. S 1>1.

The #articular facts and circumstances of the Car#entierHs case deserve closer

consternation, #articularly in light of the fact that "eyva and asilla actually ere

issued #rior to this CourtHs July 1=, :>11 &rder granting Summary Judgment, the

manifest in!ustice that results from leaving the &rder as it is and alloing the

TrusteeHs Sale to go forard. )urther, ursuant to N*S 1>8.><>, the re5uisite

statutory :> days notice is, on its face, not #resent in the notice to the Car#entiers.

)urther, the assignments have arguably not been #roduced or attested to in the

manner re5uired by la, and the bald face arrogance of the lenderHs and trusteeHs

street level em#loyees in telling the Car#entierHs that, basically, they are in a fight

ith a big ugly bully and its Kour ord against yoursL one little #uny #athetic so to be

no longer homeoners.

C+*$NTI$* received a Notice of Sale indicating that their lender

ould sel1 their home at auction on &ctober :1, :>11, folloing their default in their


JUDGMENT 96



mortgage #ayments. The home remains occu#ied by the title oner. The Notice of

Sale did not give Joni or James Car#entier the re5uisite notice of the date of the

foreclosure sale. ursuant to N*S 1>8.><>, the foreclosure trustee must record a

Notice of Sale and give notice of the time and #lace of the sale by B1E #ersonally

serving or mailing the notice by registered or certified mail to homeoner and others

Oentitled to noticeOM B:E #osting the notice in a #ublic #lace here the #ro#erty is

located for :> successive daysM B9E #ublishing a co#y of the notice 9 times Bonce a

eeG for three eeGsEM +N% B7E #osting the notice on the #ro#erty 1= days before the

sale date. The Notice of Sale as recorded on &ctober 9 ith a sale date of &ctober

:1. This is only an 1< day notice #eriod. This fails to com#ly ith at least section B:E

above, and #erha#s section B7E should they fail to #ost the notice on the #ro#erty on

or before &ctober ?, de#ending u#on hether section B7E re5uires that action to occur

ithin 6> days or to occur only after the #assing of 6> days.

The substitution of uality "oan Servicing as the foreclosure trustee as

not recorded. Under the %eed of Trust *ecorded on +#ril 1<, :>>=, Windsor

(anagement Co. as named as the Trustee. No document could be found ith the

*ecorderHs &ffice indicating any entity substituted uality "oan Servicing as the

foreclosure trustee under the %eed of Trust.

%efendantHs have substantially de#arted from the notice, manner of service, and

#rocess re5uirements of various la, including, but not limited to N*S 1>8.><>.

When in5uiry as made ith %efendantHs as to the basis, reasoning, and !ustifications

for the de#artures, laintiffHs ere told that Kits your ord against oursL and

otherise res#onded to in a hostile, aggressive, and dece#tive manner. (ore

discovery is in order in this regard. This #leading is further filed ith an eye toards

asserting a N*C =6 basis for challenging the July 1=, :>11 order Bsomeho a

tolling argument ill need to be made to overcome the 1> day re5uirement for such a

motion, and the same could be said for maGing a (otion for *econsideration here

more than :> days have #ast since.


JUDGMENT 7>



Co&1%0s"o&

W'$*$)&*$, laintiffs res#ectfully re5uest this Court order as follos3

1. )or damages in e@cess of 21>,>>>M

:. )or treble damagesM and any sanctions a##ro#riate under any a##licable la,

including the to recent Nevada Su#reme Court decisions of July 8, :>11, assila and

"eyva.

9. )or tem#orary restraining order, #reliminary in!unction and #ermanent in!unction

barring foreclosure of the %eed of Trust recorded in favor of %efendant ++($S and any

successor in interest.

7. )or tem#orary restraining order, #reliminary in!unction and #ermanent in!unction

barring the contem#lated and scheduled TrusteeHs Sale set for &ctober :1, :>11.

=. )or costs of suit herein incurredM and for attorneys feeM

?. )or such other and further relief as this court may deem #ro#er, including attorneyHs

fees involved in #re#aring this filing.

AFFIRMATION P0rs0a&) )o NRS +-.

%+T$% this 91th day of %ecember, :>113

FsF 4ach Coughlin

4ach Coughlin, $s5.

+ttorney for laintiffs Joni and James Car#entier


JUDGMENT 71



PROOF OF SERVICE

I, 4ach Coughlin, declare, that on %ecember 91st, :>11, I caused the forgoing

to be deliver to all named %efendantHs in this action, by electronic filing to3

ristin +. Schuler-'int, $s5.Christo#er 'unter, $s5.(cCarthy Z 'olthus, ""6=1> W. Sahara +ve., Suite 11>"as /egas , N/ <6118hone3 8>:-?<=->9:6)a@3 <??-996-=?61GhintAmccarthyholthus.com+tty for %$)THS *$SI%$NTI+" C*$%IT S&"UTI&NS INC, +N% U+"IT

"&+N S$*/IC$ C&*&*+TI&NHS

+nd via delivering to their attorneyHs of record by efiling Bif he is an efilerE, fa@,email and de#ositing a true and correct co#y of this document in the US mail on thisdate addressed to3

$ric 0. 4imbelman, $s5. eel 0rimley, "":>17 $. (adison, Suite 1>>Seattle , W+ 6<1::hone3 :>?-88>-9996)a@3 :>?-88>-976>

eimbelmanA#eelbrimley.com+tty for %$)THSWIN%S&* (+N+$($TN C&. +N% +CC*$%IT$%'&($ "$N%$*S, INC. +S SUCC$SS&* IN INT$*$ST T& ++($S )UN%INC&*&*+TI&N %0+ ++($S '&($ "&+N

%+T$% this 91th day of %ecember, :>113

FsF 4ach Coughlin

4ach Coughlin, $s5.

+ttorney for laintiffs Joni and James Car#entier


JUDGMENT 7:



INDE TO EHI.ITS

1. $D'I0IT 13 )&*$C"&SU*$ %$)$NS$ '+N%0&&. &ne hundred and

fifteen #ages B11= +$SE.

:. $D'I0IT :3 C&""$CTI&N &) (+T$*I+"S )*&( W+S'&$ C&UNT

+CC$SS&*SF*$C&*%$*S &N"IN$ %&CU($NT +CC$SS W$0SIT$

*$"+T$% T& T'$ *&$*T +T ISSU$ IN T'IS C+S$. Tenty eight

#ages B:< +$SE.

9. $@hibit 93 s#eaGs to some of the enormous obstacles the undersigned has faced

in litigating this matter, including the e@tremely bad faith conduct of the

o##osing attorneyHs and landlord in the Summary $viction from the

undersignedHs commercial tenancy, his home la office in *JC *ev:>11-

>>18><., includes Judge SferraaHs 1:F:1F11 &rder ruling on the (otion to

Contest ersonal ro#erty "ien, and the 1:F:?F11 (otion to Set +side that

&rder, etc.3 forty one #ages B71 #agesE.


JUDGMENT 79



EXHIBIT 1



Clerk of the Court




THE FORECLOSURE

DEFENSE HANDBOOK

An EASY to Undersand Guideo

Savng You Home Fom Foeclosue.

Wen n Layman's anguage

Vince Khan

Consumer Defese Progams



What Oters Have Said About Ts Book

In my opinion the forelou defene guidebook by Vine Kahn i a monumentaldiretive for removing and motheng the lending inttuton and Wal treet evdoer who have taken advantage of the Amean homeowner

C Ray, Jute ret upeme Cou of Tea

Before you feel or for yourel for one mo moment before you rationalizehow it your fault and al of that - you need to know you were maniplated - alofAmena wa manipulaed - you we taken advantage of and you didnt evenundetand how or why. t tme to end that ignorane in your lfe.

David Nelon

Thi book i a MUT HA VE for anyone who puhaed or reed their home ine999 and are uent on heir payment, thoe who are invetng in foreloed ppeiethoe who a attempting a oan modiation, thoe who a faing foreloure andthoe whove already had their home foreloed upon The tool you' lea have beenand are being ued uefuly You only have power againt uh large Bankterwhen you know your ght and know how to enfoe them

y be a Bankter vitim when you an be a Bankter tor with Vine Khan bookand reoure?

Be

We might be avid and the bank might be GOliath, but Kahn ha given u omeve big k

Denni

We are ve happy to have a guide book to have a a efene to thi ubet tI have purhaed other book on orelou a more epenive but none havebeen a good a "orelou Defene Guidebook We reearhed we wttenand atuay ueful would ay thi i the bet book of it kind Eaily undetoodit let you know what the bank are doing and how you an ght bak you areearhing for a book on forelou thi i the book to buy

udy

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Vies bk haged my fe!!Mike Wate

Get the bk RE IT Read GIN The piees wi me tgether ad

make sese

Rady dsham

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put it a it perspetie fr me ad epaied thigs fky i simpe tes yu are battig t sae yur hme fm fresure this bk is a 'must ad ' yu simpy beee that aye wh is i fresure is a 'deadbeat wh deseest se their hme, I as imp yu t ad this bk ur eyes wi be peedas yu wi me t udetad that it is the 'ede' r reteder eders as theyae auratey refeed t wh are egay seizig these huses fm the hmewe

Mejiar

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Read Me First

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Tw hs fer I sppe ing pyens I se lkng y ps.cu ehe sh se (eig I cl sel he prpey f wh s we)or just hold onto the propeties for as log as possble beoe they oecose on e Or I fgh

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Undesandng e Seczaon Pocess

Yu ae faig ree Yu t have a t f mey a t f time a yat afr t hre a awyer A eve if y u ar e, t i very har tfi a awyer wh kw enugh aut a frau t hep yu

Th i wee we egi ur uey_ efre we eve t the nut a taut yu pti, we firt ee t eta hw te frau i eigmmie Oe we epe the fra, the y wi kw hw t aate aviae efee Tat wy we tat thi hapte y iving it the euritzatipe an what it mean It i fnameta i eping the frau

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I 999, the ateaga At wa repeae a anthe i wa truekw a rammLeahey At Thi efetivey awe ank t paagea suze ther a t Wa treet

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Incenve and Movaon o eczaton

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ye e Mde Mne Mehani pbihe by e eel Reeve.

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h bk he ty f wt ppee.

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Ad do it aga, ad aga Lat, rs ad a. (Th i eall good for thebak Th real good fo boe a thee i a udde glut of umitedmoe to boo fm Th ey bad fo he eoomy the og a e ee)

yo sdy basc coomcs 1 i high scool, yo will kow hat i you haoo much moy casig mid goods i ads to a icas i ics. Wts is xacy wa had.

Th bas thw t dig gidls ot h widow Thy ad whatscad a fidua repoblit o su ha oas w oyudwrit Tis mas that ty wr sosd to mak sur oas thyudro ar bacd by o who cod actaly aod to ay t bacsad, hy s gord ts diig gudis t am o grd

bas kw a hs oas wr dsid or Wal Strt, ad ta tywr ot gog to t oas so t sddy bcam a gam o ho oao,as it cam somo ss obm

Ty bascaly stc o Wa S.

Ths mas hy stuc t o yor tm d, you sock ooo ad yo iisrac oolo

t was c s u o bggs iacial mdow i t sory omaid I was th pc som

Bo w go io th iaca mldow o 2829, ts tak abo tScuriaio ocss ad ow rlas o yor loa ad ak aud

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age e oong and ervcng Ageemen rocessO a oa s osd i uiky gts put ito a Poolig ad Srviig AgrmTis s gsd o S as a RI Tst RI sas o eEe Mgge Inesmen Cndu. t is kow as a Spia Purpos Vior t ppos o ta mpto puposs. I wl pa wy ts is mpoa Stag

Ty appoit a mas si o RI ad a Trst to maag t Tustormaly t Tst o t Ts as powr ad sposbiy to admistrt asss o s.

o ampl bak Fudal Lod days ts ods would at Tsts o

pt ti assts su as i ad r ast ad so o) to I t vtsomt appd o ord Tst ad pow o maag statust

owvr, as o a RI t us dos ot av t powr omaag asss o t st. W wl dsuss i Stag 3 ow ts s dirt

osmdsogamsom 9



Oc his RI is ord, i gs covtd o a scuriy ha is raddo Wall Sr. Ths will ak o ss lar wh I xplai h rlaioshpw a ivsor a sharoldr ad a R

Stge 2 The Chngng the Stte the Negtibe Instuent

Iagi your loa is a caro gs row wih ousads o oh caros i aga juicg aci cald a RI A h d o procss yo g gallos ad gallos o carrojuic Tis ic is h sold o dds o pop

Tis s wha happs o yor loa w i gsscuiizd or oa is ow owd y ousadso sharhodrs al ovr wold.

hro sa o h oa is cagd. Yooa hs b ov to a stoc.

Ths s RALLY, RALLY impoat Plas spd a o o udrsadhis. Rrad hs scio svral is you d o

Yo loa is o mo It is ow a fov a stoc

I or words, ou cao ak a carro o caro uc. Whas do cavr udo

Oc a loa has scuriizd i orvr oss s scry (i. h Dd o

Trus or ailiy or h ak o orclos o yor hos) his wil xplad i Sag

Ths s why I say ha or 85% o orcloss a do radu

A loa is a ngoiabl insrumn Th ar spcic laws govrg goialisrs cald h Uior orcial od Spciicaly rig or aak o oc ad orcos o a popry is sc o claia ig aal pay n n.

I h loa has sod, h ak ca o ogr clai a y ar a ral

paty i rs

No oy ha oc a loa as covrtd io a sock i is o ogr a oaI oh h oa ad h sock xis a h sa i ha s kow as doldippg Doul dippg is a or o scuriis raud

A goial is ca oy i o o wo sas wh i udrgosscuiizaio, ot both at th sam tm I ca h a loa (ad rad

csdspgas 20



and goveed as such or a stock (ad eated and goveed as sc) Once t israded as a sock is foeve a stock I s reated as a sock and eguated bythe SEC as a sock

n yo Deed o st o Motgage i as lagage tha says someg le

"hs Deed of Tus secres a Pomisso Noe

Liste, when hat promssory noe go conveted io a sock tha rmi

ote o lge exiss

a rust was ceaed to secue a promssoy ote and ta pomissoy noe isdestoyed the that rus is ivald he st secures thig

The Deed of s s wa yor lede ses o gve hem he rig to foecose oyo hose. e Deed o st s ivaid, en e ender oses hei ig ooeclose onyr ome

Sage 3: Real Paries of InteresLet's ak abo accoig es, specfcaly e ule goveng a sae opreven acconng raud varos governing bodes created Fnancia AccountgSadads (AS) As yo now accoig s a ve mpoa area ha eeds tobe eglaed gy o peve companes fom coog the books

Specicaly, FAS 14 was ceaed to goven the sae ad secrtzatio o aegotabe nsrme Loo it p Googe FAS 0

ne o te higs abou FAS 40 is te e goveng a sae A asacon ca

ony be recognzed as a sale f s sod o a pay at am's legth I ohe wods,yo caot sel an asset to yousel (hs is wa Enon did to hide ter losses)Aso says (ad am paaphrasg ta oce a asse s sod the seerforeve oses te ablty o conto te asse.

To istae tis pont, imagine if I wee to sel you a brand ew lapop. You tookte aptop ad smased t o a milon bits wh a sedgehammer Becase I sold �he aptop o yo I have o s y whasoeve abo wayou do wi the l ptop. I ISyr

is is eay mpoant to uderstad

ce an asset as bee sod e sele oreve oses corol of he asse

Wha hat meas is yo ender sold you oan o a REMC hen hey orevelose te abiity o enorce conto or ohese orecose on your popety Putsmply tey ae no onge the eal pary i nees. ey are jus a servcer

So Who Are the Real ad Beeficia Pates in Interes?

I w m defeegram . m 2



Br w ca prpy aswr tis usti w av t iscuss IS ta cs

Yu s, t ral party i tst as t pay tas tr args

t wrs, yur ak ws yur t ty av t pay ta t itrst

ar rm tat t I a I ws yur t, t t I as a talality.

Th Cas of obl Taxaiopratis av kw r yarsaut u taati Tis mas at acrprat lv, at t t yarty tak al t rvu, a stractt pss wats lt ar t pritsTs prits ar t ta

crprati as as sarlrs. crprati typcaly istritsvis t tir sarlrs Oc tsalrs rcv tir ivis, tisis csr t icm t tsarls Tis s als ta

I tr wrs, pts a ta twc.

T avi t prlm utaati aks put ts as itSPVs (spcial purps vicls) sty 't gt ta tm. Tis iscvr ur Itra v 86

Tis way lyt salrs arta.

Tis mas, nyh hhs h a pa n in.

I t prvis scti, I scusst pws t Trst Bcaus tis spcia IS rul t Trustis t t ra a cal party itrst caus t I s

t w t ts, t sarlrsprmissry t.

trr ty cat c t

I tr ws ty cat av tir cak a at it, t Ty ca itr accptu taati a t t l t traliz pwr ty caistiut t ta liailits t t sarlrs, wic cas ty av asistriut t patis itrst

T ak cs t av a strit pary trst scm t avi paygtas twc ( Th nthg wng wth th

But w ty av a ral pickl I tiy is a ral a cial party itrst t ac a vy sarl t I s

S t t usti s . w as t rigt t rcs

T asw s . . no n

I t tsas sarlrs ac w a tiy pat yur prmissy la,ca ay tm rcs yr us N

csmrsprgamsm 22



A omisso noe is ony enfoceable in ts whoe entrey

That is the natre of the rad beng perpetrated beore he American public andwordwide.

REMIC, Ivestors and Shareholdes Explaiedhere s a lot of conusion arond the concet o securties conversion,secficaly aond te vaous aes nvolved sch as he nveso and heshaeode •

Tis cae exlains n greaer deai how each of these entiies tie in togeher

Funds the REMIC

.

Aets are ockd a a permaneaacmet e REMC

Become Major

Shareholde

o ilustate e poin lets use another analogy Le's say I am Seve Jobs in he1970' I come o you askng or $000 o nvest n my te comany caedApe Pa of Aes asses s e nelecua oey and desgn of e Aecomte

10 yeas late, we go ublc Because yo wee my intial nvesor you iniashares ae now worh a ot o money. We hen conve yor ecenage ofowners as an nvesor no pbcy adabe sock

wwwcon umedefen eprogam .com 23



Imagi howr i mmday a go , I a aot omay adassig h ntual oty and dsig o Al om o s nwomay Is a ga

h aswr is o. Tas ommoy ow as ba ad wth o ao

rgsr o tg wt S and mar so ad h a t moyis tasd swith ot t ass.

ow his rlats to a RI is this t a two sudo gornmt tisald ai a ad rdd a (hs a aualy iatly owndomanis) Ts wo gias d o ns mos o t RIs ad oh uros o srtizaio Thy ar th instos

O th RE gts od io so Fddi ad a gt y rihaus hya majosarhods o ts bily tadd sos

W a RI is ormd, is assts (you loa us housads o othr osloas) ar dlad a rmant xur to h RI ( Th lke thateletua popey of Apple ompue) Ts s rgistd wh S t isub iormato ot wods, o a ass s rgistd ad tadd as ao h surity, you at st swith t ou baus i as om a maixtur o t tadd asst

Th onuso I wa yo o a away r is tat a ass dlad n Sig s may attad This is a p man n conveson Tis mastr is o doubt tha you loaromissoy not s o mor

s a a as o dou xst to sa on s say w a so add o Wal Srt (tha suosdy oais o) w ta omissoy o ad w assig i o aotr a ta tas ad sizs iagai

I is siao w to ha, h sam oa wod b tadd we o WaSt. In otr wods, t sod st o isos got dud Ty oug almon Thy basialy oug a og

This s sus aud. It ano ha

www.osmdsrogams.om 2



The Repurchase AgreementLet alk aut te Repucae ageement claue i he Pling and SeviceAgeemen ha ceaed he REMIC

Thee ae ypicaly clae wii he Pling ad Sevice Ageement gvenig

h he umin i a wel a te epcae mgage Le pend a ewmme analyzng hee ecaue it i vey impta tha yu undetand heetem i yu eclue deene ategie and i needed aiclae yudeene.

Whe yu igna ende called an Oignat) el yu lan int a REMIC,tey ae eqied :

1 Delve yu pmy e RMIC whin 9 day Thi mean ha heOiginat ha t ende he pmi nte uing the language pay the de t a NAMED PARTY.

2) They ave phyicaly delive yu te t the REMIC.3) Sae law equie hat they al ecd hi delivey n yu CntyRecde ice

In 99% e tme al tee ig wee neve dne Thi lead a deect i techain tile

Next et' ak au he epuchae he pmiy nte ut he REMIC

Thee is no clase i n any Poolin and Sevicin Aeeent that I have beenable to fnd that ovens the event of defat that ives the sevice theiht to echase the note n defat. Thi i ecaue thi eve gvenedy FAS 4. In te wd he ende"/evice cannt ut epchae yua he REMIC Rememe te ale ha e dne an am legthhd pay And i yu ell mehig y can' ake ack The nly ime yucan ake it ack i i t wa deecive

S e k agai a wat a ypical Plig and Sevicing Ageeme ay atdeectve epuchaig mtgage I an itumen i ud e deecivemeaning dd n ill t ave 3 equed ep he gnat i equied uy he te ack a ul ace valu .

Le ue a analgy t iluate thi pnt I I ld y a cmpue $1 and

yu take i me tn i n, and thng happen . ten i can e pven ha Id yu a deecive pdc and yu ae entitled y $1 ack

ae 4 yea aumig I gave y a 5 yea pa waanty), the cmpeee t t, yu can il cme ack me ecaue the deec) ad ak yu mney ac I can eplace the pat. A yu kw in he cmpueiduty, a yea ld cmpue vey ut dae ad i wh ny a acin

cum d pgamcm 2



h iga pc b I tl av t giv y y my bac at t l $pcha pc.

B tg alt my y cmpt bk th I am b th h aaty. F xampl, i y pp th cmpt a it b th

hat t g lc y

I y y b cmp caigl $2 a I t th i hg ppg m m byig i back. B I v by a iga$1 pc tat y.

I th a a tha i i a i v t a mc a a gpmg la. It a b bgt bac i it civ at

Uig ti aagy ca ta a a a g ba (at) hg at Oigat; i cla hat i Ogat t by bact la

W ca a ta h Oga/vic av by bac ta am pc h RMC byig h bac a apmig a a b at a btatial ct

.cmeeenpgamm 26



Wng O B DebNex et ta a hw I an mae the lam tha the haehlde an heREIC we the nnpemng det t eeve a ax e hee pe evene aw ha ak p th agmen; t methng I al�d peee.

yea phy have paed tha hee wee hee thng ae ahe t n e wa ale n e Y ee a ak hle a lape tahat dene ha gh an eape . A eae we depe n gh tee n ne ld aaly ee a ak hle nt ne ay medy dveedh phenmen ale the eve h I he e n whh hegavtaa p the la hle ea the tegth the lght yng t eapem he ak he. Beae the extene the event hzn peple thenled hat hee ms e a ak he de the eve h

g h peede, I w ae why the ee theREIC we a det athe ha ty t let t n a ele

Le ay y ae a amg ppy hp wne a me t y akng e. Weve nwn eah he yea y ay e I ed y ed ty me ee a etlze my am Sadly we had a ah eeze hyea and al my p ded. S we y $ an pay y and g t ne. A a ne we, y an ne thee hng.

Cay he de a a ae.2 Ag a th pay hgh endement Wte t a a , an then el t a de le.

hat S let l at eah thee ae

If y a he e a a aet then y d nt ge tax edt the l yphae eed tl n a evene he ppe taxe e y aetaxe mney y n eeve

f y agn t t a thd paty endement he I wl we he mey he thpay he eqement hat gned a pmy nte an y phyalyende the ne he the pay th tae he e etween y an I ette w we the thd pay Y ann we he a a ax wte.

I y wte the et a a l then y dn' t my purhas a evee

he y ee thgh he a e, and et agan theme

A we ed eae he REIC an ee eae the ea pae ee ae the haehlde S n de hem t ealze any enet m anpemg e hey e anthe pay ha hat paty may eale let (ele) n he det

wwwm n pgamm 2



Bu C They Frecse?Let ake a kepical lk a u analyi.

Le ay tat he iiviua haele i not wte the asset an ineeel e eming e ac e ak wing t ele yu hme

De h give em he igh ee y me?

Th as s s

VN I te ank i ale elve e llwing iue

1 ) he iginal eivey he le f he pmy ne ha t e pelyne w 90 ay ae i e RC I wa n e imea ta e chain titl wa ken eaig a eecive inumenheee ey cann fecle ae a efecve nme.

2) he an ha ve ha e an wa n wie y he RMCh i ificul 3 he ak a ve hee i a eece chan e m gnan,

th REIC an m te REIC ack t he ank Yu an I nw ah eve ne ppey

ey i have h em CR ie 2 Sec 226 (ice n eAe)

§ 22639 Mgag as dsclsus

a Sc h dscsu qums hs sc al acd s xc as hs dd hs sc F uss hs sc:

A cd s mas a as dd §2262a22ha bcms h a xsg mgag la b acug lgalt h db bga, hh hugh a uhas, assgm h s ad wh cquirs m ha mog ge la ny-mh perod. Fo pposes o s secon, a sevce o a mogage an sal n be eaed as e wne e blgan e sevce olds le e loan s assgned e secesoley o e admnsave cnvenence e sevce n secng

e oblgaon

Me han ikey, y evice y ack te n a egua ai ie me han1 mgage ay 12 mnh ei.

wm d pgamm 29



svi bys ba a a amnisav ppss i. lsh hy hav h ghs h w h bligan i hy nav g s.

S as a s s is p y alg h ba pv al

s pis

I y N Dal Sbsn s mns mnsmn li Nw Y Ml s Sis 23223, h hs wil iia ha sv s sig bal a REMC A as w w REMCan s bas i ws a j i h shals a pay ns).

y a in a ia sa an wn y ba gang sannga y say w bg n ba s w an ls h agm pv a h la as bn s as a ba b gh b aRqs Amssns a Rqs P Dmns asig aing s h hain ai whin h REMIC W hav ispss i i ama ang pgam wn h mmbsppgam n nsmnspgamsm

I ban givs y sm asw li h ivs is an is Fani Mahy a bingg a b As w isss ai h ivs sn a a pay n is

CncusnS 's smmaz pns. Si v 85% as av bn si

w w nw a bans a n h al pais in ins in ay lsasas Ni a vss REMC N n a s

Wh a la gs n al, RMC ws . On a ass s win sas v a s m RS Tis mans a h ssl Th n is g.

T y way a ban a s y is i hy by pmssy n bam REMIC as a win b s a b w. a asbn givn shahls a RMIC I is n m S ssnalyhs bas a png p h pmissy ps la a

hgh hy y aah h nv lan h aTsMgag y a s ms a ps hm wl as i y a h al pais s y big s mns ivng a h wn nsl w, h ms pa sgan s shm

svipn l w wlgy sls ay s y h ig a s.

smeensepamsm



1) Tey neve el yu wh e lde n due cue A e, hey ell yuw e nve A we kw e ve e hde n decue ad de n ave e auhy ence e ne

2) ey d n dce whee hey w he e acg a a ece

ece e ne Oen me ey ae u acng a a evce wh nahy ence e e Remembe he ne ed y e REIC enceale

3) I hey gh e ne ac he ppe ecue h (and na an admave pcede en ey eve dcle wee hede wa wen by he REC whehe e ppe chan ecan be demaed.

w an ea y ue and e he mln amle ande cuy

T mean yu ae acg ecle, yu need lea e h abu yan ad lean w gh yu g

T mean ha y ave yu me de ecue yu mg be avcm aud and e enled uve damage up me e vae y lan

S e ummae ee w al w gee Te an gnae hean and el e REIC 0 me e ace vale e a g pad (and me Ten, wen he a ge n deal, pc up hene enne n he dla ee n yu ue and en el hene ce l ce Oh, dd me a e FDIC cve eween 70%

80% e lan amun a

Ww ve g p y a em Fm a puey echncal bne adpn a ju ue blance.

h why I wan ae h nman yu nw yuve bee cned

u have a g be angy u SHOULD B

Iw.cm d pgam.cm



e Bubble Bus of 2008-2009

ne wa cmpaing whe thng wee gng g Eveyne wa happyEveyne a a hme Hung pce wee gwig in ube igit Untiheue ca ae t umbe wn

e ca pn i a pecc ae b meme n 008 hig tae gigwnh he bubbe a ge t a pnt whee me a me hmewewee eaiig ta tey cu n nge a mutmii a aiiciaynate) hme a mnimum wage incme Me an me hme weebegnng g nt eat

A me a me a wet i eat h aecte te vae temgage backe ecuiie (MBS) Yu ee he haehe an inve tee ck mae thee aa assmptions ab wa hey bg

Tey ame ta the bak the ig thng he uegpce Tey it

) hey aume tat ce a an in hei pi went nt eau theywee abe ece a cve the e ey wee wg.

3 Tey ame hat t e wu neve en

Oce Wa See vet eaie tey cu nt cve thei e byecig te ueyig ae) tey became vey pe (an igy ).Tey ae ung e bak a tppe buyg hee txic ae

nvet tppe buying hee MBS S the p mey ie up an e cu ge an nt eve the with 80 pu ICO ce

en he pice ae t pmme.

wwwcum pam.cm 32



Whe the aital aket d u e ud ge a e hg ieae deede ele alty t eue la Whe ele d geget a e d ad t uy he.

we d eve a hg i day he ake a exeeed

te highe gw, eialy Caia Nevada ida ad Aa ae althe e wth e hghet fee e

Cey, i f ale ae faed wh a eal de tgageayet wel eyd thei ie ai Added th, li failie aeu f wk due e a he ey a he ae etigte a e eiiu.

A e ad e aie deeve faal le, he ate eal ak defalt uh highe tha

wha the aig dty wd le eeve May ee ae h t yea ehid thei ayet uta ae eady ee addeae tee la deiue

A e ad e a g i deae ad e hewe ae gigak Me ele ae leaig aa fad ad etai, ut w ew ele ld fy ehedthe ehai hw the faud waeig eetated

Th i the ea why hi k i eig give t y ad why ele aeag th t eveye they w a exg te faud te fite e Egi ee a udead

www.u d pa 3



Bak Frau Expose

S w a weve expaie te secuiat pcess y ae prbaly meime ab is plem a mst ges a atteys Yu see, mspepe us t w ab is scam a is eg pepeae e Ameica

pulc I pe ta y use s ppty t get med. el yu iedsabt it alk ab i y eigs We yu Cgesspes Next timey ae a a scia gaerig big ts p s is te y way we wae upAmeca

S e's summae case yu misse it

We a la as ee sectied as bee cveted m a e asc. e eal ad beeica paes ees ae e dvdal saeeslig a aci e te eee, e pes may eclse eppety

Bu wa a mie I ts s e case wy ae ee s may uses begeclse evey day Eve tday espe te sge scaals

e pbem ges way eepe a -sges is is y aassigmes t ppey assge a ece ut als e ac at teyd t eve ave e igt t d s

Remembe FAS 10 Oce a asset as bee sld yu eve lse ctlve at asse it s sld t a RMC w ca e ak (w s ge eea paty i iees) ecse

ey cat

ey ge away wt evey sge day ecause ey ey clectivegace

ey ey yu igace

e jges igace

e atey's gace

e ecse a mgage st peses igace

Is me wake eveye p

csm d s pgamscm 5



S, lt' k a t cat an cw it W av llwing caact

T LnT InvtT Sal

T REMIC Tut RMICT Svic

Th Oiinl Lne cnnot oeclosA I icu ali un FAS 1 t ignal ln l t t REMICan v lt ti igt t nc nt

The Insto n Shhole cnnot oeclosA I illutat wit t App an iP xampl, wl t nv anal a a wl a t al pai in ntt, nviually ty canntjt cm in an cl cau ty ny wn a tiny ptin yu an

Th RMIC n th TsteeRmm t REMIC l all t lan tg in a pling an icingagmn Hwv cau ty c t avi t IRS ax l IRC 86) l taxng, ty pa n al pay in ntwnip t at tt invial al S ni t REMIC n t ut mayc.

Th Sice is Not Rl pt in intstT Svic can nly cllc t mny an pa it t t RMIC Ta' txnt ti

So, Who Cn Focos?T anw n

Onim yu will a t ank pn nui a t w t al pay inint y ayng, ann Ma i nv. y a tcnicaly nt lyingT i tu But a illuat ai an invt cm a matyal t a c u ty a n a) t l n cu ) t al pay in int

i a an a ngng c vy ngl ay.

Only t t an ncia l n cu i t al pay in intt ann t nvt

Agan, i t ank i n t al paty n intt, n t n cu .wat uin ty av in cling yu

wwwneenepgam 7



I Faie Mae ad Feddie Mac are t the true ad eecial hlde i decuse hw ca ecsres e de i ther ame

This is the sam banes on wan o o now

he Ge Peene ener Swchhis is hw the scam is pepetrated y yu s-called leder They adverise thatthey e las They wrk wit te mrgage ker etwk aud the atit get csumes t apply te la. Oce te a as ee apprved (I sethe wd apprved" very lsely ecause very itte due diligece is actalyde y the s called eder) tey ae pe-placed it a REMIC. The leder thewaits te paperk t e siged Oce t is siged, it s mmediateytasered it te REMIC

Oce a REMIC has eughlas t e packaged, it getsregistered t the SECdataase ad te getscverted ad taded as astck

All the while, uekwst tthe csme, the lede all asdde switches the psitirm lede t service thete Aga, as y recall uderte accutig ule FAS 1 ce a asset has ee sld the lede ever

ses ctrl the asset I ther wds tey lger w r ctrl yrla Tey merely act as a service r yu la, with the pceeds gig diectlyit the REMIC t e distiuted t the sharehdes

Rememer sice yu lede is just a sevicer they d t w the te Theyd t have the ght t erce the te Tey ca y act as a servicig aget.

Please eer t CFR Te 12 Baks ad Bak Pa 226 - Th LedRea Z This is eclsed i the Appedi yur cveiece These arecdiied laws akig It deies wh a Lede s ad what the ights aServicer ae Speiically it reers i 226 a) 1 tat a sece s eaed as he

e he ba

(a) Scope The disclosure requirements of this section apply to ancovered person except as othewise proided in this section. Forpurposes othis sec/ion:I A "coered person means an person, as dened in §226.2(a2},that beomes he oner ofan existing mortgage loan b aquiring legal

csm d spgam.cm 8



The fny thing about the law is t is egal untl o nless he othe payobects Snce this scam is so devous it is beyond he compeension ofmost people . incldig that of awyes and jdges It akes someone who hassdied accountng secuities and aw to navel ths deception Most peoplei he egal poession only take he aguments on face value

3) Broken chain of assignment

Unde the Unifom Commecial Code UCC) he pomssoy ote is a one ofa knd instument All assignmes (much like endosemes on the back o acheck) have to be done as a pemane fixtue onto he oiginal pomissoryote The oginal pomissory noe has the only legaly binding chan of itleWihou a pope chai of ttle the instment s aty.

Raely can a lende podce the ote becase by aw the oiginal noe has

o be destoyed Remembe? The ote and te stock canno exst at thesame ime Oentmes he lende wold come no cor with a phoocopy ofte oigial note made yeas ago

Aothe popula mehod of decet lendes pefe s to se te Stae Civil Coden non-dical staes o sate hat hee s no aw eqiing a lende topoduce the note o any ote poof of claim" THEY DON'T HAVE IT andCANNOT PRODUC IT

Ofenmes he ende wod do blank assgnmens of he oigna pomissoynoe into te REMIC The, when they need the noe o pefom he

oeclose they wll magicaly poduce a bank assignme. Again ths s notega and s binging auden docments befoe te cots and te contyecods.

Lets be very clea hee Once a loan has been secitized te note is nomoe. Aythig te lende bings to cou as evidence is pima facie evidenceo faud The aoney fo he lede is eithe a accessoy to ad though

o nsu m rd f s proqra m s.c om 40



Ms e Sc

By yu shuld se up t ths he h s he real paty terest S, yur leder st a real ad eeal paty terest h a

ey gve yu a a md

WARNING

SCMHEDe aser s tey at.

Wat happes a he me ea yu say

e truth s vey e la mdats ae apprved ad they usualy taemths

yu have ever red t ta t yu a au gettg a la md yu l keyhea smetg e am sry sr e a ly sder yu r a a md yu ae 60 days me dequet.

WHAT??

Tha's ust supd

N really Heres hy

Lets mae smpler r yu uderstad he sam Rememe AS 0Oe a asse has ee sld te LedeSever eve ses e gh tee rl he asset . . . e a la s sdered delquet

Ae 60 days y sevice becmes a deb cec ad is veedude e Fa Deb Cllecis Pacices Ac.

Ths s ater sam they d't at yu t k aut

yu have ever reeved a Ne Deaut r aythg else rm e a yul see a laguage e Ths s a aemp t le a det hs s requred y

a uder he a De Clets PatesA.

As e dsussed earler, typaly, te REMC

tes the de t reeve tax redt agastuture eargs The see the uys thsasset a as a -pmi ad �secued deb vey mu e te letagees ta uy perrmg red addes.

Oe a de as ee rtte r ax

sm d s pgamsm 2



e t i iage he many may el he ae t a eb let,w wil ayig a eveythng i we t e, hea a ea let he ebt Ti i why they have e ne h a attemt t et aebt. Ti i yu lue tha they are t te igina ei

One a eb i e the I oms ad ovrs 80% o th a vau ot oa.

Yu bank buy the ba eb ennie the lla m the REMIC hathey a egiae a a ma

Oe ey get yu t gn he a m ageemet ey ave eyenegate entae an e-aquie the an Nie hw ha it i t ge ala miai? D y kw why?

hey a n lge um tei x aet he e n Wa Seet.l me ce, hme u l me tce, shame me Wal Stee i gettingwe Nw tit unewiting ana mt be alie beae hey have tkee he a.

Futheme, thee ae i auntig e ab byng ba tx aeThe aet ha t be bght n the e make That i wy i take mnh them t buy yu e bak

Ca yu ee he ght w? Ae y havig a aa mme?

But f Thy Bought Th Loa Dot Thy Th Hav th Rgt toForlos?

Oe a eb ha bee wien a a ba eb he we ge ax et heaet. Whe thi haen he ebt ihage Sele Gne

Wha thee bak ae ig i buyng a age ae Tey he y tve e w he bwe, e a e uee hat ey ae eea ay in inee Tha a le

A I ue eale ne a a ha bee we at be e-aheea mae whe agai Remembe You aot ma arro from arrotju eve hage

tr RoboSigrs ad Fraudult Loa Assgmtse me a y a ei. I yu l k a miy nte eie nthe a a a yu have "nvne ) he mewne ta yuae he tue ay neet . wha extent wl y g t ieheaeal t getthe hme

nm pgamm 43



The anwe i .whavr i aks. A lea hat what the ank ae ing

Thi ing u ack t the Unim Cmmecal Ce Une the law te ginalpmy nte i the nly vali an legaly ining chain title he nteY iginl pmy nte i lke an iginal check It a ne a kin

intument

T cnvince he cu that they hve he ight ecle, ank have taken t:

a Fging cument Ceating aitay lan aignment it thei neec Bingng auent cmen ee the cut Recng auent cmen a the cunty

Thee a cmpany cale Lan Pceng Sec (LPS wh le than$1 can acate any lan cument he ank nee t aclitate theiecue It' cale evee engneeng title Intea lwing ppelegal ue pce ppe chain ite aignment a equie y law theecmpane wil evee enginee itle t aciitae he eclue even ithey have t en the le a little Th v then go under oath to t stif that th y

hav t hand know l dg of the fac that thee loan documnt are l gitim at .

I have epitin emplyee m hee eclue mil paing the ntaytamp aun an tamping gnaue a they g. They lteally pa annay ignate lke it wa e tamp Oen ime yu can ee gnauea ntaie tha n match what i egitee with the State

hee wa even an intance whee ne uti ha an "agnment tale whee

hey wul put a whle tack pape an a manage wu then ue tampthe apppiate lan aignment a hey aw it with n veicatin n ithanknwlege the ac n cnimatin an n zip

Bt a I ce eale yu cannt make car m cat juice I a lanha een ecuize any uppe ginal pmi nte nthng methan cuneeit at e; nt mentin ecuite au

Don't beleve s? Just go to YouTbe and search for the Aan Grayson Fe r and the vde d poston o ntwde e cl aring Ban B . These are but two of hundeds o sch videos Congressman Grayson I a

Representative rom Forida one of the wos afected Staes in he US.

It engh t make y ick

cn m npga m m 44



Lega Agments

The isses a elses ae sig stess a emtial

This is mae wse bease the baks ae mmittg e a bt ae tyig

t ve it ke I metie eaie t eve the baks maages thew sel kws whats gg By eaig this bk, y ae meeate tha 99% the ee t thee aig else

Tae a ea these tw geat atileshp:wwwusaoayom/mony/onomy/houng/201 0-1221

morgagnot1 N.htm

hp/www.loomg om/nws/20 1 1 -0 1-06/f losu s-may b -n -bymaahstts- g--mo-tras s .html

athe geat atie m the Fiaial Times abt Setizatihp//falpavillfom/blog/20 1 1/01 /07/4S208 1/aourasohallnseuriisationsandards

Wh y ew set eyes ea the aes agai Seisly lk thelik a ea it wl w be able t st te les a say aha whe y lkat the bem thgh the la a les It al makes sese.

eye is se The lawyes a the jges thik that its jst a eale Its t

ths hatewe will

g it me egal agmets t isss the isse sbjet matte isit ( Stag) as well as the Fai Debt ClletisPates t as it aies t the ese blem

wwwonsmnsprogamsom 45



Bey "Shw Me he Ne

Sme yu my hve he the gume hw me he te" Tme ime gi hee e e e ut u Thi heme me m wellitete ee i he me wh e ilime bu the legl e

mel the me uee ytem the et tg.

e me lute tg g he gy.

et y hub we e gig ve wh h e heh ll ue me gy hw y w he h" Thh ty i t el ty i tee heee h tg t be i hetvey

weve i th hi y the hw with e eeit m the wievg th he he uh l e he h ig

h ely m t ue biig y e yu huuy he euit e gumet hve be be tue ee yu legt h he b el ty teet theee be me iti the tvey. I thew hey a i

Ue he ede ue of cedu ue 1 7 " i mt be uueby el y teet" (Gge it i be ve th he b it e y eet he he b ee he e D e w t u ye ul uel.

Oe he wy b bue he blem euizt eet he e he t exie bve he te iv e h bee euitze but e the b t eette the het yuhue hey wll wheve i e mlee the m

e Um Cmmeil Ce te i e egtbe umeh h he ly egy bg hi igme. Oteime y lee whw wh hy the te me ye g gi g the i e te y he Thi mibe le yu w hw be g wth el b the ede ue of Evdece 1002ad 1003

the wy b he thei u t wht le bl igmet tht the l my be ge my time mgt themelve ht e teby M (whih we wil exi le whie eeg b gmet hee hy the eve ele eee. hi bt bue he whe w i vey ei hee The miy e wel the Dee Ttm be gehe t l ime hee m lwy be e mbiguhi tle ht ebe bl e e ee i eee

m pgmm 46



Remember, the argument we want to go y no how me the note utntead how me tandng" or how me tha yo are a real pary in inereOne o the way hey an do hi i o preent the original promoy note Byndertadng the argment of ertizatio you may e ae to refute the ote.

Te Deed f Tus and Mtgage

Whe you gn to oe o your oan you gned a numer of doument Moimpoant are the Deed o Tr or Mogage (dependng what State you lve in)ad the Promioy ote

The Deed of TrMogage eure he promioy note

Te Deed of TruMortgage i the domen that gve yor ender the rght toel your houe in a oreloure aion

Both the Deed of TruMotgage and the Promory note mt alway pont tothe ame party at all ime o have erfeion o Chai of Title

BfucatnIn evey Stae that I know of) he aw i very peifi in regard to reodaton ofpul reord at the ounty Hal of Reord wih regad to real properySpeifially al real paie o iteret in rea propery mu be reorded a heCounty. In oher word if omeone ha an nteet n a pee of propey heyMST reord th interet on pl reord.

wwwonm rd proqam.om 47



Whe a mssy te ss assige, ieee mst be ecei bic ec t mataieecte ca te the secty

I hee is a bea i achai tle teifurcati ccs wheethe ee st/Mgageits t e aty whlethe missy te ist ae ay

.� _ ,,B-

Carpeer v Lga

e a S Seme Ct ig is state hate Pmissy Nte s e bject, a te Dee Tst s he atachmet

Whee te Pmissy e ges he Dee st ms w mch e a g a s aiWee he g ges, the ai mst lw N hete way

Oce bcati ccs the he secity has bee be becase Sate awhas bee vate

csm s pgamscm 48



Pefect f Chn f Tte

I 1 t t ANK NATNA AIATN S A IANZ t b t b b

t bt T t P tt bkt tb r t t t t

T G Y b t t t t t t t r t t P N t

H tt t t t

1 A Defetve Tile at be fxed.

t b t ttt tt t t t t N Dt

A t tt k b O b T t D r t t T t t t t b . b jb t b tt

jb t t t b t Ot t b t t t t T t a attest t wh he ret real ad beeiiay ary i iteestis

2 The Ba mst sw a peet f e Cai f le fr he Deed TrsMae

T t t t P t t b tt t rr t t R bt R b

t P Nt t t R t t

t t t b t t t t t t t t t t R O bt

wprg



Al paper work mus e emonstrate to e peece at te tme o the oce oDeaut I t can e shown tat ths s o e case hen you cou have heoreclosure process trown ou.

Who or What is MERS?

In orer to aciiate e tracng o e tousas o true sarehoers wo owshe promssoy note an electroic regstrato sysem mus e evelopeBankers got togethe an create the Mogage Electroic Registraton Sysems(MERS As you can see rom our previous argumens ha ue o IRS Coe 860governg ax pass hroug or Specia Purpose Veicles he real paes oineres are the nvua sarehoers Ths cou e ousas o tem an iwoul e mpossile to trac these paties at te County Recor Fuhermorethese paes change hans lieraly aly so t wou e impossie to rac heseusng conventiona means.

Wen you loo at your Dee o Trus or Morgage your loan metone MERS

o the rs or secon page, hen there is a goo cance 100% acually hat youroan has een securize

MERS uncions as a regsty s much ie your County Recorer Howeverwat is unque aout MERS s hey are oten name eher as a Benecay or a omnee on the Dee o TrustMotgage There are a numer o prolems withtis

a To e a Beneay oe has to pu up he money o un te oan MERSnever ronts up a singe ime or the loan They are solely here or thepurpose o tracing transers

MERS recoraton s no ocia. e ony egay recognie recoratonon puc reco is wh te Couny

c MERS s never a Hoer n Due Course o promssory note was everassigne o them

Only a rea an enecay party n inees may assgn a promssory noteappot a susiuion o trustee o assign he Dee o rus

MRS apints loan assigmens o myserious paes evey ay or hepupose o oreclosure wiout actuay havng te auorty o o so you aveever receve a oice o Deau or oce o Sustuton o rustee you wiikey see MERS appntng some entty you've ever hear o or eat wt ashe eneiciary o your Dee o Trust/Mortgage

Cours al aroun e coun ave rule against MERS havng te auhoriy toappt Trusees an assgn Dees o Trust/Mogages. Unless i is ocialyregstere at the County al o Recors i is no oicially recogn

cons um ns poram scom 52



The Issue f Defecve Insue

If the pomissoy oe is owed y ousads of pas e ee s o oepay ta ay coe oh o lay cla o the poissory oe If o oe pay ca

be aed te beeicay o the lede the the pomssoy ote s defectveIf o loa assiget was popely doe it caot be fied A leder caosipy everse egieer e tie of te eed of Ts or roissoy ote to make bee Oce a istrumet s deectve, i caot e used o collect the debt.

If the tes of the eed of Tst/Mogage ca e show o vioate applicableStae law he t oo is deecive If is defectve the i cao be sed to gvee lede e due o sae clause he es o he eed o Ts us erespeced whoe ad oe cao pic ad coose wch pa o espect adwc pa o gore

ou ave to uderstad ow to ead he erms of the eed of Tus/Motgage soyo ca atcae ad deed yor te agaist fraduet clams So wodecomed ha yo big out yo ortgage/eed of Trust fro your cosigpacket ad tae a caeful ook a em o see if ee ae ay of the aovedeects etoed o mght e spised a wha yo dscover

cos rd f s prrasco 54



aks ry o orlos o h sam hous y hs doum mills hamoys raig afdais o sify ha hy kow for a fa ha h loalogs o h forosig y. Somo is yg W us do kow who

Thas why w ha whas ald h du ross o h law Wh o maks

a afda o is dlarig udr oah ha o is lig h rh ad kowsha hr sams a aura wih firshad kowldg ow a o kowwih firshad kowldg o h fas wh o rosss 00+ fls a day? Isimoss

I you ak a ook a h ri lis ao, you a s ha or aroud $5 iralyayo a ordr h doums o faria a missig assgm o h haof l o dmosra o h our ha h ary doig h folosig has hauhory o do so

As w miod h rious sio a dfi isrum is lk ad oodO i is dfi i ao fxd

f yo g a MSI (Morgag S Isigaio suriizaio audi i wil ikyshow ha your oa is su o roo-sigig. This a h usd as a alidgal ds o ro ha h assigms wr o do lgaly folowigror du ross

wsumrdfspgramsm 56



Ilega Trustee Argumen

Tere have een o isaes n h a eera Court Juge isse astaeie iunton reeing a foelosues aganst hoeones agaist ankof Aera an Reonrst ne as in ta n ae 00 an ore reenly i

Jauary 01 Nevaa, bease i boh istaes Reost is o regstereo o bsess i at stae

If a oay ants to o usiness n a sate it nees o register ithin that stateas a eiy hs ay f soeone tn hat sae as o se e they aloo up o he oers are a here tey lve, so hey a be ropery serveh a sons

In aost al istanes, these orelosre ls are not registere to o bsinessn te sate hey are aeig to orelose n

ay oeones have se ths eense o a leas forestal foreosure. I s

not enogh o stop a foreosre b i is anoher lai he oeoner aae n a Quiet Tite Atio efense aing te agent hat he Trusee s aon-ey.

os u r f ns rogra s 57



e Far Debt Coections Practces Act

As yo real your reeder eder beomes a deb olleor after yo are 6days deluet Tis is te only way they a egoiate a loan modifiaio wityo bease ges disarged o o he REMIC have lded a oy of te

DCA i e Aendx a e ed o ths oo o a aso smy Googe arDeb Coletos raes At

ets al a bi more aout de olleors It is a sam Det oletors deped oeoes igorae o oet teir lgoten gais. Tis is oe of ose drty lteserets aers ave ee hdng or years Tey don wan yo to ow ssam We are bowg their diy aud o he ope beause we are s oseeig so may eople sfer at e hads o baers

Remember or examle of te farmg suy so ower wo gave me redi?Te rops roe ad I ad o moey to pay ba e oa Rememer as ausess ower yo a do oe o hree igs

Cary he de as a asse5 Assg t o a trd ay trog endorsement6 Wre t of as a oss

A debt lletr is smee wh (is t the rgil reditr) buys debth hs been set ad attems o olet i They have rhased e debafer you have deared a loss Ts is vey moat or yo to dersadTis is wy e govermet reaed a se o aws aed e air Debt Coeosrates At USC Tie 5 Seto 692) i order to mnimie he dee adroet peoe Sadly, not many lawyers uderstad is meha hey hindebt oletors at legimaely

Les say t agan Oe a deb as ee wre o it is dshrged I aote olleted agai De oletors use deeption to ove peope ta teywere assiged he det

So, ow does ts relae o a REMC ad a deb oletor As we disssedearler e dvda sareolders are he real ad eea ees odersSe the idvdual sareholders ao edorse ad assig ther otio of theoss then they have to wte t as a ba ebt Te Trsee o he REMCao do eer bease e Trsee s o he real ad beeial older ohe promssory oe Te REMIC as give p at rig whe t ose o

srure self as a Speia rose Veile (SV) for the purose of a sraighttax pass troug.

