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No. 11-56421
UNITED STATES COURT OF APPEALS
FORTHE NINTH CIRCUIT
________________________________________________________
MICHAEL M. CARNEY
Plaintiff
v.
BANK OF AMERICA CORP., ET AL.
Defendants-Appellees
Appeal from the United States District Court for the Central District of CaliforniaCivil Case No. SACV 11-00571 CJC (MLGx) (Honorable Cormac J. Carney)
EMERGENCY MOTION UNDER CIRCUIT RULE 27-3
CARNEYS EMERGENCY MOTION FOR STAY OF PENDING
FORECLOSURE SALE TO APPEAL ORDER DISCHARGING
TEMPORARY RESTRAINING ORDER AND SUBSEQUENT ORDER
DISMISSING CERTAIN OF HIS CAUSES OF ACTION IN RELATION TO
SAME
Michael M. Carney241 Rochester StreetCosta Mesa, CA [email protected]
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Appearing Pro Se
9th Cir. R. 27-3 Certificate
Pursuant to 9th Cir. R. 27-3, Appellant respectfully certifies that his motion
for appeal and injunctive relief is an emergency motion requiring relief in less
than 21 days to avoid irreparable harm.
Appellant, Michael M. Carney (Carney) is a property owner in Costa
Mesa, CA, his family home of nine years being at issue, who filed suit against
Appellees Bank of America Corporation (BAC), ReconTrust, N.A.
(ReconTrust) a wholly owned subsidiary of Bank of America Corp., Mortgage
Electronic Registration Systems, Inc. (MERS), Countrywide Financial
Corporation, Countrywide Home Loans, Inc.(Countrywide), and US Bank, N.A
(US BANK) as well as non-responsive and central defendant, although not to
this motion and appeal, BondCorp Realty Services, Inc. (BondCorp).
Appellant appears pro se. Appellees BAC (and stated subsidiaries) and
Countrywide appear as represented by counsel. AppelleesReconTrust, US BANK
and MERSappear with no stated counsel in this court other than Judith T. Sethna
(SBN 232731) who is not admitted as counsel to this court.
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Appellant states here that counsel may be acting and arguing on behalf of
Appellee-Defendants (noted above) it is not authorized to defend or argue on
behalf of.
Appellant filed his original complaint on April 13, 2011. Defendants then
filed their first Motion to Dismiss (MTD) soon after.
Appellant filed an initialEx Parte application for a Temporary Restraining
Order (TRO) which was denied. In the course of that urgent application to the
district court, Carney did not clearly understand the filing dates of any opposition
to the MTD and missed the cutoff date to file his opposition and the district court
granted Defendants MTD with leave to amend.
Carney promptly and timely filed his First Amended Complaint (FAC) on
June 27, 2011 adding new causes of action (COA) for wrongful foreclosure and
cancellation of written instruments (COA 6 & 7) in addition to his other claims and
COAs.
Upon submission of his FAC, Appellant also promptly filed his SecondEx
Parte application for a TRO and Order To show Cause (OSC) Why A
Preliminary Injunction Should Not Issue which was granted on July 7, 2011,
averting a sale of his property by Appellees scheduled for July 11, 2011 and set a
date of August 22, 2011 for hearing on the OSC.
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All papers in opposition, support or reply were filed timely by August 11,
2011 and on August 15, 2011, the District Court issued an order vacating the TRO.
Appellees/Defendants also again filed for a MTD the FAC on August 4,
2011. That MTD was Denied in part and Granted in part, denying dismissal of the
COA for Conspiracy to fraud, but granting the COAs for wrongful foreclosure,
cancellation of written instruments (both COAs that were the subject of the initial
appeal) as wells as claims of violations of the California Unfair Competition Laws
(UCL).
Appellant then filed his notice of appeal, fee fully paid, to the district courts
order granting of certain of the COAs that were the subject of the initial appeal on
November 7, 2011 at 11:10 am, proof of such appeal filing attached as Exhibit A
and incorporated and made part of this motion.
Appellee ReconTrust, after having postponed the sale of Appellants
property three times, has since scheduled as November 14, 2011, at 12:00pm at the
Court House in Santa Ana, CA as the date on which they will move to sell at
auction Appellants property, his family home and land which is commonly known
as 241 Rochester Street, Costa Mesa, CA 92627.
Appellant states that there is not time available to file a motion with the
District Court to effect a stay so that this appeal can be considered and heard.
Appellant has had telephone conversations and email communications with
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Defendants to request that they temporarily postpone the scheduled and alleged
trustees sale until these matters can be properly heard by this court. They have
refused to accord such time.
Irreparable harm will ensue if this unlawful sale of Appellants property is
allowed to proceed before a proper hearing before this court as it is unique and
monetary restitution and damages alone cannot replace it.
It is thus imperative and Appellant respectfully requests that this court hear
this motion on an emergency schedule and at minimum, order a temporary or
administrative stay and/or order injunctive relief sought enjoining Appellees from
proceeding with a foreclosure sale or in the alternative, vacate the discharge of
and/or reinstate the TRO with instruction to the District Court, or whichever
declaratory relief this court deems just and proper.
Before filing his motion, Appellant notified counsel for the other parties
by email and also emailed them a service copy of the motion. In addition,
Appellant telephoned Counsel for the parties the relief is requested from by phone,