Te oy way yor leder a foreose o yo s to rely o he same deepoats used by deb oleors. e air De Coeos rates A governsthe deepve raies also Remember a debt oleor ls o ther deepiothrogh eoples gorae. Ths ha u ede s dg That s

osm rd s prormsom 6



wy in al r ommniations yo will s Tis is an atmp to olt a btA orignal o is o rr to isos is.

So yo a n o or yo a os rrsnng yo lnt is impoafor yo to as opposing os o spa at o ti owrsip o tot. Onims opposng ons wl om no or oom rpsngta r n as pas o not ag ta ty av in fatbrogt a bfo o. f opposng ons s gnoa t y a nolyng. I s p to yo o gt m o spla t t a of gotabismnt og irogaors an isov ing sbpona oaontng os. yo o ts wa ow iy boo ans fomopposng onsls fa ts i a sg.

A v nstrm is not oab A istrmnt ta as b prvosyisag an bogt as a ba bt is not nforcab. Dot be fooed Its byig a ap o o Rox wat n Mxo I mg oo t sam bnrnat t a i is no.

Vonsmereensepogramsom 61



anyon wo diss a db o s yo now t law. s s wy s soimota o yo o now law as wl!

Undr Uirm Cmmerial Ce Set -24 t nam ad tsgnaur of bot t bnfcay and original crditor must b disclosd in

sam documn § 304 d sga o borrowr mus b cdd as wl nto t assgmn o tans unlss a cas i dd ofrsmogag wavs ta (most dds o st dscos ts at cas #0

FTC UD COMPLAT ad Cmprler e Currey

If yo bv you motgag srvcr as ot rsondd aorialy to awittn nquiry you soud contact yor Stas Atrey Geera CsumerPtei Offie ou soud also conact t Depatmet usi aUrba Develpme HUD o fl a comant d t SPA rglaios

s imoan a you iss comais to ts aois bcas y canotact on r ow y nd a damagd aty o gv tm auoy tooscut a cas mo o comlain to ts atois mor liyty wil a notic ad invstgat

yo coman la to m wa yo av asd ovid cos o yocommicaon and wr ty bro t aw Scicaly nd ai DbColcons Db Scon 69g.

Wr o:

Ofic of RSA ad ntrsat ad SasDamt of ousig ad Urba Dvlom45 Svn Str S Room 54Wasngon DC 040

ou mg aso want o conact t da rad Commsso C TCwors o cosm to v raud dctv ad nar busssraccs i t marlac and o ovd nfomaon o cosms sotsto and avoid tm

T TCs addrss is00 nnsylvana Avu NWWasgto DC 0580(0 3fcgov

wwwcosmdsprogramscom 63



What About My Debt Obligations?

"But I have been bught up to be honobe. I am a man of my word Isigned the pmisso note, pmising that I would pa I got my house Iam now in defau The bank has the ght to forecose on my house . "

Mos o s ae decent onest ols We beleve n payng ou debts Milons admlios o people echo the above seiment You are not alone

am ot talking abo a ree lnch.

am no alking abo scammig e system no am talking abo takingadvaage o some bizarre loophole n te law.

What wee taing abou s arness, ety ad givig te eveyday homeowera fai shae

Heads I Wn, Tails I Winhe beay w e capals system is ha encoages ree eerprse. encouages peope o ae risks. W g riss comehigh rewards Oftenimes yo wi, and sometimes youose

Hwever, i he suao wee eads w (ad eep ate money) tals get bailed o i ges down to aqueston of fainess and eqty Remembe he baiout

comes rom apaye moey (OU MONE eyeceved over 3.5 TRLON doas of fee money. rettymch wth no stings attached, o do with as hey see fi

O te oe side of the spectm mlos of homeowers are beng cked ouo ei homes. No oan modfcaos o compensae o beng "upsde dow"e., hey owe more ha her ouse s wor

Were's te arness in a? Parculary when hey ca se a same balomoey to pay her top execives mios bonuses (o e mber of omestey ca oeclose and ow qucky tey ca process them

I don't know about yo bu ths sort of behavior is enough fo the ptchforks tocome ot

Enogh s enogh

wwwconsu d f s pograms.com 65



a e ee ae e pepe w dagee w wa we ae ayng Buta G at il egal i i u We ea ave e g t wnp

Al I a ayng , enug eng

We tey eae e tey eaen u ae e e i e ae ae Wtut it, we ae lt ne ey w e eyan ue tat t leveage and fte enlave u

T paapae Sn Tz ( The A o Wa) neve bak a at i a e. Alwayeave a e e a t eape ee te at wil be bak e banke avebae u it a w iatn J pe at by eduating y abu t ayu wi eie t fgt bak

wwwcsum rd f ns prgrams.com 67



The Bloody Road Ahead

y a indatons 201 1 and onwads wil be even wose han befoe Moe andmoe loans known as opon ARMs adsabe ae mogages) wl ome de asmany o ese oans have a omane peod o 3 o 5 yeas One dues omeand peoples inees aes ge hked p moe people wil get nto touble wihtei loans

As of he mdde o 200 e geneal Ameian pubi staed leaning aboutob-sgners and impope oan assgnments. Ths as been a ove the news.ut as yo have seen hs deet goes mh deepe tan us poeda eos.I is massve and wf fad ommtted by he bankng arel.

It is antpaed ha ee w be a massive boom in the ega poesson in tenext 5 to 0 yeas in he aea of foeose defense and ltgation bease asmoe and moe homeownes lean abo oan ad ey wl lkey seek o egal

pofessionas o seek eef om o pedaofrends in the bankng indusry

No ony tha tee wl be moe and moeomeownes who have aleady os thei homeswantng o ave ei gevanes edessed ashey dsove tat ei foreose was donefaudlenty Thee is no staute o imations onfad This wil mean moe and moe awyes wlhave peny o oppornies o psue ivations agans hese endes for ea and

punive damages

This is a poblem ha wil aun he banking industry fo yeas o ome I expethee wll be a massive ise in adveiing aoss the naon fo wongufoeosue oningeny atoneys n w attoneys w puse lents whohave ost tei homes de o ad o a bg hnk o the setemen

Tat s why he peope n the bankng ndsy wo know about hs ae dongeveyhng ey an o keep he h fom omng o Ths pobem wl est invey sgnian and ong asng impaons o he banking indusy o yeas oome

www.o ns d f ns poams om 68



Opporuny for Peace

I ope a by awakenng more andmore omeowners and peope n eega professon o e exen of oan

fraud, a our bankng frends mgdecde o come cean.

Al we are aing a fair dea People alarond te conty are fering Al wereayng eog enog. e te greed opad e t compaon or eac oer begi

I ope o aoid e bood bah of igaonaead a t wi ot be goo or e baing dy and imaey, i wil comebac to hant eeryone Le aid we need a trong and relabe banng

yem

I ope a ba w f ha hey can come bac o omeowner andproactiely eegoate ome oan o mae hog more aordabe foreeyone o eep peope n teir home

f he peope n te banng indty can ee hat hey ae epoed o a maieamon of ligao damage hey coe wh frad and chage theirpredaory way perap we mght ee ome economic recoey a more peoplecan acay aord o ay n er ome ad ped moey o ppo eecoomy iead of eeding the banig ytem

I hope tha the peope te meda te goernment ad he ban can a wor oan amcabe accod o alow omeower o tay eir home If not then hiconry eadig oward a egal blood ba.

wwwconm rd n program.com



more inomation

Wht Are My Optos?The uroe o thi ook i to hare ome inomation wityou We hoe that ti t the ennin o youeduatioal joney

Aain leae dot elieve a word we ay Do you ownreearh

Whateve you do dont o to your ak manaer anddemad jte He i ikey to e a norant a eveoeee hi i a eme tat only a ew eoe at the hihetevel o the ankin ad iane indutry are awae o

Dont o in haoked and demand that your ank owyou that they are a ea ary in iteret Arm yorel with

I thi ook ha nied you to take ation then the next te i or yo to eanmoe aot th roe o you an oerly ariuate and deend youre.

I yo are ain oreoure time i not on you de Playin the otrih ame ohidin you head n the and i not oin to make the rolem o away heak ae oi to teal your home ad kik yo amily to the ur.

We udetand that many o yo wo are ain orelore are erieinilin dereon and it a tule to even wake u and et dreed eveyday We now. We have een there.

But realy your hoie are vey simple

Opin 1 . Give p Continue to ee ory o youel Wallow in yourdeeion. Loe your home.

Opin 2 Learn figh Deed your rht date oue Foe youlede to rove tandin

I you ae nlined to learn more and eduate yourel uer weve ut toethera erie o vdeo to hel you et u to eed quikly aout oreoure deee

Peole have ad a lot o money to ome to our emnar iludi lawyer) tolearn th inomation. Weve nveted thouand and touand o houreeahin thi inormatio o you an ut to the hae ie we ad yo areain oreloue time i not on you ide.

To learn more aout oreloure deene trateie ome tohtp://.conumedfpgramsmvid

umrfnpgam.m 7



Do Your Own ResearchIf you are erese in figing orelosre, then you nee to ar yoursef wihore oration. Do no rey on te iorao otane n tis ook Tisook shou e use as a saing int an a fraework only

Verfy te fats D beliee a w s Coser tis a work of fiionsover your own r. Serosly ol e akng o o y akse aneeing yo rish

ou have no rights ul you lear your rghs I wa you to own e roess.

Researh e aws

Sa reag o te aws aro seuriaton ntevew a ner oatorneys in town to see if there ae any tha woul e wilng o work wt youa sor you s atter

Sug Your enderOfentes halenging your ener o al te on ther uff wi invarialy leao ltigaon For os eole e ea of sng a ig ororaton is eog toake he vo. Most wou rather ea aggots than to show u in aoroo efore you freak ot take a ee reah. ts o as a as yo tnk

Most o s fear te oroo ease o or enal assoatio wh ors Weten to think eole only nee to sow u nou ease tey ae rnals or hey areeing sue. t sks eg o he reevng

en of a vl aon

Te taes turn wen you are the oe onghe sung I is e other sie (he ak) thawi e sirng However you ant just goaout sng he ak or o reaso. Coshave rues

If you ae gong o ause soeone osoehg, you etter ave roof as n a nushe oter wors hePainf te erson oing te sig) as he re o oo

Te seo rue o o s tat evee s eveyig. legaios are heayoe a ause anyoy of anyhg. But iagne j a a ure o a gyholng a g oig at a teer wt a ag o oey s ans ls 0 otereoe a the sene testifying to he fat This is soethng that is onvinngeogh to get the erso ove

o r f ns rgraso 7



oer g yo eed o know aou he ou yem dg do no kowe aw

WHAT?

ha inae.

o o here ae leray milon of law o here Cimna aw amiy awora aw ieleua oery law and o on hee i no way a udge ouldkow every aw a a eve ee wen I he eoly o e gano ig he aw efore a judge o he/e an make a lng aed on evidenead aw

So if you wee o oe o o owig he dge wee yo ender reakighe aw y rngng e aroae aw eoe e o woud yo ee a lleeer aou goig o or?

If yo wee he ae o ome o our wih 1 ream of ae ll o evdeneowng whee he ank ied eaed ad ole moey and yo wee aked y an exe wie who ued o e an exanke woud you eel a lie ee?

Wold he ank fee a lile irmy?

See he dferee? o j eed o ea o ld you ae

Imagie yo ave done al you eea your agume gahered a of evidene aou he fad and eened hi agmen o a lawye. Doyo hnk i more kely e wl e o yo ide rae han el yo o ake aike? I wold oe o

he olem i, mo eole hnk he ank i he Lende and ha hey do havee rgh o foreoe ow we kow ee

e key i efy deedig agan oreoe i ldng and gaherngyo evidee

wwwo rd rogamom 74



Communicatig Wh Your ender

nder e Trh in ending A, you areened o demand fu dslosure from yourleder

Before umpig of e dee end, e besae o sa is o wre yor leder odsover wo hey are ha mig soudsrage bu hey are no wo yo k eyare ou will ofen dsover ha ey are na no a ender a al b hey ae a sevierr digo beyor eder

Ty wrig o yor ender ad ask hem he folowg, pnban:

Uder he ru edng A,

have a rgh o ow wo he re payo ieres n is asaio s Please spuae weher you are eolder de ourse or my romissory oe yo are no he olderhe you adm o beng he sever o hs obligao demad a yoel me who he hoder in due ourse s.

ease aso siae or he reord weher or no my loan has benseied ad so wa he name o he RMIrus my oa sbnded wi

This wl gve you a o o srprisig iformao ad wl e yo owards geigroof of eir fraud

o mgh ave o wre wo or eve hree eers beore you ge a valid respose

any imes bas wil o wan o revea her frad hey wl lkey respond wiha sadard orm leer reaed by a o name minmum wage emoyee o heee o

our reques is deied. ee is o aw a equres s o prode heoe our reques is fivolous We wll one o eore e obigaio.

Tese eers are o sgned There is no name on he resose

ou mg have o oy your leer o he as wel as he omproler o herrey (he body ha governs bakng n e S

s absoley nsulng

onsm rd sprograms.om 75



However it is imperatve yo oumen an ave poof hat you sent theseeers as ey an e use as evene n a ou of aw is oen a goo eao ave a see roug aiesene ase your leer.

or exampe If yo o no reson w an aswer wii 30 ays he yo

amit at his oan has been serite an ta yo are merey a sever ohe oligation an not a real paty n interest

To el yo ge sae, I hav ncludd a sapl l on ou wbs ahp://wwwconsuedefensepoas.co for you o use to initiae your preltgaon isovery wt yor ener Loo uer he Resores tab

wwwsum r s rgrmsm 76



Gettng a Securitization Audit

One of the thngs bans hate the most s asecuritzation audt, as it blatanty exposes theiraud bans hate t, then we love t

A sectization audit s an adit done by a thdpay eseache who scous through DGAR (theSCs database for al pubic placements lookingo you loan hs s tedios and grueing wor asthey have to iteraly fnd a neede in a haystac o afew thousad loans

What an audto would provde yo at the end of asecutizaton adit s a docment and an afdavtthat s admissbe n cort as evdence he

document wil show which RMIC yor oan hasbeen secutied to Since this information is pblicly avalable through the SEC,the afdavt s a simpe statement of act (gven wth isthand knowledge) thatbacs p the fact that the oan has n fact been sectized

Forensc vs. Securiizatio Aud

What s the deence?A forensic examination o adit wilaudit yor loan documents to makesue yor ende olowed the law under

TA (Tuth n Lendng Ac andRSPA (Real state SetlementProcedures Act

As you recall as a Paintif we havethe brden of proo hs is the HoyGa of proof that is needed to povethat the bank s commiing aud.

Sadly, geting a good and reliablesecurtzation audt can be trckySome companies chage as muchas $4000 for one because they knowthe powe and vale of what it cando for a case Its pety much kethat pctre o a gy hoding a gun atthe ban If yor ban is caght wththat smoking gun it's a bad day tobe a baner

Some peope have sed the Forenscadit to stop a oeclose caming theende dd not do the ight thng, or ddnot give them appopate dscosres,o notces o thei ghts, o exampe,the ights of escsson. I yo ae nteested n geing an

afodable securization audt,

come to http:/www consumerd f ns programs.cm We have seached far andwide fo the best and most cost-effectve audtos in the country

co ns m rd f ns progra m s.c om 77



Learnng the Res o CourtIf ou e onsideing tking ion to defend ou home, hen it wil eimpetive th ou en how ous wok We found fntst esoue lledJursdictfona by r reder Gr. e is n one who hs lo oexperene wth igtion ses

s Dr G ponts ou Going to ourt s like going ino kne ight Don go inoi wih poto peeer Bing the ggest nd ddest hthe ou n find.

Dontyou de ttogo to ou nd "wing it Go in peped This s our housewe'e tkng ou

Most of us e not ined no versed n he wokings o the out We do nothve n experiene n the outoom f ou re going o tke on our lender todeend ou home we eommend ou en how o ight to win. o moeinfomtion out Ju sdonay vis: onsum rd f ns progrmsom

How to Dea with awyes

For he eod I hink the egl profession s one of the nolest in exsene ndhe hve the potentl to do the mos good for the peope I hve he highestespe for good lwers who figh or the ghs of the peope

Mn people hve sked me fo eommendions of good wers who knowforelosue defense. Sdl wes who know his stuf e ew nd f etween

nortunte most of he me wes e rogn nd deepve. The lpeople wihou lw degree laymen The ide ht mn knows somethingthe don now s eond the omprehenson of mos lwers

Most lwes (nd sdl judges oo) u ntothe whole nk sm ou orowed hemone ou enoed he house ou np The nk is forelosng Wh's hepolem hee oue us tng o get ou ofthe det. This is nohe one of those intenetsms If the dont s s muh, hen heiod nguge ss i l

I sw one sitution whee peson hd l heevdene nd peped pledng Thepesented t to lwe The wer old himth he needed to put up $2 eore he

would even red he douments wo weeks lte ter tking he personsmone the lwer me k nd told him This s rp If ou wn me to

wwwonsum rd n pogrmsom 7



hande hs I wl need a $000 reaner and has only o e sared wasinormed ha he waned $5,000!

I see hs ime and ime aain.

Tha is no o say ha here aren any ood awyers Sadly hey are heeepion raher han he rue.

Beore engagng the services o a lawyer, I recommend that yo by and stdy

up on the rles of cort (b y Jursdic/ion ) . Even thogh your case mght be

handled by a lawyer, t s mperative you know what the awyer IS dOng (or not

don for ha maer

I also reommend ha you do as mh o he homework as possie o uild yourase Gaer he evdene Do he seuriizaon aud. Take you frs rak auidn your own peadn Do a Gooe searh Look or a empae for a quele a or gu eclsue Sa readin up on wha ohes have done

his wil save you money and severa headahes and inrease your hanes ofsuess

I s hard enouh o dea wh he sress o losn your home and he prospe ofhn he ank o don' need o fh your own ounsel nerview any awyeryou inend o work wih See if hey have done any previous liaon or knowaou ommerial aw Mos imporanly see if he person is someone who sopen mnded and someone you an rus Use your u I you don' ike he uyhen don are how ood he srun

When workin wh a awyer you shold e a horn n his side in a ood way.Don us eave o hm You shoud always e on op o yor awyer Make surehe s aounae or how many hours he spends on your ase. you are oino pay someone $50hour you have he rih o know wha he is workn on andwhen A ommon a lawyers se is o have paraeals do heir work for hemThey wold hare you heir lawyers rae and have he paraea do he wokMake sre you e ear disinons eween hese raes

My main onern wih lawyers s ha hey see heir ens no as peopesuferin rom ank raud u as kes of money You pay hem a reainerYou are hard on your lk. o aey have a roo over yor head and you need

hep. Ye hese peope see a reaner as an inviaion o rp you of Theiroeve s o do anyhn and everyhin hey an o spend ha reaner asquky as posse and hi you up for more you run o o money heirresponse is Sory ouh uk I seems like one hese people e her Barefae, hey made a deal wih he Devl and raded her humaniy and souaway Some people have aken o alin hem Bar es

onsm rd ns programsom 79



Hee's wy you may not want the most experienced an sharpest one youcan find. They are often in hgh demand they don need e work and ey don'tave the tme to properly prepare and research your case Insead, it might bebette o ind a riendly atorney and brng him a case wth solid agumens solidevdence and sold laws o back i up Al he has to do is to massage i All you

have to do s o make sure he is actually REPRESENTING (taking on yourbehalf usng your arguments) you

One way o weed ou crlawy rs stogv them this book and ask them tor ad it. We have wrtten ths book wthte purpose o no only exposng theraud but also showng awyers how oargue the case A good awyer can takewhat we have presented ere and dotheir own researc to suppor thearguments pesened here. If tey arenot willing to read t or demand hat youpay them or THEIR EDUATION henthey mgh no be someone you wan towork wh

One key point: youl want o enlightenpoental lawyers you inend to work wththa this is a major growt area o law Ifthey learn the argumens o oreclosuredeense, they wil ikey have a lo moebusness and a hug comp ttiv

advantag ove oer lawyers in town

Again here are likely good awyers out

By the way REPRESENTactualy means RE-PRESENYour lawyer re-presents you ntothe court system as a legaiction and not a person o leshand bood) Tey alk becauseyou cant They cal people likeyou ncompeten" in the same

way a quadriplegic or a 6-yearold child is incompetent

Your Lega Ficion is your namespeled n AL CAPS I is notyou But it is a representaton ofyou (muc like a drawing)

All governments banks andega enites around the worldcan only nteract wth the legal

icion o you

here nounatey, many o them are oten booked up and are hard to find

The advantage of a good awyer s tha tey can prepare you arguments, makesure they are legaly sucient and be able to represent you n court. Snce heshould have experence n the coutroom, e would know wha o say and do

As boring and as werd as it may sound, earn to ove the law It is there for you

If you are lookng for a lawyer or know of a good one you can refer other members to, please come to our site and ceck our referrals under heResources ab: ht:l/www .consumerdefenseprograms om

www.consumedefensepograms m 80



\. n ograo 8



Do It Yorself

I you ant aord a awyer or an' nd a good one to wors to do t yourse. Ths s own as ro se(o o er n Calorna)

More ad moe homeowers ae hoosngto do t on he ow rany thsnomaton s so eo ad so new hat eweoe a rely on awyes o suo hem

es e clea. s is o asy soud e on of e mos d mandinngsyou ave eve een ased o do inyou life

Don' Do is

Serosy ths s no a stadad dslamer Do do hs he ltgaton oess sno o the wea o hea

t s bette hat yo d oher solutons than o tgae aganst yo leder haloed Is le a ly httng a wndshed I s not retty yo dot now whatyou are dong

hat sad your home s eveythg Who t yo are os Yo are ngodedand ooed Yo amy s unseed

ow tha you ow aou he ad yo have o dede whehe you ae wg toght or you ghs oweve yo do dede o do hs yo wll have to ommtto dog to he vey end

As oda says Do or do ot here s no ry

We have ut togehe a oahng membersh ogam o he homeownes wthresoes so hey an do hs o he ow

osm d s gamsom 8



Our mmbr rogram allow you to onnt with othr homownr o tayou a o ah ohr har and olaora o da. A a f o mmbr rogram you wi ao ri am dom yo a u ohallg your ndr and fgh for your rig Or nfit inud

Access o sple resposes On a dr rod w aam ud by ohr i or rogram a you a u o raf your ownro.Le Resources W wil how yo wr o go o ook for oa aw ait ali to you and wr you a fnd ol o hl rardomt wo udrtad th ro ad morGop Cofeence Cs wr you an ak ad olabora whmmbr o a wky baiGes sees W brig xr rom arod ont o a aoutmorgag dn o g yo ida o h yo wi yoriaonAccess o or Archives W a or 0 or o arhi ont atw b aaiab xliy o mmbr o our ommiyDrip Delivered Cone Itad of dming you wth hor ad hour oot w g you day by day auomad on diry o hat yoar nr o Our aomad ym wil yo wh to nd outlr whn o ordr a uritizao audi whn to go to th ouyrordr ofi for rar and mor.

L' lar. Th i a mmri to a homownr o lu and o auttut or good omt ga ad. Yo houd omt galou wr o Sorry, I am rird o yo Th arAoiaion a a moooy o th gal franhi)

For mor iormao ao our orlor d mmbrp program om to: tp:// consumerdefeseprogr mom/o chig-progr m/itro/. lt moraordab n yo

www .o merdeenepoa m om 83



Hep M Hose s Up for Se Next Week!

If o find orself in a sitationwhee o are aot t ose orome, o have tw optons

egall

One s to fle a ivi aton agaistor ede olowed a motionfor a Tempora RestraningOrde TRO and Injntive Relie.Te othe is to fle o anrptpotetion wth an atomat sta

Frstl in order for a TRO andor a ntive Relief to e ganted te petitioneras to sow a strog lkelihood of sess Tis means tat as a Paint o wll

need to ring ompeling evidene to ovine the jdge tat o deseve a stao the sale It is or o to rig signifant ontrovers tat rings dot as towho the eal pa n nteest is n te forelse atio

Ovios aving a sertizatio adit wold e ge eneiial as wel as apeadngompaint that ages te poits ad athor that the leder is nt therea part in inteest. owever this takes tme Time o mgt not have

Crafig a pleadng takes tme and reires geat are It is not someting thata e shed Yo sd ost or lawer as to the poper metod andproess for this

I ae a memer o o ee deene m m sppam, we aveinded sample TROs Injntive Reliefs as wel as sampe peadings tat othesave sed. It is the p to o to stome the agments as it apples to orwn station Be wared Y do so at or own sk These sample domentsdo not ome wt an assaes whatsoever

Sadl TROs are RARELY raed Te Plantif has to ring an overwhelmiamt f evidene t at signiant dt to te dge f ne t e granted

onm rd pgramsm 84



he Bankrptcy Automatc Stay MethodT by t, s wrs car bakrcy W y carbakrucy y rcv an aaic say al crirs ncln r.

Many wnrs fl is s bs an st assr way t st t sal

fr a

warn akrcy s n fr wak at. n rbakrucy ly

wil n car all yurasss, inc an financal talsI is lk avn a rant anarb yr nancal ais. I isn lasan

r vr spca bakrpc w g t a As rat as t tan t trcus ltt ny yu av r yr crrs is .

T tr wn si f bankrtcy is at t is a ark in yur ubic crit scrt rankly, avn a bankrcy r a rclsur ts ays is nt as bi a aas t nc was Als a cn as bn r Is k bi a lr a r cly Is n as bi a al ayr.

T act s, wvr, fr st wnrs ts mgt b th ol wa o k phi os om th aucio boc wi y by t t bi tir cas frtr frcsr ns

T tr i ab bankrtcy s tat in y rinc I av fun tatst wins c r bakrtcy crs n abu bankrutcy sa i as nc Rl 300.

Federa Rules f Baruptcy 00 (d) Edece f pefect f secuityterest

I a secy inees in ey f he eb s caimed he f caimsha be accmaned by edece that the securty terest has bee

perfected

t rqurs r tprv r cla.

Tis ans tat t ab s suny turn s nw nr w as tc u wt t rf f clai An if yu kw w tir fau s binrtra, n y knw w bc a c tr c

wwwcnsrnsprras.c 85



Wa many ppl d afr ty fl fr bankpy s t fl an adesaceedng As a dbtr is is abslly f An advrsay prding is ik anrmal vl atn bt dn ndr bankpy rt, and ndr bankrpty rlsIt alws t db t allng t bank t pvd pf standing

T tr ingmany mwns d s filtir s as annsrd db

las n u cat fi a advsacdi ud Chat s s m b

Tis will n prmpt t lndr t mplain Bt in ding s ty ar tnqird t prvd prf f laim w ty ftn ar nab t d.

Navigaing bankrpty prss s nt wak artd. vn frsmn w as a t xprn n lgal pdrs. I g srislyHIGHY mmd tat y gt mptnt lp Lk I am r sav ymny I I IGLY rmmnd smtng I man i Sm ings y an tnrs wi bt bankrpty is smetng I dnt rmmnd tay d n yrwn Trst m wn I tl y ta I trid t d i mys It was a dsast Iwisd I ad pfssinal lp.

Nrmaly iing a law firm t andl yr bankrpty sts frm $2 t $fr Cap 13. W fnd a mpany nt rlatd t s at spialis inprpaing bankrpty dmnts w an d i fr lss tan $1.

If y ar inrsd in ts svi m tnsmersepramsm l is lisd nd srs

In t nt apr, w g int t praial mar nw I knw tat r sfrad ging n wit my s wa an d abt it

nsmerdeenseprrams.m 86



Patal MattersI ths her we go hrough seif rtil hings yo n do righ wy tohenge your lene

A its het here e ou lsses of eole tht e eted by orelosres

1 Someone who is bout to ose hs or her home in on-Jdcial Sae(Clifori Nevd Azo Orego Wshingon et)

2 Someone who is bout to lose his or her home in Jdicial Sae (Nework New Jersey Oho Forid et.

3. Someone who hs lredy los his o her home

4 Someone who s hgig by heir teeth who s uside down or n nologe y thei mortgge, ryng to get loan modificaion, o someoe ngood sandng.

Eh ss of erson hs diee oios nd oedues vilbe o themThs her wl otline in bief some o hese otons O ourse, this s ust book nd s no substitute o omeent legl dvie so ese onsult ouselbefore doing ything ht oud fe your home

Non-Juicia Sae omeowners

Most Wesern Sttes of he S re NonJudiil Stes n these stes,

oelosres re governed by Stte Cvl Code

These hoeowers hve i the toughest Beng in onudii stte Lendesneed not rove nyhig They n simly noty the homeowner of the defulthen fer erti number of dys s dened uder Ste Civi Code theoerty then roeeds to Trusee se t ubli uion.

he oly oio vlble o you if you e Nondiil Ste resident is for youto fle ivl tio gins your ender to ome hem o rovide roof of lmnd theefore stnding

The oher oton is to delre bnkrty (lso know s BK I bnkruty,

generlly seking you hve two otos Chter 7 (o sse BK) o Chter1 3 (sse BK) Wht some homeownes do s o delre Chte 7 nd ist heiroery s n unseured sset nd wi for the lender o obet This then usthe bude of roo o he lender If your o ws osed with Lender A nd sbeing forelosed on by Lender B o C there mus be (by w) vlid hin ossignme to show tht Lender C is he rel nd benefil ry o iterest Aswe disussed, beuse o the robem of seurittion this is never doe This

lWcsudefensegs 87



creates a real proble for he ender (who s frankly dong this faduletlyayway

Fo those wh a lo o assets (sch as eqy n her oes) hey ca do aCapte 1 3 nde a Chapter 1 3 bankruptcy, you ca fie an Adversaryoceedig whee you se yor ende to copel te o podce vald poo o

cla e beay wth Bankrptcy Cou s tha you have he law o yor sideRue 300(d of he Federal Code of Bakuptcy reures tha your lede povideevidence of peected le

I you coose o file a civil acion against your ender, you beter have poof aswe dscssed eae The bes proo yo can bng s a seciiato adi oprove ha yo oan as bee securzed en, work wit yo lawyer to bdan arguent around the poins olied in his book Unfortunaely this wil setyo back a he n $5000, ad ore lkely cose to $1 0,000 to $25000

Anothe option you could do is to do a qick reconveyance ethod as

discssed i Capter 4 hs can be vey efecve i stoppg yor secersabily to oecose becase coses o te Deed o rst/Motgage Tisetod is ony applcable when yo ave cear evidence of oveent osecrizao. You ca find o ore about hs ehod on o webste der teodcs tab

Aenaivey, you canno aod a awye, you coud y to do ts youself Geaplaces to sa are Lvesco and soporeclosedco These areblogs wi los of aicles, sape pleadings and lots of oter esouces seddug y esearch

Aote opton is o jo or orecosue defese ebesp pogra. We

realied that there are SO MANY oeowers eedig help. ha s why wedeveoped a coacig ebesip poga wi specic inforaon andresorces o hep hoeowers wh e oeclosre deese Or ebeshipproga as saple peadings, saple esponses fos and procedures otershave used tei oeclose defese. Yo wl also be abe o newok wihohe hoeowers loca o you ee wh he o have cofee, ad sppoeac oter For ore inforaton about his pogra, coe o our websie attcos rd s pogas.co

A good place o sar if yo are i a NonJudical Stae, is to stat wriig o yourlende o deand tat hey poduce vaid poo of cla You ca fnd a coupe osaple etters o o se Ths wl be a good place o ge sared

wwwcos d ns poasco 88



Juca a Homownrs

n a Jca Sae yo leer as to se you o ge a jgment beoe ey caoeclose on yor ouse. s we scsse earler, e ben of poo s on teplaf s means at f you ae n a cal State yo ave te avantage oreqg e lee o pouce poo o cam

e polem n mos cases s ta omeowers n Juca Saes o no owte natre of foreclosure fa y tr ont sow up or f ty sow upot now ow to age tr ponts an tus n up osng te omesanyway

e ote proem n Jucal Sates s tat becase ter are so many casesges en up forgong er Oat of Ofce to te people ey seve nstea ospensg justce ay to al ey be-samp jgmets wtout a secongance s s ot fa o te omownrs bu omeowns on now terrgs, no ow ow o age e ponts en say eres tte stce o

tem s tey say you ave no rgts nlss you now wat tos rgts areSo te bes ng to o you are a esnt o a Juca Stae tn s o armyouself wt ecao Lea te ate o oan ra ar t procee orules o cou an on ow to ee yoursf n answerng a smmons acomplant

You so know by ow at your s cors o aco s to pus eealRes o Cv Pocue 17 an acton as to be tan n te name o a ealpay ntres ote wos yo are o calenge yo lees Staga ter rgt to forcose If tey a not a real an nfcal party n nterest,en ey o ot ave te g o oeclose owg em o procee wt er

forecosue wtou Sanng amos to otng moe ta tef an xtoobot o wc ae legal

Oe omeownes n Jca States coose o take a mor proactve approacsea of wang to e sue by t lene tey o a oensc at gateevece o oa secuaton a ten se e ene to g a Qet econ o remove t Mogage fom e popety, snce no oe can com fotto proce va proof of clam

or members of o oeclosue efense mmbersp program w av sampeemplaes at omeownes ca s to ae maers nto r own as

consm f s pogamscom 89



Homeownes Who Have Lost Their Homes

or hose homeowners who have already os her homes there are twosituaions There are hose who have lost their homes due to a sale but are stillsayig i her homes and here are hose who have been orced o move out.

Many lawyers and people i he meda are advisng homeowers who have losthei homes but are sll living in hem o say in heir homes. It could aemonths sometimes for he leder o come aound to actualy force thehomeowne ou.

ypicaly, in ode o a lende to force a homeowner to move ou they will needo file or an unlawful deane This akes a whie to be granted and his gvesthe homeower addtional time Saying another monh o hree a home meansanoher ew moe months hey do o have o pay en elsewhere

Aothe technque homeowners do s o chalenge the lende's standing ooeclose even afer he fact to figh he unlawful detaner This is somehig youwil likely need to conslt wth an attorney abou for more informaion

he Wongful Foeclosue Action

Homeowners who have already lost their homes but beleve heir loans havebee secuiized migh wan to see i they can do a Wrongful Foreclosure cvilacion aganst thei preender leders"

Hee are some hins hat you loas have bee secuiized

- There is a company caled MERS (Motgage lecoic Registration Sysemsinvolved in he Notice of Subsituion o Tustee or o the original Deed oTusUMortgage (his s usualy on the ist 2 pages of you docments).

- Yor loan is wih oe o he following insttutons: GMAC Countrywide HomeLoans, Bank of Amerca Wells Fargo orChase

- You closed wih a smal no name bak and you ae now beng seviced by amore wellkown nsituio ike he oes named above

If you can gather sufcet evidence tha your loan has been securited henyou migh be able to buid a case usng the argumens peseed in ths book to

bring a civil acion agains your lender o a wongul oeclosre and/or faudssenially you are accusng you lende o committing fraud in that they did nothave Sandig to foecose on you popery

In a cvl action n which you have sufered damages as a resul of something theohe paty has doe against you ypicaly you are enttled to three times thedamages (three times the vale of your loan) This is typicaly caled "punitivedamages It means here are damages oher han documented ea

www.nsumedef ns pogramscom 90



inancal/physcal harm Tis ncldes stress trmen hmilatin ec Again tsis smetng y sd rng p wi yur attrney.

Bee taling t an aney (and wasting a l f mney yu ght t makesure y ave a case. n ct he tut is ireevant Evdence is eveting Itsa sad act he sysem t is yr j rng a srng case wit peny f stng

evdence wrng dng efre yu can even egin accsng yr ender anywrng ding

Te est way sa s t get a secrtizatin adi k in the What are myOpins capter r me nfmatin aut getting a secuiizatn adt

Nex yu wd wan t d mre researc aut the prlems f secuitzatinsand uild yr case and aguments Gd places t sta nclde

- Cnsum rD f ns Prramscm

- LivinU scm

- sF clsr Fraudcm

- 4csreFradcm

- MyPrvateAudicm

Rememer y have n rigts nless yu knw what yr ights are Yulende s nt au t vlnteer nfmatin tat wl alw y t rn them Itsyur t dig hese p.

Geing a Coningency Lawyer

Lk ms us ave r acks against the wall. We ae arey suviving Wedn have mney and we dnt ave te tme t stdy up n he aw t ake nhe ank y selves. And hirng a awyer n a maye is nt mneynecessaily well spen.

Geting a cningency lawye migt e a realy gd ptn fr many peple

Hwever tere is n sage ppniies fr cntingency lawyers Tese

lawyers get their che as t wat cases tey want t take It is yr t ingtem a case tat is wr a t f mney delvered n a silver plae. Make t a nainer fr these awyers t want t wrk wth yu Te est way d his is tave everyting prepaed ready g. This means that yu have a securitizatnaudt a asc peading and argument already n pace and any applicale lawstha can e used in supprt f yur case

Be warned A cntngency lawyer wil lkely eat p a lage pecenage f yur

cnsm rd n pamsm 9



ettlemen I have hea of cae where they eat up a much a 0% of yourettlemen. Tha a, hee i a prover I wan to hare with you.

% of nong nong

A 20% to 40% o a muli-milion ola etement tl a goo eal, epecialy f

you nt now you ha a cae in he fr place

But I woul avie tha you o you homework an ring your cae on a lvepater

Honetly, the mot angerou peron for a anke i a etermine homeownewho ha alreay o their home t lke havng a photo of a guy hong a gun,ponting at a teller with a ag of cah une h arm Al the evence i alreayhee I ju ake etermnaton to aemle the evience forencaly to uil acae.

For help with a pot forecloue coachng we have anothe memehip progam

tha uppor homeowner though the proce wih ample pleaing an oherreouce at hp//onum n poamom.

www.conum n pam.com 92



tart Loca Groups

ook th obem aec everyone. When econ o houe ae foecoe ont aect ocal communitie We have iuaton where thee are itealyhunre of houe ttng emy whie houan o famiie lve in ent cie

aroun he conry

Al the while our banker frien are gettingmilion of ollar n onue fom ORAXPAYR MOY

We encorage you o ge ogeher wtheole in you community to alk abou hiRaie each ohe awaene

We are n he mile o a gobal economc

eeion veryone ufering An iin't getting ette One of the way we canchange t aon i y caiming ou homeoby ree an clear (or otherwie ge afair oan moifcaton tha we an acay

afor) Imagne f nea of aying $2000 a month on yor motgage you canue tha owa a new car o towar you chlren eucaton Star njectngmoney back nto he economy o ceate ea ocal o again.

Together we can each make a iffeence But you have o get o the couch antake action

Wconm n ogamcom 9



akng O The Fght

If wa ave wte seaks yu an has nsie y t tae aci, en have ne y . weve, tat sai, a avising yu slow dow

D' D

As ce as sns, a agan avsig y agans ig is cess as Ihave uline I is a t wk an fankly s vey aiful This procss s noteas. Yu wl n e ae t see very tie e he igs, y eel lkevig ecause y t ig e yu ene e lawye calng yEvey e y eceve a ete the lene te lawye y fee kesene as uche yu in the gus.

T file a civl actn agains y lee is n setng f he weak heat

Hweve, y ece seig aut t, he wece teveen. Yu shl c ing a he way

eve aach a 's e, an haway ug e g yu sie au Y wl e eae Te sae ges hs cess yu ece iscess then y su ci nshng they say eve sta a figyu ae nt wilng t iish.

Ts is ehas e aes hng y wl have n y ifetie I is tecassic eic ale le a ea Davi vs Ga is s the fg savey aiy I s wh gg I eas hat yu clen wi have a ve ei heas istea livng n a tent ciy

s s eas we ceae eeshi ga s ewes casu eac he. Weve ae aae s eveye can j u ie aygazatin i akes ney anain We have staff fee an seves anain Yu s eans we can cninue t his eseach an stu ees

F e nfatn, ce se attpwwwcu f ns pgas.c

ns s pga 9



Pease Sprea he News

Or iss is awaen pepe e prle frecsre fau y wsene n e press sen a cpy f his e Please help us ywadng hs e as any peple as psse

Pass hs on o soeoe Mae a iffeence ive hs see wcan enefi r he a cnane n his We are al cneceWha appens e f s affecs s al

y are ace please e yr ies a i s a se

pe yu wil n us

U�

Vice Kha

ad

Yu fens a Cnser Deese Prgas

W.cs rd ns asc 97



Aendx

he foowng are uppong documents fom varous dferen sources thaexpose ank raud

www d ogco 98



( The detity, address, ad telehoe mber of the overed erso whoows the motgage loa. there is more tha oe overed erso, theformatio reqired by this aragrah shal be rovided fo eah of them( The aqstio date reogzed by the oveed erso.(3 How to reah a aget or aty havg athoiy to at o behalf o the

overed erso (or ersos whih shall idety a erso (o ersosathozed to reeive ega otes o beha o the overed erso ad resolveisses oerig the osmers aymets o the loa However oifomatio s reqied to be rovided der this aagrah the osmer ase the ormatio rovided de aagrah (d( of this setio or theseroses I mtile esos are idetifed der this aragah, the disosreshall rovide otat iformatio or eah ad idiate the extet to whih theathoity of eah aget dffes. For roses of this aragrah (d(3 it issfiet i th overed eso ovides oly a telehoe mber rovded thatthe osmer a se the telehoe mber to obtai the address for the ageto othe erso idetified(4 The loatio where traser of owersh of the debt to the overed erso isreoded Howeve, f the traser of oweshi has ot bee reoded i bireods at the time the dislosre is rovided, the overed erso omlies wththis aragrah by statg this at(e o de I additio to the iomatio reqred to be disosedde aagrah (d of this setio a oveed eso may, at its oto, ovideay othe formatio regardig the trasato

osd s pramso 00



Appndx B Dsscng a Frad n Acon

s ifati is curtesy f Tas ndesn f wteasseflesc

hs tice f WESPC ustaa ght see icet engh Its ust a

blc ntce gt

Lets dssect te aud tat s aeig igt in fnt y eyes

PC NOICWESTPC MORTGGE SECURIISTION DISCLOSREn the teest pubic awaeess ad t ense tat Mtgage Hes witWestpac ae gven ful iscsue the etals f thei lans pease be avise te lwg anuceent

Westac Banig Cati n asscati wth P Mgan (ustaa) ited,

Peetua stees Waatah Recevables Cati a WestpacSecuitisatn Manageet Py Liite hae been ivve wit a nbe fResdetia Mtgage Sectisati pgas ncding

Sees 20021 G WST stSeies 200 G WST TustPgess 200 Tst (MP Bak)RDS Tust Sees 00 (Bank f Qeensan)Tes Sees 2010 (Bendg a deaide Ba

c f the usts ae compsed of a poo f Residentl Moes tatestpc oiintes and sells to a ustee suc s P Mon uststli imited Pepetul stees mited t RecevlesCopoton [Cl vaatis and bdg ae ie t sw sevea aedcaies}

I eac nstance te st ns equitle title to te Resdenti Moesas a eslt te assgnent

he Mgages e ten pooled nto nces witi what ae temedSPVs Secial Sece Veces and ten otes Cecia Pape aeoffeed to nvestos n the Secondy Met cked y tese secities.

ou ll o ve eceved otce f te se o ssnment of youMoe s tt cod cete te Pefecton vent nd copse teust

T evet ths, te sts ve ed estpc s the Servce of te onsunde a Poon nd Servcin geeent s tt e ay conine collectinmore epyments nd nteest fom you to pss onto tem

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n a way yo wi o ali a i any aral ang

We av nr a a a ran lvl, or aff will no awar of anyagn o yor Mogag an wi no a o or any

aan n a

y r yr bWSTPAC BANKING CORPORATION

tr q l nt

Ml A IWt rttn Mgmnt ty LmC Org Or L 2 275 K t Syny NSW 2000 AraaW ng C +6 85 58955 A 9t Fw ork w Yor 117JP Morgan Tr Arl Lm(ABN 49 5 294 052)

T n t nt t Atrln mn r ln tWTAC ( mr bn) T n Atrl q tt ty y r t rmy n g ngb mn.

Yv g v y vry l y gt ntg r b

Frt t y tl m l gg t b t V ( r x g

n t n: o wil o a v o of al oragn o yo Mogag a a o ra a Prion vnan oap Tr." Kng n b !, y I OT rm gmnt (tr, tl n t

t g ' n m tt t m bn ry b r g ntr n tmn

So onary an aoing-wi y ol an ag no.Proaly a lgay no wa nvr ol

Nxt, y tt a w my onin oling ogagrpayn an nr fro yo, o pa ono ."

wwwc nsumerdefensepr gams.c m 102



hy tn oltg od nd ntt d ng onto (nddrly) o holdr of REM (SV)

nly t lnhr n h wy, yo w o y n"

Wh thy yng , "'v t rtd n unlul gnnt, bt donnt you o lz tt dd t

And by y d g l o bkg don oybo kng o you b t bo hy od' no

W v u h bnch v, ou ff wi no b w of yn of you Mo n w no b b o o nyi in h

www. sumedefensepr gamsc m 10



Appdix C: omeowner Ws Case aw ccesses

Ptto v emer hio St d 8 8 Ed 91 9) A udgment rendered by a

cort laking ubect matter juridiction i vid ab intio onequently, the authority to

acate a vid judgment i nt drvd frm hi R iv . 0B) but rather ontitute

an inherent pwer poeed by hio court I ee n evidence t the ontrary that thiwold apply A court

party lak tanding to invoke the juridition of a cour unle he ha, in an

indiidual r a repeenative capaity ome al interet in the ubect matter f the

action Lebann orectinal Intittin v ut of Common Pleas 35 Ohio t2d 176

(19)

A party lack tanding to invoke the juridition of a cu unle he ha in an

indiidual or a repreentative apaity ome real interet in the ubjet matter of an

ain Wells Fargo Bk, v Byd 18 Oho pp3d 28, 2008�Oho·4603 897 NE2d22 (2008) t went on t hld " plaintif ha offered n evidene that it wned the

noe a nd mrtgage whn the omplaint wa filed it ould nt be entitled t judgment

a a matter f law

he following court ae wa unpublihed and hdden frm th e public) Well Fargo,

ito oa . are 867 NV2d 21 (2008) "Well arg de not own the mrtgage

lan hrefore th mattr i dimied with preudice"

he fllowing ourt ae wa unpublihed and hidden from the publi) Wells Fargo Reye, 86 NV2d 21 (2008 imied with prejudie raud n urt & Sanction

Well arg neer owned the Mrgage

he fllwing court cae wa unpublihed and hidden from the publi) Deutsche Bak

v Peabody 866 N 91 (200 uiirt, en maing th e lan violated

Regulation of the ederal ruth in Lending ct 1 UC 01 an the air ebt

ollectn Prate Act U 19 intentionally reated fraud in the factum" and

withheld frm plaintif "vital informatin ncerning ad debt and all f the matri

involved in making th loan"

he olowing curt ae wa unpublihed and hidden frm the publi) dyma Bak Byd 880 N2d 224 009) To etablih a prima faci ae in an action to fecle amortgage the plaintiff mut etablih the eitene f the mogage and the mortgage

note t i th law' policy to alw only an aggrieved peon to brig a lawuit A want

o "tanding to ," in ther word i jut another way f aying that thi pariular

plaintif i nt invlved in a genuine tvery, and a impl yllogim ta u frm

there to a "uriditinal" dimial:

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(95

ndd n r tan affidaits) is nay t ak t pa fai a Untd

t v K 65 d 6 (t C 9 Ct Dnid 50 U W 69; S. Ct. M

(9

inc an ny uat wt faud wr tr i a ga r ra dy t sak

wn an inq iry nanswd wd intntinay isading US v T, 50

d 9 (9

f any pat f t nsidratin fr a ris i ga r if r a sa

nsidratins f an nva pi n f wic is iga t ris wtr

writtn a i wy vid a it i ipsi t ay wat part r wi n f t

nidatin indd t pis" Mmn Rv C v. ugutu Sp & C C.

W 9 t p 3 NW (9

da Ru f iv Pd a ) ) wi rquis tat "a]n atin s

cutd n t na f t ra aty in intst" as n Jasn 40 BR

5 5· Bankr. WO Was 009); n Hwang 3 BR 7 - Bank

a 00)

Mtgg Etn gtt Sytm n Cng NVSd 64 (006

MER did nt av standing as a a aty in intst undr t s t fi t

tin. dcaain as faid t assrt tat MR M apita

Hcings inania d t t

Ldmk tn nk v. K 9 Kan 5, P3d 5 009 an tat nn

§ 00 aw rif fr a jdgt asd n istak inadvtn srris

xcsa ngc; nwy dicv vidn tat d nt av n tiydisvrd wit d u diign fad intatin; a vid udgnt a udgnt

ta a n satifid rasd discargd r i n ng qita any t

an stifying if fr t rain f t udgnt T atinsi tat t

gitry ad t t ank was akin t t at f a straw an tan t a paty psing

a t rigts givn a uyr n tr f 00 aifnia Judg uing against

ME nudd " is n vidnc f t ut as t w i s t rsnt wn

f t t d f t t ut in in t tin."

S Bk v. n VSd 9 (009 isissd wit rdi ak f

standing

Nvt Mtgg In v. Snyd 3:0C0 (0 Paintiff a t dn f

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isd as whh n appll was h al pay in ins as h was n

idn n h d f an assgnmn Rsd f la f sanding

Evhom Morgg ompny v Rown No 0P615 (Ohio 2008 Mgag wa

n h al pat in int pant t Rl (a) L f tanding.

In mb v Frs B 83 Ak App 25 27 W 3d 523 (203 mplying with

h St Fls A d n insla a finanil iniin fm liabiliy and

ds nt pvn a pa fm imly assing an a ims dfnss i ma hav

nning a mtgag fl AA (d) {} and ilas hns si

il Fad N t di pting agni f d pamnts/l n

a fadln db s dfamain f haa and a whl spaa fad

A f Appal d n nid in f tht a npptd b

nining lgl athit gmnt nl it i appan witht fth ah

ha h agmn is wll an RA is a pin wll an! amb pa

N lawfl nsidain ndd b iginl Lnd and bsn Mgg

and/ iing mpany spp h allgd db A lawfl nsdain ms

it nd b ndd t sppt th Nt" and dmnd nd ILA fll dil f

any h nsidain AhsBsch Brwng ompny v Emm Mson Minn

318,46 NW 558 (18)

Nainal Bans and sbsidiay Mgag mpanisann n th nt "Amng

h asss f h s ban w w ns, sd by mgag, whih ld nt b

nsd th nw ban as asss nd h Nainal Baning aws Nion B

Ac 28 & 56" Nio Bn o Comm v Anson 8 App 30, 54 P 8

(188

"A ban an lnd it mn b n is di irs N' Bn of poos v

Mno 135 614 6 E 123 (11

It i nt na f sissin f n ha h pay maing hmispnatin hld ha nwn tht it was fals b y i llwd n

thgh mipsntain i innnly mad bs it wld b njst t allw n

wh md fals pntins, vn innntl in th fit f a bagain

indd by sh pnains Whipp In 3 Wis d NW.d 0(99)

"A ban is nt h hld in d pn ml ding h dpi

an" rs s v Ngr 3 D2d 645 257 Y2d 28 165

"Any nd apabl bing tnd int a atmn f f is pntatin h is

W. n prg. 107



no dsncon beween msepesenons efeced b wods nd msepesenons

effeed b oe cs Te selle o lende) He s lble no pon n de of benef

o mself b becse o s wongfl nd e onseen n o e oe

p Lend Spnge 17 32 6 N E 2 (12)

I f n p of e onsdeon o pomse be llegl, o ee e seelonsdeons fo n n-seeble pomse one of w s llegl e pomse wee

wen o ol s woll od s s mpossble o s w p o w one of e

cosdeons ndced e pomse Menmnee Re C ugusus Spes & C

C,17 Wi p 7 NW 111 112)

Te on s od f s onl n p onneced w e llegl nson nd e

pomse sngle o ene Guadan Agency v Guadan Mu Sangs an, 227 27 W 7 (138)

Me MidPenn sume cn Ci Acn -62 S s EXIS103 Pa 11) e o eld , nde Is Reglon Z 1 FR

lende d o epessl nof a boowe e d oe of nse

Masal Secuy Sae n f Hamln 11 BR 81 III 10) olon of edel

n endg 15 U 19 nd Reglon Z e b nk oo se

nees n e ele wo dslosng e se nees

enbee Md-enn onsme Dson o, 0 R 55 990) Mdenn

oled IL b no ncldng n fnne cge e debos pse of fe nsne

on e ome e pcse of nsne ws ondon mposed b e

ompn e os of e nsne ws dded o e mon fnnced nd no o e

fnne cge

cols Mdenn onme Dson o 989 W 4 99) Md-enn

mnfome ols n e oce of Rg o nel Mogge

MEln oseold Fne Re op 9 R 237 199) debo fled npplon o emoe e mogge foelose poeedngs o e ned es

Ds o psn o U 409. I s sc lb n e sense bsole

complne s eed nd een ecnl olons wll om e bss fo lbl

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t ao a lawyer? Then s ot s o yo

Tis is the complete ro Se gue to litigatio f you wat to go to cou youmust asoutely uesta te rules of cout. Jusdc/on ofers you a uicktouctio to help you uersta the framework of cour

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What is a proper ause o Actio to e cosiere legaly suiciet?

How o you make te Juge olow the aw?

f you o't kow the aswers to these how wil you sta a chace i court?

ve if you hre a lawyer how o you ow tey ae oig a goo o fo you?How o you kow what uestos to ask your lawyer to make sure that he srepresetig yo poperly i you ae igorat? You lawyer coul e takig you tothe cleaers

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www.cosm s ogamscom 14



Aoable Securzaon Aus

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nsumeenspamsm 1 1 5



EXHIBIT 2



Clerk of the Court




Return to Search Results

You searched for: RecDateID >= Tue Oct 05 00:00:00 PDT 2004 and <= Thu Jan 05 00:00:00 PST 2012 and approximate search

in BothNamesID for carpentier

28 items found, displaying all items.1

Description Summary Add All to My Images

Reconveyance

3124955

11/09/2004 09:45:00 AM

Grantor:

Grantee: CARPENTIER KATHLEEN M

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Reconveyance

3154405

01/10/2005 04:17:00 PM

Grantor:

Grantee: CARPENTIER KENNETH J

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Deed

3195434

04/08/2005 11:23:00 AM

Grantor: CARPENTIER KENNETH J, CARPENTIER SANDRA

Grantee: CARPENTIER KENNETH J, CARPENTIER SANDRA

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Deed Of Trust

3195435

04/08/2005 11:23:00 AM

Grantor: CARPENTIER KENNETH J, CARPENTIER SANDRA M

Grantee: SECURITYNATIONAL MORTGAGE COMPANY, MORTGAGE

ELECTRONIC REGISTRATION SYSTEMS NOMINEE

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Deed Of Trust

3200397

04/19/2005 04:02:00 PM

Grantor: CARPENTIER KENNETH J, CARPENTIER SANDRA

Grantee: MORTGAGE ELECTRONIC REGISTRATION SYSTEMS NOMINEE,

CAPITAL ONE HOME LOANS LLC

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Deed Of Trust

3208651

05/04/2005 09:49:00 AM

Grantor: CARPENTIER JAMES S, CARPENTIER JOAN E

Grantee: AAMES FUNDING CORPORATION, AAMES HOME LOAN

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Reconveyance3218398 05/23/2005 03:56:00 PMGrantor:

Grantee: CARPENTIER JAMES S

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Reconveyance

3225988

06/07/2005 02:05:00 PM

Grantor:

Grantee: CARPENTIER JAMES S, CARPENTIER JOAN E

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Deed Of Trust

3423557

08/08/2006 03:45:00 PM


Grantee: CARR MARY ANN

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Lien

3427517

08/17/2006 04:08:00 PM

Grantor: CARPENTIER JAMES S, CARPENTIER JOAN

Grantee: SPARKS CITY

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Notice Of

Default

3459648

11/06/2006 02:28:00 PM


Grantee: MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC,

SECURITY NATIONAL MORTGAGE COMPANY

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Notice Of Sale

3496628

02/09/2007 02:47:20 PM

Grantor: FIRST AMERICAN TITLE INSURANCE COMPANY, LOANSTAR

MORTGAGEE SERVICES LLC, CARPENTIER KENNETH J, CARPENTIER

SANDRA M

Grantee:

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ment Search http://icris.washoecounty.us/recorder/eagleweb/docSearchResult

12/19/2011




Notice Of

Default

3521943

04/17/2007 04:06:54 PM


Grantee: AAMES HOME LOAN

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Cancel Default

3544568

06/15/2007 04:21:05 PM


Grantee: MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

NOMINEE, SECURITY NATIONAL MORTGAGE COMPANY

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Cancel Default

3545610

06/19/2007 03:13:33 PM

Grantor: MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC NOMINEE,

SECURITY NATIONAL MORTGAGE COMPANY

Grantee: CARPENTIER KENNETH J, CARPENTIER SANDRA M

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Notice Of Sale

3564893

08/13/2007 04:48:07 PM

Grantor: TRUSTEE CORPS, CARPENTIER JAMES S, CARPENTIER JOAN E

Grantee:

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Notice Of Sale

3577211

09/20/2007 04:42:26 PM

Grantor: FIRST AMERICAN TITLE INSURANCE COMPANY, LOANSTAR

MORTGAGEE SERVICES LLC, CARPENTIER KENNETH J, CARPENTIER

SANDRA M

Grantee:

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Trustees Deed

3585121

10/16/2007 04:56:07 PM

Grantor: FIRST AMERICAN LOANSTAR TRUSTEE SERVICES TR

(CARPENTIER), CARPENTIER KENNETH J, CARPENTIER SANDRA M

Grantee: WELLS FARGO BANK NA

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Notice Of

Default

3629741

03/12/2008 03:57:05 PM

Grantor: CARPERNTIER JAMES S, CARPENTIER JOAN E


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Lien

3652080

05/21/2008 10:47:36 AM



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Notice Of Sale3661497

06/19/2008 12:15:40 PMGrantor: QUALITY LOAN SERVICE CORP, CARPENTIER JAMES S,

CARPENTIER JOAN E

Grantee:

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Judgment

3750715

04/20/2009 12:41:06 PM

Grantor: CARPENTIER JAMES, CARPENTIER JOAN

Grantee: COLLECTION SERVICE OF NEVADA

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Lien

3769768

06/11/2009 01:43:03 PM



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Lien

3831583

12/18/2009 02:54:18 PM



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Release

Judgment

3852334

02/24/2010 12:48:10 PM

Grantor: COLLECTION SERVICE OF NEVADA

Grantee: CARPENTIER JAMES, CARPENTIER JOAN

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Lien

3905759

07/28/2010 11:05:01 AM



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12/19/2011





Lien

3954113

12/16/2010 01:33:38 PM



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Notice Of Sale

4046455

10/03/2011 08:46:33 AM

Grantor: QUALITY LOAN SERVICE CORP, CARPERNTIER JAMES S,

CARPENTIER JOAN E

Grantee:

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12/19/2011




You searched for: exact search in BothNamesID for carpentier, james



Deed Of Trust

1745676

12/22/1993 10:05:00 AM B: 3935 P: 632

Grantor: CARPENTIER JAMES S

Grantee: REPUBLIC MORTGAGE CORPORATION

No images

Deed Of Trust

1835021

09/22/1994 10:30:00 AM B: 4156 P: 494


Grantee: REPUBLIC MORTGAGE CORPORATION

No images

Deed Of Trust

1835177

09/22/1994 03:41:00 PM B: 4156 P: 891


Grantee: FIRST UNION HOME EQUITY BANK

No images

Request Notice Of

Default

1835178

09/22/1994 03:41:00 PM B: 4156 P: 895


Grantee:

No images

Reconveyance

1886675

04/19/1995 08:46:00 AM B: 4286 P: 93

Grantor:


No images

Deed Of Trust

1992151

05/06/1996 04:40:00 PM B: 4565 P: 734


Grantee: FIRST UNION HOME EQUITY BANK

No images

Request Notice Of

Default

1992152

05/06/1996 04:40:00 PM B: 4565 P: 739


Grantee:

No images

Homestead

2074218

02/21/1997 12:29:00 PM B: 4793 P: 88

Grantor: CARPENTIER JAMES, CARPENTIER JONI

Grantee:

No images

Deed

2393040

10/28/1999 02:35:00 PM



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Deed Of Trust

2393041

10/28/1999 02:35:00 PM


Grantee: MERITAGE MORTGAGE CORPORATION

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Reconveyance

2405694

12/14/1999 09:47:00 AM

Grantor:


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Deed Of Trust

3208651

05/04/2005 09:49:00 AM



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Reconveyance

3218398

05/23/2005 03:56:00 PM

Grantor:


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Reconveyance

3225988

06/07/2005 02:05:00 PM

Grantor:


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12/19/2011





Deed Of Trust

3423557

08/08/2006 03:45:00 PM


Grantee: CARR MARY ANN

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Lien

3427517

08/17/2006 04:08:00 PM



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Notice Of Default

3521943

04/17/2007 04:06:54 PM


Grantee: AAMES HOME LOAN

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Notice Of Sale

3564893

08/13/2007 04:48:07 PM

Grantor: TRUSTEE CORPS, CARPENTIER JAMES S, CARPENTIER

JOAN E

Grantee:

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Lien

3652080

05/21/2008 10:47:36 AM



Add to My Images

Notice Of Sale

3661497

06/19/2008 12:15:40 PM

Grantor: QUALITY LOAN SERVICE CORP, CARPENTIER JAMES S,CARPENTIER JOAN E

Grantee:

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Judgment

3750715

04/20/2009 12:41:06 PM

Grantor: CARPENTIER JAMES, CARPENTIER JOAN

Grantee: COLLECTION SERVICE OF NEVADA

Add to My Images

Lien

3769768

06/11/2009 01:43:03 PM



Add to My Images

Lien

3831583

12/18/2009 02:54:18 PM



Add to My Images

Release Judgment

3852334

02/24/2010 12:48:10 PM

Grantor: COLLECTION SERVICE OF NEVADA

Grantee: CARPENTIER JAMES, CARPENTIER JOAN

Add to My Images

Lien

3905759

07/28/2010 11:05:01 AM



Add to My Images

Lien

3954113

12/16/2010 01:33:38 PM



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12/19/2011



DOC #3629741

03/12/2008 03:57:05 PM

ElectronicRecordingRequestedBTICOR TITLE- RENO

Washoe County Recorder

Recordingrequested by: Kathryn L. Burke - Recorder

Fee: $16.00 RPTT: $0

When recorded mailto: Page 1 of 3

QualityLoan ServiceCorp.

2141 5thAvenueSan Diego,CA 92101

The sinciarnionariharabyaffirmsthatthereisno

SpaceabovethislineforRecorder'suse

TS No.:NV-08-141434-BL Order# W860369 LoanNo.:0003770195

AssessorsParcel No(s)030-091-12 "2 & /

Notice of Breach and Default and of Election to Cause Sale of Real

Property U nder Deed of Trust

NOTICE IS HEREBY GIVEN: That QualityLoan ServiceCorp.iseitherthe originaltrustee,the duly

appointed substituted trustee,oractingas agentforthetrusteeor beneficiaryundera Deed ofTrustdated

4/22/2005,executed by JAMES S.CARPERNTIER AND JOAN E.CARPENTIER, HUSBAND AND WIFE

AS JOINT TENANTS, as Trustor,to secure certainobligationsin favor of AAMES FUNDINGCORPORATION DBA AAMES HOME LOAN, as beneficiary,recorded 5/4/2005,as InstrumentNo.

3208651,inBook xxx,Page xxx ofOfficialRecordsinthe Officeof the Recorderof WASHOE County, Nevada secunng, among other obligationsincluding1 NOTE(S) FOR THE ORIGINAL sum of

$170,800.00,thatthe beneficialinterestundersuch Deed ofTrustand theobligationssecured therebyare

presentlyheld by theundersigned;thata breachof,and defaultin,theobligationsforwhichsuch Deed of

Trustissecurityhas occurred inthat payment has notbeen made of:

Installmentof pnncipaland interest plusimpounds and / or advances which became due on 10/1/2007

plusamounts thataredue or may become due forthefollowing:latecharges,delinquent propertytaxes, msurance premiums, advances made on seniorliens,taxesand/or msurance,trusteesfees,and any

attorneyfeesand courtcostsarisingfromorassociated withbeneficiarieseffortto protectand preserveitssecurity must be curedas a conditionofreinstatement.

That by reasonthereofthe presentBeneficiaryundersuchdeed ofTrusthas executedand delivered to

said dulyappointed Trusteea writtenDeclarationofDefaultand Demand forSaleand has deposited with

said dulyappointed Trusteesuch Deed ofTrustand alldocuments evidencingobligationssecured thereby

and has declaredand does herebydeclareallsums secured therebyimmediatelydue and payableand

has electedand does herebyelecttocause thetrust propertytobe soldtosatisfytheobligationssecured

thereby.

NOTICE

You may havetherighttocurethedefaulthereonand reinstatetheone obligationsecured by such Deed

ofTrustabovedescribed.SectionNRS 107.080 permitscertaindefaultstobe cured upon thePayment of

theamounts required by thatstatutorysectionwithoutrequiring payment ofthat portionof principaland interestwhichwould notbe due had no defaultoccurred. Where reinstatementis possible,ifthedefaultis

notcured within35 days followingrecordingand mailingofthisNoticetoTrustororTrustor'ssuccessorin

interest,therightofreinstatementwillterminateand the property may thereafter be sold.The Trustor may

have therightto bringa courtactiontoassertthenonexistenceofa defaultorany otherdefenseof

Trustortoaccelerationand Sale.

Page 1



3629741 Page 2 of 3 03/12/2008 03:57:05 PM

TS No.:NV-08-141434-BL

Loan No.:0003770195

NoticeofDefault

Page 2

To determineifreinstatementis possibleand the amount, ifany,to curethe default,contact:

ResidentialCreditSolutionsC/O QualityLoan ServiceCorp.2141 5th AvenueSan Diego,CA 92101

619-645-7711

Ifyou have any questions,you shouldcontacta lawyeror the governmentalagency which mayhave insured yourloan. Notwithstandingthe factthatyourpropertyisinforeclosure,you may offeryour

propertyforsale provided thesaleisconcluded priortotheconclusionoftheforeclosure.

Dated:3/10/2008 QualityLoan ServiceCorp., AS AGENT FOR BENEFICIARY

By:

StateofNevada )ss.

CountyofClark )

' mstrumentwasackno edbefore me,a notary pubilc, by on

,20

NotaryPublic

Ifyou have previously been discharged thro h bankruptcy,you may have been released of personal

liabilityforthisloaninwhichcase thislett i intendedtoexercisethenoteholder'srightsagainstthereal

propertyonly.

THIS OFFICE IS ATTEMPTING CO ECT A DEBT AND ANY INFORMATION OBTAINED WILL

BE ED FOR THAT PURPOSE.

As required by law,youareherey thata negativecreditreportreflectingon yourcreditrecord may be

submitted toa creditreportage c '

youfailtofulfillthetermsofyourcreditobligations.



3629741 Page 3 o f 3 03/12/2008 03:57:05 PM

StateofCaliJpmia )

County of U t{] )

On . Ad! before me,

, /-ft ^L , NotaryPublic,

personallyappeared ElepfaAM My

who proved to me on the basisof

satisfactoryevidencetobe the person whose nam re subscribedto the

withininstrumentand acknowledged tome thathe executed thesame in

hisner heirauthorized capacity(#s),and that by his eirsignature on the

instrumentthe persong),ortheentityupon behalfofwhich the person a ted,

executed the instrument.

Icertifyunder PENALTY OF PERJURY underthe lawsoftheStateofCaliforniathat

theforegoingparagraphistrueand correct.

Witness my hand ad officialseal.

Signature 4@ (Seal)

Commission# 1790651

NotosyPublic-Califomia

Orange County



0 197 007 04: 42, 943

Renested Sy

[RECORDING REQUESTED BYK

shoe CE NNIR c0 COMPANY

AND WHEN RECORDED MAILTO:] bry$16 OBuRP T aderTrustee Corps Page 1 of 3

2112 Business Center Drive

c':"A 92612

APN # 030-091-12

The undersigned herebyaffirmsthatthereisnoSocialSecuritynumbercontained inthisdocument.

[SPACE ABOVETHISLINEFORRECORDER'SUSEONLY]TrusteeSaleNo.NV0810732 Loan No.3770195 TitleOrderNo.H701261

IMPORTANT NOTICE

NOTICE OF DEFAULT AND ELECTION TO SELL

UNDERDEEDOFTRUST

IF YOUR PROPERTY IS IN FORECLOSURE BECAUSE YOU ARE BEHIND IN

YOUR PAYMENTS, IT MAY BE SOLD WITHOUT ANY COURT ACTION and you may

have the legalrightto bringyouraccountingood standing by payingallofyourpastdue payments

pluspermitted costsand expenses withinthetime permittedby lawforreinstatementofyouraccount(whichisnormallyup tothirty-five businessdays aftertherecordingdateor mailingofthis

Notice,whicheverislater). No saledate may be setuntilthreemonths from thedatethisnoticeof

default may be recorded (whichdateofrecordationappearson thisnotice).

While your propertyisinforeclosure,you still must pay otherobligations(such as insuranceand

taxes)required by your Note and Deed ofTrustor

Mortgage.If

youfailtomake future

paymentson

the loan, pay taxeson the property, provideinsuranceon the property,or pay otherobligationsas

required inthe Note and Deed ofTrustor Mortgage,the Beneficiaryor Mortgagee may insistthat

you do so in orderto reinstateyour account in good standing. In addition,the Beneficiaryor

Mortgagee may requireas a conditionto reinstatementthatyou providereliablewrittenevidence

thatyou paid allseniorliens, propertytaxes,and hazard insurance premiums.

Upon your writtenrequest,the Beneficiaryor Mortgagee willgiveyou a writtenitemizationofthe

entireamount you must pay. You may nothave to pay the entireunpaid portionof your account,

even though full payment was demanded, but you must pay allamounts in defaultat the time

payment is made. However, you and yourBeneficiaryor Mortgagee may mutuallyagree inwriting

priortothetimethe NoticeofTrustee'sSale is posted(which may notbe earlierthantheend ofthe

three-month period stated above) to,among otherthings,(1)provideadditionaltime inwhich to

cure the default by

transferofthe property

orothenvise;

or(2)

establisha scheduleof payments

in

ordertocureyourdefault;orboth(1)and (2).

Followingtheexpirationofthetime period referred tointhis paragraphofthisnotice,unlessthe

obligation beingforeclosed upon or a separatewrittenagreement between you and yourcreditor

permitsa longerperiod,you have onlythelegalrighttostopthesaleof propertyby payingthe

entireamount demanded by yourcreditor.

To findouttheamount you must pay,toarrangefor payment tostoptheforeclosure,orifyour

propertyisinforeclosureforany otherreason,contact:



TrusteeSaleNo.NV0810732 Loan No.3770195 TitleOrderNo.H701261

ATO CONTROL # 222536069212

AAMES HOME LOANcloTRUSTEE CORPS

2112 BUSINESS CENTER DRIVE

2no FLOOR

IRVINE,CA 92612

(949)252-8300

Ifyou have any questions,you shouldcontacta lawyerorthegovernmentalagency,which mayhave insured yourloan. Notwithstandingthefactthatyourpropertyisinforeclosure,you may offer

yourpropertyforsale, provided thesaleisconcluded priortothe conclusionoftheforeciosure.

Remember, YOU MAY LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT

ACTION.

NOTICE IS HEREBY GIVEN THAT: MTC FINANCIAL, INC.dba TRUSTEE CORPS istheoriginal

Trustee,the dulyappointed Substituted Trusteeor actingas Agent forthe Trusteeor Beneficiaryunder a Deed of Trustdated 04/1812005,executed by JAMES S. CARPENTER AND JOAN E.

CARPENTER, HUSBAND AND WIFE AS JOINT TENANTS as Trustor,to secure certain

obligationsinfavorof AAMES FUNDING CORPORATION DBA AAMES HOME LOAN under a

Deed of TrustRecorded on 0510412005as Document No. 3208651 of OfficialRecords inthe

Officeof the Recorder of Washoe County,Stateof Nevada, describingland therein, AS MORE

FULLY DESCRIBED IN SAID DEED OF TRUST. Said obligationsincludingone Note forthesum

of !|1170,800.00thatthe beneficialinterestunder such Deed ofTrustand the obligationssecured

therebyare presentlyheld by theundersigned.

That a breach of the obligations

forwhich said Deed of Trustissecurityhas occurred in that

payment has not been made of:THE INSTALLMENT OF PRINCIPAL AND INTEREST WHICH

BECAME DUE ON 01/01/2007AND ALL SUBSEQUENT INSTALLMENTS OF PRINCIPAL AND

INTEREST, ALONG WITH LATE CHARGES, PLUS FORECLOSURE COSTS AND LEGAL

FEES.

That by reason thereof,the presentBeneficiaryunder such Deed of Trust,has executed and

deliveredto TRUSTEE CORPS, said Trustee,a writtenDeclarationof Defaultand Demand for

Sale,and has surrendered to said Trusteesuch Deed of Trustand alldocuments evidencing

obligationssecured therebyand has declaredand does herebydeclareallsums secured thereby

immediatelydue and has electedand does hereby electto cause thetrust propertyto be soldto

satisfytheobligationssecured thereby.



TrusteeSaleNo. NV0810732 Loan No.3770195 TitleOrder No.H701261

ATO CONTROL # 222536069212

DATED: 4117107

TRUSTEE CORPS, as Agent forAAMES HOME LOAN

by Chic t ices, as A , by

Fi In e pnay, as AgentL

BY: Skey S. Si Ifsst. areta

Stateof Nevada

County of Washe .

On 4-17-07 before me, the undersigned personallyappeared

Stanley S. Silva personally

known to me(orproved

tome on thebasis

of satisfactoryevidence)to be the person(s)whose name(s) is/aresubscribedto the within

instrumentand acknowledged tome thathe/executed thesame

DOROTHY J.JOHNSON | NotaryPublic-Stateof Nevada1 NotaryPublic

AppointmentBecordedin Wasinecaunly No:01-66333-2-ExpiresDecember10,208I

TRUSTEE CORPS IS A DEBT

COLLECTOR. ANY INFORMATION

OBTAINED WLL BE USED FOR THAT

PURPOSE.



DOC #4046455

10/03/2011 08:46:33 AM

ElectronicRecording RequestedLSITITLE AGENCY INC

Washoe County Recorder

Kathryn L. Burke - Recorder

APNNo.:030-091-12 Fee: $15.00 RPTT: $0

Recording,requested by: Page 1 of 2

When recorded mailto:

QualityLoan Service

Corp.2141 5thAvenueSan Diego,CA 92101

Spaceabovethislineforrecordersuseonly

TS No.:NV-08-141434-BL

OrderNo.:WS60369

Itisherebyaffirmed thatthisdocumentsubmitted forrecordingdoesnotcontainthesocial

securitynumberofany personor persons.(Per NRS 239B.030).

NOTICE OF TRUSTEE'S SALE

YOU ARE IN DEFAULT UNDER A DEED OF TRUST DATED 4/18/2005.UNLESS YOU

TAKE ACTION TO PROTECT YOUR PROPERTY, IT MAY BE SOLD AT A PUBLIC

SALE. IF YOU NEED AN EXPLANATION OF THE NATURE OF THE PROCEEDING

AGAINST YOU, YOU SHOULD CONTACT A LAWYER.

A publicauctionsaletothehighest bidderforcash,cashier'scheckdrawnon a stateornational bank,

checkdrawn by stateorfederalcreditunion,ora checkdrawn by a stateorfederalsavingsandloan

association,orsavingsassociation,orsavings bankspecified inSection5102totheFinancialcode

andauthorized todo businessinthisstate,willbe held by dulyappointed trustee.The salewillbe

made, butwithoutcovenantorwarranty,expressed orimplied,regardingtitle, possession,or

encumbrances,to paytheremaining principalsum ofthenote(s)secured by theDeed ofTrust,with

interestand latechargesthereon,as provided inthenote(s),advances,underthetermsoftheDeed of

Trust,interest

thereon,fees,chargesand

expensesoftheTrusteeforthetotalamount

(atthetimeof

theinitial publicationoftheNoticeof Sale)reasonablyestimated tobe setforth below.The amount

may be greateron thedayofsale.

BENEFICIARY MAY ELECT TO BID LESS THAN THE TOTAL AMOUNT DUE.

Trustor(s): JAMES S.CARPERNTIER AND JOAN E.CARPENTIER,

HUSBAND AND WIFE AS JOINT TENANTS

Recorded: 5/4/2005asInstrument No. 3208651inbookxxx, pagexxx ofOfficial

RecordsintheofficeoftheRecorderofWASHOE County, Nevada;

DateofSale: 10/21/2011at11:00AM

PlaceofSale: At the VirginiaStreetentrancetothe Washoe County Courthouse

locatedat75 Court Street,Rene, NV 89501

Amount of unpaid balanceand othercharges:5229,225.57The purported propertyaddressis: 2873 SUNNY SLOPE DRIVE, SPARKS, NV

89434

This propertyissold as-is,lenderisunabletovalidatethecondition,defectsordisclosureissuesofsaid

propertyand buyerwaivesthedisclosurerequirementsunderNRS 113.130 by purchasingatthissaleand

signingthereceiptofsale.The undersigned Trusteedisclaimsanyliabilityforanyincoractnessofthe

propertyaddressorothercommon designation,ifany,shownherein.Ifno streetaddressorothercommon designationisshown,directionstothelocationofthe property may be obtained by sendinga



4046455 Page 2 o f 2 -10/03/2011 08:46:33 AM

writtenrequesttothe beneficiarywithin10 daysofthedateoffirst publicationofthisNoticeofSale.

IftheTrusteeisweabletoconveytitleforany reason,thesuccessful bidder'ssoleand exclusive

remedy shall be thereturnofmonies paid totheTrustee,and thesuccessful biddershallhave no

furtherrecourse.

Ifthesaleissetasideforany reason,thePurchaseratthesaleshallbe entitled onlytoa returnof

thedepositpaid.The Purchasershallhave no furtherrecourseagainstthe Mortgager,the

Mortgagee,orthe Mortgagee's Attorney.

Date: 4 t(QualityLoan ServiceCorp.

* 2141 SthAvenue

San Diego,CA 92101

619-645-7711For NON SALE informationonly

SaleLine:714-730-2727or Loginto:www.1psasap.com

.: NV-08-141434-BL

Rel to tLine:619-645-7711

li ServicCorp.by:Ronald Alonzo,as Authorized Agent.

StateofCalifornia)

CountyofSan Dieso)

On 9 /ZA /2.01 1 fore me, ChrisThurman a NotaryPublic, personallyappeared who proved tome on thebasisofsatisfactoryevidence

tobethe person(s)whose name(s)is/@ subscribed tothewithininstrumentand acknowledged tome that

he/shp/thqyexecuted thesame inhis/hqr/th@authorized capacity(ies),andthat by his/hir/thetir

signature(s)on theinstrumentthe person(s),ortheentityupon behalfofwhichthe person(s)acted,

executed theinstrument.

IcertifyunderPENALTY OF PERJURY underthelawsoftheStateofCaliforalathattheforegoing

paragraphistrueand correct.

WITNESS my hand andofficialseal. CHRISTHUIWAN= commannNo.192534305 NormerPla.lo-CALIFORMA g

--- sauEcocculaY

Signature (Seal) MyCom EqaesFebusy12,2015

ChrisThurman

Ifyou have previously beendischarged through bankruptcy,you may have beenreleased of pesonal

liabilityforthisloaninwhichcasethisletterisintended toexercisethenoteholdersright'sagainstthe

real propertyonly.

THIS NOTICE ISSENT FOR THE PURPOSE OF COLLECTING A DEBT. THIS FIRM IS ATTEMPTING TO COLLECT A DEBT ON BEHALF OF THE HOLDER AND OWNER OF

THE NOTE. ANY INFORMATION OBTAINED BY OR PROVIDED TO THIS FIRM OR THE

CREDITOR WILL BE USED FOR THAT PURPOSE. As required by law,youareherebynotified thatanegativecreditreportreflectingonyourcreditrecord may besubmitted toacreditreportagencyifyoufailtofulfillthetermsofyourcreditobligations.




01-04-2012:09:40:21 AMJoey Orduna Hastings

Clerk of the CourtTransaction # 2679368

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McCarthy Holthus, LLPKristin Schuler-Hintz, Esq. Nevada SBN 7171Christopher M. Hunter, Esq., Nevada SBN 81279510 West Sahara, Suite 110Las Vegas, NY 89117Phone (702) 685-0329Fax (866) 339-5691

Attorney for Defendants:Residential Credit Solutions, Inc. Quality Loan Service Corporation

IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA

IN AND FOR WASHOE COUNTY

JAMES S CARPENTIER; and JOAN E.

CARPENTIER,

Plaintiffs

vs.

)))

AAMES FUNDING CORPORATION DBA

AAMES HOME LOAN, a California

corporation; WINDSOR MANAGEMENT )

CO. , a California corporation; )

RESIDENTIAL CREDIT SOLUTIONS, INC.,)

a TEXAS corporation; QUALITY LOAN

SERVICE CORPORATION, a California )

Corporation; and DOES I - XX, inclusive, )

)Defendants


Department No: 7

RESIDENTIAL CREDIT SOLUTIONS,

INC. AND QUALITY LOAN SERVICE

CORPORATION S REQUEST FOR RULE

11 SANCTIONS AND OPPOSTION TO

EMERGENCY MOTION FOR

TROIINJUNCTION OR IN THE

ALTERNATIVE MOTION TO SET

ASIDE ORDER GRANTING SUMMARY

JUDGMENT

COMES NOW Defendants, Residential Credit Solutions, Inc. ( RCS ) and

Quality Loan Service Corporation ( Quality and collectively Defendants ), by and through its

counsel of record, Christopher M. Hunter, Esq., of McCarthy Holthus, LLP, and files this

Request for Imposition of Rule 11 Sanctions against Plaintiffs and Plaintiffs' Counsel and

Opposition to Plaintiffs Emergency Motion for TROllnjunction or in the alternative Motion to

Set Aside Order Granting Summary Judgment.

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This Opposition is based upon this Notice, the attached Memorandum o Points an

Authorities, and upon all pleadings and documents herein, as well as any argument that may b

presented at the hearing o this, or any other motions/matters; the Court is requested to take


Dated: 1I4/2012 McCarthy Holthus, LLP

Is/Christopher M. HunterChristopher M. Hunter, Esq.

MEMOR NDUM OF POINTS ND UTHORITIES

B CKGROUND

This action concerns real property in Washoe County, Nevada known as 2873 Sunn

Slope Dr., Sparks, Nevada ( Subject Property ). The Subject Property was financed through the

execution o a note and deed o trust by Plaintiffs promising to repay the sum o $170,800 in

monthly installments to Aames Funding Corporation DBA Aames Home Loan. The deed 0

trust was recorded on May 4, 2005 in the official records o Washoe County as document

number 3208651. A copy o the deed o trust is attached as Exhibit 1.

Subsequently, on March 10, 2008, Aames Funding Corporation DBA Aames Home Loan

assigned the deed o trust to Deutsche Bank National Trust Company as Trustee for Aames

Mortgage Investment Trust 2005-2. The assignment was recorded on May 9, 2008 as documen

number 3648603. A copy o the assignment is attached as Exhibit 2. At all times, RCS was the

servicer o the loan.

Plaintiffs defaulted on the above referenced loan. On April 18, 2008, a substitution 0

trustee, dated March 10 2008, was recorded as document number 3641716. The substitutio

was signed by Deutsche Bank National Trust Company as Trustee for Aames Mortgage

Investment Trust 2005-2 and appointed Quality as the foreclosure trustee. A copy o this

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1 document is attached as Exhibit 3. Quality then connnenced a foreclosure by recording a notice

2 of default and election to sell on March 12,2008 as document number 3629741. A copy of the

3 notice of default is attached as Exhibit 4.

4 Plaintiffs filed this action on July 8 2008. On June 23, 2010, Defendants filed a Motion

5 for Sunnnary Judgment and served the Motion on Plaintiffs. Plaintiffs did not oppose the

6 Motion and on July 15, 2010 the Court entered an Order granting the Motion for Sunnnary

7 Judgment. Notice of Entry of the Order was filed by Defendants and served on Plaintiffs on July

8 15,2010. Plaintiffs never filed a Motion to Reconsider the Order and never appealed the Order.

9 Thereafter RCS undertook a lengthy review of Plaintiffs for a loan modification. During

10 this period the foreclosure was placed on loss mitigation hold. The loan modification was no

11 successful and the hold was removed in October, 2011. On October 3 2011 Quality recorded

12 Notice of Sale as document number 4046455. A copy of the Notice of Sale is attached as

13 Exhibit 5.

14 Shortly thereafter, Zach Coughlin, Esq. entered an appearance on behalf of Plaintiffs an

15 indicated to the undersigned that the pending Motion for TRO and/or to Set Aside had been or

16 was going to be filed. The undersigned, in conformance with NRCP Rule I I forwarded to Mr.

17 Coughlin a copy of the letter dated October 21, 2011 attached as Exhibit 6. At Mr. Coughlin's

18 request the foreclosure sale has been continued twice and is presently set for February 6 2012.

19 On December 31, 2011, eighteen months after entry of the sunnnary judgment Order,

20 Plaintiffs filed the pending motion. Plaintiffs seek an injunction barring the foreclosure as well

21 as damages in excess of 10,000, treble damages and sanctions under case law developed by the

22 Nevada Supreme Court relating to the Nevada Mediation Program.

23 All exhibits referenced herein are attached to this Motion. QLS respectfully requests

24 judicial notice of the deed of trust, as well as the other exhibits. All exhibits hereto should be

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judicially noticed because they are a public record in the Washoe County Recorder's office. NRS

47.130; NRS 47.150; Jory v. Bennight 91 Nev. 763,766, 542 P.2d 1400, 1403 (1975).

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LEGAL ANALYSIS

A THE STANDARD OR GRANTING INJUNCTIVE RELIEF

A preliminary injunction is designed to preserve the status quo and is normally only

available upon a showing that the party seeking it is reasonably likely to succeed on the merits

and that the defendant's conduct, i allowed to continue, will result in irreparable harm for whic

compensatory damage is an inadequate remedy. See Dangbeg holding Nevada LLC v Dougla

County 978 P.2d 311, 319-2- (Nev. 1999); Pickett v Comanche Construction Co. 108 Nev.

422, 836 P.2d 42 (1992); Dixon v Thatcher 103 Nev. 414, 742 P.2d 1029 (1987). Equity will

restrain tortious acts where it is essential to preserve a business or property interests. State

Farm Mut Auto. Ins Co v Jajros Inc 109 Nev. 926, 860 P.2d 176 (Nev. 1993).

The Nevada Supreme Court has generally held that four (4) factors must be satisfie

before injunctive relief may be granted:

1 The threat o irreparable harm;

2The relative interest

o

the parties;

3 Plaintiffs likelihood o success on the merits; and

4 The interest o the public.

See e g Sobol v Capital Management Consultanis Inc. 102 Nev. 444, 726 P.2d 335

(1986).

B THREAT OF IRREPARABLE INJURY

Where injury is likely to be irreparable equity will always interpose its power to protect a

person from a threatened injury. Champion v Sessions 1 Nev. 478 (1865). The Nevad

Supreme Court has recognized that it will restrain conduct where it is essential to preserve

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business or property interest. Guion v Terra Marketine a/Nevada. Inc. 90 Nev. 237, 240, 523

P 2d 847, 848 (1974). Moreover, in Nevada, a foreclosure on an interest in real property is

irreparable injury because real property and its attributes are considered unique and loss o real

property rights generally results in irreparable hann. Dixon v Thatcher 103 Nev. 414, 415-16,

742 P.2d 1029, 1029-30 (1987) (concluding that a preliminary injunction to stop a foreclosure is

proper where there is a reasonable likelihood o success).

Here, Plaintiff is not entitled to a preliminary injunction because Plaintiffs' Motion is

procedurally improper and does not and cannot establish excusable neglect that would warran

the setting aside o the summary judgment Order.

1 Plaintiffs Motion is procedurally improper

Plaintiffs' counsel has failed to follow the appropriate procedure for obtaining

temporary restraining order or a preliminary injunction. NRCP Rule 65(b) typically requires the

filing o a petition for a temporary restraining order in which Rule 65(b) and local rules require

various procedural assertions and descriptions o what efforts counsel has made to give notice to

other named parties. Counsel has simply skipped over this step and instead has filed a rambling

and largely incoherent 43 page document which contains long passages relating to counsel's

personal eviction from a commercial office and unsupported quotations from a book. Counsel

also attaches the full copy o the book (115 pages) as an exhibit as well as a 41 page documen

relating to counsel's irrelevant eviction.

The Motion repeats verbatim the entirety o Plaintiffs' original complaint, incorrectly

alleges that the substitution o trustee was never recorded and incoherently suggests tha

Plaintiffs were creditors o the Delaware Aames Home Loan bankruptcy estate. The fact tha

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this Motion has also been filed against Aames and requests damages is a blatant violation of the

automatic stay for which counsel could be sanctioned by the Delaware court.

Finally, and most importantly, the Motion is completely lacking any supporting

admissible evidence. There is no affidavit and no allegation from Plaintiffs regarding any of the

requirements ofNRCP Rule 65.

2 Plaintiffs have no likelihood o success

Another factor that must also be considered, assuming harm is proven and the interests

tip in favor of a plaintiff is whether or not the Plaintif f is likely to succeed on the merits of the

case. The plaintiff bears the burden of proving that he enjoys a reasonable probability 0

success on the merits. Christensen v Chromalloy American Corp., 99 Nev. 34, 656 P.2d 844

1983); Republic Entertainment, Inc v Clark County Liquor Gaming Licensing Board, 9

Nev. 811 672 P.2d 634 (1983). In this case, Plaintiff is not reasonably likely to succeed on the

merits.

Here, again Plaintiffs cannot prevail on the merits because a judgment has already bee

entered against Plaintiffs eighteen months ago. The judgment was not appealed.

3. Plaintiffs cannot establish excusable neglect

The sole basis in support of Plaintiffs' claim of excusable neglect is that the Motion for

Summary Judgment incorrectly contained Clark County in the caption of the Motion instead 0

Washoe County. In addition, several filings correctly citing Washoe County incorrectly refer to

Department 4 instead of Department 7. This argument is completely unavailing. Nowhere i

Plaintiffs' Motion is there an allegation that Plaintiffs were somehow misled to their detriment

due to these scrivener errors. Nor is there is a single allegation that Plaintiffs were unaware of 0

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never received the Motion for Summary Judgment and the Notice of Entry of the Order granting

sununary judgment.

In addition, Plaintiffs cite Pasillas v. HSBC Bank USA et aI. 127 Advance Opinion 39

(2011) and Leyva v. National Default Servicing Corp. et aI. 127 Nev., Advance Opinion 4

(2011) in support of their Motion. These opinions are inapplicable to the issues in this case

because they are concerned only with the requirements for producing documents and

demonstrating standing in mediation cases conducted under the Nevada Mediation Program and

the Nevada Supreme Court Foreclosure Mediation Rules. The issues set forth in Plaintiffs

original complaint related solely to deceptive lending practices under NRS 598D.

Finally, and most importantly, even if the Plaintiffs were misled or were unaware

Motion to Set Aside under NRCP Rille 6 must be brought within 60 days of the relevant

proceeding. Here, the Motion to Set Aside is brought eighteen months after the relevant

proceeding and is, therefore, untimely.

SANCTIONS SHOULD BE LEVIED AGAINST PLAINTIFFS COUNSEL

The Motion filed by Plaintiffs calls out for Rule sanctions. The document is wholl

frivolous, indicates a disregard for the spirit, intent and processes of the Court system and

sanctions may be the only manner in which Mr. Coughlin will be deterred from such frivolous

filings in the future. Please see generally, Greenburg v Sala 822 F .2d 882, 885 (9th Cir. 1987

which holds that a violation of Rule II is complete when the improper Complaint is filed. Please

see also Circuit Judge Goodwin s concurring opinion in Headwaters Inc. v Us. Forest Service

399 F.3d 1047, at 1057 where, in a case involving issues of res judicata, the Judge stated:

I concur in the majority opinion, but write separately to remind the district court

on remand that if the factual record developed after remand shows that a party or

counsel were, as suspected by the district court, in fact gaming the system to

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prolong unnecessary litigation, the court has discretionary remedies in the nature

of costs and fees to protect the court from imposition.

That Mr. Coughlin would write an unintelligible motion and attach 40 plus pages of a suit

involving his own personal problems and a 115 page unsupported and unauthenticated book is

sanctionable conduct because it is frivolous, totally improper, unprofessional and known by Mr

Coughlin to be completely without legal support. Further, the undersigned complied with the

Rule 11 safe harbor provisions by notifying Mr. Coughlin in October, 2011 that sanctions woul

be requested if the pending Motion was filed.

CONCLUSION

For the foregoing reasons, Defendants request that this Court deny Plaintiffs' Motion and

award sanctions against Plaintiffs' counsel for the cost of defending the Motion.

Respectfully submitted by:

McCarthy Holthus, LLP

Isl hristoher M Hunter

Christopher M. Hunter, Esq.9510 W Sahara, Suite 110

Las Vegas, Nevada 89117

AFFIRMATION

21 The undersigned affirms that this document does not contain the social security number

22 of any person.

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Dated: 114 2012 McCarthy Holthus, LLP

IslChristopher M. Hunter, Esq.Christopher M. Hunter, Esq.

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CERTIFIC TE OF M ILING

I hereby certify that on the 4th day of January, 2012, a true and correct copy of the

foregoing Request for Imposition of Rule Sanctions against Plaintiffs and Plaintiffs' Counsel

and Opposition to Plaintiffs Emergency Motion for TRO/1njunction or n the alternative Motion

to Set Aside Order Granting Summary Judgment was forwarded by United States Mail, postage

prepaid and by fax to the addresses listed below.

Eric B. Zimbelman, Esq.

3333 E. Serene Ave., Suite 200

Henderson, NV 89074

Zach o u ~ i n Esq.

1422 E. 9 St. 2

Reno, NV 89501

Is Joni Rispalje

An Employee ofMcCarthy Holthus, LLP

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l2.

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LIST OF EXHI ITS

Deed ofTrust.

Assignment of Deed of Trust.

Substitution of Trustee.

Notice ofDefault.

Notice of Trustee s Sale.

Rule 11 Letter.

10



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October 21,2011

Zach Coughlin, Esq.121 River Rock St.Reno, Nevada 89501

McCarthy + HolthusA Limited LW 11ity Partnership

9510 West Sahara Avenne, Suite 110

Las Vegas, NV 89117Telephone (702) 685-0529 Ext. 3748

Facsimile (866) 339-5691

www.McCarlhyH lthus.c<mlEmail i'U iIlJ pcmmmcl:

fiHlt initial arui1asl [email protected] ;ht.:s.com

RE: Carpentier v Aames Funding, et a1

Dear Mr. Coughlin:

CA ~ l ' : K : G o J i e rCA Mro\hcw D<.lwteC A ru:.sMi v. PaWl

AZ Je :S.ia R. K=.ey

CA Rroer:w L Umg

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WA m y ~Cl \. 1 ~ C h u J : sNY Itf:lktJacovjooNY 6t\nty Looat'(II)

I represent Residential Credit Solutions, Inc. and Quality Loon Service Corporation with respectto the above referenced matter. I am in receipt of your Emergency Motion to Reconsider theSu:mmary Judgment Order entered by the Court 15 months ago on July 15, 2010. Notice of

Entry of he Order ,'lis provided to your clients on the same datc. The purpose of this letter is toadvise that we will file a motion for sanctions under NRCP Rule II if the referenced EmergencyMotion is not immediately withdrawn. Your Motion is entirely without merit. It seeks torelitigate matters that are now res judicata and is untimely under NRCP Rule 60. In addition, asubstantial portion of case law set forth in your motion is either inapplicable or is based on issuesdecided by the Nevada Supreme Court long after entry of the Court's Order in this matter. Wewill specifically request entry of sanctions against you personally if he motion is not withdrawn.Please direct any fUrther communications regarding this matter to my attention. 111a: 1k you.

Very truly yours,

Cbristopher M. Hunter, Esq.

Sent by regularmail und fax to 949-667-7402

19735 10*- M«w¢ Nti,.Scite N.;mo

Pw: sbo, WA

{2niS)3 19.9100

i 1 ' a . , ' $ l r n i l e ( 2 0 5 j ~

a D m ° ( f i ~1770 Fourth AvtlftIle

S,m Dl%O, CA mil l

(519) '_

FiX$l111.lle (619),6&H&U

;wo S. V i ~ S l v Sth floorj(eno, rw S;)S)i

(7tI2) -&15-<JW e ~ t . 3748

~ ~ m i k ~ 1 3 3 9 - 5 6 9 1

MmMQ€fkt

S636 Nmth Cen 1'il.l A . < l ~ , i ( j h e t05l

Phoenix, AZS5D11

(6OZ) 2 fl.S'12.6

Ii'M'MlJt (J.i02j 23()..9277

EXHIBIT "6"



REPLY TO OPPOSITION TO PLAINTIFF'S EMERGENCY MOTION FORTRO/INJUNCTION; or PLED IN THE ALTERNATIVE; MOTION TO SET ASIDEORDER GRANTING SUMMARY JUDGMENT

Now some of these lenders/servicers/trustees and opposing counsel (which are all owned

by the same law firm in some case, like, apparently, here) like to say my stuff is incoherent,

but what about all their documents and papers and Notices and Assignments and all that? Is

that stuff any more coherent?

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

ASIDE ORDER GRANTING SUMMARY JUDGMENT

!ocument "ode# $%&'ach "oughlin, s*+ N -ar No# &.%$. + &th 0t+ 12eno, N 3&'45ele# %%'6&67%$%8a9# &.&677%6%.4

ach"oughlin:hotmail+comAttorney for ;laintiffs <oni and <ames"arpentier

<A=0 "A2;N5I2, 5 A>,;laintiff

v+

AA=0 8N!IN@ "2; 5A>,!efendant

"ase No# "4364%4&!ept No# %

REPLY TO OPPOSITION TOPLAINTIFF'S EMERGENCY MOTIONFOR TRO/INJUNCTION; or PLED INTHE ALTERNATIVE; MOTION TOSET ASIDE ORDER GRANTINGSUMMARY JUDGMENT

IN 5B 0"N! <!I"IA> !I052I"5 "25 8 5B05A5 8 NA!A IN AN! 82

5B "N5C 8 DA0B


01-11-2012:04:18:26 PMJoey Orduna Hastings

Clerk of the Court




N2"; 2> 74+ 2>I8 82= <!@=N5 2 2!2+++

E(b) =istakesF InadvertenceF 9cusable NeglectF Newly!iscovered videnceF 8raud, tc+ n motion and upon such termsas are Gust, the court may relieve a party or a partyHs legalrepresentative from a final Gudgment, order, or proceeding for thefollowing reasons# () mistake, inadvertence, surprise, or e9cusableneglectF () newly discovered evidence which by due diligence

could not have been discovered in time to move for a new trialunder 2ule '&(b)F ($) fraud (whether heretofore denominatedintrinsic or e9trinsic), misrepresentation or other misconduct of anadverse partyF (.) the Gudgment is voidF or, (') the Gudgment has been satisfied, released, or discharged, or a prior Gudgment uponwhich it is based has been reversed or otherwise vacated, or it is nolonger e*uitable that an inGunction should have prospectiveapplication+ 5he motion shall be made within a reasonable time,and for reasons (), (), and ($) not more than 7 months after the proceeding was taken or the date that written notice of entry of the Gudgment or order was served+ A motion under this subdivision (b)

does not affect the finality of a Gudgment or suspend its operation+5his rule does not limit the power of a court to entertain anindependent action to relieve a party from a Gudgment, order, or proceeding, or to set aside a Gudgment for fraud upon the court+Drits of coram nobis, coram vobis, audita *uerela, and bills ofreview and bills in the nature of a bill of review, are abolished, andthe procedure for obtaining any relief from a Gudgment shall be bymotion as prescribed in these rules or by an independent action+E

pposing counsel Bunters . pposition is e9cerpted here (with the undersigned

interGections in bold# E5hereafter 2"0 undertook a lengthy review of ;laintiffs for a loan

modification+ !uring this period the foreclosure was placed on loss mitigation hold+ 5he

loan modification was no successful and the hold was removed in ctober, 4+ (And

"n!l d#$%o&rd &#dn%" o r()d #n *+#$ lo(n ,od##%(*#on $#*)(*#on -*+r #$ (n

(ll.(*#on *+(* ( l), 0123444 (,n* !($ ,(d b J#, C(rn*#r onl *o +(&

5LS/RCS )ll *+ r). o)* #n b(d (#*+3 (nd $)%+ ( %l(#, or rl# *+ C(rn*#r

no! $6 *o (dd *o *+#r Co,l(#n* (nd +(& rl(* b(%6 *o *+ 7*n* r,#$$#bl

-%on$#dr#n. *+ r)l$ rl(*d *o "$*,,#n. ro, $(, %#r%),$*(n%$/n7)$3 *%" (nd

8)d#%#(l %ono, (&or$ (llo!#n. *+ C(rn*#r$ *o do $o #n *+#$ (%*#on r(*+r *+(n

%lo)d *+ *#*l !#*+ $o, n! %($ n),br9 n ctober $, 4, Juality recorded





Notice of 0ale as document number .4.7.''+ A copy of the Notice of 0ale is attached as

9hibit '+ I$ #* no* ( &#ol(*#on o NRS 142:44 *o +(& ( No*#% o $(l r%ordd l$$

*+(n <4 d($ ro, *+ d(* $* or *+ Tr)$* S(l= IF $o3 C(rn*#r$ !#$+ *o

(,nd (nd ($$r* *+(* %()$ o (%*#on +r#n3 $o #*$ no* lon.r 8)$* ( >?D $%n(r#o9

0hortly thereafter, ach "oughlin, s*+ entered an appearance on behalf of ;laintiffs an

indicated to the undersigned that the pending =otion for 52 and/or to 0et Aside had

been or was going to be filed+ -(%*)(l3 *+ )ndr$#.nd +r#n D%l(r$ )ndr n(l*

o r8)r *+(* S%+)lr@H#n* (nd H)n*r n&r (d,#**d *+ )ndr$#.nd &r %()$

(n o *+ &(r#o)$ Tr)$* S(l$ *o b r$%+d)ld or o$*ond d) *o +#$

$B)(!6#n.3 b)* r(*+r3 H#n* (nd or H)n*r (l!($ &(.)l rrrd *o

%#r%),$*(n%$ *+(* r$)l*d #n *+ Tr)$* S(l b#n. ,o&d 8)$* ( d( or $o bor

*+ )ndr$#.nd !ro* *o *+, or $n* *+, $o, roo$d Mo*#on3 &r %)r#o)$

#ndd9 5he undersigned, in conformance with N2"; 2ule , forwarded to =r+ "oughlin

a copy of the letter dated ctober , 4 attached as 9hibit 7+ At =r+ "oughlins

re*uest the foreclosure sale has been continued twice and is presently set for 8ebruary 7,

4+ -Mr: H)n*r'$ %+(r(%*r#(*#on *+(* *+ or%l$o)r $(l !($ %on*#n)d *!#% ($

*+ )ndr$#.nd3 Mr: Co).+l#n'$ rB)$* #$ %(*.or#%(ll (l$ # H#n* (nd or

H)n*r$'$ (rl#r $*(*,n*$ #n *+(* r.(rd (r *o b bl#&d: T+ )ndr$#.nd

%o,,)n#%(* *o H#n* or H)n*r 7%l)$#&l3 + bl#&$ &#( ,(#l3 $o3 (ll o *+#$ #$ #n

,(#l$ (nd ($#l ro&(bl9: n !ecember $, 4, eighteen months after entry of the

summary Gudgment rder, ;laintiffs filed the pending motion+ ;laintiffs seek an inGunction

barring the foreclosure as well as damages in e9cess of K4,444, treble damages and

sanctions under case law developed by the Nevada 0upreme "ourt relating to the Nevada

=ediation ;rogram+ - A ro.r(, *+ C(rn*#r$ ,( +(& l.(ll bn (ordd (

r#.+* *o (r*(6 #n !r #* no* or *+ )nn b)$#n$$ o $nd#n. #,or*(n* no*#% (nd

$),,(r 8)d.,n* ,o*#on$ *o on no lon.r (**orn o r%ord3 (ll *+

GINORMOUS "$%r#&nr'$ rror$" o !ron. %($ n),br3 !ron. %o)r*3 !ron.

(ddr$$ on *+ %r* o ,(#l#n.3 !ron. (ddr$$ l#$*d #n A(,$ Dl(!(r C+:11


ASIDE ORDER GRANTING SUMMARY JUDGMENT $



%rd#*or/db*or ,(*r#7 -or,r (**orn o r%ord (l$+ (nd +#$ #r,'$ (ddr$$ !r

l#$*d9: F)r*+r3 *+ C(rn*#r'$ !rn'* B)#* (bl *o (r*(6 #n (ll *+ bn#*$ o

*+ d#$%o&r r)l$ #n (n6r)*% %o)r*3 &#$ ( &#$3 !+*+r RCS/5LS #nd$or/A(,$

* (l !r r()d)ln*l ($$r*#n. $*(nd#n.3 or ( r#.+* *o $)3 *+(* *+ !r ( r(l

(r* #n #n*r$*3 *+ $)#%#n% o $)b8%* ,(**r 8)r#$d#%*#on *%: !r *+ !r no*

$r&d #,or*(n* no*#%$ (nd l(d#n.$ rl(*d *o *+(* b(n6r)*% (nd *+ $*(3 (n

()*o,(*#% $*( *+(*3 #n%#dn*(ll3 d#d no* $*o H#n* ro, #l#n. ( J)l <44? Mo*#no

or S),,(r J)d.,n* -no* *+(* *+ C(rn*#r$ !r &r $n* #* or r%#&d #*

d)r#n. *+ rl&(n* *#, r#od9 ($#%(ll3 5LS/RCS no! !(n*$ *o $(3 "+3 !

*r#%6d o) or %on&n#n*l/(%%#dn*(ll ,(n(.d *o ,(6 $)r o) .)$ d#dn'* 6no!

!+(* *#, *+ .(, !($ or !+r #* !($ b#n. l(d3 (nd *+ror o) d#dn'* .* *o

do *+ or%lo$)r ,d#(*#on ro.r(, (nd $o .o (+(d3 ($6 *+ %o)r* *o *(6

,(nd(*or or r$)($#& 8)d#%(l no*#% o L&(3 P($#ll($ (nd *r *o (r.) (ll *+(*

"For%lo$)r Dn$ oo6" $*)3 b)* #*$ *oo l(* .)$3 $orr" (lon3 (nd *+

C(rn*#r$ do !(n* *o (dd *+ %l(#,$ (nd %()$$ o (%*#on (nd rB)$* $)%+ 8)d#%(l

no*#% b *(6 ($ ,n*#ond #n *+ 7%r* ro, $o, #n*rn* b(%6(ll $+(d

"For%lo$)r Dn$ H(ndboo6" * *+#n. " Pr%*#on o C+(#n o T#*l In

J(n)(r <41 1 3 *+ M($$(%+)$**$ S)r, Co)r* #$$)d ( d%#$#on #n U:S: AN

NATIONAL ASSOCIATION VS: An*on#o IANE #n !+#%+ (l# *+ J)$*#%$

)n(n#,o)$l (.rd: In ordr or *+ b(n6 *o b (bl *o or%lo$3 *+ ,)$* $+o! (

r%*#on o %+(#n o *#*l3 bo*+ #n *+ Dd o Tr)$UMor*.(. (nd *+ Pro,#$$or

no*: I* !($ (l$o r)ld *+(* ( bl(n6 ($$#.n,n* !($ no* (%%*(bl roo o r%*#on

o *#*l or *+ ro,#$$or no*: T+#$ #$ HUGE: Yo) $+o)ld b rrr#n. *o *+#$ %($

(nd ,o*#on *+ %o)r* *o *(6 ",(nd(*or 8)d#%#(l no*#%" or *+ r)l#n. d%#$#on #n

o)r %($ # o) (r %on$#dr#n. do#n. (n $or* o l#*#.(*#on3 !+*+r ($ ( dnd(n*

#n ( J)d#%#(l S*(* or ($ ( Pl(#n*# #n ( Non@J)d#%#(l S*(*: Hr (r *+ #,or*(n*

(#n*$ o) nd *o )ndr$l(nd ro, *+#$ S)r, Co)r* d%#$#on 1 9 A D%*#&

T#*l %(nno* b #7d: T+ M($$(%+)$**$ S)r, Co)r* r)ld *+(* *+ b(n6 +($ *o


ASIDE ORDER GRANTING SUMMARY JUDGMENT .



d,on$*r(* r%*#on o *#*l (* *+ *#, *+ No*#% o D()l* #$ #$$)d: A d%*#&

*#*l #$ l#6 b(d ood: On% ood +($ .on b(d3 o) %(n n&r #7 #* T+ $(, .o$ !#*+

*+ Dd o Tr)$UMor*.(.: T+ "lndr" %(nno* r*ro $#.n or "r&r$ n.#nr"

*+ C+(#n o T#*l (*r *+ (%*: )* ,o$* o *+ *#, *+#$ #$ *+ %($ !+n #* #$

+(ndld b ( or%lo$)r ,#ll: T+ +(& rob(@$#.nr$ !+o$ 8ob #$ *o $#.n bo.)$

($$#.n,n*$ (nd r&r$ n.#nr *#*l$: I* #$ o)r 8ob *o %+(lln. *+#$ o#n* !+n

o)r lndr r$n*$ $)o$d "roo' bor *+ %o)r*: O*n*#,$3 *+ !#ll br#n. #n

( +o*o%o o *+ Dd o Tr)$* ,(d (r$ (.o (* *+ l#, o) %lo$d on o)r lo(n:

T+ +o*o%o do$ no* (nd %(nno* (**$* *o !+o *+ % )rrn* r(l (nd bn#%#(r

(r* #n #n*r$* #$: <9 T+ (n6 ,)$* $+o! ( r%*#on o *+ C+(#n o T#*l or *+

Dd o Tr)$*/Mor*.(. T+#$ ,(n$ *+(* (n ($$#.n,n*$ o *+ Pro,#$$or no*

,)$* (l$o b rl%*d (* I+ %o)n* r%ordr'$ o#% -(nd no* !#*+ MERS@I !#ll *(l6

(bo)* MERS #n ( b#l9: I (n ($$#.n,n* o *+ Pro,#$$or No* #$ no* r%ordd on *+

Co)n* R%ord$3 *+n r%*#on #$ no* (%+#&d: +(* *+#$ ,(n$ #$3 # o) %(n ro&

*+(* o)r no* +($ bn $%)r#*#d or $old *o (no*+r (r* (!( ro, o)r or#.#n(l

lndr3 (nd *+(* *+ d#d no* r%ord *+#$ ($$#.n,n* (* *+ Co)n* R%ordr'$ O#%3

*+n b#)r%(*#on o%%)rrd:": A**(%+d #$ $o, SEC #l#n. *+#n. *+(* $,$ *o #nd#%(*

*+(* *+ C(rn*#r'$ Lo(n !($ $%)r#*#d (nd ( $%)r#*#(*#on ()d#* #$ %)rrn*l

b#n. %ond)%*d *o )r*+r 7l#%(* *+o$ #$$)$: 9 All e9hibits referenced herein are

attached to this =otion+ J>0 respectfully re*uests Gudicial notice of the deed of trust, as

well as the other e9hibits -O %o)r$ 5LS rB)$*$ *+(*3 *+ !(n* *o $6# *+ (r*$

!+r (ll *+ robl,$ (nd $lo !or6 *+ d#d3 -(nd HIn* (nd H)n*r'$ l(! #r,3

M%C(r*+ Ho*+)$ ONS EITHER 5LS OR RCS3 OF THIS I HAVE EEN

ASSURED Y LEADING NEVADA FORECLOSURE DEFENSE ATTORNEYS93

*+ 8)$* !(n* *+ (,l#or(*#&/(ll#(*#& %*$ o "8)d#%(l no*#%" b#n. *(6n *o

($$)(. (ll *+ *rr#bl d%*$ ( *+oro).+ r&#! o *+o$ do% ),n*$ !#ll r&(l3

!#*+ (ll *+ %l($$#% +#*$ b#n. l(d3 o) 6no! *+ d(l3 *+ o)* o ordr r%ord#n. o

*+#$ (nd *+(*3 *+ l(%6 o ( $#.n(*)r on *+#n.$3 lo! l&l ,lo$ $#.n#n. (#d(&#*


ASIDE ORDER GRANTING SUMMARY JUDGMENT '



*+(* $6 *o 7%#$ (nd nd *o (%*)(ll ro& ($$#.n,n*$ or $*(nd#n. or *+(* *+

.)$ (r ( r(l (r* #n #n*r$*3 *+(* *+ 8)d.,n* #$n'* &o#d3 *+(* *+ no* (nd dd

ollo!d *+ $(, (*+3 *+(* *+$ .)$ d#dn'* .* ( *(7 %rd#* or ( lo$$ onl *o .* *+

bon)$ o $ll#n. #* or $o, ,or ,on::::(nd !+ do$ $o, #*r(*#on o "A(,$

Ho, Mor*(.F)nd#n.Lnd#n.Sr%#&#n.So,*+#n.OrO*+r ((r l#6 ( #ll#on

*#,$ on !!!:(%r:.o& #n *+ b(n6r)*% $%*#on= All B)$*#on$ *+(* nd (n$!r3

b)* # ( Tr)$* S(l #$ %ond)%*d3 !ll3 #*$ 6#nd o *o).+ *o do +$#%(l *+r( on ( n

(r, (*r o) +(& (,)*(*d #*:9 All e9hibits hereto should be Gudicially noticed

because they are a public record in the Dashoe "ounty 2ecorders office+ N20 .%+$4F

N20 .%+'4F <ory v+ -ennight, & Nev+ %7$,%77, '. ;+d .44, .4$ (&%')+ -(%*)(ll3

no3 !+ don'* o) .)$ .o (+(d (nd d,on$*r(* *+(* !+(*&r o) .)$ d#d )* #n

*+ R%ordr'$ O#% #$ #n %o,l#(n% !#*+ *+ rB)#r,n*$ o *+ l(!3 r(*+r *+(n

($6 or *+#$ Co)r* *o *(6 o)r !ord or #*9 5he =otion repeats verbatim the entirety of

;laintiffs original complaint, incorrectly alleges that the substitution of trustee was never

recorded -,or l#6 #* !($n'* (ror#(*l r%ordd9 and incoherently suggests that

;laintiffs were creditors -*+ C(rn*#r$3 or r(*+r J(,$ (l$+ (nd +#$ #r, (nd *+

<2 S)nn Slo ? (ddr$$ or *+ CArn*#r'$ +o, ,(d #*$ !( #n*o *+

A(,$ Dl(!(r C+:11 b63 l#$*#n. (l$+ (nd +#$ #r,$ Do)bl R (ddr$$3 r(*+r *+(n

*+ C(rn*#r$ l($* 6no!n (ddr$$3 !ll (*r *+#$ Co)r* n*rd (n ORdr (llo!#n.

(l$+'$ !#*+dr(!(l3 $o:::,(b *+ !r l#$*d #n *+ db*or ,(*r#7/%rd#*or ,(*r#73

!+(*&r3 *+ !r l#$*d3 b)* !#*+ (n (ddr$$ *+(* #,bl,(n (nd A(,$ +(d bn

$r&d (n Ordr )**#n. *+, on no*#% *+(* #* !($n'* .ood (n,or:::9of the !elaware

Aames Bome >oan bankruptcy estate+ 5he fact that $+ ;laintiffs cannot establish e9cusable

neglect 5he sole basis in support of ;laintiffs claim -HOLD ON3 HUNTER3 THE

"SOLE ASIS" REALLY= REALLY= AREN'T YOU FORGETTING ALL THE

RONGLY ADDRESSED CERTIFICATES OF MAILING3 THE RONG

ADDRESS LISTED IN THE DELAARE CH:11 FOR AAMES3 ETC:3 ETC:=

MAYE THE CONFUSION IS THAT SO MANY OF THE ASIS FOR


ASIDE ORDER GRANTING SUMMARY JUDGMENT 7



EKCUSALE NEGLECT OVERLAP ITH FRAUD3 IS THAT IT=9 of e9cusable

neglect is that the =otion for 0ummary <udgment incorrectly contained "lark "ounty in

the caption of the =otion instead 4 Dashoe "ounty+ In addition, several filings correctly

citing Dashoe "ounty incorrectly refer to !epartment . instead of !epartment %+ 5his

argument is completely unavailing+ Nowhere iN ;laintiffs =otion is there an allegation

that ;laintiffs were somehow misled to their detriment due to these scrivener errors+ -DO

NOT ELIVE THAT STATEMENT IS TRUE3 UT3 IN AN AUNDANCE OF

CAUTION3 THAT IS HEREY EING ALLEGED9 Nor is there is a single allegation

that ;laintiffs were unaware of never received the =otion for 0ummary <udgment and the

Notice of ntry of the rder granting summary Gudgment -DITTO3 THE

CARPENTIERS ARE MAING EKACTLY THAT ALLEGATION AND

ADDITIONALLY3 THEY HAVE HAD UGLY PHONE CALLS ITH LO

LEVEL EMPLOYEES IN THIS MATTER SAYING THINGS LIE "ITS YOUR

ORD AGAINST OURS3 SO THERE"9+ In addition, ;laintiffs cite ;asillas v+ B0-"

-ank 0A, et al+, % Advance pinion $& (4) and >eyva v+ National !efault

0ervicing "orp+, et aI+, % Nev+, Advance pinion .4 (4) in support of their =otion+

5hese opinions are inapplicable to the issues in this case because they are concerned only

with the re*uirements for producing documents and demonstrating standing in mediation

cases conducted under the Nevada =ediation ;rogram and the Nevada 0upreme "ourt

8oreclosure =ediation 2ules+ -NOT SO SURE THE APPLICATION OF THOSE

FINE DECISIONS IS SO LIMITED3 UT EVEN IF IT IS3 THE CARPENTIERS

ERE DEFRAUDED OUT OF THEIR OPPORTUNITY TO PARTICIPATE IN

THAT PROGRAM3 AND SHOULD E SO ALLOED TO NO IF THEY

CHOOSE9 5he issues set forth in ;laintiffs original complaint related solely to deceptive

lending practices under N20 '&3! -NO3 NOT SOLEY3 UT SINCE YOU ASED3

AND JUST IN CASE3 SOME MORE 'ISSUES' ARE ADDED HERE IN A

RE5UEST THAT CARPENTIERS E ALLOED TO DO SO + 8inally, and most

importantly, even if the ;laintiffs were misled or were unaware =otion to 0et Aside under


ASIDE ORDER GRANTING SUMMARY JUDGMENT %



N2"; 2ule 74 must be brought within 74 days of the relevant proceeding+ -REALLY3

"4 DAYS"= LAST TIME THE UNDERSIGNED READ NRCP 4-9 THERE

AS A UNCH OF MENTIONS OF 14 DAYS3 UT REGARDLESS3 THAT ONE

SECTION AOUT THERE EING NO SET LIMITATIONS PERIOD FOR

HERE A JUDGMENT IS VOID3 OTH IN LIGHT OF NRCP 4 AND THE

INHERENT POER OF THIS COURT3 IS UNDOUTEDLY IN

CONTRADICTION TO THAT ESTIMALE TREATISE "HUNTER ON RELIEF

FROM JUDGMENTS" *+(* !($ $o ro&#dd #n oo$#n. %o)n$l'$ Oo$#*#on9 Bere,

the =otion to 0et Aside is brought eighteen months after the relevant proceeding and is,

therefore, untimely+E And that concludes my novel legal techni*ue of e9tensively

*uoting opposing counsels pposition while adding in bold the undersigneds own

interGectiosn and arguments+

5he "arpentiers hereby allege and ask this "ourt to allow them to add as causes of

action, re*uest for relief, claims etc+ the following, given that this e9cerpt from a case

involving Buston and 2"0/J>0 bear such a remarkable resemblance to the "arpentiers

own treatment at the hands of 2"0/D>0 (like that time <im forked otu a lump sum

K%,444 payment to these guys, and they then pulled the rug out from under them in bad

faith# E!efendants !oes through 4, inclusive, are fictitious names+ ;laintiffs are

ignorant of the true names of the individuals, corporations, limited liability companies,

limited liability partnerships, partnerships, trusts and other associations so designated by

said fictitious names+ Dhen the true names are discovered, ;laintiffs will seek leave of

"ourt to amend this "omplaint and the proceedings herein to substitute the true names of

said !efendants+ ;laintiffs believe that each of the !efendants designated herein as a !oe

is liable or responsible in some manner for the events herein referred to and intentionally,

negligently, carelessly, and/or recklessly and pro9imately caused damages to ;laintiffs as

herein alleged+ 7+ ;laintiffs are informed and believe and upon such information and belief

allege that at all times material hereto, each of the !efendants was the agent and employee

of the other !efendants and was acting within the course, scope and authority of said





agencyF each !efendant approved, ratified and authoriLed the acts of each of the other

!efendants as herein allegedF each !efendant was subGect to a right of control by the other

!efendantsF each !efendant was authoriLed to act for each and all of the other !efendantsF

and each !efendant is a successor6in6interest to each ofthe other !efendants+ %+ ;laintiffs

are informed and believe and upon such information and belief allege that at all times

material hereto, each !efendant was a mere shell, instrumentality and conduit through

which each other !efendant carried on business in a corporate or partnership name,

e9ercising complete control and dominance of such business to such an e9tent that any

individuality or separateness of the corporate or partnership !efendants and each

individual did not e9ist+ 8A"5A> A>>@A5IN0 3+ n or about 8ebruary $, 447,

;laintiffs entered into a !eed of 5rust (9hibit EIE) with =ortgage lectronic 2egistration

0ystems, Inc+ as nominee for niversal American =ortgage "ompany, >>", to secure

;romissory Note and loan against the ;roperty (9hibit E-E)+ &+ 5he ;romissory Note

indicates that at some point after ;laintiffs entered into it the loan was transferred first to

"ountrywide -ank, N+A+, and then from "ountrywide -ank, N+A+ to "ountrywide Bome

>oans, Inc+ 5he ;romissory Note produced by !efendants is endorsed in blank and as a

result of the blank endorsement, it is currently unknown who the holder thereof is+ 0ee

9hibit E+E 4+ n or about !ecember , 44, ;laintiffs were unable to make their

monthly payments due to their change in fmancial circumstances+ ;laintiffs attempted, to

no avail, to secure a loan modification from 2"0, who is the purported servicer of their

loan+ + -ased on information in the "lark "ounty 2ecorders records, 2"0 caused a

substitntion of trustees to be recorded against the ;roperty on 0eptember , 44, naming

J>0 as the 5rustee+ + -ased on information in the "lark "ounty 2ecorders records, 2"0

caused an assignment (the EAssignmentE) to be recorded against the ;roperty on November

3, 44+ ;laintiffs do not have a copy of ,said AssignmentF however, the "lark "ounty

2ecorders ffice database indicates that the !eed of 5rust was assigned to 8 2 ,

>>"+ $+ n =arch , 4, J>0 recorded a Notice of -reach and !efault and of

lection to "ause 0ale of 2eal ;roperty under !eed of 5rust (EN! E) with regard to the


ASIDE ORDER GRANTING SUMMARY JUDGMENT &



;roperty+ 0ee 9hibit E$+E .+ n April , 4, J>0 posted on the door of the ;roperty an

unsigned, un6 notariLed, unrecorded, and different Notice of -reach and !efault and of

lection to "ause 0ale of 2eal ;roperty under !eed of 5rust (EN! E) with regard to the

;roperty+ 0ee 9hibit E.+E 5his posting was untimely pursuant to the mandatory

re*uirements ofN20 4%+43%+ '+ n 0eptember $4, 4, J>0 recorded a Notice of 0ale+

nfortunately, J>0 has never provided ;laintiffs with a signed Notice of 0ale+ Bowever,

J>0 has provided ;laintiffs with an unsigned, unrecorded Notice of 0ale by mail and

posting+ 0ee 9hibit E'+E Although ;laintiffs have never been provided with a signed,

notariLed Notice of 0ale, the 5rustees 0ale is currently scheduled for ctober 4,4 at

4#44 a+m+ 7+ n ctober $, 4, ;laintiffs notified 2"0 and J>0 of the violations

ofN20 M 4%+43% and demanded that N! be rescinded+ 0ee 9hibit E7+E %+ !espite

their knowledge of the patently obvious violations of N20 M 4%+43%, 2"0 and J>0 have

failed to rescind N! + 8I205 ">AI= 82 2>I8 (!eclaratory 2elief 6 N20 M $4+4.4

6 All !efendants) 3+ ;laintiffs re6allege each and every allegation contained herein, and

hereby incorporates them by this reference as if fully set forth below+ &+ N20 M $4+4.4

allows any person whose rightsF status or other legal relations are affected by a deed to

have the district court determine any *uestions of construction or validity arising under the

instrument and to obtain a declaration of rights, status or other legal relations thereunder+

4+ N! was recorded by J>0 on =arch ,4+ 0ee 9hibit E$+E ;ursuant to N20 M

4%+43%, N! was to be posted in a conspicuous place on the ;roperty not later than $

business days after it was recordedF thus the posting was to occur no later than =arch

',4+ + !efendant J>0 posted an unrecorded, un6notariLed, and different Notice of

!efault, on April , 4 (si9 days late)+ 0ee 9hibit E.+E Accordingly, N! was not

timely served pursuant to N20 M 4%+43%+ + N20 4%+434(')(a) states that the "ourt may

declare a sale void if# E5he trustee or other person authoriLed to make the sale does not

substantially comply with the provisions of this section or any applicable provision ofN20

4%+437 and 4%+43%+E $+ ;ursuant to A+-+ %$ 0ec+ '+3(7)%7th >eg+ (Nv+ 4), if the

"ourt finds that J>0 did not comply with any provision of N20 "hapter 4%, the "ourt





must award to ;laintiffs an inGunction enGoining the e9ercise of the power of sale, damages

of K',444 or treble the amount of actual damages, whichever is greater and reasonable

attorneys fees and costs+ .+ ;laintiffs are entitled to a declaratory Gudgment that the

aforesaid N! is null and void+ '+ In addition, as a direct, pro9imate and necessary result

ofthe !efendants conduct, ;laintiffs have been forced to incur costs and attorneys fees and

thus ;laintiffs seek an award of costs and attorneys fees, and damages pursuant to statute,

decisionallaw, common law and this "ourts inherent powers+ 0"N! ">AI= 82

2>I8 (-reach of the Implied "ovenant of @ood 8aith and 8air !ealing 6 2"0) 7+

;laintiffs re6alleges each and every allegation contained herein, and hereby incorporates

them by this reference as if fully set forth below+ %+ 3+ 2"0 is bound by enforceable

contracts with ;laintiffs+ very contract in Nevada has imp lied into it a covenant that the

parties thereto will act in the spirit of good faith and fair dealing+ &+ ;laintiffs are

informed and believe that 2"0 breached this covenant by acting inconsistently with its

purpose and intentF such wrongful conduct include, but are not limited to# (a) intentionally

refusing and/or failing to comply with the terms of Nevada law, and (b) failing to rescind

N! after being put on notice of the violation of Nevadas non6Gudicial foreclosure laws+

$4+ $+ 5hrough this and other conduct, 2"0 has denied ;laintiffs Gustified e9pectations+

As a direct and pro9imate result of 2"0 s conduct, ;laintiffs have been, and will continue

to be, harmed in the manner herein alleged in an amount which e9ceeds K4,444+44+

DB282, ;laintiffs pmys for Gudgment against the !efendants as follows# + 8or a

declaratory Gudgment that the aforesaid N! and N! was improperly noticed in

violation ofN20 4%+43% and is null and void and shall be rescindedF + 8or an immediate,

preliminary and permanent inGunction enGoining all !efendants from taking any further

action against the ;roperty (including, without limitation, any attempts to sell, encumber,

or eGect ;laintiffs from the ;roperty) until this "ourt can determine the e9tent of the parties

rights in and to the ;roperty, and to implement verifiable controls to protect ;laintiffs from

any irreparable harm that could be caused by the !efendants actionsF $+ 8or an award of

general and special damages against the !efendants, Gointly and severally, in e9cess of





K4,444+44 pursuant to A+-+ %$ 0ec+ '+3(7) %7th >eg+ (Nv+ 4)F .+ 8or an award of

treble damages against the !efendants, Gointly and severally, in e9cess ofK4,444+44

pursuant to A+-+ %$ 0ec+ '+3(7)%7th >eg+ (Nv+ 4)F '+ 8or an order of specific

performance re*uiring the rescission of the defective N! + 7+ 8or an award of attorneys

fees and costs pursuant to A+-+ %$ 0ec+ '+3(7) %7th >eg+ (Nv+ 4)F %+ 8or such other and

further relief as the "ourt may deem e*uitable, Gust and proper+E nd of e9cerpt

incorporated to this case by reference from Buston v 2esidential "redit 0olutions et al,

"ase #6cv64%.&6>!@ 6"DB in 8ederal "ourt (after one of the many, many magical

removals that these guys are known to do, getting these cases to 8ederal "ourt, where the

citiLens of Nevada get to have lifetime appointee 8ederal "ourt Gudges making, or

seemingly making, Nevada >aw in contravention of the doctrines of absention, comity,

etc+something so elo*uently argued against by the venerable @eof @iles, s* (no

connection or affiliation to the undersigned, Gust a fan of his work, got it off pacer+gov for

2e# 2ule 3(G) >etter, !ocket 46%$4 &th "ir !ocket Number# =aves v+ 8irst BoriLon

Bome >oans) in his 3< letter in =aves, attached as where the citiLens of Nevada get to

have lifetime appointee 8ederal "ourt Gudges making, or seemingly making, Nevada >aw

in contravention of the doctrines of absention, comity, etc+ something so elo*uently argued

against by the venerable @eof @iles, s* (no connection or affiliation to the undersigned,

Gust a fan of his work) in his 3< letter in =aves, attached as E7+#b#* <:

N2"; 74(b)($) allows a party to move for relief from a Gudgment which is void,

and while motions made under N2"; 74(b) are generally re*uired to Ebe made

within a reasonable timeE and to be adGudicated according to the district courts

discretion, this is not true in the case of a void Gudgment+ Necessarily a motion under

this part of the rule differs markedly from motions under the other clauses of 2ule

74(b)+ 5here is no *uestion of discretion on the part of the court when a motion is

made under this portion of the 2uleO+ Nor is there any re*uirement, as there usually

is when default Gudgments are attacked under 2ule 74(b), that the moving party show

that he has a meritorious defense+ ither a Gudgment is void or it is valid+





!etermining which it is may well present a difficult *uestion, but when that *uestion

is resolved, the court must act accordingly+ -y the same token, there is no time limit

on an attack on a Gudgment as void+ + + + Oven the re*uirement that the motion be

made within a Ereasonable time,E which seems literally to apply + + + cannot be

enforced with regard to this class of motion+ nderstandably, the parties were not

attuned to our recent <acobs decision during oral argument+ Accordingly, it was

determined at that time to allow the parties to supplement their briefs in order to

determine with certainty whether, in fact, no default had been entered against @arcia

prior to the entry of the default Gudgment+ @arcias supplemental material supplied

additional evidence that no default was ever entered, including an affidavit by "lark

"ounty "ourt "lerk >oretta -owman attesting that no such filing e9ists in the case

file+ 2espondents also acknowledged that no default was ever entered but argue in

their supplemental brief that <acobs should not be applied retroactively, noting that

the default Gudgment at issue herein was entered prior to our <acobs decision+ 5his

argument is without merit+ 5he court in <acobs determined, consistent with law from

other Gurisdictions, that the default Gudgment entered in <acobs was void+ De

accordingly ordered the district court to grant relief from the void Gudgment, despite

the fact that the ruling in <acobs was, of course, preceded by entry of the default

Gudgment against <acobs+ If this case, rather than <acobs, were before us as a case of

first impression, we would have reached the same conclusion+ A void Gudgment is

void for all purposes and may not be given life under a theory based upon lack of

legal precedent+ @arcia v+ Ideal 0upply "o+, 4 Nev+ .&$, 3%. ;+d %' (Nev+

'/&/&&.)+ 5he defective service rendered the district courts personal Gurisdiction

over @assett invalid and the Gudgment against her void+ 8or a Gudgment to be void,

there must be a defect in the courts authority to enter Gudgment through either lack of

personal Gurisdiction or Gurisdiction over subGect matter in the suit+ ;uphal v+ ;uphal,

77& ;+d & (Idaho &3$)+ In ;rice v+ !unn, 47 Nev+ 44, %3% ;+d %3' (&&4)+

De now hold that the filing of a motion to set aside a void Gudgment previously





entered against the movant shall not constitute a general appearance+ 0ee, e+g+,

!obson v+ !obson, 43 Nev+ $.7, $.&, 3$4 ;+d $$7, $$3 (&&)+ Nonetheless,

since the order was void, a Gudgment based thereon would likewise be void++ Nelson

v+ 0ierra "onstr+ "orp+, %% Nev+ $$., $7. ;+d .4+ nder N2"; 74(b) a motion to

set aside a void Gudgment is not restricted to the si9 months period specified in the

rule+ N2"; '.(a) provides that the word EGudgmentE as used in these rules includes

any order from which an appeal lies+ 5herefore there is no merit to appellants

contention that the motion to vacate the Gudgment was not timely made+ 8oster v+

>ewis, %3 Nev+ $$4, $% ;+d 7%& (Nev+ 7/&/&7)+ A void Gudgment is subGect to

collateral attackF a Gudgment is void if the issuing court lacked personal Gurisdiction

or subGect matter GurisdictionF 0ee .& "+<+0+ <udgments M .4, at %& (&.% P supp+

&&)F .7 Am+<ur+d <udgments MM 76'7 (&7& P supp+ &&)+

5he www+ccwashoe+com docket for this case reveals that #46=AC644& 4&#$'

A= Notice +++ imbelman, s*+, ric ntry# N5I" 8 -ANQ2;5"C 8I>IN@

AN! A5=A5I" 05AC 4&6<N644&

4#'& A= =tn to !ismiss +++ 0chuler6BintL, s*+, Qristin A+ ntry#

!8N!AN50 20I!N5IA> "2!I5 0>5IN0, IN"+, AN! JA>I5C

>AN 02I" "2;2A5IN0 =5IN 5 !I0=I00 2 IN 5B

A>52NA5I 82 0==A2C <!@=N5 4&6<N644&

4#'& A= Affidavit in 0upport+++ 0chuler6BintL, s*+, Qristin A+ ntry#

A88I!AI5 IN 0;;25 8 =5IN 5 !I0=I00 2 IN5 5B

A>52NA5I 82 0==A2C <I!@=N5 4&6<N644&

4#'& A= Notice +++ 0chuler6BintL, s*+, Qristin A+ ntry# N5I" 8

>!@=N5 IN 0;;25 8 =5IN 5 !I0=I00 2 IN 5B

A>52NA5I 82 0==A2C <!@=N5

Dhich is interesting considering that, besides never having served a Efiling

readyE motion, yet still seeing fit to file a =otion for 0anctions against the

undersigned, opposing counsel Bunter made some threats related to the undersigned





doing this or that in relation to the automatic stay (which one, the one that didnt

prevent BintL from filing that <uly 4& 0ummary <udgment =otion? 5he one she

send to former Attorney of 2ecord Dalsh, despite the fact the BintL was properly

served the "ourts rder @ranting Dalshs Dithdrawal as Attorney of 2ecord for the

"arpenter? 5hat one?)+ 5he issue may have more life in a bankruptcy court where

issues such as RstandingS and who the Rreal party in interestS is to pursue a motion to

lift the automatic stay, or to file a proof of claim in a bankruptcy case+ 5o this e9tent,

we have discussed the in 2e eal case which we will try to thoroughly blog on soon+

5his is a very interesting case that deals with proof of loan ownership, standing and

real party in an AriLona -ankruptcy "ase+

2egardless, is that K,444 bond in this matter 84364%4& still on the books, and

wouldnt that address the lack of a bond that opposing counsel Bunter obGected to?

5he RlendersS and loan servicers are often trying to pull fast ones in bankruptcy

courts both in filing bogus proofs of claims and in seeking to lift the automatic stay in

bankruptcy court when they have no standing and cannot prove they are the real party

in interest to file the motion I am offering my lift6stay motion with memorandum of

points and authorities i) 5he issue of standing, in the conte9t of a motion to

lift the automatic stay in regard to an alleged failure to pay on a promissory note

re*uires analysis of "alifornia "ommercial "ode law+ 5here are two threshold

*uestions for establishing standing# () has movant established an interest in the

promissory noteF and () is the movant entitled to enforce the note? 0ee In re

Dilhelm, .4% -+2+ at $&F In re Aniel, No+4&6$4.'!=, 44 D> 74&&$ (-ankr+

N+!+ "al+ April , 44)+ 5here is no way to determine whether a moving party is a

party in interest, real party in interest, or has standing sufficient to show a colorable

claim without consulting the applicable state law that dictates which party has the

right to enforce a loan+ In "alifornia, "ommercial "ode 0ection $$4 sets forth those

;ersons who are ntitled 5o nforce a negotiable instrument (hereinafter R;5S)#

R;erson entitled to enforceS an instrument means# (a) the holder of the instrumentF





(b) a nonholder in possession of the instrument who has the rights of a holder, (c) a

person not in possession of the instrument who is entitled to enforce the instrument

pursuant to 0ection $$4& or subdivision (d) of 0ection $.3+ (e9+ lost note) A person

may be a person entitled to enforce the instrument even though the person is not the

owner of the instrument or is in wrongful possession of the instrument+ (emphasis

added)+ 5he definition of RholderS can be found in "al+ "ommercial "ode 0ection

4(a)()# RBolder,S means the person in possession of a negotiable instrument

that is?payable either to bearer or, to an identified person that is the?person in

possession+

Bad opposing counsel sent the various notices and pleadings related to the Aames

bankruptcy "h+ filing in !elaware to the correct address, rather than the address of

<ames Dalsh, s*+, well after this "ourt had granted Dalshs Dithdrawal as Attorney

of 2ecord, then the "arpentiers likely would have benefitted from filing something

like this#

E"alifornia >ift 0tay pposition =otion and =emorandum of ;oints and

Authorities (3 pages)# 5his pleading is Rbattle testedS in the "entral !istrict

-ankruptcy "ourt in "alifornia+ >oan 0ervicer ("hase) motion to lift the automatic

stay was !NI!+ 5his document has most of the maGor bankruptcy cases that deal

with note ownership up to 4+ In re BwangF In re Deisband, In re eal, in re

Dalker, etc+ 5he focus is on &th circuit cases, but there are others as well+ 5his

document will save you a 5N of time in trying to get all the cases together and

organiLe an opposition to a motion to lift the automatic stay+ 5he document flows

nicely from real party in interest, to standing, to arguing about assigning a deed of

trust without the note (all the maGor cases on that point of law are included)+ 0imply

get your facts in there and you are ready to have a great motion+E Dhich is some

motion/package some "alifornian attorney is selling online+ And, the general

consensus in this field is that the bankruptcy arena is a sticky wicket for those

opposing those like the "arpentiers, allowing for discovery of all sorts of





uncomfortable truths, like who really owns the "arpentiers loan, who has standing,

etc+, etc+ "ould it be more than Gust a happy coincidence (for 2"0, J>0, Aames,

Dindsor, et al, but, certainly not for the "arpentiers) that Aames counsel listed

Dalsh and Dalshs firms address in the "h+ !elaware -ankruptcy filing creditor

matri9?

=ore from the Rwho owns my loanS series+ 5his time, it is the AriLona 0upreme "ourt

that is hearing oral arguments regarding whether or not assignments evidencing who owns

your loan must be recorded prior to a lender can pursue a non6Gudicial foreclosure+ Bere is

an article that deals with some of the high points of the debate+ 5he "ourt will rule on the

issues at a later date and we will keep you posted when we hearing something+ 5his comes

on the heels of AriLona trying to pass a law (0- '&) that forces the so6called RlendersS

of securitiLed loans and other loans to record proof of ownership with the "ounty

2ecorder before they seek to foreclose+ 5he law did not get passed likely due to the

financial lobby that of course does not want such a law passed+

http#//aLstarnet+com/articleT7.c7ed776f$$76'bfc6&%e67'%.4'4&e7cd+html De talked

on another blog post about AriLona 0- '& that was trying to re*uire proof of ownership

recorded before a lender could foreclose+ 5he debate marches on+ As a society, do we care

if a bank is allowed to foreclose in a private non6Gudicial foreclosure sale if it cannot

legally produce evidence that it is the owner of the loan, or should be not be concerned

with whether or not the true owner of the loan is foreclosing because the borrower is in

default of a loan with no way to repay it? As it stands now the Rproduce the noteS or

Rshow me the noteS or Rwho owns my loanS argument does not have much if any traction

as far as trying to prevent a non6Gudicial foreclosure sale+ 5he issue may have more life in

a bankruptcy court where issues such as RstandingS and who the Rreal party in interestS is

to pursue a motion to lift the automatic stay, or to file a proof of claim in a bankruptcy

case+ 5o this e9tent, we have discussed the in 2e eal case which we will try to

thoroughly blog on soon+ 5his is a very interesting case that deals with proof of loan

ownership, standing and real party in an AriLona -ankruptcy "ase+ 0tay tuned+





In his recent pposition opposing counsel Bunter points to AA=0

=25@A@ IN05=N5 5205 44'6 which would strongly indicated that

the "arpentiers loan was 0"2I5I!+ It appears the EpoolE can be found here#

http#//www+secinfo+com/K/0"/8ilings+asp?

"IQU$&4&7PAsU-8"0PAs8ilerU8PAswnerU-PAsIssuerU"0 Aames

=ortgage Investment 5rust 44'6

S3 E7+#b#* 1 or do%),n*(*#on rl(*d *o AAMES MORTGAGE

INVESTMENT TRUST <44>@< :

-oth <oan and <im "arpentier hereby assert violations of the 8!";A and that

their credit has been damaged tremendously, with a curios causal connection evident

from, perhpas, Bunters listing E"lark "ountyE as the "ourt in his Guly 44 0ummary

<udgment =otion and <im failing a credit application for a damn cell phone,

apparently based on an incorrect answer to whether he ever owned real property in

"lark "ounty+ 8urther, there would appear to be some sort of issue with =c"arthy

Bolthus fee splitting with now attorneys, yeah, I get it, they own 2"0 and or J>0,

but some novel piercing theory could likely demonstrate that some improper fee

splitting/partnering with non6lawyers is occurring+ Also upon information and belief

the "arpentiers allege and amend their claims to add this# E5he 2econveyance

Argument 5his strategy comes from an attorney in "alifornia who is doing this with

his own house+ If you look at your !eed of 5rust or =ortgage, you will invariably see

language that covers the clause of Ereconveyance+E 5he language typically goes like

this# E$+ 2econveyance+ pon payment of all sums secured by this 0ecurity

Instrument, >ender shall re*uest 5rustee to reconvey the ;roperty and shalt surrender

this 0ecurity Instrument and all notes evidencing debt secured by this security

agreement to trustee+ E Dhen you have a situation where# a) 5he note can be proven

that it was securitiLed, then it can be proven that the lender has, in fact, been paid in

full+ b) 5he note has been sold from -ank A, to -ank -, and then to -ank ", who is

trying to foreclose+ In any event, this strategy involves bringing a civil action against





the riginatorF -ank A, re*uiring them to do their Gob in a breach of contract civil

action+ Cou see, a !eed of 5rust secures the promissory note+ It is the !eed of 5rust

that gives the lender the Epower of saleE clause to foreclose+ If the original lender is

forced to issue a reconveyance, then the !eed of 5rust has collapsed+ 5his is a very

effective, yet easy, method some people have used to stop foreclosure, reason being

that# a) 5he originator is often out of business and cannot respond to the civil action,

thus the homeowner wins by default+ b) 5he originator had already sold the note with

Eno recourseE, 5his means the 2=I" or the servicer can N2 go back to the

originator+ c) If the riginator loses the civil action by default, nothing bad happens

to them+ d) If the riginator wins the civil action, nothing good happens to them+

Beres the kicker+ If the riginator is still in business and they lose the civil action in

court, then there are very specific dire conse*uences that results+ If they lose, then it

can be proven that every loan they have ever originated that has lost their home is

the result of their gross negligence to perform their duty+ 5his means every

homeowner who has lost his or her home can sue the riginator+ It is for this reason

that the riginator often doesnt show up, or settles when confronted with this

strategy+

5he 8air !ebt "ollections ;ractices Act As you recall, your pretender lender

becomes a debt collector after you are 74 days delin*uent+ 5his is the only way they

can negotiate a loan modification with you, because it gets discharged out of the

2=I"+ I have included a copy of the 8!";A in the Appendi9 at the end of this

book+ Cou can also simply @oogle E8air !ebt "ollections ;ractices Act+E >ets talk a

bit more about debt collectors+ It is a scam+ !ebt collectors depend on peoples

ignorance to collect their ill6gotten gains+ 5his is one of those dirty little secrets

bankers have been hiding for years+ 5hey dont want you to know this scam+ De are

blowing their dirty laundry out in the open because we are sick of seeing so many

people suffer at the hands of bankers+ 2emember our e9ample of the farming supply

shop owner who gave me credit? 5he crops froLe and I had no money to pay back the





loan+ 2emember, as a business owner, you can do one of three things+ .) "arry the

debt as an asset+ ') Assign it to a third party through endorsement 7) Drite it off as a

loss A debt collector is someone who (is not the original creditor) buys a debt that

has been offset, and attempts to collect it+ 5hey have purchased the debt after you

have declared it a loss+ 5his is very important for you to understand+ 5his is why the

government created a set of laws called the 8air !ebt "ollections ;ractices Act (0"

5itle ' 0ection 7&) in order to minimiLe the deceit and protect people+ 0adly, not

many lawyers understand this mechanic+ 5hey think debt collectors act legitimately+

>ets say it again+ nce a debt has been written off, it is discharged+ It cannot be

collected again+ !ebt collectors use deception to convince people that they were

assigned the debt+ 0o, how does this relate to a 2=I" and a debt collector? As we

discussed earlier, the individual shareholders are the real and beneficial interest

holders+ 0ince the individual shareholders cannot endorse and assign their portion of

the loss, then they have to write it off as a bad debt+ 5he 5rustee of the 2=I"

cannot do it, either, because the 5rustee is not the real and beneficial holder of the

promissory note+ 5he 2=I" has given up that right when it chose to structure itself

as a 0pecial ;urpose ehicle (0;) for the purpose of a straight ta9 pass through+

5he only way your lender can foreclose on you is to rely on the same deception

tactics used by debt collectors+ 5he 8air !ebt "ollections ;ractices Act governs the

deceptive practices also+ 2emember, a debt collector pulls off their deception through

peoples ignorance+ 5his is whal your ElenderE is doing 4 you+ 5hat is why in all

their communications, you will see E5his is an attempt to collect a debtE+ An original

creditor is not re*uired to disclose this+ 0o if you are in court, or if you are counsel

representing your client, it is important for you to ask opposing counsel to stipulate

the nature of their ownership of the note+ ftentimes, opposing counsel will come

into the court room representing that their client has Erepurchased the note,E not

realiLing that they have, in fact, brought fraud before the court+ If opposing counsel is

ignorant, then they are not lying+ It is up to you to get them to stipulate the true nature





of the negotiable instrument through interrogatories and discoveryF including

subpoena of accounting records+ If you do this, watch how *uickly the blood drains

from opposing counsels face+ Its *uite a sight+ A defective instrument is not

enforceable+ An instrument that has been previously discharged and bought as a bad

debt is not enforceable+ !ont be fooled+ Its like buying a cheap knock off 2ole9

watch in =e9ico+ It might look the same, but underneath the face, it is not+ anyone

who disputes a debt to see if you know the law+ 5his is why it is so important for you

to know the law as wellV nder the niform "ommercial "ode 0ection $64., the

name and the signature of both the beneficiary and the original creditor must be

disclosed in the same document M $64. (d)+ 5he signature of the borrower must be

included as + well into the assignment or transferF unless a clause in the deed of

trusmortgage waives that (most deeds of trust disclose this at clause 14)+

Under Uniform Commercial Code, a note is a one of a kind negotiable

instrument that has the only legally binding chain of assignment. Oftentimes, your

lender will show up with a photocopy of the note made years ago . . . again,

obscuring the facts in order to steal your house. This is admissible unless you know

how to object. Again, consult with counsel about the Federal ules of !"idence

#$$% and #$$&. Another way banks hide their fraud is to do what's called (blank

assignments,( so that the loan may be assigned many times amongst themsel"es

that are tracked by )!* +which we will eplain later-, while keeping a blank

assignment of the note handy in the e"ent a foreclosure is needed. This is blatant

abuse of the law. The law is "ery specific here. The promissory note, as well as the

eed of Trust, must be together at all times and there must always be a clear and

unambiguous chain of title that is traceable in public records for all parties of interest

in real estate.../iolation of Applicable *tate 0aw 1n e"ery eed of Trust2)ortgage, it

states specifically that the instrument is subject to applicable *tate and Federal

laws. 1f it can be shown that an assignment of the promissory note occurs without

the corresponding assignment at the county recorder's office for the eed of





Trus/)ortgage, then the instrument has "iolated *tate law. Thus, "iolating the

terms of the eed of Trust2)ortgage, making the instrument in"alid. *ince interest

in the promissory note has been sold to a !)1C +eal !state )ortgage

1n"estment Conduit- and proper assignment was ne"er done at the county, then the

terms of the eed of Trus/)ortgage has been "iolated, making it in"alid. This will

con"ert the debt from a secured instrument to an unsecured instrument. This means

the lender might be able to sue you to collect the money, but can ne"er sell your

property to collect on the collateral....1llegal Trustee Argument There ha"e been two

instances in which a Federal Court 3udge issued a statewide injunction free4ing ali

foreclosures against homeowners against 5ank of America and econtrust. One

was in Utah in late %$#$, and more recently, in 3anuary % $ # # in 6e"ada, because

in both instances, econtrust is not registeredto do business in that state. 1f a

company wants to do business in a state, it needs to register within that stateas an

entity. This way, if someone within that state wants to sue them, they can look up

who the owners are, and where they li"e, so they can be properly ser"edwith a

summons.1n almost all instances, these foreclosure mills are not registered to do

businessin the state they are attempting to foreclose in. )any homeowners ha"e

used this defense to at least forestall foreclosure. 1t is not enough to stop a

foreclosure, but it is another claim the homeowner can make in a 7uiet Title Action

defense making the argument that the Trustee is a (non8entity.( +E pon information

and belief, @eof @iles, s*+ got some similar shutdown of 2"0 and or J>0 in

Nevada Gust last year+++

EI0 C2 >N!2 2 >AN 02I"2 !AN@>IN@ 5B BA=;

;2=ANN5 =!I8I"A5IN "A225 IN 82N5 8 C2 N0? BA=;

52IA> ;>AN 0"B= W 0aying they RwillS modify the loan if trial payments are

made proves crucial+ De have talked about this many times before on our website

5rial ;lan 8raud+ 5hat is, -anks and loan servicers promising to modify your loan if

you make your BA=; trial plan payments on time+ De get this scenario over and





over+ 5he BA=; modification agreement itself will normally promise the

modification if all payments are made (but the contract is subGect to a bunch of little

trap6holes put in place so the loan servicer can always try to back out of the

modification without having to perform)+ 0ometimes this is also buttressed over the

phone by statements from some Rloss mitigation specialistS or Rforeclosure

specialistS who promises you that you *ualify for the loan modification and if you

Gust make the trial payments Ryou will be goodS or Rwe wonHt foreclose+S 5his is

going on left and right in my honest opinion+ After all, it is a RcleverS way to get

people who may not be making their mortgage payment (potential strategic

defaulters) into making some payments and that is with the false promise of loan mod

assistance+ 0o yes, trying to get a loan modification can often turn into a game of

poker with your lender+ Cou both end up telling each other certain things, some of

which may or may not be true+ 5hatHs what happens when money is on the line,

monthly payments versus the return on investment to investors in mortgage backed

securities+ At any rate, in the case of <ackmon v+ AmericaHs 0ervicing "ompany,

"ase No+ " 64$33. "2-, ("A Northern !istrict 4) the "ourt did not go for this

approach+ 5he fact that the servicer refused to return the signed agreement to the

borrower was not enough to allow the servicer to get out of the hot water+ 5he

borrower made more than the re*uired trial plan payments, and although she faced

eviction following the foreclosure sale, the court issued an inGunction preventing the

eviction from taking place, based on the allegations that the borrower was entitled to,

and promised a final BA=; modification+ 0o, when the 0ervicers are not playing

fair, it may Gust so happen that you have some legal rights+ N5# 5he "ourt

re*uired a bond be posted and re*uired K,7.3 monthly protection payments+

0omething you should always consider before filing a predatory lending lawsuit or

wrongful foreclosure lawsuit seeking a 52 and InGunction+

Among other things, -onnet contended that respondent =20 conduct was





sanctionable because it failed to produce certain re*uired documents at the

mediation+V 0ee N20 4%+437(.), (')+ 5he record indicates that a non6party, "hase

Bome 8inancing, >>", attended the mediation+ -ecause =20 maintains that "hase

attended the mediation on its behalf, "hases conduct at the mediation is properly

imputed to =20 for purposes of this appeal+EDO + e ++ + reIew a district courts

decision regarding the imposition of sanctions for a partys participation in the

8oreclosure =ediation ;rogram under an abuse of discretion standard+ E ;asillas v+

B0-" -ank 0A, % Nev+ T, T, '' ;+ $d 3, 37 (4)+ =20 failed to

produce the re*uired documents 5o obtain a foreclosure certificate, a deed of trust

beneficiary must strictly comply with four re*uirements# () attend the mediation, ()

participate in good faith, ($) bring the re*uired documents, and (.) if attending

through a representative, have a person present with authority to modify the loan or

access to such a person+ N20 4%+437(.), (')F >eyva v+ National !efault 0ervicing

"orp+, % Nev+ T, T, '' ;+$d %', %& (4) (concluding that strict compliance

with the ;rograms re*uirements is necessary)+ N20 4%+437(.) states that the deed

of trust beneficiary or its representative Eshall bring to the mediation the original or a

certified copy of the deed of trust, the mortgage note and each assignment of the deed

of trust or mortgage note+ E =oreover, the 8oreclosure =ediation 2ules (8=2s)

re*uire the beneficiary or its representative to conduct an appraisal of the

homeowners home+ 8=2 ($)(b)+ Bere, the record demonstrates that =20 failed

to produce the deed of trust and any assignments+ =oreover, it failed to conduct an

appraisal of -onnets home+ -ecause =20 failed to strictly comply with De

recogniLe that -onnets original lender may still own her loan, in which case no

assignments would e9ist+ Bowever, =20 inability to verify who currently owns

-onnets loan necessarily means that =20 was unable to confirm that no

assignments needed to be produced+the ;rograms re*uirements, the district court

abused its discretion in ordering a foreclosure certificate to be issued+ >eyva, %

Nev+ at T, '' ;+$d at %&F ;asillas, % Nev+ at T, '' ;+$d at 37+ n remand,





the district court must determine how =20 should be appropriately sanctioned+

;asillas, % Nev+ at T, '' ;+$d at 3763% (construing N20 4%+ 437(') to mean

that a violation of one of the four statutory re*uirements must be sanctioned and that

the district court is to consider several factors in determining what sanctions are

appropriate)+

0"5IN .# "N">0IN XY 0ecuritiLation and =20 re*uired many

changes in established practices+ 5hese practices were not and have not codified, so

they are maGor points of contention today+ Dhen a lender, title company, foreclosure

company or other firm signed up to become a member of =20, one of more of their

people were designated as ZM"orporate fficersZ[ of =20 and given the title of

either Assistant 0ecretary or ice ;resident+ 5hese personnel were not employed by

=20, nor received income from =20+ 5hey were named ZM"ertified fficersZ[

solely for the purpose of signing foreclosure and other legal documents in the name

of =20+ (Apparently, there are some agreements which ZMauthoriLeZ[ these people

to act in an Agency manner for =20)+ 5his ZMsolvedZ[ the issue of not having

enough personnel to conduct necessary actions+ It would be the 0ervicers, 5rustees

and 5itle "ompanies conducting the day6to6day operations needed for =20 to

function+ As well, it was thought that this would provide =20 and their

ZM"orporate fficersZ[ with the ZMlegal standingZ[ to foreclose+ Bowever, this brought

up another issue that now needed addressing# XY Dhen the Note is transferred, it

must be endorsed and signed, in the manner of a person signing his paycheck over to

another party+ "ustomary procedure was to endorse it as ZM;ay to the rder ofZ[ and

the name of the party taking the Note and then signed by the endorsing party+ Dith a

new party holding the note, there would now need to be an Assignment of the !eed+

5his could not work if =20 was to be the foreclosing party+ =20 has recogniLed

the Note endorsement problem and on their website, stated that they could be the

foreclosing party only if the Note was endorsed in blank+ If it was endorsed to

another party, then that party would be the foreclosing party+ As a result, most Notes





are endorsed in blank, which purportedly allow =20 to be the foreclosing party+

Bowever, "A "II> "! &$+' has a completely different say in the matter+ It

re*uires that the Assignment of the !eed to the -eneficial Interest Bolder of the note+

"A "II> "! &$+' Z A00I@N=N5 Dhere a power to sell real property is

given to a mortgagee, or other encumbrance, in an instrument intended to secure the

payment of money, the power is part of the security and vests in any person who by

assignment becomes entitle to payment of the money secured by the instrument+ 5he

power of sale may be e9ercised by the assignee if the assignment is duly

acknowledged and recorded+ As is readily apparent, the above statute would suggest

that Assignment of the !eed to the Note Bolder is a re*uirement for enforcing

foreclosure+ ;age $ ;aladin Associates Z 8orensic =ortgage 9perts XY 5he first

Assignment purports to be e9ecuted by =20, signed by Dendy ;erry holding the

position of Asst+ 0ecretary+ Dendy ;erry is an employee of "al6Destern

2econveyance "orp, original foreclosing company+ 5he second Assignment purports

to be e9ecuted by !eutsche -ank National 5rust "ompany, signed by 0tarlene >+

0tarling, who is in fact ice ;resident and Asst+ 0ecretary of <; =organ "hase -ank+

5he 0ubstitution of 5rustee was purportedly e9ecuted by =20 signed by Avis 2+

5homas, who is in fact, ice ;resident of ;rommis 0olutions+ 5here is a potentially

serious conflict with the same person, as an ZMemployeeZ[ of =20 Z with duties

owed to the entity selling a mortgage Z assigns that mortgage to a bank at

presumably market value, and then the same person, as the bankZ\s employee, swears

an affidavit in the foreclosure case, and the same person is also an employee of the

foreclosing company+ XY It is deemed imperative that the two6hat6wearing signer

provides employment histories for all the companies they represent+ XY 5he debtors,

A!I5 2"I;IN5 were conducted the title owner of the subGect property until

N!Y D05, >>" did an invalid non6Gudicial foreclosure proceeding on November

$, 44+ ;rior to the e9ecution of 5rustee+s !eed upon 0ale against the subGect

property, N!Y D05, >>" did not maintain a secured interest in the subGect





property+ XY 5he mortgage securing the note, while naming D=" =ortgage "orp+

as ZM>ender,Z[ separately names the =ortgage lectronic 2egistration 0ystems, Inc

(=20) as the ZM=ortgagee+Z[ 5he conveyancing language granted the mortgage to

=20 ZMsolely as nominee for >ender and >ender+s successor+s and assigns+Z[ D="

=ortgage "orp+ was a ZMcorrespondent lenderZ[ that originated mortgage loans which

in turn, was sold and transferred into a ZMfederally6approved securitiLationZ[ trust

named =organ 0tanley "apital I Inc+ 5rust 4476B XY 5he Note and !eed have

taken two distinctly different paths+ 5he Note was securitiLed into =organ 0tanley

"apital I Inc+ 5rust 4476B+ XY 5he written agreement that created the =organ

0tanley "apital I Inc+ 5rust 447 B is a ZM;ooling and 0ervicing AgreementZ[

(;0A), and is a matter of public record, available on the website of the 0ecurities

9change "ommission+ 5he 5rust is also described in a ZM;rospectus 0upplement,Z[

also available on the 0" website+ 5he 5rust by its terms set a ZM">0IN@ !A5Z[

of 8ebruary 3, 447+ 5he promissory note in this case became trust property in

compliance with the re*uirement set forth in the ;0A+ 5he 5rust agreement is filed

under oath with the 0ecurities and 9change "ommission+ 5he ac*uisition of the

assets of the subGect 5rust and the ;0A are governed under the law+ ;age . ;aladin

Associates Z 8orensic =ortgage 9perts In view of the foregoing, all assignments

e9ecuted filed three years after the 5rust+s "losing !ate would be a void act for the

reason that it violated the e9press terms of the 5rust instrument+ XY 5he loan was

originally made D=" =ortgage "orp and was sold and transferred to =organ

0tanley "apital I Inc+ 5rust 447 B+ 5here is no record of Assignments to either

the 0ponsor or !epositor as re*uired by the ;ooling and 0ervicing Agreement+ In

"arpenter v+ >ongan 7 Dall+ %,3$ +0+ %, %., >+d+ $$ (3%), the +0+

0upreme "ourt stated ZM5he note and mortgage are inseparableF the former as

essential, the latter as an incident+ An assignment of the note carries the mortgage

with it, while assignment of the latter alone is a nullity+Z[ An obligation can e9ist with

or without security+ Dith no security, the obligation is unsecured but still valid+ A





security interest, however, cannot e9ist without an underlying e9isting obligation+ It

is impossible to define security apart from its relationship to the promise or

obligation it secures+ ("ivil "ode Z]Z] 3%, &4&, &4F "alifornia =ortgages and

!eeds of 5rust, and 8oreclosure >itigation, by 2oger -ernhardt, 8ourth dition, Z]

+) 5he obligation and the security are commonly drafted as separate documents Z

typically a promissory note and a deed of trust+ If the creditor transfers the note but

not the deed of trust, the transferee receives a secured noteF the security follows the

note, legally if not physically+ If the transferee is given the deed of trust without the

note accompanying it, the transferee has no meaningful rights e9cept the possibility

of legal action to compel the transferor to transfer the note as well, if such was the

agreement+ (Qelley v+ pshaw &&') $& "+d %&, .7 ;+d $F ;olhemus v+

5rainer (377) $4" 73') ZMDhere the mortgagee has ZMtransferredZ[ only the

mortgage, the transaction is a nullity and his ZMassigneeZ[ having received no interest

in the underlying debt or obligation, has a worthless piece of paper (. 2ichard 2+

;owell), ;owell on 2eal ;roperty, Z] $%+% O (444) -y statute, assignment of the

mortgage carries with it the assignment of the debt+ + + Indeed, in the event that a

mortgage loan somehow separates interests of the note and the deed of trust, with the

deed of trust lying with some independent entity, the mortgage may become

unenforceable+ 5he practical effect of splitting the deed of trust from the promissory

note is to make it impossible for the holder of the note to foreclose, unless the holder

of the deed of trust is the agent of the holder of the note+ Dithout the agency

relationship, the person holding only the note lacks the power to foreclose in the

event of default+ 5he person holding only the deed of trust will never e9perience

default because only the holder of the note is entitled to payment of the underlying

obligation+ 5he mortgage loan becomes ineffectual when the note holder did not also

hold the deed of trust+Z[ ANC A55=;5 5 52AN082 5B -N8I"IA>

IN5205 8 A 5205 !! DI5B5 DN20BI; 8 5B

N!2>CIN@ N5 I0 I! N!2 "A>I82NIA >AD





Now, one might suppose the "arpentiers could always 5he -ankruptcy

Automatic 0tay =ethod 5o buy time, some homeowners declare bankruptcy+ Dhen

you declare bankruptcy, you receive an automatic stay from all creditors, including

the lender+ =any homeowners feel this is the best and most assured way to stop the

sale from happening+ -e warned+ -ankruptcy is not for the weak hearted+ !o not

enter bankruptcy lightly+ Cou will need to declare all your assets, income and

financial details+ It is like having a permanent anal probe of your financial details+ It

is not pleasant+ Never ever lie, especially in bankruptcy court+ Cou will go to Gail+ As

great as the temptation to hide the precious little money you have from your creditors

is, dont do it+ 5he other down side of bankruptcy is that it is a mark in your public

credit score+ -ut frankly, having a bankruptcy or a foreclosure these days is not as big

a deal as it once was+ Almost half the country has been through it+ Its like being a

leper in a leper colony+ Its not as big a deal anymore+ 5he fact is, however, for most

homeowners this might be the only way to keep their house from the auction block

while they buy time to build their case for their foreclosure defense+ 5he other thing

about bankruptcy is, that in my e9perience, I have found that most of the wins come

from the bankruptcy courts+ 5he thing about bankruptcy is that it has the nice 2ule

$44(d)+ 8ederal 2ules of -ankruptcy $44 (d) vidence of perfection of security

interest+ If a security interest in property of the debtor is claimed, the proof of claim

shall be accompanied by evidence that the security interest has been perfected+ It

re*uires the lender to provide proof of claim+ 5his means that the table is suddenly

turned+ It is now the lender who has to come up with the proof of claim+ And if you

know how their fraud is being perpetrated, then you know how to obGect and deflect

their deception+ Dhat many people do after they file for bankruptcy is to file an

adversary proceeding+ As a debtor, this is absolutely free+ An adversary proceeding is

like a normal civil action, but done under bankruptcy court, and under bankruptcy

rules+ It allows the debtor to challenge the bank to provide proof of standing+ 5he

other thing many homeowners do is file their house as an unsecured debt+ ;lease





note, you cannot file an adversary proceeding under "hapter %+ 5his is very important

to remember+ 5his will then prompt the lender to complain+ -ut in doing so, they are

then re*uired to provide proof of claim which they often are unable to do+E or

Emotion to oppose the lifting of the automatic stay in bankruptcy court+ Bere is

another pleading for warrior lawyers# "alifornia 52 InGunction ;ackage W K'&' 6 If

you have clients seeking to stop the foreclosure sale of their home, and you have

valid legal grounds to file a lawsuit, here are the materials you will need to seek to

obtain a 52 (temporary restraining order) and preliminary inGunction+ "omplete

with intel from the foreclosure trenches from Attorney 0teve ondran+ 5hese tips,

insights and sample pleadings will save you alot of time if you have never been

through the foreclosure 52 process in "alifornia+ "ertain additional local rules may

apply, but this is a good collection of documents to assist you+ Bere is what you get

in this valuable kit# + . page 52 and InGunction checklist (guide6sheet with tips)

+ 0ample Notice of 52 to opposing parties $+ 52 / 0" application (with sample

memorandum of points and authorities) .+ !eclarations in 0upport of 52 .+

;roposed rder for 52 / 0" '+ 2e*uest for <udicial Notice 7+ >is ;endens

5emplate %+ Dithdrawal of >is ;endens 5emplate 3+ 0ample "ivil "omplaint

5emplate

"arpentiers allege and wish to amend their complaint to add this too#

EBomeowner Dins# "ase >aw 0uccesses ;atton v+ !iemer, $' hio 0t+ $d 73F '3

N++d &.F &33)+ A Gudgment rendered by a court lacking subGect matter

Gurisdiction is void ab initio+ "onse*uently, the authority to vacate a void Gudgment is

not derived from hio 2+ eiv+ ;+ 74(-), but rather constitutes an inherent power

possessed by hio courts+ I see no evidence to the contrary that this would apply to

All courts+ EA party lacks standing to invoke the Gurisdiction of a court unless he has,

in an individual or a representative capacity, some real interest in the subGect matter

of the action+ >ebanon "orrectional Institution v+ "ourt of "ommon ;leas $' hio

0t+d %7 (&%$)+ EA party lacks standing to invoke the Gurisdiction of a court unless


ASIDE ORDER GRANTING SUMMARY JUDGMENT $4



he has, in an individual or a representative capacity, some real interest in the subGect

matter of a n action+E Dells 8argo -ank, v+ -yrd, %3 hio App+$d 3',

443++hio^.74$, 3&% N++d % (443)+ It went on to hold, EIf plaintiff has offered

no evidence that it owned the note and mortgage when the complaint was filed, it

would not be entitled to Gudgment as a matter of law+E (5he following court case was

unpublished and hidden from the public) Dells 8argo, litton loan v+ 8armer, 37%

N++0+d (443)+ EDells 8argo does not own the mortgage loan +++ 5herefore,

the +++ matter is dismissed with preGudice+E (5he following court case was unpublished

and hidden from the public) Dells 8argo v+ 2eyes, 37% N++0+d (443)+

!ismissed with preGudice, 8raud on "ourt P 0anctions+ Dells 8argo never owned the

=ortgage+ (5he following court case was unpublished and hidden from the public)

!eutsche -ank v+ ;eabody, 377 N++0+d & (440)+ *ui8irst, when making the

loan, violated 2egulation of the 8ederal 5ruth in >ending Act ' 0" M74 and

the 8air !ebt "ollections ;ractices Act ' 0" M7&F Eintentionally created fraud

in the factumE and withheld from plaintiff+++ Evital information concerning said debt

and all of the matri9 involved in making the loan+E (5he following court case was

unpublished and hidden from the public) Indymac -ank v+ -oyd, 334 N++0+d .

(44&)+ 5o establish a prima facie case in an action to foreclose a mortgage, the

plaintiff must establish the e9istence of the mortgage and the mortgage note+ It is the

laws policy to allow only an aggrieved person to bring a lawsuit + + + A want of

Estanding to sue,E in other words, is Gust another way of saying that this particular

plaintiff is not involved in a genuine controversy, and a simple syllogism takes us

from there to a EGurisdictionalE dismissal# www+consumerdefenseprograms+com 4.

(5he following court case was unpublished and hidden from the public) Indymac

-ank v+ -ethley, 334 N+C+0+d 3%$ (44&)+ 5he "ourt is concerned that there may be

fraud on the part of plaintiff or at least malfeasance ;laintiff IN!C=Ae (!eutsche)

and must have EstandingE to bring this action, (5he following court case was

unpublished and hidden from the public) !eutsche -ank National 5rust "o v+5orres,





NC 0lip p '.% (44&)+ 5hat Ethe dead cannot be suedE is a well established

principle of the Gurisprudence of this state plaintiffs second cause of action for

declaratory relief is denied+ 5o be entitled to a default Gudgment, the movant must

establish, among other things, the e9istence of facts which give rise to viable claims

against the defaulting defendants+ E5he doctrine of ultra vires is a most powerful

weapon to keep private corporations within their legitimate spheres and punish them

for violations of their corporate charters, and it probably is not invoked too often +++ E

inc "arbonate "o+ v+ 8irst National -ank, 4$ Dis+ ', %& ND & (3&&)+ Also

see# American 9press "o+ v+ "itiLens 0tate -ank, 3 Dis+ %, &. ND .%

(&$)+ (5he following court case was unpublished and hidden from the public)

Dells 8argo v+ 2eyes, 37% N++0+d (443)+ "ase dismissed with preGudice, fraud

on the "ourt and 0anctions because Dells 8argo never owned the =ortgage+ (5he

following court case was unpublished and hidden from the public) Dells 8argo, litton

loan v+ 8armer, 37% N+C+0+d (443)+ Dells 8argo does not own the mortgage

loan+ EIndeed, no more than (affidavits) is necessary to make the prima facie case+E

nited 0tates v+ Qis, 7'3 8+d, '7 (%th "ir+ &3)+ (5he following court case was

unpublished and hidden from the public) Indymac -ank v+ -ethley, 334 N++0+d

3%$ (44&)+ 5he "ourt is concerned that there may be fraud on the part of plaintiff or

at least malfeasance ;laintiff IN!C=A" (!eutsche) and must have EstandingE to

bring this action+ lawyer responsible for false debt collection claim 8air !ebt

"ollection ;ractices Act, ' 0"0 MM 7&++7&4,BeintL v+ <enkins, '. +0+ &F

' 0+ "t+ .3&, $t l+ d+ d $&' (&&')+ and 8!";A 5itle ' 0c+ sub section

7&+ In determining whether the plaintiffs come before this "ourt with clean hands,

the primary factor to be considered is whether the plaintiffs sought to mislead or

deceive the other party, not whether that party relied upon plaintiffs

misrepresentations+ 0tachnik v+ Dinkel, $&. =ich+ $%', $3%F $4 N+D+d '&, '$.

www+consumerdefenseprogra ms+com 4' (&%')+ EIndeed, no more than (affidavits)

is necessary to make the prima facie case+E nited 0tates v+ Qis, 7'3 8+d, '7 (%th





"ir+ &3)+ "ert !enied, '4 +0+ loD+ 7&F 0+ "t+ =arch , (&3)+ E0ilence can

only be e*uated with fraud where there is a legal or moral duty to speak or when a n

in*uiry left unanswered would be intentionally misleading+E +0+ v+ 5weel, '04 8+d

&% (&%%)+ EIf any part of the consideration for a promise be illegal, or if there are

several considerations for an un6severable promise one of which is illegal, the

promise, whether written or oral, is wholly void, as it is impossible to say what part

or which one of the considerations induced the promise+E =enominee 2iver "o+ v+

Augustus 0pies l P " "o+, .% Dis+ ''& at p+ '%F $ ND 3 (&)+ 8ederal

2ule of "ivil ;rocedure %(a)(l) which re*uires that EIaOn action must be prosecuted

in the name of the real party in interest+E 0ee also, In re <acobson, .4 -+2+ $'&,

$7'^77 (-ankr+ D++ Dash+ 44&)F In re Bwang, $&7 -+2+ %'%, %7767% (-ankr+ "!+

"al+ 443)+ =ortgage lectronic 2egistration 0ystems, Inc+ v+ "hong, 3. N++0+d

%7. (447)+ =20 did not have standing as a real party in interest under the 2ules to

file the motion +++ 5he declaration also failed to assert that =20, 8=" "apital >l"

or Bomecomings 8inancial, ll" held the Note+ >andmark National -ank v+ Qesler,

3& Qan+ '3, 7 ;+$d '3 (44&)+ EQan+ 0tat+ Ann+ M 74674(b) allows relief from

a Gudgment based on mistake, inadvertence, surprise, or e9cusable neglectF newly

discovered evidence that could not have been timely discovered with due diligenceF

fraud or m isrepresentationF a void GudgmentF a Gudgment that has been satisfied,

released, discharged, or is no longer e*uitableF or any other reason Gustifying relief

from the operation of the Gudgment+ 5he relationship that the registry had to the bank

was more akin to that of a straw man than to a party possessing all the rights given a

buyer+E Also In 0eptember of 443, A "alifornia <udge ruling against =20

concluded, E5here is no evidence before the court as to who is the present owner of

the Note+ 5he holder of the Note must Goin in the motion+E >a0alle -ank v+ Ahearn,

3%' N++0+d '&' (44&)+ !ismissed with preGudice+ lack of standing+ Novastar

=ortgage, Inc v+ 0nyder $#4%".34 (443)+ ;laintiff has the burden of establishing

its standing+ It has failed to do so+ www+consumerdefenseprograms+com 47 !


ASIDE ORDER GRANTING SUMMARY JUDGMENT $$



"apital, Inc+ v+ ;arsons, "A0 N+ 4%6=A6% (443)+ A genuine issue of material

fact e9isted as to whether or not appellee was the real party in interest as there was no

evidence on the record of a n assignment+ 2eversed for lack of standing+ verhome

=ortgage "ompany v+ 2owland, No+ 4%A;67' (hio 443)+ =ortgagee was not the

real party in interest pursuant to 2ule %(a)+ >ack of standing+ In lambert v+ 8irstar

-ank, 3$ Ark+ App+ '&, % 0+D+ $d '$ (44$), complying with the 0tatutory

8oreclosure Act does not insulate a financial institution from liability and does not

prevent a party from timely asserting any claims or defenses it may have concerning a

mortgage foreclosure A+"A+ M36046 7(d)_` and violates honest services 5itle 3

8raud+ Notice to credit reporting agencies of overdue payments/foreclosure on a

fraudulent debt is defamation of character and a whole separate fraud+ A "ourt of

Appeals does not consider assertions of error that are unsupported by convincing

legal authority or argument, unless it is apparent without further research that the

argument is well taken+ 82A! is a point well takenV lambert 0upra+ No lawful

consideration tendered by riginal >ender and/or 0ubse*uent =ortgage and/or

0ervicing "ompany to support the alleged debt+ EA lawful consideration must e9ist

and be tendered to support the NoteE and demand under 5I>A full disclosure of any

such consideration+ Anheuser6-usch -rewing "ompany v+ mma =ason, .. =inn+

$3,.7 N+D+ ''3 (3&4)+ National -anks and/or subsidiary =ortgage

companies+cannot retain the note, EAmong the assets of the state bank were two

notes, secured by mortgage, which could not be transferred to the new bank as assets

under the National -anking laws+ National -ank Act, 0ect 3 P '7E National -ank

of "ommerce v+ Atkinson, 3 Qan+ App+ $4, '. ;+ 3 (3&3)+ EA bank can lend its

money, but not its credit+E 8irst Natl -ank of 5allapoosa v+ =onroe, $' @a 7., 7&

0++ l$ (&l)+ It is not necessary for rescission of a contract that the party making

the misrepresentation should have known that it was false, but recovery is allowed

even though misrepresentation is innocently made, because it would be unGust to

allow one who made false representations, even innocently, to retain the


ASIDE ORDER GRANTING SUMMARY JUDGMENT $.



fruits of a bargain induced by such representations+E Dhipp v+ Iverson, .$ Dis+

d 77, 73 N+D+d 4 (&7&)+ EA bank is not the holder in due course upon merely

crediting the depositors account+E 0ankers 5rust v+ Nagler, $ A+!+d 7.', '%

N+C+0+d &3 (&7')+ EAny conduct capable of being turned into a statement of fact

is representation+ 5here is DND+consumerdefenseprograms+com 4% no distinction

between misrepresentations effected by words and misrepresentations effected by

other acts+E (5he seller or lender) EBe is liable, not upon any idea of benefit to

himself, but because of his wrongful act and the conse*uent inGury to the other party+E

>eonard v+ 0pringer, &% '$+ 7. N && (&4)+ EIf any part of the

consideration for a promise be illegal, or if there are several considerations for an un6

severable promise one of which is illegal, the promise, whether written or oral, is

wholly void, as it is impossible to say what part or which one of the considerations

induced the promise+E =enominee 2iver "o+ v+ Augustus 0pies l P " "+,.% Dis+

''& at p+ '%F $ ND 3 (&)+ E5he contract is void if it is only in part

connected with the illegal transaction and the promise single or entire+E @uardian

Agency v+ @uardian =ut+ 0avings -ank, % Dis+ ''4, %& ND %& (&$3)+ =oore v+

=id6;enn "onsumer !iscount "o+, "ivil Action No+ &467.' +0+ !ist+ lYI0

4$. (;a+ &&)+ 5he court held that, under 5I>As 2egulation , "82 M7+.

(a), a lender had to e9pressly notify a borrower that he had a choice of insurer+

=arshall v+ 0ecurity 0tate -ank of Bamilton, -+2+ 3. (III+ &&4) violation of

8ederal 5ruth in lending ' 0"0 M7$3(a`(&), and 2egulation + 5he bank took a

security interest in the vehicle without disclosing the security interest+ 0teinbrecher v+

=id6;enn "onsumer !iscount "o+, 4 -+2+ '' (;a+ &&4)+ =id6;enn violated

5I>A by not including in a finance charge the debtors purchase of fire insurance on

their home+ 5he purchase of such insurance was a condition imposed by the

company+ 5he cost of the insurance was added to the amount financed and not to the

finance charge+ Nichols v+ =id6;enn "onsumer !iscount "o+, &3& Dl .773 (;a+

&3&)+ =id6;enn misinformed Nichols in the Notice of 2ight to "ancel =ortgage+


ASIDE ORDER GRANTING SUMMARY JUDGMENT $'



=clvany v+ Bousehold 8inance 2ealty "orp+, &3 3+2+ $% (;a+ &3&)+ debtor filed

an application to remove the mortgage foreclosure proceedings to the nited 0tates

!istrict "ourt pursuant to 3 0"0 M.4&+ It is strict liability in the sense that

absolute compliance is re*uired and even technical violations will form the basis for

liability+ lauletta v+ alley -uick Inc+, . 8+ 0upp+ 4$7 at 4.4 (;a+ &%7)+

<ohnson6Allen v+ lomas and Nettleton "o+, 7% -+2+ &73 (;a+ &37)+ iolation of

5ruth6inlending Act re*uirements, ' 0"0 M7$3(a)(4), re*uired mortgagee to

provide a statement containing a description of any security interest held or to be

retained or ac*uired+ 8ailure to disclose+ www+consumerdefensepro*rams+com 43

"ervantes v+ @eneral lectric =ortgage "o+, 7% -+2+ 37 (;a+ &37)+ creditor failed

to meet disclosure re*uirements under the 5ruth in >ending Act, ' +0+"+0+ M 746

77%c and 2egulation of the 8ederal 2eserve -oard, "82 M7+ =c"ausland

v+ @=A" =ortgage "o+, 7$ -+2+ 77', (;a+ &37)+ @=A" failed to provide

information which must be disclosed as defined in the 5I>A and 2egulation ,

"82 M7+ ;erry v+ 8ederal National =ortgage "orp+, '& -+2+ &.% (;a+ &37) the

disclosure statement was deficient under the 5ruth In >ending Act, ' +0+"+0+ M

7$3(a)(&)+ !efendant =ortgage "o+ failed to reveal clearly what security interest

was retained+ 0chultL v+ "entral =ortgage "o+, '3 -+2+ &.' (;a+ &37)+ 5he court

determined creditor mortgagor violated the 5ruth In lending Act, ' +0+"+0+ M

7$3(a)($), by its failure to include the cost of mortgage insurance in calculating the

finance charge+ 5he court found creditor failed to meet any of the conditions for

e9cluding such costs and was liable for twice the amount of the true finance charge+

0olis v+ 8idelity "onsumer !iscount "o+, '3 -+2+ &3$ (;a+ &37)+ Any misgivings

creditors may have about the technical nature of the re*uirements should be

addressed to "ongress or the 8ederal 2eserve -oard, not the courts+ !isclosure

re*uirements for credit sales are governed by ' +s+"+0+ M 7$3 "82 M 7+3_b),

(c)+ !isclosure re*uirements for consumer loans are governed by ' +s+"+0+ M 7$&

"82 M 7+3_b), (d)+ A violator of the disclosure re*uirements is held to a





standard of strict liability+ 5herefore, a plaintiff need not show that the creditor in fact

deceived him by making substandard disclosures+ 0ince 5ransworld 0ystems Inc+

have not cancelled the security interest and return all monies paid by =s+ 0herrie I+

>a8orce within the 4 days of receipt of the letter of rescission of ctober %, 44&,

the lenders named above are responsible for actual and statutory damages pursuant to

' +s+c+ 7.4(a)+ ;orter v+ =id6;enn "onsumer !iscount "o+, &7 8+d 477 ($rd

eir+ &&)+ ;orter filed an adversary proceeding against appellant under ' +0+c+

M7$', for failure to honor her re*uest to rescind a loan secured by a mortgage on her

home+ 2owland v+ =agna =illikin -ank of !ecatur, N+A+, 3 8+0upp+ 3%' (&&)

ven technical violations will form the basis for liability+ 5he mortgagors had a right

to rescind the contract in accordance with ' +s+c+ M7$'(c)+ New =aine Nat+ -ank

v+ @endron, %34 8+0upp+ ' (l&&)+ 5he court held that defendants were entitled to

rescind loan under strict liability terms of 5I>A because plaintiff violated 5I>As

provisions+ !i9on v+ 0 P 0 loan 0ervice of Daycross, Inc+, %'. 8 +0upp+ '7%

(&&4)F 5I>A is a remedial statute, and, hence+ is liberally construed in favor of

borrowers+ 5he remedial obGectives of 5I>A are achieved by imposing a system of

strict liability in favor of consumers when www+consumerdefenseprograms+com 4&

mandated disclosures have not been made+ 5hus, liability will flow from even minute

deviations from the re*uirements of the statute and the regulations promulgated

under it+ Doolfolk v+ an 2u "redit "orp+, %3$ 8+0upp+ %. (l&&4) 5here was no

dispute as to the material facts that established that the debt collector violated the

8";A+ 5he court granted the debtors motion for summary Gudgment and held that

() under ' +s+c+ M7&(e), a debt collector could not use any false, deceptive, or

misleading representation or means in connection with the collection of any debtF

nfair !ebt "ollection ;ractices Act+ <enkins v+ >andmark =ortg+ "orp+ of irginia,

7&7 8+0upp+ 43& (D+!+ a+ &33)+ ;laintiff was also misinformed regarding the

effects of a rescission+ 5he pertinent regulation states that Ewhen a consumer rescinds

a transaction, the security interest giving rise to the right of rescission becomes void


ASIDE ORDER GRANTING SUMMARY JUDGMENT $%



and the consumer shall not be liable for any amount, including any finance charge+E

"82 M7+$(d) ()+ >aubach v+ 8idelity "onsumer !iscount "o+, 737 8+'upp+

'4. (+!+ ;a+ &33)+ monetary damages for the plaintiffs pursuant to the 2acketeer

Influenced and "orrupt rganiLation Act, 3 0" M&7+ ("ount I)F the 5ruth6in6

lending Act, ' 0" M74+ 0earles v+ "larion =ortg+ "o+, &3% D> 7&$ (+!+

;a+ &3%)F liability will flow from even minute deviations from re*uirements of the

statute and 2egulation + failure to accurately disclose the property in which a

security interest was taken in connection with a consumer credit transaction involving

the purchase of residential real estate in violation of ' 0"s M7$3(a)(&)+ and

"82 M7+3(m)+ !i9on v+ ' P ' loan 0ervice of Daycross, Inc+, %'. 8+0upp+ '7%,

'%4 (0+!+ @a+ &&4)+ "ongresss purpose in passing the 5ruth in >ending Act

(5I>A), ' 0"s M74(a)+ was to assure a meaningful disclosure of credit terms so

that the consumer will be able to compare more readily the various credit terms

available to him+ ' 0"s M74(a)+ 5I>A is a remedial statute, and, hence, is

liberally construed in favor of borrowers+F "ervantes v+ @eneral lectric =ortgage

"o+, 7% -+2+ 37 (+!+ ;a+ &37)+ 5he court found that the 5I>A violations were

governed by a strict liability standard, and defendants failure to reveal in the

disclosure statement the e9act nature of the security interest violated the 5I>A+ ;erry

v+ 8ederal National =ortgage, '& -+2+ &.% (+!+ ;a+ &37)+ !efendant failed to

accurately disclose the security interest taken to secure the loan+ ;orter v+ =id6;enn

"onsumer !iscount "o+, &7 8 +d 477 ($rd "ir+ &&)+ Adversary proceeding

against appellant under ' 0c+ M7$', for failure to honor her re*uest to

DIo/II+consumerdefenseprograms+com 4 rescind a loan secured by a mortgage

on her home+ 0he was entitled to the e*uitable relief of rescission and the statutory

remedies under ' 0c+ M7.4 for appellants failure to rescind upon re*uest+ 0olis v+

8idelity "onsumer !iscount "o+, '3 -+2+ &3$ (;a+ &37)+ Any misgivings creditors

may have about the technical nature of the re*uirements should be addressed to

"ongress or the 8ederal 2eserve -oard, not the courts+ !isclosure re*uirements for





credit sales are governed by ' +0+"+0+ M 7$3 "82 M 7+3(b), (c)+ !isclosure

re*uirements for consumer loans are governed by ' +0+"+0+ M 7$& "82 M

7+3(b), (d)+ A violator of the disclosure re*uirements is held to a standard of strict

liability+ 5herefore, a plaintiff need not show that the creditor in fact deceived him by

making substandard disclosures+ 2owland v+ =agna =illikin -ank of !ecatur, N+A+,

3 8+0upp+ 3%' (&&), ven technical violations will form the basis for liability+

5he mortgagors had a right to rescind the contract in accordance with ' +0+c+

M7$'(c)+ New =aine Nat+ -ank v+ @endron, %34 8+0upp+ ' (!+ =e+ &&)+ 5he

court held that defendants were entitled to rescind loan under strict liability terms

of 5I>A because plaintiff violated 5I>As provisions+ @oogle# E5he -oyko

!ecisionE E2ickie Dalker "aseE+++"82 5itle # -anks and -anking ;A25 76

525B IN >N!IN@ (2 @>A5IN ) M7+$& =ortgage transfer disclosures+

>ink to an amendment pu blished at %' 82 '3'4, 0ept + ., 44+ (a) 0cope+ 5he

disclosure re*uirements of this section apply to any covered person e9cept as

otherwise provided in this section+ 8or purposes of this section# () A Ecovered

personE means any person, as defined in M7+(a)(), that becomes the owner of an

e9isting mortgage loan by ac*uiring legal title to the debt obligation, whether through

a purchase, assignment, or other transfer, and who ac*uires more than one mortgage

loan in any twelve6month period+ 8or purposes of this section, a servicer of a

mortgage loan shall not be treated as the owner of the obligation if the servicer holds

title to the loan or it is assigned to the servicer solely for the administrative

convenience of the servicer in servicing the obligation+ () A Emortgage loanE means

any consumer credit transaction that is secured by the principal dwelling of a

consumer+ (b) !isclosure re*uired+ 9cept as provided in paragraph (c) of this

section, any person that becomes a covered person as defined in this section shall

mail or deliver the disclosures re*uired by this section to the consumer on or before

the $4th calendar day following the ac*uisition date+ If there is more than one

covered person, only one disclosure shall be given and the covered persons shall


ASIDE ORDER GRANTING SUMMARY JUDGMENT $&



agree among themselves which covered person shall comply with the re*uirements

that this section imposes on any or all of them+ () Ac*uisition date+ 8or purposes of

this sect ion, the date that the covered person ac*uired the mortgage loan shall be the

date of ac*uisition recog niLed in the books and records of the ac*uiring party+ ()

=ultiple consumers+ If there is more than one consumer liable on the obligation, a

covered person may mail or deliver the disclosures to any consumer who is primarily

liable+ (c) 9ceptions+ Notwithsta nding paragraph (b) of this section, a covered

person is not subGect to the re*uirements of this section with respect to a particular

mortgage loan if# () 5he covered person sells or otherwise transfers or assigns legal

title to the mortgage loan on or before the $4th calendar day following the date that

the covered person ac*uired the mortgage loanF or () 5he mortgage loan is

transferred to the covered person in connection with a repurchase agreement and the

transferor that is obligated to repurchase the loan continues to recog niLe the loan as

an asset on its own books and records+ Bowever+ if the transferor does not repurchase

the mortgage loan, the ac*uiring party must make the disclosures re*uired by M7+$&

within $4 days after the date that the transaction is recogniLed as an ac*uisition in its

books and records+ (d) "ontent of re*uired disclosures+ 5he disclosures re*uired by

this section shall identify the loan that was ac*uired or transferred and state the

following# ( ) 5he identity, address, and telephone number of the covered person

who owns the mortgage loan+ If there is more than one covered person, the

information re*uired by this paragraph shall be provided for each of them+ () 5he

ac*uisition date recogniLed by the covered person+ ($) Bow to reach an agent or party

having authority to act on behalf of the covered person (or persons), which shall

identify a person (or persons) authoriLed to receive legal notices on behalf of the

covered person and resolve issues concerning the consumers payments on the loan+

Bowever, no information is re*uired to be provided under this paragraph if the

consumer can use the information provided under paragraph (d)() of this section for

these purposes+ If multiple persons are identified under this paragraph, the disclosure


ASIDE ORDER GRANTING SUMMARY JUDGMENT .4



shall provide contact information for each and indicate the e9tent to which the

authority of each agent differs+ 8or purposes of this paragraph (d)($), it is sufficient if

the covered person provides only a telephone number provided that the consumer can

use the telephone number to obtain the address for the agent or other person

identified+ (.) 5he location where transfer of ownership of the debt to the covered

person is recorded+ Bowever, if the transfer of ownership has not been recorded in

public records at the time the disclosure is provided, the covered person complies

with this paragraph by stating this fact+ (e) ptional disclosures+ In addition to the

information re*uired to be disclosed under paragraph (d) of this section, a covered

person may, at its option, provide any other information regarding the transaction+E

8erguson v+ Avelo =ortgage, >>" ("al+App+ !ist+ <un+ , 4), "al+2ptr+$d

4, D> $&.$, 5his case involves another challenge to a non6Gudicial

foreclosure sale in "alifornia+ 5he basic facts of this case are that a borrower initially

took out a loan with New "entury =ortgage which loan was accompanied by a

=20 deed of 5rust (=20 was the nominee of the lender and its successors and

assigns under the deed of trust and also listed as the beneficiary)+ 5he 5rustee under

the !eed of 5rust was 8irst American 5itle "ompamy+ After a default of the

K744,444 purchase loan taken out by borrower BCNB in 447, the following

se*uence of recorded documents occurred# () 3/$/4% a Notice of !efault was

recorded by Juality >oan 0ervice "orporation (J>0") W Note that the trustee under

the !eed of 5rust was 8irst American 5itleF () 3/$4/4% Assignment of !eed of 5rust

was recorded (=20 assigned its beneficial interest to Avelo =ortgage) W Note the

typical assignment of the !eed of 5rust together with Rnotes thereinS (5he 8ontenot

case sees this as proper even though =20 does not, and has never held any note in

its possession)+ ($) /&/4% Notice of 0ale by J>0"+ (.) /&/4% (same day but

after the Notice of 0ale was recorded) 0ubstitution of 5rustee was recorded

substituting J>0" for 8irst American 5itle (note, apparently this document was

e9ecuted on 3//4% prior to the notice of default being recorded by J>0")F





5hereafter, the property was sold at non6Gudicial foreclosure trustee sale on %/43+ 5he

purchaser at the foreclosure sale was Avelo =ortgage, allegedly paying .44k for the

property+ Avelo recorded the 5rustees !eed upon sale+ After the sale, BCNB (the

original borrower), Juitclaimed his interest to 8erguson (the ;laintiff in this action)

on 7/%/4&+ 8erguson recorded his Juitclaim deed on %//4& and brought suit to

Juiet 5itle against Avelo =ortgage arguing the foreclosure sale was illegal as Avelo

received no valid interest from =20 in the Assignment of !eed of 5rust since

=20 had no note to assign, and thus Avelo had no authority to foreclose+ nder

this theory, 8erguson argued there was no re*uirement to tender the full amount of

the loan balance to try to set aside the foreclosure sale and claim the property as his

own since he was challenging the foreclosure RsaleS and not the foreclosure

RprocedureS+ In addition, 8erguson argued there can be no tender rule re*uirement

where Avelo is not the true beneficiary (since they never got the note+ 8erguson also

sued BCNB for fraud+ 5he "ourt disagreed with the ;laintiff 8erguson, and held

that the tender rule applies whether or not Avelo had any note+ Bere is the relevant

language of the case# ($) 5he power of sale in a deed of trust allows a beneficiary

recourse to the security without the necessity of a Gudicial action+ (0ee =elendreL

v+ + + + Investment, Inc+ (44') % "al+App+.th $3, .& 7 "al+2ptr+$d .$O+)

Absent any evidence to the contrary, a nonGudicial foreclosure sale is presumed to

have been conducted regularly and fairly+ ("iv+ "ode, M &.+) Bowever,

irregularities in a nonGudicial trusteeHs sale may be grounds for setting it aside if they

are preGudicial to the party challenging the sale+ (0ee >o v+ <ensen (44) 33

"al+App+.th 4&$, 4&%64&3 47 "al+2ptr+d ..$OF see also Angell v+ 0uperior

"ourt (&&&) %$ "al+App+.th 7&, %44 37 "al+2ptr+d 7'%O EIn order to challenge

the sale successfully there must be evidence of a failure to comply with the

procedural re*uirements for the foreclosure sale that caused preGudice to the person

attacking the sale+EO+) 0etting aside a nonGudicial foreclosure sale is an e*uitable

remedy+ (>o v+ <ensen, supra, 33 "al+App+.th at p+ 4&3 EA debtor may apply to a





court of e*uity to set aside a trust deed foreclosure on allegations of unfairness or

irregularity that, coupled with the inade*uacy of price obtained at the sale, mean that

it is appropriate to invalidate the sale+EO+) A court will not grant e*uitable relief to a

plaintiff unless the plaintiff does e*uity+ (0ee Arnolds =anagement "orp+ v+ ischen

(&3.) '3 "al+App+$d '%', '%36'%& 4' "al+2ptr+ 'OF see also $ Ditkin,

0ummary of "al+ >aw (4th ed+ 44') *uity, M 7, pp+ 3763%+) 5hus, RiOt is settled

that an action to set aside a trusteeHs sale for irregularities in sale notice or procedure

should be accompanied by an offer to pay the full amount of the debt for which the

property was security+S (Arnolds =anagement "orp+ v+ ischen, supra, '3

"al+App+$d at p+ '%3F see also 8;"I 26BA- 4 v+ P @ Investments, >td+ (&3&)

4% "al+App+$d 43, 4 '' "al+2ptr+ '%O rationale behind tender rule is that

irregularities in foreclosure sale do not damage plaintiff where plaintiff could not

redeem property had sale procedures been properO+) Bowever, a tender may not be

re*uired where it would be ine*uitable to do so+ (0ee nofrio v+ 2ice (&&%) ''

"al+App+.th .$, .. 7. "al+2ptr+d %.OF see also !imock v+ merald ;roperties

(444) 3 "al+App+.th 373, 3%763%3 &% "al+2ptr+d ''O when new trustee has

been substituted, subse*uent sale by former trustee is void, not merely voidable, and

no tender needed to set aside saleO+) 0pecifically, Rif the plaintiffsO action attacks

the validity of the underlying debt, a tender is not re*uired since it would constitute

an affirmative of the debt+HS (nofrio v+ 2ice, supra, '' "al+App+.th at p+ ..+)

Appellants contend they are not challenging irregularities in the foreclosure

proceeding+ 2ather, they argue that respondent is not the holder of the underlying

promissory note and therefore cannot invoke the tender rule against them+ In their

complaint, appellants alleged that New "entury remains in possession of the

promissory note and that appellants owe no obligation to respondent+ n appeal,

appellants contend that whether respondent holds the promissory note is a factual

dispute, and sustaining respondentHs demurrer presupposes that respondent has

authority to enforce the loan obligation+ 5hey assert that while =20 had the


ASIDE ORDER GRANTING SUMMARY JUDGMENT .$



authority to transfer its beneficial interest under the deed of trust, there is no evidence

that =20, which was acting as a nominee of New "entury, held the promissory

note and was authoriLed to assign the note itself to respondent+ 5he role of =20 is

central to the issues in this appeal+ R=20 is a private corporation that administers

the =20 0ystem, a national electronic registry that tracks the transfer of ownership

interests and servicing rights in mortgage loans+ 5hrough the =20 0ystem, =20

becomes the mortgagee of record for participating members through assignment of

the membersH interests to =20+ =20 is listed as the grantee in the official records

maintained at county register of deeds offices+ 5he lenders retain the promissory

notes, as well as the servicing rights to the mortgages+ 5he lenders can then sell these

interests to investors without having to record the transaction in the public record+

=20 is compensated for its services through fees charged to participating =20

members+HS (@omes v+ "ountrywide Bome >oans, Inc+ (4) & "al+App+.th .&,

' "al+2ptr+$d 3&O (@omes v+ "ountrywide), *uoting =ortgage lectronic

2egistration 0ystems, Inc+ v+ Nebraska !ept+ of -anking P 8inance (44') %4 Neb+

'& %4. N+D+d %3., %3'O+) (.) Appellants cite two federal cases for the proposition

that =20, as the nominee of the lender under a deed of trust, does not possess the

underlying promissory note and cannot assign it, absent evidence of an e9plicit

authoriLation from the original lender+ (0ee 0a9on =ortgage 0ervices, Inc+ v+ Billery

(N+!+"al+, !ec+ &, 443, No+ "6436.$'%) 443 +0+!ist+ >e9is 444'7F see also In re

Agard (-ankr+ +!+N+C+ 4) ... -+2+ $+) Not all courts agree on this issue and

appellants do not distinguish nor address other cases that have upheld =20Hs ability

to assign a mortgage+ (0ee 0 -ank, N+A+ v+ 8lynn(N+C+0up+ 44) % =isc+$d 34

3&% N+C+0+d 3'', 3'&O assignee of =20 has standing to initiate foreclosure

proceeding because where Ean entity such as =20 is identified in the mortgage

indenture as the nominee of the lender and as the mortgagee of record and the

mortgage indenture confers upon such nominee all of the powers of such lender, its

successors and assigns, a written assignment of the note and mortgage by =20, in


ASIDE ORDER GRANTING SUMMARY JUDGMENT ..



its capacity as nominee, confers good title to the assignee and is not defective for lack

of an ownership interest in the note at the time of the assignmentEOF see also "rum v+

>a0alle -ank, N+A+ (Ala+"iv+App+ 44&) '' 0o+$d 77, 7&+) De are not bound by

federal district and bankruptcy court decisions, and the cases cited by appellants are

in direct conflict with persuasive "alifornia case law+ In @omes v+ "ountrywide,

supra, & "al+App+.th .&, plaintiff @omes obtained a loan from Q- Bome

=ortgage "ompany (Q- Bome) to finance a real estate purchase+ Be e9ecuted a

promissory note secured by a deed of trust naming Q- Bome as the lender and

=20 as Q- BomeHs nominee and beneficiary under the deed of trust+ (@omes v+

"ountrywide, supra, & "al+App+.th at p+ '+) 5he deed of trust contained a

provision granting =20 the power to foreclose and sell the property in the event of

a default+ (Ibid+) @omes defaulted on his payments and was mailed a notice of default

by 2econ5rust, which identified itself as an agent for =20+ Attached was a

declaration signed by "ountrywide Bome >oans, acting as the loan servicer+ (Ibid+)

@omes filed suit against "ountrywide Bome >oans, 2econ5rust and =20 for

wrongful initiation of foreclosure, alleging =20 did not have authority to initiate

the foreclosure because it did not possess the note and was not authoriLed by its

current owner to proceed with foreclosure+ (Id+ at p+ '+) !efendants demurred,

arguing, among other things, that @omes was re*uired to plead tender

to maintain a cause of action for wrongful foreclosure and that the terms of the

deed of trust authoriLed =20 to initiate a foreclosure proceeding+ 5he trial court

sustained the demurrer without leave to amend+ (Ibid+) n appeal, the court affirmed

the order, finding that @omes could not seek Gudicial intervention in a nonGudicial

foreclosure before the foreclosure has been completed+ (@omes v+ "ountrywide,

supra, & "al+App+.th at p+ '.+) Nonetheless, the appellate court reached the

merits of @omesHs claim as an independent ground for affirming the order sustaining

the demurrer+ 5he court reGected @omesHs argument that =20 lacked authority to

initiate the foreclosure procedure because the deed of trust e9plicitly provided =20


ASIDE ORDER GRANTING SUMMARY JUDGMENT .'



with the authority to do so+ 5he court found that the Rdeed of trust contains no

suggestion that the lender or its successors and assigns must provide @omes with

assurances that =20 is authoriLed to proceed with a foreclosure at the time it is

initiated+S (Id+ at p+ '%+) 5hus, @omes acknowledged =20Hs authority to

foreclose by entering into the deed of trust+ (Ibid+) <ust as in @omes v+ "ountrywide,

the deed of trust in this case specifically states# R-orrower understands and agrees

that =20 holds only legal title to the interests granted by -orrower in this 0ecurity

Instrument, but, if necessary to comply with law or custom, =20 (as nominee for

>ender and >enderHs successors and assigns) has the right# to e9ercise any or all of

those interests, including, but not limited to, the right to foreclose and sell the

;ropertyF and to take any action re*uired of >ender including, but not limited to,

releasing and canceling this 0ecurity Instrument+S (') Appellants concede that =20

had the authority to assign its beneficial interest to respondent+Accordingly,

respondent had the same authority to initiate foreclosure proceedings+ And while

@omes v+ "ountrywide did not address the tender issue, it does not follow that a

beneficiary may initiate nonGudicial foreclosure proceedings under a deed of trust

without the original promissory note, but cannot seek tender from a defaulting

borrower attempting to set aside the foreclosure+ Although "alifornia courts have not

resolved this issue (see =iller P 0tarr, "al+ 2eal state ($d ed+ 4464 0upp+)

!eeds of 5rust and =ortgages, M 4#$&#4, p+ .), several federal district courts in this

state have upheld a beneficiaryHs authority to initiate foreclosure proceedings and

invoke the tender rule against a defaulting borrower, even when the beneficiary is not

the holder of the original promissory note+ 5hose courts have noted that R"alifornia

law does not re*uire possession of the note as a precondition to nonGudicialO

foreclosure under a !eed of 5rust+HS (<ensen v+ Juality >oan 0ervice "orp+ (+!+"al+

44) %4 8+0upp+d 3$, 3&F see also dinma v+ Aurora >oan 0ervices

(N+!+"al+, =ar+ $, 44, No+ "64&6.7%. !>) 44 +0+ !ist+ >e9is 3$.%F see

also =orgera v+ "ountrywide Bome >oans, Inc+(+!+"al+, <an+ , 44, No+ #4&6





cv64.%76="6@@B) 44 +0+!ist+ >e9is 4$%, p+ =20, as nominee of

lender, has authority to initiate nonGudicial foreclosure without underlying promissory

noteO+) =oreover, in cases involving an assignment of a deed of trust from =20 to

a third party, courts have invoked the tender rule despite arguments that =20 did

not have the authority to assign its interest under the deed of trust without the

promissory note+ (0ee >ai v+ Juality >oan 0ervice "orp+("+!+ "al+, Aug+ 7, 44,

No+ " 46$43 ;0@ (;>A9)) 44 +0+ !ist+ >e9is &%+) Appellants offer no

authority, state or federal, to support the legal loophole they claim for defaulting

borrowers and their successors+ Appellants also argue that respondent was not

authoriLed to substitute Juality as the trustee prior to becoming the beneficiary under

the deed of trust+ Juality initiated the foreclosure proceedings when it was not the

trustee and therefore had no legal right to do so+ nder a deed of trust, the trustee

may be substituted by a Rsubstitution e9ecuted and acknowledged by# (A) all of the

beneficiaries under the trust deed, or their successors in interest+ + +F or (-) the holders

of more than '4 percent of the record beneficial interest of a series of notes secured

by the same real property or of undivided interests in a note secured by real property

e*uivalent to a series transaction, e9clusive of any notes or interests of a licensed real

estate broker that is the issuer or servicer of the notes or interests or of any affiliate of

that licensed real estate broker+S ("iv+ "ode, M &$.a, subd+ (a)()+) (7) De agree

with appellants that respondent did not have the authority to e9ecute a substitution of

trustee until =20 assigned the deed of trust to it+ 5hus, JualityHs August $, 44%

notice of default was defective+ Nonetheless, Buynh had more than three months to

satisfy his obligation before Juality e9ecuted a notice of sale+ 5he substitution of

trustee was effective when respondent became the beneficiary under the deed of trust

and when the substitution was recorded on November &, 44%+ ("iv+ "ode, M &$.a,

subd+ (a)(.) E8rom the time the substitution is filed for record, the new trustee shall

succeed to all the powers, duties, authority, and title granted and delegated to the

trustee named in the deed of trust+EO+) 5hus, the notice of sale was valid+Juality then


ASIDE ORDER GRANTING SUMMARY JUDGMENT .%



completed the foreclosure in <uly 443, long after its substitution as trustee took

effect+ 5his situation is distinct from other cases that have voided a nonGudicial

foreclosure sale when a party other than the trustee initiated the proceeding and

completed the sale without having been substituted in as the trustee+ (0ee ;ro alue

;roperties, Inc+ v+ Juality >oan 0ervice "orp+ (44&) %4 "al+App+.th '%&, '3$ 33

"al+2ptr+$d $3OF see also !imock v+ merald ;roperties, supra, 3 "al+App+.th at

pp+ 3%763%3 foreclosure sale void where original trustee completed foreclosure sale

after being replaced by new trusteeO+) Appellants offer no authority for the

proposition that the defective nature of the initial notice of default corrupted all

subse*uent steps in the nonGudicial foreclosure proceeding such that the sale was

void, not merely voidable+ 5hus, this ruling seems to leave open a tiny door for

situations where the wrong trustee sells the property at foreclosure sale+ In those

situations, the sale may be I! with no obligation to tender+ 0o, looking for

grounds to challenge the 0ubstitution of 5rustee may be one of the few remaining

challenges in "alifornia to either enGoin or set aside a wrongful foreclosure sale

despite courts recogniLing the the foreclosure procedure must be valid+ 5he "ourt

cited 5ender statute in "alifornia# (3) A tender is an offer of performance made with

the intent to e9tinguish the obligation+ ("iv+ "ode, M .3'+) It must be unconditional

("iv+ "ode, M .&.) and offer full performance to be valid ("iv+ "ode, M .37)+ "ivil

"ode section ' provides# RIf the performance of an obligation be prevented by the

creditor, the debtor is entitled to all the benefits which he would have obtained if it

had been performed by both parties+S N5# I do not believe the Rtender ruleS is a

hard and fast rule+ Cou have to look at what your facts are+ 0ome cases have held that

a tender may not be re*uired where it would be ine*uitable to do so+ (0ee nofrio v+

2ice (&&%) '' "al+App+.th .$, ..F see also !imock v+ merald ;roperties (which

was actually cited by the 8erguson court) (444) 3 "al+App+.th 373, 3%763%3

which held that there was no re*uirement to tender when the wrong trustee sells the

property, in these instances, the sale is I!, not merely I!A->, and no tender





was needed to challenge the I! saleO+) 5here are other cases that talk about I!

vs+ I!A->+ Bowever, you need to be aware of the rule, and there will be tender

challenges raised in almost every case of wrongful foreclosure so there has to be a

strategy, and cases to deal with that+ Also, where the ;laintiffHs lawsuit challenges the

validity of an alleged underlying debt, tender is not re*uired since it would constitute

an affirmation of the debt+S 0ee nofrio v+ 2ice, supra, '' "al+App+.th at p+ ..+

N5# 5his case also discussed the re*uirements of a Juiet 5itle lawsuit in

"alifornia# () Bere, appellants sought to *uiet title against respondents and set aside

the trustee sale at which respondents purchased the property+ In order to state a viable

cause of action for *uiet title, a complaint must include# R(a) A description of the

property that is the subGect of the action+ + + + O (b) 5he title of the plaintiff as to

which a determination under this chapter is sought and the basis of the title+ + + + O

(c) 5he adverse claims to the title of the plaintiff against which a determination is

sought+ O (d) 5he date as of which the determination is sought+ + + + O (e) A prayer

for the determination of the title of the plaintiff against the adverse claims+S ("ode

"iv+ ;roc+, M %7+44+) 5o bring an action to *uiet title a plaintiff must allege he or

she has paid any debt owed on the property+ 0himpones v+ 0tickney (&$.) & "al+

7$%, 7.& EAO mortgagor cannot *uiet his title against the mortgagee without paying

the debt secured+SO+) 5he complaint must also be verified (sworn under oath)+


ASIDE ORDER GRANTING SUMMARY JUDGMENT .&



DECLARATION OF JAMES S CARPENTIER AND JOAN E: CARPENTIER:

IN SUPPORT OF MOTION TO SET ASIDE ORDER (nd REPLY TO

OPPOSITION TO MOTION TO SET ASIDE ORDER

+ 5his !eclaration is made pursuant to the provisions of N20 '$+4.', we are presently

in the 0tate of Nevada and I declare under penalty of perGury that the foregoing is true

and correct+

+ !eclarants are the ;laintiffs in "4364%4&+

$+ !eclarants aver that the factual statements set for above in this 2eply to pposition

to ;laintiffs =otion to 0et Aside and in the earlier filed ;laintiffs =otion to 0et Aside

are are accurate+

.+ I, <A=0 0 "A2;N5I2 and I, <AN + "A2;N5I2 are available to testify, if

necessary, as to these matters+ I declare under penalty of perGury that the foregoing is

true and correct+

9ecuted on <anuary , 4

T/s/ <ames 0+ "arpentierTTTTTTTTTTTTTTTTTTTTTT <A=0 0 "A2;N5I2 ;>AIN5I88

/s/ <oan + "arpentierTTTTTTTTTTTTTTTTTTTTTTTT

<AN "A2;N5I2 ;>AIN5I88


ASIDE ORDER GRANTING SUMMARY JUDGMENT '4



A88I2=A5IN ;ursuant to N20 $&-+4$4

!A5! this <anuary , 4#

/s/ ach "oughlin

ach "oughlin, s*+Attorney for ;laintiffs <oni and <ames "arpentier





PROOF OF SERVICE

I, ach "oughlin, declare, that on <anuary , 4, I caused the forgoing to be

deliver to all named !efendants in this action, by electronic filing to#

Qristin A+ 0chuler6BintL, s*+"hristoper Bunter, s*+=c"arthy P Bolthus, >>;&'4 D+ 0ahara Ave+, 0uite 4>as egas , N 3&%;hone# %4673'64$&8a9# 3776$$&6'7&khintL:mccarthyholthus+comAtty for !850 20I!N5IA> "2!I5 0>5IN0 IN", AN! JA>I5C

>AN 02I" "2;2A5IN0

And via delivering to their attorneys of record by efiling (if he is an efiler), fa9,

email and depositing a true and correct copy of this document in the 0 mail on this

date addressed to#

ric -+ imbelman, s*+;eel -rimley, >>;4. + =adison, 0uite 44

0eattle , DA &3;hone# 476%%46$$$&8a9# 476%%46$.&4eLimbelman:peelbrimley+com

Atty for !850DIN!02 =ANA@=5N "+ AN! A""2!I5!

B= >N!20, IN"+ A0 0""002 IN IN5205 5 AA=0 8N!IN@

"2;2A5IN !-A AA=0 B= >AN

!A5! this <anuary th, 4

/s/ ach "oughlinach "oughlin, s*+Attorney for ;laintiffs <oni and <ames "arpentier





INDEK TO EKHIITS

+ YBI-I5 # AA=0 =25@A@ IN05=N5 5205 44'6 which

would strongly indicated that the "arpentiers loan was 0"2I5I!+ It

appears the EpoolE can be found here#

http#//www+secinfo+com/K/0"/8ilings+asp?

"IQU$&4&7PAsU-8"0PAs8ilerU8PAswnerU-PAsIssuerU"0 Aames

=ortgage Investment 5rust 44'6F ne () page+

+ YBI-I5 # where the citiLens of Nevada get to have lifetime appointee

8ederal "ourt Gudges making, or seemingly making, Nevada >aw in

contravention of the doctrines of abstention, comity, etc+ something so

elo*uently argued against by the venerable @eof @iles, s* (no connection or

affiliation to the undersigned, Gust a fan of his work) in his 3< letter in =avesF

5hree ($) pages+


ASIDE ORDER GRANTING SUMMARY JUDGMENT '$



EXHIBIT 1



Clerk of the Court




SEC Info Home Search My Interests Help Sign In Please Sign In

Aames Mortgage Investment Trust 2005-2

Filings as: Filer · “Owner” · “Issuer”

15 Filings · Click on a Filing-Type¹ to view it · List the Documents within these Filings

in Show andHelp... Wildcards: ? (any letter), * (many). Logic: for Docs: & (and), | (or); for Text: | (anywhere), "(&)" (near).

As Of Filer Filing ¹ For/On/As Docs:Size Issuer Agent

3/29/ 06 Aames Mort gage I nvest ment . . 2005- 2 10- K 12/ 31/ 05 5: 20 Sidl ey Austi n LLP/ FA 2/23/ 06 Aames Mort gage I nvest ment . . 2005- 2 8- K/ A{8,9} 10/ 25/ 05 1: 38 Norwest Asset Sec. . Trust 2/14/ 06 Aames Mort gage I nvest ment . . 2005- 2 8- K/ A{8,9} 12/ 27/ 05 1: 41 Norwest Asset Sec. . Trust 2/14/ 06 Aames Mort gage I nvest ment . . 2005- 2 8- K/ A{8,9} 11/ 25/ 05 1: 39 Norwest Asset Sec. . Trust 1/26/ 06 Aames Mort gage I nvest ment . . 2005- 2 15-15D 1/ 26/ 06 1:3 Norwest Asset Sec. . Trust 1/06/ 06 Aames Mort gage I nvest ment . . 2005- 2 8- K {8, 9} 12/ 27/ 05 1: 37 Norwest Asset Sec. . Trust12/ 05/ 05 Aames Mort gage I nvest ment . . 2005- 2 8- K {8, 9} 11/ 25/ 05 1: 35 Norwest Asset Sec. . Trust11/ 04/ 05 Aames Mort gage I nvest ment . . 2005- 2 8- K {8, 9} 10/ 25/ 05 1: 36 Norwest Asset Sec. . Trust10/ 04/ 05 Aames Mort gage I nvest ment . . 2005- 2 8- K {8, 9} 9/ 26/ 05 1: 34 Norwest Asset Sec. . Trust 9/21/ 05 Aames Mort gage I nvest ment . . 2005- 2 8- K/ A{8,9} 7/ 25/ 05 1: 29 Norwest Asset Sec. . Trust 8/31/ 05 Aames Mort gage I nvest ment . . 2005- 2 8- K {8, 9} 8/ 25/ 05 1: 31 Norwest Asset Sec. . Trust 8/01/ 05 Aames Mort gage I nvest ment . . 2005- 2 8- K {8, 9} 7/ 25/ 05 1: 29 Norwest Asset Sec. . Trust 7/01/ 05 Aames Mort gage I nvest ment . . 2005- 2 8- K {8, 9} 6/ 27/ 05 1: 15 Norwest Asset Sec. . Trust 6/15/ 05 Aames Mort gage I nvest ment . . 2005- 2 8- K {8, 9} 5/ 25/ 05 6: 358 Sidl ey Austi n LLP/ FA 6/02/ 05 Cwabs I nc 424B5 1: 110 Aames Mor t gage I nvestment . . 2005- 2 Capi t al Systems 01/ FA

¹ Filing Types: 10-K Annual Report – Form 10-K.

15-15D Notice of Suspension of Duty to File Reports – Form 15.

424B5 Prospectus – Rule 424(b)(5).

8-K Current Report – Form 8-K { Post-8/23/04... Item 1: Business & Operations; 2: Financial Info.; 3: Securities & Trading;

4: Accountants & Accounting; 5: Governance & Management; 6: Asset-Backed Securities; 7: Reg. FD; 8: Events; 9: Financials – Pre-8/23

/04... Item 1: Control; 2: Assets; 3: Bankruptcy; 4: Accountants; 5: Events; 6: Resignations; 7: Financials; 8: Year; 9: Reg. FD; 10: Ethics;

11: Suspension; 12: Results }.

/A Amendment to or Amended version of a previous filing of this type.

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1/10/2012



EXHIBIT 2



Clerk of the Court




1 The only c aveat concerning that holding was th at such prior action would have to sound in rem

or quasi in rem , for the doctrine to apply, and that question was certified to the Nevada Suprem e Court. It

has now b een fully briefed there and awaits decision.

Geoffrey Lynn Giles and AssociatesLaw Offices527 California Avenue, Suite 1 775.329.4999

Post Office Box 93 1.800.234.5068

Reno, Nevada 89509 fax: 775.786.1684

November 25, 2011

Clerk, Court of Appeals

PO Box 193939

San Francisco, CA 94119-3939

Re: Rule 28(j) Letter, Docket 10-17230

9th Cir Docket Number: Maves v. First Horizon Home Loans

Date of Hearing: December 9, 2011

Dear Clerk;

On November 17, 2011, I was associated in as co-counsel with Terry Thomas on

behalf of appellant Tara Maves. I will take part of the oral argument scheduled

for December 9, 2011. I write in order to present to the panel, certain additional

information that is relevant to this appeal, in the form of cases decided since it was

taken.

One of the issues presented relates to the refusal of the District Court to remandthis suit which sounded in state law. This implicates the issue of the existence or

non-existence of federal jurisdiction, which may of course, be raised at any time.

Closely related to subject matter jurisdiction is the doctrine of ‘abstention’. This

has been addressed recently by this Honorable Court.

In the case of; Chapman v. Deutsche Bank , 651 F.3d 1039, (9 th Cir. 2011) this

court held that Prior Exclusive Jurisdiction would bar removal of a quiet

title/wrongful foreclosure case to the federal courts, if an Unlawful Detainer action

and/or Quiet Title action was previously comm enced in state court.1 In so holding

this court noted that abstention may not merely be a discretionary rule:

Case: 10-17230 11/25/2011 ID: 7978658 DktEntry: 36-1 Page: 1 of 3



“However, ‘[c]omity or abstention doctrines may, in various

circumstances, permit or require the federal court to stay or dismiss

the federal action in favor of the state-court litigation... it [prior

exclusive jurisdiction] is no mere discretionary abstention rule.

Rather it is a mandatory jurisdictional limitation”- at 5-6 Slip Op.

[emphasis added]

In the case of; Cer vantes v. Coun tr ywide et al ., 656 F.3d 1034, (9 th Cir. 2011), this

court provided guidance as to the boundaries to be observed by District Courts

sitting in d iversity, as to n ovel issues of state laws.

“Although a federal court exercising diversity jurisdiction is ‘at

liberty to predict the future course of [a state’s] law’, plaintiffs

choosing ‘the federal forum... [are] not entitled to trailblazing

initiatives under [state law]” Ed Peters Jewelry Co . v C&J Jewelry

Co., Inc., 124 F.3d 252, 262 -63 (1 st Cir. 1997) (affirming dismissalof a wrongful foreclosure claim when no such claim existed under

state law.) [emphasis added] At Slip Op. pp 16992.

This being the case, it is respectfully submitted that the District Court exceeded

those bounds when it ruled as it did, in the instant case below. For District Courts,

sitting in diversity, to persist in addressing novel issues of state law, is nothing less

than a trailblazing initiative. Emblematic of the problem of federal courts

predicting as to how the Supreme Court of Nevada would rule, on unanswered

questions of state law, are the following illustrations. In; North v. Bank of

America , ___F.Supp 2d___, 2011 WL 3419515 (D.Nev. 2011), the District Courtnoted that;

“the ever expanding body of case law within this district holds that

the Nevada law governing non-judicial foreclosure, NRS 107.080,

does not require a lender to produce the original note, nor does it

require that ReconTrust be substituted as trustee under the deed of

trust as prerequisites to non-judicial foreclosure proceedings”, at Slip

Op 3.

The court went on to cite no less than six (6) other federal District Court opinionsin support of this proposition, in spite of the fact that no federal court can bind a

state court on an issue of state law, Cf. Leavitt v. Jane, 518 U.S. 137, 146, 116

S.Ct. 2068, 2073 (1996). The precise issue at stake there has never been

addressed by the Nevada Supreme Court, and can not be so addressed, so long as

virtually all suits brought in the courts of Nevada, are removed to federal court.




Central to the proper administration of justice under our ‘dual sovereign’ system,

is uniformity of decision making and consistency between courts. This means

respect for the sphere of influence that is reserved solely for state authorities, under

the general rubric of ‘comity’ and ‘federalism’. In that connection, the District

Courts are not always in agreement among themselves, concerning the application

of state law. For instance, in Chase v. Un it ed Residenti al M ortgage , ___F.Supp2d___, 2011 WL 198008 (D. Nev. 2011), one District Judge respectfully disagreed

with another, as to the interpretation of the Nevada Collection Agency law, NRS

649.171. This is something the Nevada Supreme Court has never addressed, and

may never get a chance to address.

It is respectfully suggested that the outcome of a particular litigant’s case should

not be a function of the random assignment of judges to the lawsuits, that are

inevitably removed by bank counsel. This is not only unseemly, but illustrates just

how far the litigation process has devolved, at the behest of bank counsel, in

disdaining the prerogative of the Nevada Supreme Court. Indeed, there is everyindication from that court that it welcomes the certification of novel, and hitherto

unaddressed, issues of state law.

The very tender of an amicus brief, in this appeal, by the trade association of

foreclosure trustees, shows the lengths to which the industry has gone to elude

holdings from the courts of Nevada. The amici urge the Ninth Circuit Court of

Appeals to determine the nature and effect of Nevada state collection law, the

Nevada Supreme Cour t having failed to be presented with the oppor tunity to do so.

Counsel for appellant Maves respectfully suggests that the task be declined, in

favor of a more general rule that discourages District Courts from hearing thesekinds of cases on abstention grounds. In our view, this is requisite to preserve the

decorum and protocol that is a necessary adjunct to a dual system of jurisprudence.

Yours truly,

/s/ Geoff Giles

Geoff Giles

/s/ Terry ThomasTerry Thomas

GG:glg

c. all parties




SUPPLEMENTAL TO REPLY TO OPPOSITION TO PLAINTIFF'SEMERGENCY MOTION FOR TRO/INJUNCTION; or PLED IN THE

ALTERNATIVE; MOTION TO SET ASIDE ORDER GRANTING SUMMARYJUDGMENT

PLEASE NOTE THAT THE UNDERSIGNED COUNSEL APOLOGIZES FOR

THE SOMEWHAT SLAPDASH NATURE OF THIS FILING, HOWEVER, IT

MUST BE EXCUSED TO SOME EXTENT CONSIDERING THE

UNDERSIGNED JUST SPENT ! HOURS IN JAIL AFTER THE RENO POLICE

SUPPLEMENTAL REPLY TO OPPOSITION TO PLAINTIFF'SEMERGENCY MOTION FOR TRO/INJUNCTION; or PLED IN THE ALTERNATIVE;

MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT 1

Document Code: 3795Zach Coughlin, Esq. NV Ba No: 9!731!"" E. 9th #t. $"%eno, NV &95'1(ele: 775)""9)*737+a: 9!9)**7)7!'"-o e /ellantZachCoughlin0hotmail.com/ttone 2o oni and ames Caentie

/4E# C/%-EN(E%, E( /6,-lainti22

.

//4E# +8NDN C%- E(/6,De2endant

Case No: CV'&)'17'9Det No: 7

SUPPLEMENTAL REPLY TOOPPOSITION TO PLAINTIFF'SEMERGENCY MOTION FORTRO/INJUNCTION; or PLED IN THEALTERNATIVE; MOTION TO SETASIDE ORDER GRANTINGSUMMARY JUDGMENT

N (;E #ECND 8DC/6 D#(%C( C8%( + (;E#(/(E + NEV/D/ N /ND +%

(;E C8N(< + =/#;E



Clerk of the Court




DEPARTMENT "WITH THE HELP OF OPPOSING COUNSEL IN THE

UNDERSIGNED EVICTION FROM HIS LAW OFFICE CASE, RICHARD G#

HILL, ES$% ARRESTED THE UNDERSIGNED FOR &JAYWALING& OR

&FAILURE TO USE A SIDEWAL WHERE PRESENT& OR SOME OTHER

SUCH CHARGE WHILE THE UNDERSIGNED WAS IN THE COURSE OF

FILMING THE DESTRUCTION OF ITEMS OF PERSONAL PROPERTY "LIE

THE LAST THING THE UNDERSIGNED'S GRANDMOTHER GAVE HIM

BEFORE SHE DIED, LIE THE CARICTURE DRAWING OF THE

UNDERSIGNEDS GIRLFRIEND AND DOMESTIC PARTNER FOR FIVE

YEARS WHOSE !! YEAR OLD COUSIN JUST DIED IN A CAR ACCIDENT

DAYS AGO% PEACEABLY AND ON PUBLIC PROPERTY AND AFTER A

RENO PD OFFICER WHO ACTUALLY HAS SOME CLASS INFORMED

RICHARD HILL THAT THE UNDERSIGNED WAS NOT DOING ANYTHING

ILLEGAL# BUT THEN IN COMES OFFICER DEL VECHIO WHO ACTUALLY

&DREW DOWN& AFTER SCREACHING TO A HALT AND VEERING ACROSS

THE LANE OF ONCOMING TRAFFIC ON THE UNDERSIGNED THIS

SUMMER IN FRONT OF THE SAME LAW OFFICE AT NIGHT DUE TO THE

UNDERSIGNED'S MOUNTAIN BIE, ALLEGEDLY LACING A PROPER

LIGHT, AND NOTHING ELSE# TODAY, WHILE BEING ARRESTED FOR

JAYWALING "DESPITE THE FACT THAT RICHARD HILL'S CREW OF

MOVERS HAD THEIR TRUC PARED IN THE MIDDLE OF THE

SIDEWAL THE UNDERSIGNED WAS ON% RICHARD HILL WENT BAC

TO A PLACE HE REALLY, REALLY LIES, THE RENO JUSTICE COURT,

AND APPARENTLY GOT HIMSELF A PROTECTION ORDER, THEN DROVE

OFF IN ONE OF HIS APPROXIMATELY PORCHES WEARING A SHIRT

WITH FLAMING SULLS ON IT IN A REPEATING ED HARDY INSPIRED

DESIGN# THE UNDERSIGNED WAS DENIED ANY PHONE CALLS AT THE

WASHOE COUNTY JAIL FOR AT LEAST ( HOURS, IMMEDIATELY


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT "



PLACED IN A SOLITARY CONFINEMENT STYLE ICE LOCER DESPITE

HAVING MADE NO DEMONSTRATION OR RESISTENCE OR

DEMONSTRATING ANY INAPPROPRIATE CONDUCT TO THE JAIL STAFF,

WHEREUPON SEVERAL JAIL NURSE REFUSED TO PROVIDE MEDICAL

CARE "EXCESSIVE FORCE WAS USED DURING THE ARREST, WHICH

APPARENTLY, WAS CONDUCTED BY AN OFFICER LEEDY THAT OFFICER

DEL VECHIO WAS &TRAINING&, THEN MONEY WAS STOLEN FROM THE

UNDERSIGNED BY THE JAIL STAFF, A DEPUTY ADAMS, IN FRONT OF

DEPUTY DOCIO INFORMED THE UNDERSIGNED THAT HE &DIDN'T GIVE

A SHIT IF A DIPSHIT LIE YOU HAS LIFE THREATENING MEDICAL

ISSUES& AND REFUSED TO SUMMON A NURSE# THE WASHOE COUNTY

JAIL FOUND IT APPROPRIATE TO FINALLY RELEASE THE

UNDERSIGNED FROM JAIL AFTER MAING HIM PAY SOME OF THE

LAST MONEY HE HAD FOR &BAIL&, TAING MOST OF THE REST OF THE

MONEY THE UNDERSIGNED HAD AND CLAIMING IT WAS EITHER

&LOST& OR THAT &THEY WERE WRONG EARLIER WHEN THE SWORE

THAT THAT AMOUNT WAS ALL YOU WOULD NEED TO BAIL OUT&

WHEREUPON THE JAIL STAFF DECIDED TO POCET CASH FROM THE

UNDERSIGNED, WITHOUT HIS CONSENT, PRIOR TO RELEASE# THE JAIL

SAW FIT TO RELEASE THE UNDERSIGNED ONLY MINUTES AFTER THE

LAST BUS FOR THE NIGHT LEFT PARR BLVD, AND AT )** AT NIGHT,

WITH THE UNDERSIGNED DRESS ONLY IN A THIN SHIRT AND JEANS,

THE TEMPERATURE A FREEZING !+ DEGREES, AND THE UNDERSIGNED

HAVING ! IN HIS POCET, WHEREUPON THE UNDERSIGNED CALLED

- AND WAS HUNG UP ON BY SUPERVISOR &ARI& WHO INFORMED

THE UNDERSIGNED THAT SHE NEW EVERYTHING THE RENO PD

COULD OR WOULD DO AND THAT THEY WOULDN'T DO ANYTHING

WRONG, AND THEN ARI REFUSED TO DIVULGE THE IDENTITY OF THE





- OPERATORS WHO INFORMED THE UNDERSIGNED THAT

HYPTHERMIA OR EXPOSURE TO COLD WEATHER DID NOT CONSITUTE

AN EMERGENCY, NEITHER WOULD A SITUATION WHERE POLICE OR

SHERIFF PERSONNEL WERE CONSPIRING TO MURDER SOMEONE RISE

TO THE LEVEL OF EMERGENCY# FINALLY THE UNDERSIGNED GOT TO

HIS VEHICLE, NEAR THE SIENNA HOTEL, ONLY TO PROMPTLY BE

PULLED OVER BY +.( ARMED RENO PD OFFICERS WHOM CITED THE

FACT THAT THE UNDERSIGNED LICENSE PLATE WAS GONE "IT HAD,

APPARENTLY, MYSTERIOUSLY DISAPPEARED WHILE THE

UNDERSIGNED WAS IN JAIL FOR A CUSTODIAL ARREST FOR

&JAYWALING&, SOMETHING RICHARD HILL, ES$# DID IN FRONT OF

THESE VERY SAME OFFICERS SEVERAL TIMES WHILE THE

UNDERSIGNED WAS IN THE PATROL CAR%, INCLUDING ONE WHOM THE

UNDERSIGNED HAS SUBMITTED A COMPLAINT REGARDING TO THE

RENO PD JUST DAYS BEFORE, OFFICER NICHOLAS DURALDE, WHOM

WAS PRESENT WHEN OFFICER RON ROSA ATTEMPTED TO EXTORT A

CONFESSION OR CONSENT TO SEARCH FROM THE UNDERSIGNED

DURING AN INCIDENT IN AUGUST BY, IN ROSA'S WORDS &CALLING THE

STATE BAR& AND DEFAMING THE UNDERSIGNED, WHEREUPON

OFFICER DURALDE COMMITTED EGREGIOUS POLICE MISCONDUCT# IT

IS IMPORTANT TO NOTE THAT RENO PD OFFICER CARTER PREVIOUSLY

INFORMED THE UNDERSIGNED THAT &RICHARD HILL PAYS HIM A LOT

OF MONEY AND THEREFORE HE WILL ARREST WHO RICHARD HILL

SAYS TO AND HE WILL DO WHAT RICHARD HILLS SAYS&# PREVIOUSLY,

RENO PD SARGENT TARTER HAS TICETED THE UNDERSIGNED FOR

FAILURE TO STOP COMPLETELY BEFORE THE WHITE LINE AT A STOP

SIGN, IN A RETALIATORY FASHION, AFTER THE UNDERSIGNED LEFT

RICHARD HILL, ES$#S OFFICE, WHERE RICHARD HILL HAD BEEN


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT !



REFUSING TO TURN OVER THE UNDERSIGNED STATE OF NEVADA

DRIVER'S LICENSE FOR OVER ONE WEE# FURTHER, RICHARD HILL'S

LICENSED CONTRACTOR "WHOM HAD PREVIOUSLY SUBMITTED WHAT

APPEARS TO BE A FRAUDULENT BILL FOR *(* TO BOARD UP AND &FIX

A LEA IN THE BASEMENT& "THE LEA, HE INFORMED THE

UNDERSIGNED, HE ACTUALLY JUST FIXED OUT OF THE &GOODNESS OF

HIS HEART&% AS, SOMEHOW, $UALIFYING AS &REASONABLE STORAGE,

MOVING, AND INVENTORYING EXPENSES& LANDLORD LIEN UNDER NRS

A#0-*, DESPITE THE FACT THAT THE CONTRACTOR USED THE

UNDERSIGNED'S OWN WOOD AND PLYWOOD TO BOARD UP THE

PROPERTY DESPITE CHARGING *(* FOR DOING SO AND WHOM

TODAY WAS THROWING AWAY THE CALIFORNIA NUEROSURGEON,

MATTHEW JOEL MERLISS, MD#'S CARPET, WHILE RICHARD HILL WAS

APPARENTLY READYING HIMSELF TO SUE THE UNDERSIGNED BOTH

FOR THE COST OF DISPOSING IT AND FOR COST OF IT AS PROPERTY,

AND BOTH OF THESE DISCOVERIES SEEMED TO VEX THE

CONTRACTOR SO COMPLETELY THAT HE FELT IS NECESSARY TO

CALL UP RICHARD HILL RIGHT AWAY AND HAVE RICHARD DO HIS

THING WITH THE RENO PD "LIE WHEN OFFICER CARTER AND

OFFICER LOPEZ ARRESTED THE UNDERSIGNED FOR TRESPASSING

DESPITE NOT ONCE IDENTYING THEMSELVES PRIOR TO ARREST AS

OFFICER AND NO ONE HAVING ASED THE UNDERSIGNED TO LEAVE

THE PREMISES, AND WHERE THESE OFFICERS, AGAIN, STRANGELY,

FOUND THE UNDERSIGNED NOT &CANDIDATE FOR A CITATION&# THE

ARREST TODAY WAS PARTICULARLY CONVENIENT FOR RICHARD HILL

CONSIDERING IT PREVENTED ANY FILMING OF THE DESTRUCTION OF

PROPERTY HE WAS ENGAGING IN# RICHARD HILL PREVIOUSLY GAVE

THE UNDERSIGNED A BAG OF TRASH IN RESPONSE TO THE





UNDERSIGNED'S DEMAND THAT HILL CEASE APPLYING AN UNLAWFUL

RENT DISTRAINT TO THE UNDERSIGNED'S CLIENT'S FILES# FURTHER,

WHEN THE UNDERSIGNED REFERENCE THE DAMAGE RICHARD HILL

WAS DOING TO CLIENT'S INTERESTS IN CASES JUST LIE THE

CARPENTIER'S, RICHARD HILL, IN JUDGE SFERRAZZAS COURT ROOM

WATCHING THE PROCEEDINGS AND PERIODICALLY CROSSING THE

BAR TO PASS POST IT NOTES TO CASEY BAER "DESPITE JUDGE

SFERRAZZA DIRECTING HILL AND OTHER WITNESSES TO LEAVE THE

COURTROOM UNTIL CALLED TO TESTIFY% MADE A MASTURBATORY

JESTURE AND EXTREMELY DISMISSIVE AND CRUDE FACIAL

EXPRESSION AS IF TO SIGNAL HOW LITTLE HE CARED ABOUT THE

FORECLOSURE DEFENSE OF MIDDLE CLASS AMERICANS AND CITIZENS

OF WASHOE COUNTY LIE JOAN AND JIM CARPENTIER#

4uh . #imson Dua>Vent Co., nc., "''9 =6 !5&*'9 ?=.D.6a."''9@

?holding that an emloe su22icientl demonstated good cause to set aside a de2ault

Audgment hee the emloe agued that the emloee did not see the emloe 2o

moe than si months a2te the 2iling o2 the comlaint, seed the ong coman, and

the emloe immediatel attemted to otain an etension. (he emloe also

immediatel 2iled a motion to set aside the ent o2 de2ault hen it leaned that an

etension o2 time as unaailale. +uthe, the emloe esented seeal meitoious

de2enses to the emloeeFs claims@. +ed.%.Ci.-. 55?c@ oides that a cout ma set

aside an ent o2 de2ault 2o good cause, and it ma set aside a de2ault Audgment unde

+ed.%.Ci.-. *'?@. (he undesigned has located thee ?3@ cases in hich the 8.#. +i2th

Cicuit Cout o2 /eals has een con2onted ith a motion to set aside a de2ault

Audgment ased uon a 2ailue to oide notice as equied +ed.%.Ci.-. 55?@?"@. n

the 2ist case, #aoetti . %odigueG>imineG, "5" +."d "9' ?5th Ci.195&@, the +i2th

Cicuit concluded that the distict cout eed in 2ailing to set aside a Audgment de2ault

that had een enteed ithout the notice equied +ed.%.Ci.-. 55?@?"@, and the


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT *



de2ault Audgment as thee2oe acated and the matte emanded 2o 2uthe oceedings.

n eaching that conclusion, the +i2th Cicuit onl geneall e2eed to +ed.%.Ci.-. *'?@

as its asis and did not indicate hethe it as eling uon a aticula susection o2 that

oision.+N1 +N1. (he cicuits ae slit as to hethe the 2ailue to oide notice as

equied %ule 55?@?"@ endes a de2ault Audgment oid, unde %ule *'?@?!@, o Aust

oidale, unde %ule *'?@?*@. #ee, CitiGens BanH . -anes, "'1' =6 1753"9*, >>>>&>9

?*th Ci."'1'@?citing cases 2om aious cicuits that ae slit on the issue@. =hile the

+i2th CicuitFs decision in #aoetti suggests that the 2ailue to gie notice might ende a

de2ault Audgment oid unde %ule *'?@?!@, the +i2th Cicuit did not seci2icall el uon

%ule *'?@?!@ in endeing its decision in that case, and its susequent decisions,

discussed in2a, indicate instead that the 2ailue to oide notice as equied %ule

55?@?"@ endes a de2ault Audgment oidale unde %ule *'?@?*@ since the +i2th Cicuit

seci2icall elies uon that oision in those cases. I3 #usequentl, the +i2th Cicuit

endeed decisions in Chalton 6. Dais J Co., -.C. . +edde Data Cente, nc., 55* +."d

3'& ?5th Ci.1977@ and (une . #alatiea, 5&' +."d -age 3 #li Co, "'11 =6

519'"&" ?4.D.6a.@ ?Cite as: "'11 =6 519'"&" ?4.D.6a.@@ 199 ?5th Ci.197&@, heein

it ased its decisions to acate de2ault Audgments on +ed.%.Ci.-. *'?@?*@. n oth o2

those cases, the +i2th Cicuit concluded that the de2ault Audgments should e acated

ecause o2 the 2ailue to oide notice as equied +ed.%.Ci.-. 55?@?"@ and ecause

the at moing to set aside the de2ault Audgment set 2oth a meitoious de2ense to the

lasuit.+N" +N". #ee also, #een Eles, nc. . EsHenaGi, *35 +."d 39* ?5th Ci.19&1@

?hee the +i2th Cicuit elected not to chaacteiGe a Audgment as a de2ault Audgment o a

Audgment enteed a2te a tial on the meits, noting that %ule *'?@ is alicale to oth

tes o2 Audgments. n eaching its decision that the %ule *'?@ motion to acate should

hae een ganted, the +i2th Cicuit consideed the 2act that ?1@ the moants seeHing to set

aside the Audgment asseted a meitoious de2ense, ?"@ the timel 2iled the motion to set

aside the Audgment ithin a easonale time ecause it as 2iled ithin one ?1@ ea o2

the Audgment eing enteed and ithin tele ?1"@ das o2 the moants otaining





Hnoledge o2 the AudgmentK and ?3@ ecause a con2luence L M o2 unusual cicumstances

esulted in the moants not eing esent at an eidentia heaing hee Audgment as

enteed against them@. n suot o2 his motion to acate the de2ault Audgmentnce the

Caenties 2ound out that the de +o #umma udgment eisted and undestood its

imact, the immediatel sought to etain counsel, haing to settle moe the loest, most

asest otion anone could imagine, hiing the undesigned a2te eading his incoheent

Caigslist osting. /nd no the sho a meitoious de2ense and then some.

6ea . NatFl De2ault #eicing Co., "55 -.3d 1"75 ?Ne."'11@. n6ea, the Neada #ueme Cout addessed the issue o2 ho hasstanding to 2oeclose on a oet usuant to a deed o2 tust o amotgage note. /t the outset, the Cout disagees ith De2endants that6ea is o2 no ecedential alue in this suit meel ecause it as

imail 2ocused on comliance ith NeadaFs 2oeclosue mediationstatutes. n the conta, the 6ea cout 2ound it necessa todetemine a atFs standing to 2oeclose on the oet at issue in thatcase and to clai2 Neada 2oeclosue la in light o2 the incease inthe nume o2 2oeclosue aeals in this state. "55 -.3d at 1"&1./ccodingl, the Cout ill addess the alication o2 6ea to theinstant case, Heeing in mind that onl clea eo andO o mani2estinAustice Austi2ies ganting -lainti22 elie2 2om ou eious de ?$ "5@ usuant to %ule 59?e@. I3 #eci2icall, -lainti22 claims that 6eastands 2o the oosition that a at cannot initiate a non)Audicial2oeclosue until it estalishes ho the tue holde o2 the note is and

the tue holdeFs elationshi ith the entities 2oeclosing on the oet as a matte o2 standing. -lainti22 claims that De2endants in thiscase hae 2ailed to estalish thei standing -age 3 #li Co, "'11 =65"!&171 ?D.Ne.@ ?Cite as: "'11 =6 5"!&171 ?D.Ne.@@ to 2oeclose.-lainti22 2inds suot in the 6ea CoutFs assetion that LtMhe oligoon the note has the ight to Hno the identit o2 the entit that isPentitled to en2oceQ the motgage note unde /ticle 3 Lo2 the 8ni2omCommecial Code ?8.C.C.@ M, see N%# 1'!.33'1, PLoMtheise, theLhomeoneM ma a 2unds to a stange in the case.Q "55 -.3d at1"79>&' ?quoting n e Veal, !5' B.%. &97, 9"' ?B./.-. 9th Ci."'11@@.=hile at 2ist glance this oosition aeas to suot -lainti22Fs claim,

the 6ea Cout as addessing en2ocement o2 a note a at othethan to hom the note is oiginall aale. "55 -.3d at 1"&'. (he6ea Cout ent on to hold that 2o such a note to e en2oceale someone othe than the oiginal at named on the note, it must eassigned eithe negotiation o tans2e in accod ith /ticle 3 o2 the8.C.C., as codi2ied in Neada %eised #tatues ?N%#@ R 1'!.3"'1."55 -.3d at 1"&'>&1. n this case, the Audiciall noticed documents


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT &



con2im that the oiginal at named on the Note, De2endanteen-oint, is the at seeHing to en2oce the Note. (he Note asoiginall made aale to the ode o2 the 6ende, een-oint4otgage +unding, nc. ?Note at 1 ?$ 9 E. D@.@ (he Deed o2 (ustnames een-oint the 6ende, 4ain the (ustee, 4E%# the ene2iciaand nominee 2o 6ende, and e2es to the Note and oet at issue.?Deed o2 (ust at " ?$ 9 E. E@.@ (he Deed o2 (ust 2uthe oides that

4E%# ?as nominee 2o 6ende and 6endeFs successos and assigns@has the ight: to eecise an o all o2 those inteests, including, ut notlimited to, the ight to 2oeclose and sell the -oetK and to taHe anaction equied o2 6ende ... ?d. at 3.@ -/%SE%, . %EEN-N(4%(/E +8NDN NC.K"'11 =6 5"!&171 ?D.Ne.@@

Doe agued in his %ule 59?e@ motion that the tial cout eed in dening his%ule *'?@ motion ecause #ueio Cout %ules 5 and 77 ee iolated, indeogation o2 his ights to notice and the ootunit to e head. #ue. Ct.Ci. %. 5?a@ states that ee itten motion othe than one hich ma ehead e ate ... shall e seed uon each o2 the aties. #eice unde

%ule 5?a@ ma e accomlished LmMailing a co to the last Hnonaddess o2 the eson seed. #ue. Ct. Ci. %. 5?@. =ithout notice o2 animending gant o2 summa Audgment, a de2endant has no ootunit to e head ... Land so isM denied due ocess o2 la.... Ne <oH 6i2e ns. Co.. Bon, &! +.3d 137, 1!3 ?5th Ci.199*@. L1"M #ueio Cout %ule 77demands that LiMmmediatel uon the ent o2 an ode o Audgment thecleH shall see a notice o2 the ent in the manne oided 2o in %ule5?@ uon each at ho is not in de2ault 2o 2ailue to aea, and shallmaHe a note in the docHet o2 the seice. #ue. Ct. Ci. %. 77?d@[email protected], a at ma not el uon a 2ailue to eceie notice o2 the ento2 2inal Audgment as a asis 2o elie2 2om that Audgment unde #ue. Ct.

Ci. %. *'?@. d.K see also Distict o2 Columia . =atHins, *&! /."d 395,39& ?D.C.199*@. ;oee, as e oseed in =atHins, LMhile the actualmailing o2 the notice is the citical element in the unning o2 the time 2onotice o2 aeal, Lcitation omittedM, the ule contemlates that the mail ill e diected to the atFs addesses hee he o she is liHel to eceie it.nl hen mail is oel diected can the act o2 mailing Austi2 the esumtion o2 eceit. d. at !'' ?citing (oome . Distict o2 Columia,315 /."d 5*5, 5*7 ?D.C.197!@@. =e held consequentl that hee the coutcleH sent notice o2 the tial coutFs uling to the aellantFs io addessinstead o2 to aellantFs last Hnon addess and mailed the uling -age 139!& /."d 1"1' ?Cite as: 9!& /."d 1"1'@ though the coutFs in)house

ciculation sstem instead o2 though the odina mail, and hee theaellant did not eceie the ode, thee as a su22icient shoing o2etaodina cicumstances to suot the tial coutFs eecise o2 itsdiscetion to gant LaellantFs %ule *'?@ M motion. +N1! d. +N1!.#eci2icall, e held that the aellantFs cicumstances made the equisiteshoing o2 etaodina cicumstances 2o a 2inding o2 ecusaleneglect.... d. (his as notithstanding the geneal ule that 2o uoses





o2 %ule *'?@, ecusale neglect is undestood to encomass situations inhich the 2ailue to coml ith a 2iling deadline is attiutale to Lthe atFsM negligence and that a atFs 2ailue to 2ile on time 2o easons eond his o he contol is not consideed to constitute Pneglect.Q -ioneen. #e. Co. . BunsicH /ssocs. -Fshi, 5'7 8.#. 3&', 39!, 113 #.Ct.1!&9, 1"3 6.Ed."d 7! ?1993@. L13ML1!ML15M ;ee, ecause e do not hae e2oe us a co o2 DoeFs %ule *'?@ motion, e cannot con2im diectl

that the I1"19 motion adised the cout that the cout cleH did not mail theode to DoeFs last Hnon addess o that Doe elained to the cout that he2iled his motion immediatel a2te eceiing notice o2 the ode.+N15 But, ecause the #ueio Cout AacHet contains the eneloe maHed etun)to)sende in hich the coutFs summa Audgment ode had een mailed toDoe at his eious addess, the ecod maHes clea that Doe did not eceietimel notice o2 the coutFs uling.+N1* =e also can in2e the content o2DoeFs %ule *'?@ motion 2om the coutFs uling on DoeFs %ule 59?e@ motion,in hich the cout stated that Doe had not aiseLdM an issues that ee notconsideed in the CoutFs anua 1", "''* de Ldening his %ule *'?@motion 2o elie2M. n his ie2 and a22idait in suot o2 his %ule 59?e@motionTand thus, esumal, in his %ule *'? @ motion as ellTDoeelained that it as not until Deceme 1", "''5, a2te eceiing aesonse 2om the cout to his inqui aout the status o2 his litigation, thathe leaned o2 the DistictFs summa Audgment motion and the coutFssumma Audgment uling, and that he 2iled his motion 2o elie2 2om Audgment on the same da. n light o2 the 2oegoing, the cout should nothae egaded DoeFs %ule *'?@ motion as uneasonal delaed. +N15./ellant has the uden o2 demonstating tial cout eo and must oide the aellate cout ith a ecod su22icient to sho a22imatielthat eo occued. onathan =oodne Co. . /dams, 53! /."d "9", "9!?D.C.19&7@. ;oee, Doe is a o se aellant and is incaceated,cicumstances that aant some lenience. L-Mo se litigants ae not alas

held to the same standads as ae alied to laes. 4ac6eod .eogeton 8ni. 4ed. Ct., 73* /."d 977, 9&' ?D.C.1999@ ?citationomitted@. 4oeoe, leadings eaed isones ho do not haeaccess to counsel Lae toM e lieall constued. d. +N1*. (hus, the coutdid not 2ul2ill its oligation unde %ule 77?d@?1@ to see a notice o2 theent Lo2 summa AudgmentM LmMailing a co to the last Hnonaddess o2 the eson seed. #ue. Ct. Ci. %. 77?d@?1@. +uthe, e canin2e, 2om the tial coutFs ie2 e2eence in its uling on the %ule *'? @motion, that Doe elained in his motion, at the e least, that he had eentans2eed to a -age 1! 9!& /."d 1"1' ?Cite as: 9!& /."d 1"1'@ di22eent2acilit and that he nee eceied the DistictFs motion 2o summa

Audgment. =ith the elanation that he oided, his change)o2)addessnotice that as docHeted e2oe the DistictFs summa Audgment motionas 2iled, and his io athe than cuent addess shon on the ceti2icateo2 seice attached to the DistictFs motion, the cout had e2oe it eidencethat at the e least called into question hethe Doe had ee eceied aco o2 the DistictFs motion. n light o2 all these cicumstances, e must


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT 1'



conclude that the cout eed in dening DoeFs equest 2o elie2 unde %ule*'? @?!@ ithout at least a heaing to inquie into mattes such as hethethe Distict 2ailed to mail its summa Audgment motion to DoeFs lastaddess o2 hich the Distict had een aised and hethe the motion aes ee etuned as undelieale. +N17 /nd, as discussed in2a, such aheaing ould not e 2utile. +N17. =e cannot tell 2om the ecod hethethe Distict Hne o should hae Hnon that Doe had een tans2eed to the

+C in (ennessee hen it mailed its motion 2o summa Audgment to the+C in =est Viginia. DoeFs aecie shos a mailing date o2 ul "3, "''!,and the #ueio Cout date stam and docHet sheet sho that the couteceied the aecie on /ugust "3, "''!. t might e esumed that theDistict eceied the change)o2)addess aecie on o aout the same date.But it is also ossile that the aecie and the DistictFs /ugust "7, "''!motion cossed in the mail, and that the Distict as not on notice o2 DoeFsne addess hen it attemted to see him mail ith its motion 2osumma Audgment. C2. Sidd ntFl ;ome Cae, nc. . -ince, 917 /."d1'&3, 1'&* ?D.C."''7@ ? the alleged 2ailue o2 an indiidual to eceie mailsent to the coect addess unde these cicumstances does not constitute adeiation o2 due ocess@ ?intenal unctuation and citation [email protected] in that case, hoee, notice to Doe ma not hae eenconstitutionall adequate. C2. ones . ieg, &"9 /."d 195, 199 ?D.C."''3@?holding, in a ta sale case, that hile notice mail to the ecod onegeneall satis2ies due ocess commands, i2 the notice is etunedunclaimed, the Distict is then equied to taHe some additional ste tonoti2 the ecod one@ ?intenal quotation maHs and citations omitted@K4alone . %oinson, *1! /."d 33, 3& n. 9 ?D.C.199"@ ?;ad the notice o2eiing edemtion eiod not een etuned, the DistictFs mailing o2 thatnotice ould hae ... een constitutionall adequate, since seice mail iseasonal calculated to gie notice in most cicumstances@. Een in theasence o2 a 2inding o2 deiation o2 due ocess, i2 the cout detemines

that Doe did not timel eceie actual notice o2 the DistictFs motion, itcould in its discetion gant him %ule *'? @ elie2 2om the summa Audgment ode. ohn DE, /ellant, . D#(%C( + C684B/4E(%-6(/N -6CE DE-/%(4EN(, 9!& /."d 1"1' ?"''&@

(he Caenties claims also 2all unde the 2edeal +ai Det Collection -actice /ct,

though unde the P=ell -leaded ComlaintQ ule,the claim 2o elie2 sounded as a

edicate 2o the Neada un2ai and Decetie (ade -actice statute.

Uualit goes to geat length in its litigating to demonstate that it is not 2actuall, no

legall a det collecto no collection agenc, desite all the language to the conta that

is set 2oth in its Notice o2 De2ault, and Notice o2 (usteeQs #ale. Neetheless, on

ctoe 1!, "'1', the #tate o2 Neada,Deatment o2 Business and ndust, +inancial

nstitutions Diision L+DM issued anK %DE% ( CE/#E /ND DE##(





8N6CENCED /C(V(E# /ND N(CE + %;( ( /--E/6, to Uualit 6oan

#eice, Co., in connection ith anothe 2oeclosue.

(hee the +D detemined that Uualit as engaging in unla2ul collection actiit

2oeclosing in the #tate o2 Neada, ithout 2ist otainingthe oe license.(his is

signi2icant ecause in this case the +edeal Cout has een called uon to anse

aquestion o2 state la, hen the Neada #ueme Cout has not eiousl addessed it.

=hile the +Dis not the Neada #ueme Cout, it is a legitimate souce o2 guidance

aout ho this Neada #tatute,N%# *!9.171 is to e alied. t is anticiated that Uualit

ill eecise its aeal ights ith esect to this ode, and ma een 2ile a -etition 2o

%eie in state cout, i2 it is unha ith the esult it ultimatel otains. Neetheless, i2

this Cease and Desist de is coect, and it cetainl is entitled to a esumtion o2

coectness until such time as it is acated o eesed, then it is a edicate 2o one o2

-lainti22sQ claims 2o elie2. t is entitled to some de2eence this Cout, as the onl

souce o2 authoiton the aticula oint o2 la in question. (he -lainti22s hae alleged

that Uualit does not hae theoe license, and as such it has committed an 8n2ai and

Decetie (ade -actice L8D/-M unde N%#59&.'9"3?1@KDecetie tade actice

de2ined. / eson engages in a decetie tade acticehen in the couse o2 his o he

usiness o occuation he o she Hnoingl: 1.Conducts the usiness o occuation

ithout all equied state, count o cit licenses./ iolation o2 a state o 2edeal statute

o egulation is also such a iolation unde N%# 59&.'9"3?3@./s alleged in the comlaint,

the lainti22s ae entitled to actual damages, costs and attone 2ees ecausethe then

ecome Pictims o2 2audQ unde N%# !1.*''?3@. ndeed, no that this case is in 2edeal

coutthe intend to usue thei +ai Det Collection -actice /ct diectl, and not Aust as

a edicate to a state8D/- claim. (his ould entitle each o2 them to statuto damages

as ell. (his Cout ill also e called uon to detemine i2 the actions taHen Uualit,

ae oid, oidale o meel see as a edicate 2o the 8D/- claim ecause o2 this

iolation.n the motion undue eliance is lace uon ecedent cited counsel that is not

contolling. (he ;ulse, case, in2a, is siml not a Ninth Cicuit case, it is 2om the


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT 1"



+edeal Distict Cout in egon. +o easons that ill e made clea, is no ad la and

should not e 2olloed this cout. (he de2endant Uualit has ointed to 2edeal cases

hich state that othe 2oeclosue tustees, unde othe 2actual cicumstances hae een

held not to e Pdet collectosQ in +DC-/ cases. (hose cases ma cetainl e esuasie

authoit, ut the ae not contolling authoit hich this Cout is oligated to 2ollo.

nl the Neada #ueme Cout and the Ninth Cicuit Cout o2 /eals could e taHen

as setting inding ecedent, and that is not the case hee. (he Ninth Cicuit as siml not

uled squael on the issue o2 a 2oeclosue comanies eing ithin the +DC-/, o not.

(he case cited Uualit 2o the oosition that 2oeclosue tustee ae not det

collectos is that o2K ;ulse . cen +ed. BanH, 195 +.#u."d 11&& ?D.. "''"@. n

;ulse the Cout detemined that 2oeclosue as not a det collection actiit as

de2ined the +ai DetCollection -actices /ct and the coolla egon statute. (he

state cout and state agenc hee hae held the oosite. (his is not a inding decision

that 2edeal couts in Neada ould e oliged to2ollo, ut meel a esuasie one.

Because its easoning is 2laed, it should not e 2olloed thiscout. t cited to onl one

case, ;einemann . im =alte ;omes, nc., !7 +.#u."d 71* ?D.=.Va.199&@, a22QQd

173 +.3d &5' ?!th Ci. 1999@, hich contained no analsis o2 2oeclosue la ut

neetheless held that the +DC-/ did not al. ;oee, the ;einemann decision

sua, has een oeuled =ilson . Dae J oldeg, !!3 +.3d 373 ?!th Ci. "''*@.

n =ilson, sua, the !th Cicuit eessl eAected the 2oeclosue laeQs assetion that

the ee not collecting a det asde2ined the +DC-/ ecause the action as in em

and noted, as is the case hee, that the laesadised that einstatement could occu i2

monies ee aidK d. at 37*. (hus, the =ilson Cout eessleAects the summa

decision endeed in ;einemann , hich is the case that suoted the CoutQQsholding in

;ulse . /n identical issue has een ending in the (enth Cicuit Cout o2 aeals 2o

moethan a ea no, and it ill e ought to this CoutQs attention hen it is uled

uon, eithe a.(he =ilson decision sua , as endeed at aoimatel the same

time asK Saltenach .%ichads , !*! +.3d 5"! ?5 th Ci. "''*@. (he Cout in Saltenach





did not el uon the =ilson decision,ut still eached the same conclusion >> that the

+DC-/ did al to attones andOo tustees ho eeattemting to collect a det

2oeclosing. (he 3 d Cicuit in -ie . -otno22 6a /ssocs . , 39* +.3d""7, "3! ?3 d

Ci. "''5@ eached the same conclusion and emhasiGed the imotance o2 the 2act that

the2oeclosing la 2im as asHing 2o mone to einstate the loan. d. n ;ulse , sua ,

thee is no indication that the Cout een consideed that hen 2oeclosing, atustee and

ene2icia ae concuentl maHing demands 2o mone to sto the sale, hich is o2

couse,haening in the case at a. t is clea that the 3 d , ! th and 5 th Cicuit Couts in

=ilson, Saltenach and -ie 2ound that the demand 2o ament as det collection

actiit in lieu o2 seiGing the eal oet.(he Ninth Cicuit ma come don conta,

ut it ould oen the matte 2o a etition 2o cetioai,hich is something it has een

loath to do o2 late, and case in the (enth Cicuit ma ell gie muchneeded guidance in

this egad. -ehas the touchstone is hethe the 2oeclosue tustee also is collecting

mone in the ocess o2 2oeclosue, o meel getting the collateal acH 2om the

homeones in em . 2 memo sees this e issue as touched uon in this e

Cout duing the oal agument on the motion.

$123456 7o5 o736 8ro9:: <or:93o1r: =o91>:75, 45 9o33:95 >o7:6 o7 ?:@23< o<

?27/3:7=:r/:r49:r#

%eossessing on eal estate, couled ith collecting mone due on the undeling notes,

ings Uualit ithin the de2inition o2 a det collecto unde 2edeal la, o a collection

agenc unde state la. -at o2 this detemination has alead een made the state

cout and state agenc,and it is one that this ;onoale Cout is ound to esect. +o the

2oegoing easons, the Caenties should e alloed to amend thei Comlaint as to the

+DC-/ and 8D/- issues and hae the de anting #umma udgment set aside,

and the -lainti22s e alloed to go 2oad ith discoe.

I>8ro8:r For:93o1r: U7=:r NRS S:954o7 *#**

-lainti22 seeHs a declaation that the ND is null and oid. (he most common

statuto de2ect in 2oeclosue in Neada occus hen a 2oeclosing entit 2ails to adhee


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT 1!



to N%# section 1'7.'&', ecoding a ND e2oe it has een named as the tustee ?as

hee@, and ithout an eidence o2 agenc on ehal2 o2 the tustee o ene2icia o2 the

undeling det at the time o2 ecodation ?as hee@. #ee Ne. %e. #tat. R 1'7.'&'?"@?c@.

-lainti22 alleges a iolation o2 this statute, and alleges that the ND 2ailed to include

cetain notices as equied unde the D(, U6# as aaentl neithe the tustee no the

ene2icia hen it ecoded the ND. ;oee, it claimed on the ND to hae een

/EN( +% BENE+C/%<, and it identi2ied the ene2icia as ... (he onl eidence

in the ecod as to the identit o2 the ene2icia at the time the ND as ecoded is the

D( itsel2, hich names as the lende, maHing it the ene2icia as a matte o2

la, egadless o2 the D(Fs language aout 4E%# eing a ene2icia. /lthough

4E%# is not a ene2icia, its agenc 2o...

Coeland . BE= 6ocal No. &, "''* =6 "9!*9!' ?N.D.hio "''*@ ?%ule

*'? @?*@ elie2 ganted hee the client made diligent attemts to contact his

counselK et, his counsel 2ailed to in2om him o2 the CoutFs ganting o2 summa

Audgment to the de2endant until a2te the time 2o aeal had assed, and the attoneFs

conduct constituted goss negligence@K 6.-. #teuat, nc. . 4atthes, 3"9

+."d "3! ?C./.D.C.19*!@?/ lainti22Fs suit as dismissed 2o 2ailue to osecuteK

cout einstated suit to eas a2te its dismissal usuant to %ule *'? @?1@ and ?*@

ecause esonal olems o2 counsel had caused him to neglect the diligent

lainti22Fs case and to mislead the lainti22. (he lainti22 had made numeous inquies

o2 his attone, ho had e2used to anse such inquies and had occasionall assued

the client that the case as oceeding@.

4E%# has since eoled 2om that o2 a simle egistation sstem to that o2 the

custodian o2 oes. /s such, 4E%# has essentiall locHed homeones 2om

eenting thei houses 2om ecoming 2oeclosues and loan 2aud ictims 2om usuing

thei cases in cout ecause the could not identi2 the comanies holding thei motgage

notes. %ecent cout ulings in seeal states hae challenged 4E%# in 2oeclosue cases





and hae 2ound that, at est, 4E%# onl holds a co o2 the lanH note ith the tue

ene2icia holding the oiginal note. 4E%# hoee commences the 2oeclosue ocess

suosedl assigning the secuit instuments to a (ustee. /t est, the (ustee is in

ossession o2 lanH secuit instuments at the time the Notice 2 De2ault is ecoded

hile the still unidenti2ied holde o2 the eal Note emains oscued.

n a 2oeclosue situation hee 4E%# is the claimed ene2icia and the tue

ene2icia otains the (usteeQs Deed a22ecting a cedit sale acH to the lende, 4E%#

schemes to aoid the tans2e ta o2 the tansaction. +uthemoe, in non)Audicial states,

4E%# admits to meel holding title as nominee 2o the tue ene2icia. ;ee is an eet

2om thei on e site. Nomall, hee the name o2 the gantee unde the (usteeQs

Deed 8on #ale is di22eent than the name o2 the 2oeclosing entit, the (usteeQs Deed

8on #ale states that the antee as not the 2oeclosing ene2icia. (his designation

tigges the imosition o2 tans2e taes on the sale. t is imotant to note that in a 4E%#

2oeclosue sale, een hee the oet eets, the name o2 the gantee ill e di22eent

than the name o2 the entit 2oeclosing. Nonetheless, the (usteeQs Deed 8on #ale

should state that (he antee as the 2oeclosing ene2icia. (his is ecause 4E%#

meel holds title as nominee 2o the tue ene2iciaK it is the tue ene2icia that has

actuall 2oeclosed and acquied title. B this admission, 4E%# has stated that the ae

not, and as not, the tue ene2icia thee nulli2ing the nomination usuant to the

Deed 2 (ust. -usuant to the 2oegoing, as Neada is a non)Audicial 2oeclosue cases,

the Caenties demand that the 2oeclosing institutions oide ima 2ascia eidence

that the ae indeed the legal ene2icia, and legitimate one o2 the Note ith oe o2

sale.

4acHlin also agues that the tusteeFs sale is oid ecause DeutscheBanH, "''*>" (ust, and the tustees, =indso 4anagement and Uualit6oan #eicing, ee acting outside o2 thei authoit hen the2oeclosed ecause the ee not in hsical ossession o2 the Note. /sDeutsche BanH oints out, Cali2onia la has no such equiement./laa . /uoa 6oan #eices, No. C>'9>151" #C, "''9 =61*&9*!', at I * ?N.D.Cal. une 1*, "''9@ ?L8Mnde Cali2onia la,


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT 1*



tustee need not ossess a Note in ode to initiate 2oeclosue unde aDeed o2 (ust.@K +ane . Countide ;ome 6oans, nc., No. '&>CV"193, "''& =6 1&9'"5, at I " ?#.D.Cal. an. "9, "''9@ ?L(Mhee doesnot aea to e an equiement unde Cali2onia la that the oiginal Note e oduced in ode to ende the 2oeclosue oceedings alid.@KUuintos . Decision ne 4otgage Co., 66C, No. '&>CV>1757 4?-%@, "''& =65!11*3*, at I 3 ?#.D.Cal. Dec. "9, "''&@ ? Cal.

Ci.Code R "9"! outlines the equiements 2o non)Audicial 2oeclosuesin Cali2onia, and does not include oiding the oiginal Note io tothe sale@. L17ML1&M /lmost lost in the clutte o2 misstatements aout thendentue, allegations ithout an suot in la o 2act, and theselectie eading o2 documents, 4acHlin does aise an issue conceningho Deutsche BanH conducted the noticing o2 the 2oeclosue sale. (hecout stats ith the asic emise that 2o Deutsche BanH to oceedith a 2oeclosue it had to e entitled to ament on the Note. Cal.Ci.Code RR "93".5, "93*K Cal. Comm.Code R 33'1. Deutsche BanH esents the Note ith an allonge to document the tans2e o2 the Note.;oee, the allonge is undated. (he /ssignment o2 the Deed o2 (ust,hich as ecoded on Noeme 3', "''9, has an illegile date as tohen it as eecuted. -esumal, it as eecuted on o aout Noeme 17, "''9, shotl e2oe it as ecoded. +uthe, one could esume that a Noeme 17, "''9 date 2o the /ssignment o2 the Deedo2 (ust ould coesond ith the allonge to tans2e the Note toDeutsche BanH. But the #ustitution o2 (ustee Deutsche BanHecoded on Noeme "9, "''9, uoting to sustitute Uualit 6oan#eice Co. 2o =indso 4anagement Co. as tustee unde the Deed o2(ust, states that it as signed Deutsche BanH on /ugust "1, "''9.(his ould e ell in adance o2 the Noeme 17, "''9 assignment o2the Deed o2 (ust. No elanation has een oided 2o these aaentlinconsistent dates. (he cout ill not meel assume that Deutsche BanH

acquied the Note much ealie ut did not ecod the Notice o2/ssignment o2 Deed o2 (ust until a late date. %ecent cases haediscussed hethe a Deed o2 (ust is suAect to aious oisions o2 theCiil Code hich e2eence motgages, motgagees, o otheencumances. #eeal tial couts hae concluded that Ciil Code R"93".5 does not al hen the encumance is en2ocing ights usuant to a Deed o2 (ust. (hough o2 esuasie alue, these tial coutcases ae not inding ecedent 2o this cout. I11 L19M n consideinghat is mean motgagee o othe encumance holding a oe o2sale, the cout 2ist consides the distinction eteen a motgage and aDeed o2 (ust. +o a Deed o2 (ust, title is ested in the tustee, ho

has a oe to sell the oet uon the eent o2 seci2ied contactualde2aults. (his allos 2o the sale o2 the collateal ithout Audicialinteention. But this is a limited title in the tustee. /s addessed the Cali2onia #ueme Cout in BanH o2 tal Nat. (ust J #a. /ssn. .Bentle, "17 Cal. *!!, *5*, "' -."d 9!' ?1933@, the legal title held thetustee is to the etent necessa 2o eecu)tion o2 the tust, ut does not





ca ith it the incidents o2 oneshi. n actical e22ect, a Deed o2(ust is a motgage ith a oe to cone, ith the incidents o2oneshi etained the tusto. (he Deed o2 (ust is teated as anencumance on the eal oet, and gien otection as a lien athethan an inteest in the land suAect to a mateialmanFs lien. ;ollood6ume Co. . 6oe, 155 Cal. "7', 1'' -. *9& ?19'9@.+N1" L"'M ethe eas, couts and the 6egislatue hae continued to diminish the

distinction eteen a Deed o2 (ust and motgage, othe than the2undamental di22eence that the oe o2 sale unde the Deed o2 (ust iseecised nonAudiciall, hile the motgage still equies Audicialinteention.+N13 (he 6egislatue has made oth deeds o2 tust andmotgages suAect to time limitations on en2ocement, Ciil Code RR&&'.'">&&7.'9 ?4aHetale %ecod (itle /ct@ and ceated a ight o2edemtion 2olloing a Audicial sale unde eithe a motgage o Deed o2(ust, Cal.Ci.-oc.Code R 7"9 .'1'. n stating its intent ehind the4aHetale %ecod (itle /ct, the 6egislatue con2imed that eal oet is a asic esouce o2 the eole and title tansactions should oceed ith econom and eedienc. +o this to e achieed, eal oet ecods must cleal and accuatel document title to the oet. Cal. Ci.Code R &&'.'"'. Because thee is no Audgment oode suoting a nonAudicial 2oeclosue sale, documentation o2comliance ith Cali2onia la 2o a nonAudicial 2oeclosue sale isessential. nl the o22icial ecod contains the documentation o2 hoas entitled to en2oce the ights unde the Deed o2 (ust. n eiousoccasions, the Cali2onia #ueme Cout has alied a statute e2eencinga motgage to deeds o2 tust hen it imacts the ights o2 the ooe.n #ecuit -aci2ic National BanH . =oGa, 51 Cal.3d 991, 99&, "75Cal.%t. "'1, &'' -."d 557, the cout alied the one)action ule, Codeo2 Ciil -ocedue 7"*?a@, to oligations secued a Deed o2 (ust asell as othe esonal oet. #ee also =alHe . Communit BanH, 1'

Cal.3d 7"9, 73" n. 1, 111 Cal.%t. &97, 51& -."d 3"9 ?197!@. CiilCode R "93".5 oides that, hee a oe o2 sale 2o eal oet isgien to a motgagee o othe encumance to secue an oligation, such oe o2 sale ma e eecised the assignee ho is entitled to eceie ament o2 the oligation i2 the assignment is dul acHnoledged andecoded. 2 the assignment has not een ecoded, then the oecannot e eecised. (he alication o2 Ciil Code R "93".5 to allencumances, including deeds o2 tust, oHs to otect the ooe?tusto@, lende ?ene2icia@, tustee, uchase at a 2oeclosue sale, andsusequent ones o2 the oet. Be2oe esons uot to taHe actionand eecise ights unde a Deed o2 (ust, the assignment documenting

the acquisition o2 those ights is ecoded ith the count ecode. (hisesults in the eal oet ecods cleal and unamiguousl statingho held the ights and ho asseted the ights. (his minimiGes titledisutes eas late as to hethe a notice o2 de2ault o notice o2 sale asgien a oel authoiGed at and hethe the uoted saleunde the Deed o2 (ust is oid. (his imoses the minimalist o2 udens


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT 1&



on the ene2icia acquiing a Note secued a Deed o2 (ustT ecoding the notice o2 assignment e2oe uoting to change thetustee o authoiGe a 2oeclosue. I1" n the esent case, 4acHlin andDeutsche BanH hae demonstated that the ecoding o2 the assignmento2 the Deed o2 (ust ost)dated Deutsche BanH ecoding documents u)oting to change the tustee to =indso 4anagement and then=indso 4anagement uoting to gie a notice o2 sale. (hough thee

ae onl das hich Deutsche BanH, "''*>" 2ailed to ecod theassignment o2 the tust deed, a ecod has een ceated that someone noto2 ecod title uoted to taHe action on a Deed o2 (ust io tocomliance ith Ciil Code R "93".5. ssues o2 title and the ecod uonhich 2utue geneations o2 ones ill el cannot e suAect to aould)ou)eliee))missed)it))that)much imlied aie o2 thisstatuto equiement. 4acHlin has shon a liHelihood o2 eailing onthe issue o2 the uoted 2oeclosue sale not haing een oelconducted, thee esulting in a oid deed. (he cout issues the elimina inAunction on this gound. n %e 4acHlin, "'11 =6"'155"' ?BHtc.E.D.Cal.@@.

/nd the Caenties seeH to amend thei Comlaint as thei case issustantiall simila to the 2olloing: ". De2endant Uualit 6oan#eice Co. ?Uualit@ ecoded a Notice o2 W Beach and De2ault ando2 Election to Cause #ale o2 eal -oet 8nde Deed o2 (ust ?ND@on 4a, !, "'1'. Uualit descies itsel2 on the ND as ... eithe theoiginal tustee, the dul aointed sustituted tustee, o acting as agent2o the ene2icia unde a Deed o2 (us6. Uualit is not egisteedith the Neada #eceta o2 #tate no does Uualit osses a +oeignDet CollectoFs 6icence Xith the Neada Det. o2 Business andndust as equied N%# *!9. 171, though it is a Fdet collectoFithin the meaning o2 15 8.#.C. R 1*9"?a@?*@, as incooated into

Neada la N%# *!9.37'. t is elieed to e one o2 the neceations o2 the +oeclosue ndust. 3. De2endant ;#BC B/NS,8#/, N/, as (ustee 2o 4eill 6nch /ltenatie Note /sset (ust,#eies "''7)/3, ?;#BC@ is descied as the Note ;olde o2 -lainti22Fsmotgage note De2endant /meicaFs #eice Coman. t is unHnoni2 ;#BC claims to e the ene2icia on a Deed o2 (ust, esumalecoded on Noeme 17,"''*, hich descies the lende as 8niesal/meican 4otgage Coman o2 Cali2onia. ;#BC BanH is notegisteed ith the Neada #eceta o2 #tate. n esonse to a Uuali2ied=itten %equest usuant to 1" 8.#.C. R "*'5?e@ and 15 8.#.C. R 1*!1?2@?"@ !. De2endant /meicaFs #eice Coman ?/#C@ is a

collection coman attemting to collect mone 2om -lainti22 aseduon he motgage. /#C is not egisteed ith the Neada #eceta o2#tate no does it hae a +oeign Det CollectoFs 6icence ith the Neada Det. o2 Business and ndust as equied N%# *!9. 171,though it is a Fdet ..ollectoF ithin the meaning o2 15 8.#.c. R 1*9"?a@?*@, as incooated into Neada la F22i.# *!9.37' 5. (he tue names





and caacities, hethe indiidual, cooate, associate, atneshi ootheise o2 the de2endants heein designated as Does 1 though 1'',inclusie, ae unHnon to lainti22, ho thee2oe sues said de2endants such 2ictitious names. *. -lainti22 alleges that each named de2endantand each de2endant heein designated as a Doe de2endant is negligentl,ill2ull, maliciousl, contactuall o otheise legall esonsile 2othe eents and haenings heein e2eed to and oimatel caused

inAu and damages to -lainti22, as heein alleged. -lainti22 ill seeHleae o2 this Cout to inset the tue names and caacities o2 suchde2endants hen the same hae een ascetained and ill 2uthe asHleae to Aoin said de2endants in these oceedings usuant to N%C- 1'.7. Based uon in2oYation and elie2 lainti22 alleges that at all timesmentioned heein, the de2endants, and each o2 them, ee the agents,seants, emloees andOo Aoint entues o2 thei co)de2endants, andeach ee as such, acting ithin the couse, scoe, and authoit o2 suchagenc, emloment andOo entue, and that each and ee de2endant,as a2oesaid, hen acting as a incial, as negligent in the selection,hiing, taining and aointment o2 each and ee othe de2endant as anagent, emloee andOo Aoint entue. +/C(8/6 /66E/(N# &.-lainti22 alleges, ealleges and incooates e2eence each and eeallegation contained in the eceding aagahs. 9. n ode 2o-lainti22, a ulic school music teache, to get out o2 the ental maHethee she as nee going to uild a 2utue, -lainti22 uchased amodist home in %eno eing talHed into an adAustale ate motgage.-lainti22, liHe eeone else at the time, as told ods to the e22ect:DonFt o, a2te ou hae estalished a good ament ecod, e ille2i and get ou into a loe ate, maHe it into a 3' ea 2ull amotiGedloan ... and ou can uild equit . . . -lainti22 as nee equied to oide an documentation as to he 2inancial ailit to a the aments that the inceases in inteest ates equied. /nd, -lainti22 as

eeatedl told that she could e2inance he loan?s@ so that she ould not e equied to a the huge inceases in inteest that ould maHe itimossile to sta in he home. 1'. /2te -lainti22 estalished heecellent ament ecod, the housing maHet cashed, and -lainti222ound hesel2 not onl uside don, ut ith a aidl adancingincease in he /%4, hich she could neithe e2inance no a22od to a. Due to the economic deession, engineeed and ought on entities such as the de2endants heein, -lainti22Fs home, liHe millions o2othe /meicans, lost at least . one hal2 o2 its alue. . n in2omationand elie2, -lainti22 alleges that he motgages ee almost immediateltans2eed, ithout he Hnoledge o notice, in iolation o2 in iolation

o2 # 8.#.C. R 1*!1?2@?"@ hich equies notice to the ooe a2teassignment o2 the motgage documents, to some othe entit o entities.1". 8ntil such time as -lainti22 etained counsel to send a Uuali2ied=itten %equest usuant to 1" 8.#.C. R "*'5?e@ and 15 8.#.C. R1*!1?2@?"@ lette to /#C, -lainti22 as NEVE% in2omed ho he Noteand Deed o2 (ust ee tans2eed to. No tans2es o2 the note no deed


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT "'



o2 tust ee ecoded at the =ashoe Count %ecode. (hus, -lainti22,and quite ossil, none o2 the De2endants, hae an oo2 hatsoeeo2 the eistence o2 an eson o entit that is the cuent one o2 an at o2 he motgages. 13. n lace o2 an adequate esonse to -lainti22FsUuali2ied =itten %equest lette 2o in2omation, on aout 4a !, "' ',Uualit ecoded a Notice o2 De2ault and Election to #ell unde Deed o(ust ?FND@. (his ND as and is 2atall de2ectie 2o the 2olloing

easons: /. -aagah "" o2 the Deed o2 (ust and N%# 1'7.'&'?"@equie the 6ende to gie notice o2 an de2ault io to acceleating thenote. B. -aagah "" o2 the Deed o2 (ust equies an notice o2 de2aultto seci2: ?a@ the de2aultK ?@ the action equied to cue the de2aultK ? c@a date, not less than 3' das 2om the date the notice is gien toBooe, hich the de2ault must e cuedK and ?d@ that 2ailue tocue the de2ault on o e2oe the date seci2ied in the notice ma< esultin acceleation o2 the sums secued this #ecuit nstument and saleo2 the suAect oet. C. -aagah 19 o2 the Deed o2 (ust gies the ooes the ight, i2 the meet cetain conditions, to hae en2ocemento2 the secuit inteest discontinued at an time io to the ealiest o2?1@ +ie das e2oe the sale, ?"@ #uch eiod as alicale la mightseci2 2o the temination o2 ooeFs ight to einstate o ?3@ ent o2a Audgment en2ocing the secuit inteest. D. Uualit and /#C do nothae, and did not hae at the times mentioned heein, a 2oeigncollectos license as equied N%# *!9.171, and ae not domesticcollection agences. E. (his ND 2ailed to coml ith aagah "" o2the note in the 2olloing asects: 1. ". 3. !. (he ND 2ailed to seci2the amount o2 the de2ault. (he ND 2ailed to seci2 the action equiedto cue the de2ault. (he ND 2ailed to seci2 the date hich thede2ault ma e cued. .J K.OO5O6 (he ND 2ailed to adise the Booeo2 ight to hae en2ocement o2 the secuit inteest discontinued i2the meet cetain conditions. 5. (he ND stated that the ene2icia

unde the deed o2 tust had alead declaed all sums secuedimmediatel due. *. (he ND 2ailed to unequiocall state that i2 thede2aults ee not cued, the amount due unde the note ould eacceleated and that the ene2icia ould conduct a 2oeclosue sale. 7.(he ND as an attemt to collect a det. +%#( C6/4 +%%E6E+ DEC6/%/(%< %E6E+ 1!. -lainti22 ealleges the a2oesaid aagahs as though set 2oth in 2ull heein. 15. N%# 3'.'!' allos an eson hose ights, status o othe legal elations ae a22ected a deedto hae the Distict Cout detemine an questions o2 constuction oalidit aising unde the instument and to otain a declaation o2ights, status o othe legal elations theeunde. 1*. (he Notice o2

De2ault and Election to #ell 2ailed to seci2 the amount o2 the de2ault.17. (he ND 2ailed to itemiGe the amount necessa to cue and a datecetain ithin hich to cue. 1&. (he ND and election to sell 2ailed tostate the Booes hae the ight to hae en2ocement o2 the secuitinteest discontinued i2 the meet cetain conditions. 19. (he ND andelection to sell stated that the ene2icia unde the deed o2 tust had


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT "1



alead declaed all sums secued immediatel due. "'. (he ND andelection to sell 2ailed to unequiocall state that i2 the de2aults ee notcued, the amount due unde the note ould e acceleated and that the(ustee ould conduct a 2oeclosue sale. "1. (he 2ailue to adhee tothe notice oisions contained in the deed o2 tust, the statement in the Notice o2 De2ault and Election to #ell declaing that the ene2icia hadalead declaed a de2ault and acceleated the oligation and the 2ailue

to gie unequiocal notice o2 acceleation and sale ae sustantialiegulaities hich ae gounds to acate the ND. "". (he -lainti22 isentitled to a declaato Audgement that the a2oesaid ND is null andoid. #ECND C6/4 +% %E6E+ DEB( C66EC(NV6/(N# "3. -lainti22 eallege# the 2oegoing aagahs asthough set 2oth in 2ull heein. "!. (his is a action 2o damages ought a indiidual consume 2o iolations o2 :he Neada +ai DetCollection la 2ound in (itle *!9 o2 the Neada %eised #tatutes. nlaticula, N%# *!9.37' oides that an iolation o2 the +edeal +aiDet Collection @actice /ct, is a iolation o2 Neada la as anindeendent state cause o2 action. (he ooing allegations ecite the2edeal laK +ai Det Collection -actices /ct, 15 8.#.C. K 1*9", et seq.?heeina2te +DC-/@, hich ae incooated into the las o2 the#tate o2 Neada, as noted aoe. (hese las ohiit det collectos 2om engaging in ausie, decetie, andun2ai actices. "5. Uualit and %(C ae det collectos as de2ined 15 8.#.C. R 1 *9"?a@?*@ and N%# *!9.'"'. "*. (he a2oesaid Notice o2De2ault and Election to #ell ecoded in the =ashoe Countt%ecodeFs 22ice ?heeina2te ND@ is a communication as de2ined R1*9"?a@?"@. ?5@. "7. (he ND 2ailed to contain the language mandated 15 8.#.C. R1*9"e?11@. "&. (he ND 2ailed to contain the languagemandated 15 8.#.c. R1*9"g?a@?1@) "9. (he ND is a 2alse anddecetie means o2 collecting a det in that it eesented the note

secued the deed o2 tust had een acceleated hen in 2act the notecannot e legall acceleated ithout 2ist sending a notice to the-lainti22 o2 a ight to cue the alleged de2ault. 3'. (he ND is a 2alseand decetie means o2 collecting a det in that it 2ailed to oide thenotices equied the undeling deed o2 tust. 31. (he da2ting,tendeing, ecodation and mailing o2 a notice o2 de2ault hich containsthe in2omation equied aagah "" o2 the Deed o2 (ust is acondition ecedent to initiate 2oeclosue oceedings and acquie theight o2 ossession o2 the oet. 3". -lainti22 is entitled to statutodamages usuant to 15 8.#.c. R1*9"H?a@ in the amount o2,.each. 33. -lainti22 is entitled to actual damages usuant to 15 8.#.C.

R1*9"H?a@ in an mount accoding to oo2 at the time o2tial. 3!.-lainti22 is entitled to easonale attone 2ees and costs o2 the action usuant .' 15 8.#.C.R1*9"H?a@. (;%D C6/4 +% %E6E+8N+/% /ND DECE-(VE (%/DE -%/C(CE# 35. -lainti22ealleges the 2oegoing aagahs as though set 2oth in 2ull heein 3*.(he Neada 8n2ai and Decetie (ade -actice /ct, N%# 59&.'9"3


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT ""



de2ines a Fdecetie tade acticeF as conducting a usiness ooccuation ithout all equied state, , count o cit licensesK N%#59&.'9"3?1@, and as iolating a state o 2edeal statute o egulationelating to the sale o lease o2 goods o seicesK N%# 59&.'9"3?3@. 37.(hat a iolation o2 N%# 59&.'9"3 is a decetie tade actice and sending the lainti22 the a2oementioned notice, /uoa has iolated oth susections ?1@ and ?3@ o2 that la, maHing the lainti22s FVictims

o2 +audF as de2med N%#!1.*''?"@?d@. 3&. (hat Uualit did not haethe equied 2oeign collectoFs license hen it sent the a2oementionednotice to the lainti22 and iolated the N%# *!9.37' incooating the+DC- /, in sending the notice that it did. 39. /s ictims o2 2aud the lainti22s ae entitled to damages, costs and attone 2ees unde N%#!1.*''?3@. +8%(; C6/4 +% %E6E+ D/4/E# +%V6/(N + N%# 59&D.'' !'. -lainti22 alleges, eallege andincooates e2eence each and ee allegation contained in the eceding aagahs. !1. -lainti22 is a ooeK one o moe o2De2endantsF o thei edecessos o successos in inteest, i2 an suchinteest eists, is a lendeK hich, one o moe o2 the lendes made theloan?s@ in question on -lainti22Fs home. !". #aid home loan?s@ eemade to -lainti22 ithout detemining that -lainti22 had :he ailit toea the loan?s@ in iolation o2 N%# 59&D. n 2act, -lainti22 asinduced to ..nte into an adAustale ate motgage ased uon omisesthat she could e2inance e2oe he inteest ate incease ould hae to e aid, thus thee as no need 2o he to hae to @oe o sho an ailitto a the ucoming inceases in motgage aments .. ++(; C6/4+% %E6E+ ?Uuiet (itle, N%# !'.'1'@ !3. -lainti22 alleges, eallegesand incooates e2eence each and ee allegation contained in the eceding aagahs. !!. n in2omation and elie2 lainti22 allegesthat no eisting de2endant ons o he omisso note o he deed o2tustK that no de2endant has standing to e a lainti22 o can 2oeclose

uon he oetK that all ights, title and inteest in he oet eesulimated into a non)2unctional secuit instument that gies no oneentit ights in indiidual notes and deeds o2 tust. !5. n in2omationand elie2 lainti22 alleges that 4E%# has intenall tans2eed anights o titles o title o loan instuments, e2uting and 2launting the%ecoding las o2 this #tate, de2auding =ashoe Count o2 %ecoding2ees and maHing it imossile to ascetain, o 2o an de2endant to oe, it has otained all the ights necessa to otain an inteest in lainti22Fs oet, thus no entit has such inteest. !*. De2endants hae laced a cloud uon lainti22Fs title. !7. -lainti22 seeHs to quiet titleagainst all de2endants and each o2 them as o2 the date o2 this comlaint.

=;E%E+%E, -lainti22 as 2o the 2olloing elie2: 1. +o adeclaato Audgment that the a2oesaid ND as imoel noticedand is null and oid a initio. ". +o a declaation that the actions taHen a 2oeign cooations, in attemting to collect a det ithout a2oeign collectoF s license ae oid a initio, and that the sameconstituted Decetie (ade -actices ithin the meaning o2N%#





59&.'9"3. 3. +o statuto damages usuant to 15 8.#.C. R1*9"H?a@, asincooated N%# *!9.37', in the amount o2 1,'''.'' 2o each lainti22 against +ist 6oan #eicing. !. +o actual damages usuant to15 8.#.C. R1*9"H?a@ as incooated N%# *!9.37', in an amountaccoding to oo2 at the time o2 tial against an and all aties causingdiect and oimate ham to the lainti22. 5. +o geneal damagesagainst de2endants in ecess o21','''.''. *. +o udgment quieting

title in lainti22sF 2ao as one in 2ee simle o2 the -oet desciedheein. (hat de2endant?s@ aud each o2 them hae no ight, title, estate,lien o inteest in the -oet adese to lainti22 sK 7. +o such otheand 2uthe damages o2 an Hind against all aties ... ma .. aea Austand oe at tial. &. +o easonale attone 2ees and costs o2 theaction....

/nd the Caenties hae a meitoious case.

AFFIRMATION P1r1275 5o NRS !-B#**

D/(ED this anua 13, "'1":

OsO Zach Coughlin

Zach Coughlin, Esq.

/ttone 2o -lainti22s oan E. and ames Caentie


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT "!



DECLARATION OF JAMES S CARPENTIER AND JOAN E# CARPENTIER

27= ZACH COUGHLIN, ES$# IN SUPPORT OF SUPPLEMNT TO MOTION

TO SET ASIDE ORDER 27= REPLY TO OPPOSITION TO MOTION TO SET

ASIDE ORDER

1. (his Declaation is made usuant to the oisions o2 N%# 53.'!5, e ae esentl

in the #tate o2 Neada and declae unde enalt o2 eAu that the 2oegoing is tue

and coect.

". Declaants ae the -lainti22s in CV'&)'17'9 o attone o2 ecod.

3. Declaants ae that the 2actual statements set 2o aoe in this %el to osition

to -lainti22Fs 4otion to #et /side and in the ealie 2iled -lainti22Fs 4otion to #et /side

ae ae accuate.

!. , /4E# # C/%-EN(E% and , /N E. C/%-EN(E%, and Z/C; C8;6N

ae aailale to testi2, i2 necessa, as to these mattes. declae unde enalt o2

eAu that the 2oegoing is tue and coect.

Eecuted on anua 13, "'11

Os[ im Caentie /4E# # C/%-EN(E% -6/N(++

oen E. Caentie /N E C/%-EN(E% -6/N(++

OsO Zach CoughlinZach Coughlin, Esq.attone 2o the Caenties





PROOF OF SERVICE

, Zach Coughlin, declae, that on anua 13, "'1", caused the 2oegoing to

e delie to all named De2endantFs in this action, electonic 2iling to:

Sistin /. #chule);intG, Esq.Chistoe ;unte, Esq.4cCath J ;olthus, 66-951' =. #ahaa /e., #uite 11'6as Vegas , NV &9117-hone: 7'")*&5)'3"9+a: &**)339)5*91HhintG0mccathholthus.com/tt 2o DE+(F# %E#DEN(/6 C%ED( #68(N# NC, /ND U8/6(<

6/N #E%VCE C%-%/(NF#

/nd ia delieing to thei attoneFs o2 ecod e2iling ?i2 he is an e2ile@, 2a,email and deositing a tue and coect co o2 this document in the 8# mail on thisdate addessed to:

Eic B. Zimelman, Esq.-eel Bimle, 66-"'1! E. 4adison, #uite 1''#eattle , =/ 9&1""-hone: "'*)77')3339+a: "'*)77')3!9'

eGimelman0eelimle.com

/tt 2o DE+(F#=ND#% 4/N/E4E(N C. /ND /CC%ED(ED;4E 6ENDE%#, NC. /# #8CCE##% N N(E%E#( ( //4E# +8NDNC%-%/(N DB/ //4E# ;4E 6/N

D/(ED this anua 13th, "'1"

OsO Zach Coughlin

Zach Coughlin, Esq.

/ttone 2o -lainti22s oni and ames Caentie%


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT "*





Clerk of the Court


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6 IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA

7 IN AND FOR THE CONTY OF WASHOE

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JAMES S. CAPENTIER; and JOAN ECARPNTIER,

Plaintiffs,

vs

AAMES FUNDING CORPORATION DBAAAMES HOME LOAN, a Califoiacorporation; WINDSOR MANAGEMENTCOMPANY, a Califoia corporation;RSIDNTIAL CREDIT SOLUTIONS,INC, a Texas corporation; QUALITYLOAN SERVICE CORPORATION, aCalifoia corporation; and DOS I throughX, inclusive,

Defendant-

Case No.:

Dept. No.:

19 ORDER

CV08-01709

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20 Currently before this Court is Plaintiffs JAMES S CARPENTIER and JOAN

21 CARPENTIER's (collectively "the Carpentiers) Emergency Motion for TROIlnjunction; 0

22 Pled in the Alt e ative; Mot i on to Set Asi d e Order Granting Summar y Judgment ("Emergenc

23 Motion) led on December 31, 2011. On Juary 4, 2012, Def endants RSIDENTIA

24CDIT SOLUTIONS, INC ("RCS) and QUALITY LOAN SERVICE CORPORATIO

25 ("Quality) (collectivl "efendants) led a Request for Rule 11 Sanctions and Opposit i on t

26 Emergency Motion fo r TROIlnjunction or i n the Aternative Mot ion to Set A side Orde r Grantin

27 Summ ary Judg ment. On Januy 11, 2012, the Car pentiers fled a Re ply to Op position t

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1 Paint 's Emer gency M otion for T ROIlnjunction; or Ped in the Atern ati ve Motion to Se

2 Aside O rder Grati ng Summ ary Judg ment. This Order now follow s.

3 BACKGROUND

4 This case involves a residential foreclosure The real property involved is 2873 Sunn

5 Slope Drive Sparks Nevada 89434 ("the Property) On May 42005 the Carpentiers execute

6 a promissory note for $17080000 in favor of Aames Funding Corporation DBA Aames Hom

7 Loan ("Aames) and secured the note with a deed of trst on the Property The deed of trst wa

8 recorded that same day At some point thereaer the Caentiers defaulted on the note 0

9 March 10 2008 Aames alegedly assigned the deed of trst to Deutsche Bank National Trs

10 Company in its capacity as indenture trustee for the Noteholders of Aames Mortgage Investmen

11 Trust 20052 ("Deutsche)

12 However two days aer that on March 12 2008 Quality not Aames the origina

13 lender or Deutsche the puorted trustee led a Notice of Breach d Default and of Electio

14 to Cause Sale of Real Property Under Deed of Trust ("NOD) conceing the Property In

15 ostensible attempt to "cure this discrepancy etoactivey, on April 182008 Jennifer Lennon

16 puorted Vice President for Deutsche executed a Substitution of Trstee on Deutsches behal

17 and substituted Quality as the trstee

18 On May 9 2008 the assignment that allegedly occurred on March 102008 was nall

19 recorded thereby making Deutsche the trustee Again it appears this recording was an attemp

20 to make Deutsche the trustee etoactivey which in tu would make valid (a) Deutsche

21 Substitution of Trstee to Quality and (b) Qualitys ling of the NOD According to Defendants

22 RCS has always been the servicer of the loan

23 On June 26 2008 the Cpentiers led a Compaint againstinte aia, Defendants an

24 Aames alleging unfair lending practices under NRS 598D00 The Carpentiers alleged Aame

25 intentionally inated the Cpentiers monthly income in order to quali them for the loan I

26 addition to treble damages, the Carpentiers sought a preliminary injunction to prevent th

27 scheduled f oreclosure on the Property On August 19,2008,this Court gr anted the Ca rpentiers

28 request for a preliminary injunction

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1 Dfndants ld an An swer on Sptmr 29, 2008 gnra lly dnying th Carpntirs

2 allegations and asserting severa l a frmative defenses. Defendants la ter led a Motion fo

3 Summa Judgment ("MSJ) on Jun 23 2010 In thir MSJ, Dfndants avrrd th

4 Cantirs' Compaint focusd on ams xclusivly and containd no allgations of unfai

5 lnding practics against RCS or Quality othr than vagu allgations that ams and RC

6 ord to provid th Carpntirs ith fals or fraudulnt W2 forms On uly 15 2010 thi

7 Cour grantd Dfndants' M on th grounds that th Carpntirs "faild to l an Oppositio

8 or any rsponsiv plading. Pursut to District Court Rul 13(3) this Court construd such

9 failur as an admission that th M as mritorious. Th Carpntirs nithr appald thi

10 dcision nor rqustd rconsidration.

11 On Octor 3 2011 Quality rcordd a Notic of Sal to commnc th forclosur 0

12 Dcmr 31 2011 th Cantirs y and through ir n counsl Zach Coughlin Esq.

13 ld th aovmntiond Emergency Motion, in hich thy rqustd an injunction to prvn

14 th forclosur damags in xcss of $10000.00 trl damags and sctions undr Nvada'

15 Forclosur Mdiation Program In th altativ th Cpntirs rqustd this Court to s

16 asid th Order granting Dfndnts' MSJ on th grounds that Dfndants' M incorrct!

17 containd "Clark County instad of "Washo County in th caption

18 DISCUSSION

19 In thir Opposition to th Carpntirs' Emergency Motion, Dfndants avr th

20 Emergency Motion is procdurally impropr undr NRCP 65(); that th Carpntirs hav n

21 rasonal proaility of succss on th mrits caus judgmnt has alrady n ntr

22 against thm; that th Carpntirs hav faild to stalish xcusal nglct to xplain thi

23 failur to oppos Dfndants' M and that th Emrgncy Motion is untimly undr NRCP 60

24 ThusDfndants contnd th Emergency Motion should dnid This Court agrs25 Legal Standards

26 prliminary injunction is availal hn th moving party can dmonsat that th

27 nonmoving party's conduct, if allow d to continu, will ca us irrpara l harm for whic

28 compensa tory r elief is inadequate and that the moving party has a reasonable likelihood 0

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1 success on the mer its.'" Finkel v. Cashman Professional, Inc. 128 Nev. Adv. Op. 6, 270, P.3

2 1259, 1262 (Mr. 12012) (quoting B oulder Oa ks Cmty Ass'n v. B & J Andrew s, 125 Nev. 397

3 03215 P.3d 2731 (2009.

Under NRCP 60(b), the district cour may relieve a party fr om a na l judgment for th

5 following r easons: (1) mistake, ina dverence, surprise, or neglect; (2) new ly discovered evidence

(3) fraud, misrepr esenta tion, or misconduct by the a dverse party; (4) void jUdgment; or (5) th

7 judgment has been satised, released, or discha rged. The district court's gra nt or denia l unde

8 NRCP 60(b) on the grounds of mistake, inadvertence, surprise or excusa ble neglect "w ill not b

9 disturbed upon appeal absent an a buse of discretion. Lindblom v. Prime Hospitali Cor. 12

10 Nev. 372, 375, 90 P.3d 1283, 1284 (2004) (citation omitted). "A pa rty must make an applicatio

11 for relief under NRCP 60(b)(1) w ithin six months aer entry of the judgment." Id., 90 P .3d a

12 12885.

13 Legal nalysis

1 In this case the merits of the Caentiers claim i.e the allegations contained in th

15 Carpentiers' Compaint, have been addicated by this Cor. See aentier v. Aames CV08

1 01709 (Jly 15 2010. Conseqently the Carpentiers caot satisfy a necessary element of

17 preliminary innction reqest namely that the moving partyhere the Carpentiershas

18 reasonable likelihood of sccess on the merits. On that grond alone therefore the Carpentiers

19 Emegency Motion is DENED. In addition this Cort concldes the Carpentiers' alteativ

20 reqest to set aside the Oe granting suary dgment is ntimely becase it was led nearl

21 eighteen months aer the Oe' entry. See Lindblom 120 Nev. at 37590 P3d at 128-85.

22 With regard to Defendants reqest for Rle 11 sanctions against Mr. Coghlin thi

23 Cort nds as follows. Notwithstanding the nprofessional character of Mr. Coghlin

2 pleadingsparticlarly the excessive page length incongros formatting allegations regardin

25 nrelated personal matters and nintelligible and frivolos allegations abot other collatera

2 mattersthis Cort will not isse sanctions against Mr. Coghlin for this condct This Order

27 however shall serve as notice to Mr. Coghlin to condct himself in the tre in accordanc

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1 with NRC 11th local ruls of practic in this districtth gnral ruls of practic in Nvad

2 district courtsand th Nvada Ruls of rofssional Conduct.

3 Finally this Cour maks th following obsrvations. Th argumnts raisd by th

4 paris in thir pladings gnra lly circumscrib th adjudica tory bounda ris of this Cour. S

�,B reliant v. Preferred Eq uities Cor . 109 Nev. 842,847,858 P2d 1258, 1261 (1993

(stating a district cour generally may not consider maters outside of the plea dings whe

7 review ing a motion to dismiss). As such, this Court takes no position on whether the nanci

8 institutions in this case follow ed the law when they wer e lining up the documents to foreclose 0

the Proper y. Nonetheless, the ma nner and timing in which these institutions- paricular

10 AamsDutschd Qualityrcordd th assigmntld th ubstitution of Trust

11 ld th Notic of Dfaultis suspicious and troubling to this Cour

12 CONCLUSON

13 Accordinglyth Cantirs' Emergency Motion for TROIlnjunction; or Ped in th

14 Aternative; Motion to Set Aside Order Granting Summary Judgment is DENED

1 T S SO ORDERED.

1 DATED this day of April2012.

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ATRICK FLANADistrict Judg



CERTIFICATE OF SERVICE

Pursuat to NRCP 5(b), I hereby certi that I a a employee o the Secod Judicia l

3 Distr ict Court of the Sta te of Nevada , County of Wa shoe; tha t on this r day of April, 2012

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I lctroically ld th ollowig with th Clrk o th Court by usig th ECF systm which

will sd a otic o lctroic lig to th ollowig

Zachary Coughli, Esq or th Carptirs; ad

Kristi SchulrHitz, Esq or RCS

I dpositd i th Washo Couty mailig systm or postag ad mailig with th

Uitd Stats Postal Srvic i Ro, vada, a tru copy o th attachd documt addrssd

to:

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Document Code:Zach Coughlin, Esq.

PO BOX 3961

eno, !" #9$%$

&ele: ''$(33#(#11#)a*: 9+9(66'('+%ZachCoughlin-hotmail.comtto/ne0 o/ 2oan and 2ames Ca/entie/

4! &5E ECO!D 27D4C48 D4&4C& CO7& O) &5E &&E O) !E"D

4! !D )O &5E CO7!& O) 5OE

2;E CPE!&4E, E& 8,

Plainti

<.

;E )7!D4!= COP E&8,

Deendant

>>>>>>>>>>>>>

CE !O: C"%#(%1'%9

DEP&: D'

MOTION TO ALTER OR AMEND ORDER, OR NEW TRIAL, OR PLED IN

THE ALTERNATIVE, MOTION FOR RECONSIDERATION

Plaintis 2;E . CPE!&4E and 2O! E CPE!&4E?s @collecti<el0 Athe

Ca/entie/sA>, he/e0, th/ough thei/ atto/ne0, Zach Coughlin, Esq. )ile this ao<e title ;otion in

/esonse to this Cou/ts /ecent O/de/ o +%1, ased this ;otion and the ae/s and leadings on ile in

this matte/. 4t is imo/tant to note that a !otice o escission o the !otice o Deault in this case /om

%%# as iled on +61. s such, this nel0 disco<e/ed e<idence /o<ides a asis o/ alte/ing o/

amending the /ecent O/de/ o this Cou/t he/ein the ;otion o/ elie /om 2udgment as denied. &he

- 1

;O&4O! &O 8&E O ;E!D ODE, O !E &48, O P8ED 4! &5E 8&E!&4"E, ;O&4O! )OECO!4DE&4O!



Clerk of the Court




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unde/signed taes heed o the ule 11 a/ning gi<en 0 this Cou/t and a/eciates the oo/tunit0 to

st/i<e to do ette/ henceo/th. dditionall0, the Ft/oulingG asects o the <a/ious attemts to assign

and sustitute &/ustee?s, /et/oacti<el0, he/e, /o<ide a /aud ased asis o/ alte/ing o/ amending the

/ecent O/de/ o/ othe/ise alloign o/ some /elie /om 2udgment.

7no/tunatel0, this iling is liel0 not much o an im/o<ement uon /ecent ilings, hoe<e/, the

unde/signed as inca/ce/ated, again, /om /il 19th to /il 'th due to 8aes C/ossing /eo/ting to

2udge Elliot disa<o/al0 uon the unde/signed?s a/ticiation in a cometenc0 e<aluation, he/ein the

unde/signed sought to maintain some sh/ed o /i<ac0 <is a <is his health ca/e, and not e unished o/

electing to utiliHe the ulic deende/, and not to e /etaliated against o/ c/iticiHing some o that ulic

deende/?s a/oaches.

Essentiall0, this ;otion sees to ha<e this Cou/t /ule on the act that the O/de/ g/anting

Deendant?s ;otion o/ umma/0 2udgment as <oid gi<en that the P/oo o e/<ice on that ;otion o/

umma/0 2udgment indicated it as mailed to one ho as no longe/ atto/ne0 o /eco/d, in addition to

the cou/t name o/ count0 o/ case nume/ eing /ong on the <a/ious ;otions to Dismiss, and o/

;otions o/ umma/0 2udgment. )ailu/e to adequatel0 add/ess the ;otion )o/ umma/0 Iudgment

/esent a 6%+ asis o/ set aside gi<en the lac o se/<ice o/ notice. )ailu/e o se/<ice o notice )ault0

se/<ice o /ocess /o<ided good cause to set aside deault Iudgment. ;ichel <. Eighth 2udicial Dist.

Cou/t e* /el. Count0 o Cla/, %%1, 1' P.3d 1%%3, 11' !e<. 1+$, /ehea/ing denied. F motion to set

aside a <oid Iudgment need not e made ithin si* months? e/iod seciied 0 /ule. !CP 6%@>.

)oste/ <. 8eis, 196, 3' P.d 6'9, '# !e<. 33%. Consent Iudgment quieting title to land hich had

een u/chased at ta* sale could e set aside on motion o count0 onl0 i it as <oid he/e mo/e than

si* months had elased since its ent/0. !CP 6%@>. Cla/ Count0 <. 8eis, 19', +9# P.d 363.G

Plaintis e/e not de/i<ed o due /ocess o la as a /esult o the ent/0 o deault Iudgment against

them in state cou/t desite deut0 constale?s alleged ailu/e to se/<e laintis ith /ocess, ecause no

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inal Iudgment had een ente/ed against laintis in the state cou/t, and state la /o<ided laintis

ith the oo/tunit0 to /equest a hea/ing to <acate deault Iudgment and to otain a t/ial on the me/its

/io/ to ent/0 o a inal Iudgment. 7..C.. Const.mends. $, 1+. ;cCulloch <. ashoe Count0, 19#3,

'% ).d 1%%. Constitutional 8a +%1% Plaintis e/e not de/i<ed o /oe/t0 ithout due /ocess

o la 0 ent/0 o deault Iudgment against them ased on allegedl0 alse aida<it o deut0 constale,

he/e state ao/ded mo/e than adequate ostde/i<ation /emedies hich, i /oe/l0 u/sued, ould

eliminate ossiilit0 o sustantial damage. !e<.ules Ci<.P/oc., ules $$@a, c>, 6%@c>J 7..C..

Const.mend. 1+. ;cCulloch <. ashoe Count0, 19#, $$1 ).u. 1%, ai/med '% ).d 1%%.

t some oint the/eate/, the Ca/entie/s deaulted on the note. % ;a/ch 1%, %%#, ames

allegedl0 assigned the deed o t/ust to Deutsche Ban !ational &/us Coman0 in its caacit0 as

indentu/e t/ustee o/ the !oteholde/s o ames ;o/tgage 4n<estmen &/ust %%$( @ADeutscheA>.

5oe<e/, to da0s ate/ that, on ;a/ch 1, %%#, Kualit0 ( not ames, the o/igina lende/ o/ Deutsche,

the u/o/ted t/ustee ( iled a !otice o B/each and Deault and o Electio to Cause ale o eal

P/oe/t0 7nde/ Deed o &/ust @A!ODA> conce/ning the P/oe/t0. 4n ostensile attemt to Acu/eA this

disc/eanc0 /et/oacti<el0, on /il 1#, %%# 2ennie/ 8ennon, u/o/ted "ice P/esident o/ Deutsche,

e*ecuted a ustitution o &/ustee on Deutsche?s ehal and sustituted Kualit0 as the t/ustee. On ;a0

9, %%#, the assignment that allegedl0 occu//ed on ;a/ch 1%,%%# as inall /eco/ded, the/e0 maing

Deutsche the t/ustee. gain, it aea/s this /eco/ding as an attem to mae Deutsche the t/ustee

/et/oacti<el0, hich, in tum, ould mae <alid: @a> Deutsche? ustitution o &/ustee to Kualit0 and @>

Kualit0?s iling o the !OD. cco/ding to Deendants C has ala0s een the se/<ice/ o the loan. On

2une 6, %%#, the Ca/entie/s iled a Comlaint against, inte/ alia, Deendants an ames alleging

unai/ lending /actices unde/ ! $9#D.4%%. &he Ca/entie/s alleged ame intentionall0 inlated the

Ca/entie/s? monthl0 income in o/de/ to quali0 them o/ the loan. 4 addition to t/ele damages, the

Ca/entie/s sought a /elimina/0 inIunction to /e<ent th scheduled o/eclosu/e on the P/oe/t0. On

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ugust 19,%%#, this Cou/t g/anted the Ca/entie/s? /equest o/ a /elimina/0 inIunction. Deendants

iled an nse/ on eteme/ 9, %%# gene/all0 den0ing the Ca/entie/s? allegations and asse/ting

se<e/al ai/mati<e deenses. Deendants late/ iled a ;otion o umma/0 2udgment @A;2A> on 2une

3, %1%. 4n thei/ ;2, Deendants a<e//ed th Ca/entie/s? Comlaint ocused on ames e*clusi<el0

and contained no allegations o unai lending /actices against C o/ Kualit0, othe/ than <ague

allegations that ames and C oe/ed to /o<ide the Ca/entie/s ith alse o/ /audulent o/ms.

On 2ul0 1$, %1%, thi Cou/t g/anted Deendants? ;2 on the g/ounds that the Ca/entie/s Aailed to ile

an Oositio o/ an0 /esonsi<e leading.A Pu/suant to Dist/ict Cou/t ule 13@3>, this Cou/t const/ued

such ailu/e as an admission that the ;2 as me/ito/ious. &he Ca/entie/s neithe/ aealed thi

decision no/ /equested /econside/ation. On Octoe/ 3, %11, Kualit0 /eco/ded a !otice o ale to

commence the o/eclosu/e. % Deceme/ 31, %11, the Ca/entie/s, 0 and th/ough thei/ ne counsel

Zach Coughlin, Esq. iled the ao<e(mentioned Eme/genc0 ;otion, in hich the0 /equested an

inIunction to /e<en the o/eclosu/e, damages in e*cess o L1%,%%%.%%, t/ele damages and sanctions

unde/ !e<ada? )o/eclosu/e ;ediation P/og/am: 4n the alte/nati<e, the Ca/entie/s /equested this Cou/t

to se aside the O/de/ g/anting Deendants? ;2 on the g/ounds that Deendants? ;2 inco//ectM

contained ACla/ Count0A instead o Aashoe Count0A in the cation.

D4C74O!

4n thei/ Oosition to the Ca/entie/s? Eme/genc0 ;otion, Deendants a<e/ th Eme/genc0 ;otion is

/ocedu/all0 im/oe/ unde/ !CP 6$@>J that the Ca/entie/s ha<e n /easonale /oailit0 o success

on the me/its ecause Iudgment has al/ead0 een ente/e against themJ that the Ca/entie/s ha<e ailed to

estalish e*cusale neglect to e*lain thei ailu/e to oose Deendants? ;2J and that the Eme/genc0

;otion is untimel0 unde/ !CP 6% &hus, Deendants contend the Eme/genc0 ;otion should e

denied. &his Cou/t ag/ees. 8egal tanda/ds

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?A /elimina/0 inIunction is a<ailale hen the mo<ing a/t0 can demonst/ate that th nonmo<ing

a/t0?s conduct, i alloed to continue, ill cause i//ea/ale ha/m o/ hic comensato/0 /elie is

inadequate and that the mo<ing a/t0 has a /easonale lielihood % success on the me/its.?A )inel <.

Cashman P/oessional, 4nc., 1# !e<. d<. O. 6, '%, P.3 1$9, 16 @;a/. 1,%1> @quoting Boulde/

Oas Cmt0. ss?n <. B N 2 nd/es, 1$ !e<. 39' +%3,1$ P.3d ',31 @%%9>>.

7nde/ !CP 6%@>, the dist/ict cou/t ma0 /elie<e a a/t0 /om a inal Iudgment o/ th olloing

/easons: @1> mistae, inad<e/tence, su//ise, o/ neglectJ @> nel0 disco<e/ed e<idence @3> /aud,

mis/e/esentation, o/ misconduct 0 the ad<e/se a/t0J @+> <oid I7dgmentJ o/ @$> th Iudgment has een

satisied, /eleased, o/ discha/ged. &he dist/ict cou/t?s g/ant o/ denial unde !CP 6%@> on the g/ounds

o mistae, inad<e/tence, su//ise o/ e*cusale neglect Aill not distu/ed uon aeal asent an

ause o disc/etion.A 8indlom <. P/ime 5ositalit0 Co/., 1 !e<. 3', 3'$, 9% P.3d 1#3, 1#+

@%%+> @citation omitted>. A a/t0 must mae an alicatio o/ /elie unde/ !CP 6%@>@1> ithin si*

months ate/ ent/0 o the Iudgment.A 4d., 9% P .3d a 1#+(#$.G

5oe<e/, Fi* months? limitation has no alication to action o/ /elie /om Iudgment ecause

o e*t/insic /aud. !CP 6%@>.G ;an<ille <. ;an<ille, 1963, 3#' P.d 661, '9 !e<. +#'. &he <e/0

asects o this case that this Cou/t ound t/ouling /o<ide suo/t o/ /oceeding unde/ this asis.

8egal nal0sis

&his cou/t /ecentl0 O/de/ed, F 4n this case, the me/its o the Ca/entie/s? claim, i.e. the allegations

contained in th Ca/entie/s? Comlaint, ha<e een adIudicated 0 this Cou/t. ee Ca/entie/ <. ames,

C"%# %1'%9 @2ul0 1$, %1%>. Consequentl0, the Ca/entie/s cannot satis0 a necessa/0 element o

/elimina/0 inIunction /equest, namel0 that the mo<ing a/t0(he/e, the Ca/entie/s(has /easonale

lielihood o success on the me/its. On that g/ound alone, the/eo/e, the Ca/entie/s? Eme/genc0

;otion is DE!4ED.G

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5oe<e/, F1. hethe/ the mo<ant has made a shoing o lielihood o success on the me/its.

Because this Cou/t has al/ead0 ente/ed Iudgment against o0ce in this ad<e/sa/0 /oceeding, the Cou/t

is not /ea/ed to conclude that o0ce has shon a lielihood o success on the me/its. 5oe<e/, Fthe

aellant need not ala0s sho a /oailit0 o success on the me/itsJ instead, the mo<ant need onl0

/esent a sustantial case on the me/its hen a se/ious legal question is in<ol<ed and sho that the

alance o the equities eighs hea<il0 in a<o/ o g/anting the sta0.G /nold, '# ).3d at +39 @citations

omitted>J )i/st outh a<ings, #% ).d at '%+. o0ce has /esented tent0(one oints o e//o/

challenging this Cou/t?s indings o act and conclusions o la. &hese oints o e//o/ include the

Cou/t?s indings on hethe/ an otion cont/act ma0 e suIect to to/tious inte/e/ence, hethe/ the

Cou/t ased the 2udgment on acts not leaded, hethe/ o0ce had a good aith claim Iusti0ing its

inte/e/ence ith the a/atoga /ings cont/act, and hethe/ the Cou/t e//ed in aa/ding consequential

damages and /eIudgment inte/est d<. Doc. !o. $%, . Q$R. hile in this Cou/t?s <ie o0ce does

not ha<e a high /oailit0 o success, the Cou/t is unilling to de/i<e o0ce o its oo/tunit0 to sta0

the 2udgment ending aeal ithout i/st conside/ing the inte/ests at stae. 4n /e ;ounce, !o. %3Q

$$%, %%# 8 '1++3, at S @.D.&e*. 2ul0 1%, %%#> @stating that F... cou/ts should not den0

alications o/ a sta0 ending aeal siml0 ecause the mo<ant has ailed to demonst/ate its

lielihood o success on the me/itsG>. cco/dingl0, the Cou/t eighs this i/st acto/ against the othe/

th/ee acto/s discussed elo to dete/mine hethe/ Fthe alance o the equities eighs hea<il0 in a<o/

o g/anting the sta0 .G /nold, '# ).3d at +39. B/tc0..D.&e*.,%%#. 4n /e Dece/ Oas De<eloment

44, 8td. !ot eo/ted in B.., %%# 8 #11' @B/tc0..D.&e*.>. C ule 13. Citation to

unulished oinions and o/de/s. n unulished oinion o/ o/de/ o the !e<ada u/eme Cou/t shall

not e /ega/ded as /ecedent and shall not e cited as legal autho/it0 e*cet hen the oinion o/ o/de/

is @1> /ele<ant unde/ the doct/ines o la o the case, /es Iudicata o/ collate/al estoelJ @> /ele<ant to a

c/iminal o/ discilina/0 /oceeding ecause it aects the same deendant o/ /esondent in anothe/ such

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/oceedingJ o/ @3> /ele<ant to an anal0sis o hethe/ /ecommended disciline is consistent ith

/e<ious disciline o/de/s aea/ing in the state a/ ulication. &he ao<e is not a !e<ada u/eme

Cou/t Oinion, hoe<e/.

Dist/ict cou/t had the oe/ to o/de/ ostonement o lainti?s scheduled o/eclosu/e sale in one

o to a0s: the mo<ing a/t0 could ha<e comlied ith the /ules o/ an inIunction, o/ secu/ed the

stiulation o othe/ a/t0. ules Ci<.P/oc., ule 6$. Hilag0i <. &esta, 19#3, 6'3 P.d +9$, 99 !e<. #3+.

hen /esented ith a motion o/ a disc/etiona/0 sta0 ending aeal, Cou/t o eals emlo0s

ou/(a/t test, asing @1> hethe/ mo<ant has made a shoing o lielihood o success on me/its, @>

hethe/ the mo<ant has made a shoing o i//ea/ale inIu/0 i sta0 is not g/anted, @3> hethe/

g/anting sta0 ould sustantiall0 ha/m othe/ a/ties, and @+> hethe/ g/anting sta0 ould se/<e the

ulic inte/estJ hile each a/t must e met, mo<ant need not ala0s sho a /oailit0 o success on

the me/its, ut instead, need onl0 /esent a sustantial case on the me/its hen a se/ious legal question

is in<ol<ed, and sho that the alance o the equities eighs hea<il0 in a<o/ o g/anting the sta0.

)...P.ule #, # 7..C.. /nold <. =a/loc, 4nc., '# ).3d +6, $1 )ed..e/<.3d 1%+, @C..$

@&e*.>,%%1>.

&his Cou/t?s /ecent O/de/ held that F4n addition, this Cou/t concludes the Ca/entie/s? altemati<

/equest to set aside the O/de/ g/anting summa/0 Iudgment is untimel0 ecause it as iled nea/l

eighteen months ate/ the O/de/?s ent/0. ee 8indlom, 1% !e<. at 3'$,9% P.3d at 1#+(#$.G )inall0,

this Cou/t maes the olloing ose/<ations. &he a/guments /aised 0 th a/ties in thei/ leadings

gene/all0 ci/cumsc/ie the adIudicato/0 ounda/ies o this Cou/t. ee T,B/eliant <. P/ee//ed Equities

Co/., 1%9 !e<. #+, #+', #$# P.d 1$#, 161 @1993 @stating a dist/ict cou/t gene/all0 ma0 not

conside/ matte/s outside o the leadings he /e<ieing a motion to dismiss>. s such, this Cou/t taes

no osition on hethe/ the inancia institutions in this case olloed the la hen the0 e/e lining u

the documents to o/eclose % the P/oe/t0. !onetheless, the manne/ and timing in hich these

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institutions(a/ticula/l ames, Deutsche, and Kualit0(/eco/ded the assignment, iled the ustitution o

&/ustee, an iled the !otice o Deault, is susicious and t/ouling to this Cou/t.

&he sustitution o Kualit0 8oan e/<icing as the o/eclosu/e t/ustee as not /eco/ded. 7nde/

the Deed o &/ust eco/ded on /il 1#, %%$, indso/ ;anagement Co. as named as the &/ustee.

!o document could e ound ith the eco/de/?s Oice indicating an0 entit0 sustituted Kualit0 8oan

e/<icing as the o/eclosu/e t/ustee unde/ the Deed o &/ust.

31. Deendant?s ha<e sustantiall0 dea/ted /om the notice, manne/ o se/<ice, and /ocess

/equi/ements o <a/ious la, including, ut not limited to ! 1%'.%#%. hen inqui/0 as made ith

Deendant?s as to the asis, /easoning, and Iustiications o/ the dea/tu/es, Plainti?s e/e told that Fits

0ou/ o/d against ou/sG and othe/ise /esonded to in a hostile, agg/essi<e, and deceti<e manne/.

;o/e disco<e/0 is in o/de/ in this /ega/d.

5oe<e/, as ;/. Zimelman /o<ided, the /il %%9 Ban/utc0 iling in Delaa/e 0

Zimelman?s client listed, in the C/edito/ ;at/i*, a FC/edito/ !otice !ameG o alsh, Bae/, N

ose<ea/, the Ca/entie/s then o/me/ atto/ne0, as 2ames alsh?s ;otion to ithd/a as Counsel had

een g/anted 0 this cou/t On 2anua/0 , %%9, ith alsh iling a !otice o Ent/0 o that O/de/ on

2anua/0 6, %%9, in lent0 o time o/ Zimelman?s client to udate the FC/edito/ !otice !ameG and

add/ess to /elect the act that alsh as not atto/ne0 o /eco/d /o the Ca/entie/s an0mo/e, and that

those notices should ha<e een sent di/ectl0 to the Ca/entie/s.

33.4ndeed, ;/. Zimelman?s CE&4)4C&E O) E"4CE Pu/suant to !CP $@>, o/ his ;a0 19,

%%9 iling o !O&4CE O) B!U7P&C )484!= !D 7&O;&4C & /eads: F4 ce/ti0 that

4 am an emlo0ee o PEE8 B4;8E 88P and that on this 19th da0 o ;a0, %%9 4 caused the ao<e

and o/egoing document entitled !O&4CE O) B!U7P&C )484!= !D 7&O;&4C & to

e se/<ed as ollos: * 0 lacing same to e deosited o/ mailing in the 7nited tates ;ail, in a

sealed en<eloe uon hich i/st class ostage as /eaid in 8as "egas, !e<adaJ ando/ * to e sent

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<ia acsimileJ to the a/t0@ies> ando/ atto/ne0@s> listed elo at the add/ess ando/ acsimile nume/

indicated elo:

2ames ;. alsh, Esq.

alsh, Bae/ N ose<ea/, P.C .

9+6# Doule Bl<d. uite

eno, !e<ada #9$1

tto/ne0s o/ 2ames . Ca/entie/ and 2oan E. Ca/entie/

3+.)u/the/, ;s. chule/(5intH ailed to /esond a/o/iatel0 to the O/de/ =/anting alsh?s

ithd/aal as tto/ne0 o eco/d, and the susequent !otice o Ent/0 o that O/de/ on 2anua/0 6,

%%9. 5intH? ;otion to Dismiss o/ in the lte/nati<e )o/ umma/0 2udgment listed alsh o/ the

P/oo o e/<ice as ell: F 4 he/e0 ce/ti0 that on the +th da0 o 2une a t/ue and co//ect co0 o

DE)E!D!&?s E4DE!&48 CED4& O87&4O!, 4!C., !D K784& 8O! E"4CE

COPO&4O!? ;O&4O! &O D4;4 O 4! &5E 8&E!&4"E )O 7;;

27D=;E!& as o/a/ded 0 7 ;ail ith ostage /eaid to the add/esses listed elo:

2ames ;. alsh

alsh, Bae/ N ose<ea/

9+6# Doule Bl<d. uite

eno, !e<ada #9$1 tto/ne0 o/ Plainti

)u/the/, the cation on ;s. 5intH ;otion indicates the case is in Dea/tment +, desite the act

that m )e/ua/0 11, %%9, a Case ssignment !otiication Ent/0 as ente/ed in the docet o/ this

case C"%#(%1'%9, indicating this CE E4=!ED &O DEP&;E!& ' )O;

DEP&;E!& + PE D;4!4&&4"E ODE.

3$.&hen, o/ some /eason that is not quite clea/, desite his co counsel chule/(5intH ha<ing iled a

;otion o/ umma/0 2udgment on 2une +th, %%9 in the econd 2udicial Dist/ict Cou/t o/ ashoe

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Count0 in this action, C"%#(%1'%9, Ch/istoe/ 5unte/, Esq. )iled a somehat simila/ ;otion o/

umma/0 2udgment in C"%9(%1'%9, @old emhasis added> in a ;otion hich ea/s a /ont age

heading, ao<e the cation, that /eads:

FD4&4C& CO7&

C8U CO7!&, !E"DG

)u/the/, the cation on ;/. 5unte/?s 2une 3/d, %1%, ;otion )o/ umma/0 2udgment indicates

the case is in Dea/tment +, desite the act that )e/ua/0 11, %%9, a Case ssignment !otiication

Ent/0 as ente/ed in the docet o/ this case C"%#(%1'%9 @much less the ugiti<e o/ ictitious case

C"%9(%1'%9 that ;/. 5unte/ listed in the Cation, in a Cla/ Count0 Dist/ict Cou/t case iled in

ashoe Count0>, indicating this CE E4=!ED &O DEP&;E!& ' )O; DEP&;E!&

+ PE D;4!4&&4"E ODE. o, the Ca/entie/s e/e u/dened ith oth atto/ne0s sending

imo/tant leadings to one ho as no longe/ tto/ne0 o eco/d o/ the Ca/entie/s, desite a !otice

o Ent/0 o that O/de/ =/anting ithd/aal o 2ames alsh, Esq., in addition to ;/. 5unte/ utting the

/ong cou/t and the /ong case nume/ on a ;otion o/ umma/0 2udgment that ould ha<e

nonetheless

gain, in his ugust $, %%9 Ce/tiicate o e/<ice o/ his ;otion o/ umma/0 2udgment, ;/.

5unte/ uts in the cation the /ong case nume/ and the /ong Dea/tment nume/, listing C"%9(

%1'%9 and Dea/tment + he/e C"%#(%1'%9 and Dea/tment ' should e. )u/the/, the 2une 9, %%9

!otice o 8odgement as sent to onl0 Zimelman. )u/the/ in he/ Ce/tiicate o e/<ice o/ that !otice

o 8odgement, iled sea/atel0 on ugust $, %%9, ;s. 5intH uts in the cation the /ong case nume/

and the /ong Dea/tment nume/, listing C"%9(%1'%9 and Dea/tment + he/e C"%#(%1'%9 and

Dea/tment ' should e. 4nte/estingl0, E*hiit 6 to 5unte/?s 2une 3, %1% ;otion o/ umma/0

2udgment, hile containing the te*t o the Delaa/e Cou/t?s O/de/ /emo<ing the sta0, doesn?t contain

the Delaa/e Ban/utc0 Cou/t?s P/oo o e/<ice o/ that O/de/ uon the Ca/entie/s....

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3'. !e*t, on 2ul0 1th, %1% EK7E& )O 7B;44O! O) DE)E!D!&V E4DE!&48

CED4& O87&4O! , 4!C. !D K784& 8O! E"4CE COPO&4O!V ;O&4O! )O

7;; 27D=;E!&, 5unte/ again uts Dea/tment + in the case cation he/e Dea/tment '

should e.

)inall0, on 2ul0 1$, %11 this Cou/t g/anted Dist/ict Cou/t ule 13 @3> /o<ides, A)ailu/e o the

oosing a/t0 to se/<e and ile his /itten oosition ma0 e const/ued as an admission that the

motion is me/ito/ious and a consent to g/anting the same.A &hus, in this case, the cou/t const/ues

Plaintis?, 2;E . CPE!&4E and 2O! E. CPE!&4E, and Deendants?, ;E

)7!D4!= COPO&4O! and 4!DO ;!=E;E!& CO;P!? ailu/e to oose

Deendants? C and K8?s ;otiono/ umma/0 2udgment as admission that the ;otion is

me/ito/ious.G

&he 2ul0 1$, %1% !otice o Ent/0 o O/de/ inco//ectl0 list Dea/tment + instead o Dea/tment ' in the

cation.

44. 8 !D =7;E!&

4. &he O/de/ =/anting umma/0 2udgment Ente/ed gainst Plainti hould e et side o/ "acated

Due to it eing "oid )o/ 8ac o 2u/isdiction =i<en the !ume/ous Deiciencies in e/<ice o

Essential Pleadings and !otices 7on the Plaintis, E*cusale !eglect, )/aud on &he Cou/t, an

4nte/<ening Decision o the !e<ada u/eme Cou/t, &o o them, /om 2ul0 ', %11, and &he O<e/l0

8ong Passing o &ime Beteen !o and the =/anting o the umma/0 2udgment O/de/.

&he e*cusale neglect a/gument is quite st/ong gi<en 5itnH and Zimleman?s continual ailu/e to

a/o/iatel0 add/ess thei/ P/oo?s o e/<ice o/ <e/0, <e/0 imo/tant documents. ;ight e a <oidness

asis o/ etting side the O/de/ s ell. )u/the/, the O/de/ g/anting umma/0 2udgment is <oid

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gi<en the lac o Iu/isdiction ossessed 0 this Cou/t he/e so man0 essential deiciencies e*ists in this

matte/ /elated to the most e/tinent ilings and notices ossile.

Fcco/dingl0, hen this cou/t issues an inte/<ening decision that constitutes a change in cont/olling

la, cou/ts ma0 dea/t /om the decided la o the case and al0 the ne /ule o la.G 5su <. Count0

o Cla/. ee, e.g., 5oins <. D0e/, 1%+ Ohio t.3d +61, #% !.E.d 39, 333 @%%+> @holding that an

inte/<ening oinion issued 0 the Ohio u/eme Cou/t constituted a change in cont/olling la

necessitating dea/tu/e /om the la o the case doct/ine>J Dedge <. tate, #3 o.d #3$, #36

@)la.Dist.Ct..%%> @noting that a decision 0 the )lo/ida u/eme Cou/t to enact a ne /ocedu/al

/ule constituted a change in cont/olling la>. FBecause e dete/mine that the change in cont/olling la

e*cetion to the la o the case doct/ine alies, e do not conside/ hethe/ this cou/t should also

o/mall0 adot the Fsustantial ne e<idenceG o/ Fclea/ e//o/ /esulting in maniest inIusticeG e*cetions

to the la o the case doct/ine. W 5oe<e/, e ose/<e that, desite the landone/s? contentions,

disco<e/0 o a /elati<el0 mino/ actual e//o/ in ou/ o/de/ in 5su 4 suggesting that the landone/s? had

otained a $%(oot height <a/iance o/ const/uction o a illoa/d on thei/ /oe/t0 does not constitute

Fsustantial ne e<idenceG that Iustiies dea/tu/e /om the la o the case doct/ine. W Ou/

dete/mination in 5su 4 that the landone/s had not demonst/ated the utilit0 o e*hausting thei/

administ/ati<e /emedies /ested on se<e/al ie

))4;&4O! Pu/suant to ! 39B.%3%

D&ED this 'th da0 o ;a0, %1:

s Zach Coughlin

Zach Coughlin, Esq.tto/ne0 o/ Plaintis 2oni and 2ames Ca/entie/

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POO) O) E"4CE

4, Zach Coughlin, decla/e, that on this date 4 caused the o/going to e deli<e/ to all namedDeendant?s in this action, 0 elect/onic iling to:

U/istin . chule/(5intH, Esq.;cCa/th0 N 5olthus, 88P9$1% . aha/a <e., uite 11%8as "egas , !" #911'Phone: '%(6#$(%39)a*: #66(339($691hintH-mcca/th0holthus.comtt0 o/ DE)&? E4DE!&48 CED4& O87&4O! 4!C, !D K784& 8O! E"4CECOPO&4O!?

nd <ia deli<e/ing to thei/ atto/ne0?s o /eco/d 0 a*, email and deositing a t/ue and co//ect co0 o

this document in the 7 mail he/e such a/ties a/e not eile/s on this date add/essed to:

E/ic B. Zimelman, Esq. Peel B/imle0, 88P%1+ E. ;adison, uite 1%%eattle , 9#1Phone: %6(''%(3339)a*: %6(''%(3+9%eHimelman-eel/imle0.comtt0 o/ DE)&?4!DO ;!=E;E&! CO. !D CCED4&ED 5O;E 8E!!DE,4!C. 7CCEO 4! 4!&EE& &O ;E )7!D4!= COPO&4O! DB ;E5O;E 8O!

D&ED this 'th Da0 o ;a0, %1

s Zach CoughlinZach Coughlin, Esq.tto/ne0 o/ Plaintis 2oni and 2ames Ca/entie/

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McCarthy Holthus, LLPKristin Schuler-Hintz, Esq. Nevada SBN 7171Christopher M. Hunter, Esq., Nevada SBN 81279510 West Sahara, Suite 110Las Vegas, NV 89117Phone (702) 685-0329Fax (866) 339-5691

Attorney for Defendants:Residential Credit Solutions, Inc. Quality Loan Service Corporation


IN AND FOR WASHOE COUNTY

Case No.: CV08-01709AMES S CARPENTIER; and JOAN E.

10 CARPENTIER,

Plaintiffs

Department No: 7

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13 AAMES FUNDING CORPORATION DBA

vs.

14 AAMES HOME LOAN, a California )corporation; WINDSOR MANAGEMENT )

RESIDENTIAL CREDIT SOLUTIONS,

INC. AND QUALITY LOAN SERVICE

CORPORATION S REQUEST FOR RUL

SANCTIONS ND OPPOSTION TO

MOTION TO ALTER OR AMEND

ORDER, OR NEW TRIAL, OR PLED IN

THE ALTERNATIVE, MOTION FOR

RECONSIDERATION

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CO. , a California corporation; )

RESIDENTIAL CREDIT SOLUTIONS, I N C . ~a TEXAS corporation; QUALITY LOAN )

SERVICE CORPORATION, a California )

Corporation; and DOES I - XX, inclusive,

Defendants

22 COMES NOW Defendants, Residential Credit Solutions, Inc. ( RCS ) and Quality Lo

23 Service Corporation ( Quality and collectively Defendants ), by and through its counsel 0

24record, Christopher M. Hunter, Esq., of McCarthy Holthus, LLP, and files this Request fo

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Imposition of Rule 11 Sanctions against Plaintiffs' Counsel and Opposition to Plaintiff's Motio

to Alter or Amend Order, or New Trial, or Pled in the Alternative, Motion for Reconsideratio

( New Motion ).

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This Opposition is based upon this Notice, the attached Memorandum of Points an

Authorities, and upon all pleadings and documents herein, as well as any argument that may b

presented at the hearing of this, or any other motions/matters; the Court is requested to tak


Dated: 5 17 2012 McCarthy Holthus, LLP

IslChristopher M. Hunter

Christopher M. Hunter, Esq.

MEMOR NDUM OF POINTS ND UTHORITIES

B CKGROUND

This action concerns real property in Washoe County, Nevada known as 2873 Sunn

Slope Dr., Sparks, Nevada ( Subject Property ). Plaintiffs filed this action on July 8 2008. 0

June 23, 2010, Defendants filed a Motion for Summary Judgment and served the Motion 0

Plaintiffs. Plaintiffs did not oppose the Motion and on July 15 2010 the Court entered an Orde

granting the Motion for Summary Judgment. Notice of Entry of the Order was filed b18

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Defendants and served on Plaintiffs on July 15, 2010. Plaintiffs never filed a Motion t

Reconsider the Order and never appealed the Order.

On December 31, 2011, eighteen months after entry of the summary judgment Order

Plaintiffs filed a Motion to Set Aside the Judgment. This Court denied that Motion pursuant t

Order dated April 20, 2012.

Now, almost one month later, Plaintiffs' counsel has essentially filed the same Motion t

Set Aside Judgment as he previously filed. Plaintiffs' counsel again ignores the Rules of Civi

Procedure by filing an improper Motion for Reconsideration once again including completel

improper and unprofessional allegations (this time that counsel was incarcerated because of som

question regarding his competency).

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LEG L N LYSIS

A district court may reconsider a previously decided issue if substantially differen

evidence is subsequently introduced or the decision is clearly erroneous. Masonry Til

Contractors Ass n ofS. Nevada v Jolley, Urga Wirth Ltd., 113 Nev. 737, 741, 941 P.2d 486

489 (1997). Indeed, the Nevada Supreme Court has made it clear that reconsideration is onI

appropriate in very rare instances where new issues of law or fact support a contrary ruling.

Moore v City ofLas Vegas, 92 Nev. 402, 405, 551 P.2d 244,246 (1976). Moreover, a motio

for reconsideration which raises no new issues ofl w or fact is superfluous. Id.

Here, Plaintiffs fail to present any new evidence and repeat the arguments presented i

the previous Motion to Set Aside. This Court has already entertained Plaintiffs' claims an

issued a well reasoned opinion explaining why they are unavailing. Now, in the absence of an

new evidence or change in controlling law, Plaintiffs bring the New Motion hoping the Co

will change its mind. As evidenced by the legal standard set out above, the purpose 0

reconsideration is to correct clear error or account for changed circumstances not to give eve

sore loser a do over.

Even more egregious is the new evidence which counsel cites-the fact that the previou

foreclosure has now been rescinded. Plaintiffs' counsel may, in fact, not even be in touch wit

his clients because Residential Credit Solutions, Inc. has now entered into a loan modificatio

agreement which, in turn, gave rise to the rescission of the foreclosure. The rescission of th

foreclosure results in all of the issues being raised by counsel being rendered moot.

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SANCTIONS SHOULD BE LEVIED AGAINST PLAINTIFFS COUNSEL

The New Motion filed by Plaintiffs calls out for Rule 11 sanctions. The document i

wholly frivolous, indicates a disregard for the spirit, intent and processes of the Court system an

sanctions may be the only manner in which Mr. Coughlin will be deterred from such frivolou

filings in the future. Please see generally, Greenburg v Saia 822 F .2d 882, 885 (9th Cir. 1987

which holds that a violation of Rule 11 is complete when the improper Complaint is filed. Pleas

see also Circuit Judge Goodwin's concurring opinion in Headwaters Inc. v Us Forest Service

399 F.3d 1047, at 1057 where, in a case involving issues of res judicata, the Judge stated:

I concur in the majority opinion, but write separately to remind the district court

on remand that if the factual record developed after remand shows that a party or

counsel were, as suspected by the district court, in fact gaming the system to

prolong unnecessary litigation, the court has discretionary remedies in the nature

of costs and fees to protect the court from imposition.

Based on the fact that a loan modification has been entered into it strongly appears tha

Mr. Coughlin has not consulted with his clients before filing the New Motion.

CONCLUSION.

For the foregoing reasons, Defendants request that this Court deny Plaintiffs' Motion an

award sanctions against Plaintiffs' counsel for the cost of defending the Motion.

21 Respectfully submitted by:McCarthy Holthus, LLP

22IslChristoher M Hunter

23 Christopher M. Hunter, Esq.9510 W. Sahara, Suite 110

24 Las Vegas, Nevada 89117

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FFIRM TION1

2 The undersigned affinns that this document does not contain the social security number

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of any person.

Dated: 5 17 2012 McCarthy Holthus, LLP

IslChristopher M. Hunter, Esq.Christopher M Hunter, Esq.

CERTIFIC TE OF M ILING

I hereby certify that on the 17th day of May, 2012, a true and correct copy of th

foregoing Request for Imposition of Rille 11 Sanctions against Plaintiffs Counsel an

Opposition to Plaintiff s Motion for Reconsideration was forwarded by United States Mail

postage prepaid and by fax to the addresses listed below.

Eric B Zimbelman, Esq.

3333 E. Serene Ave., Suite 200

Henderson,V

89074

Zach Coughlin, Esq.

P.O. Box 3961

Reno, NV 89505

Is Joni Rispaljen Employee ofMcCarthy Holthus, LLP

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Document Code:

Zach Coughlin, Esq.

Nevada Bar No: 9473! B!" 39#$

%eno, N& '9()(

*ele: 77(+33'+'$$'a-: 949+##7+74)

ZachCoughlin/hotmail.com

0ttorne1 2or Carentiers

N *5E 6EC!ND 8DC0 D6*%C* C!8%* ! *5E 6*0*E ! NE&0D0

N 0ND !% *5E C!8N* ! ;065!E

im and oan Carentier<

lainti22s,

vs.

0ames et al

De2endants.

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C06E N!: C&)'+)$7)9

DE*: #

Opposition to Request for Sanctions etc.

C!>E6 N!;, art1 designated as reresented, ?1 and through attorne1, Z0C50%

B0%@E% C!8A5N, E6., and 2iles the a?ove named document and moves this Court 2or the

relie2 requested herein. *his 2iling is 2urther ?ased uon the aers and leadings on 2ile herein and

the >emorandum o2 oints and 0uthorities su?mitted hereith and an1 oral argument this Court ma1

desire.

MEMORANDUM OF POINTS AND AUTHORITIES

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!!6*!N *! %E8E6* !% 60NC*!N6



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*he undersigned did meet ith ?oth clients, together, at the same time, and discussed the N%C (9 motion 2iled.

No?od1 said an1thign a?out a loan modi2ication ?eing entered into then, and neither client is indicating an1 such

modi2ication had ?een entered into as o2 this time. t is curious that aarentl1 >cCarth1 5olthus ons either %C6 or

6 or one o2 those entities, and 1et those entities continue to call m1 clients, the Carentiers, outside m1 resence, in

erhas a violation o2 the %C against communicating ith reresneted arties, to the e-tent %C6 or 6 is an e-tension

o2 >cCarth1 5olthus. %egardless, no $ da1 sa2e har?or sanction motion as served, thus N%C $$, and there?1 N%6

7.)'( and N%6 $'.))=?= are unavailing.

AFFIRMATION Pursuant to NRS 23!."3"

*he undersigned does here?1 a22irm that the receding document does not contain the social

securit1 num?er o2 an1 erson.

D0*ED this une (, )$.

s Zach Coughlin, signed electronicall1

Zach Coughlin, Esq.

0ttorne1 2or Carentiers

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!!6*!N *! %E8E6* !% 60NC*!N6



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PROOF OF SER#I$E

, Zach Coughlin, declare:

!n this date, , >r. Zach Coughlin served the 2oregoing document ?1 2a-ing andserving uon registered e2ilers via electronicall1 2iling:

C5%6*!5E% 58N*E% 0ND@%6*N 6C58E%+5N*Z !

>CC0%*5 5!*586

0**!%NE6 !% DEEND0N*6

6 0ND %C6

0ND

E%C Z>BE>0N0**!%NE !% 00>E6

D0*ED this une (, )$.

s Zach Coughlin, signed electronicall1

Zach Coughlin, Esq.

0ellant

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!!6*!N *! %E8E6* !% 60NC*!N6





Clerk of the Court


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IN AND FOR THE COUNTY OF WASHOE

JAMES S. CARPENTIER; and JOAN E.CARPENTIER,

Plaintiffs,

vs.

AAMES FUNDING CORPORATION, dbaAAMES HOME LOAN, a Californiacorporation, et aI.,

Defendants.

_______________________________1

Procedural History


Dept. No.: 7

OR ER

On April 20, 2012, this Court entered its Order denying Plaintiffs , James Carpentier and

Joan E. Carpentier s Emergency Motionfor TROIlnjunction; or Pled in the Alternative; Motion

to Set Aside Order Granting Summary Judgment. On May 7, 2012, Plaintiffs filed their Motion

to Alter or mend Order or New Trial or Pled n the Alternative Mot ionfor Reconsideration.

On May 17,2012, Defendants, Residential Credit Solutions, Inc., and Quality Loan Service

Corporation, filed its Request for Rule Sanctions and Opposition to Motion to Alter or mend

Order or New Trial or Pled in the Alternative Alotionfor Reconsideration. On June 5 2012,

Plaintiffs filed their Opposition to Request for Sanctions etc. On July 12, 2012, Defendants

submitted the matter for decision.



Zach Coughlin, Esq., has been admonished on numerous occasions to conform his

2 pleadings to the simple requirements of the Rules of Civil Procedure. Despite repeated warnings,

3 Mr. Coughlin continues to files specious motions, replete with repetitive arguments made in

4 pleadings in excess of the page limits set by local rule. These deliberate actions burden this court

5 with unnecessary review of immaterial and irrelevant material which unjustifiably consumes

6 precious judicial time and resources.

7 The Court finds sanctions against Mr. Coughlin appropriate in this case. Defendants'

8 Request for Sanctions pursuant to NRCP is GRANTED Defendants' counsel, McCarthy

9 Holthus, LLP, is awarded 5,000 to be assessed against Mr. Coughlin personally

10 Plaintiffs' Motion to Alter or mend Order or for a New Trial and/or Alternatively

Motionfor Reconsideration is DENIED

12 DATED this <2 day of August, 2012.

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Cv08-01709 Carpentier Flanagan Ocr Opt

Documents

Transcript of Cv08-01709 Carpentier Flanagan Ocr Opt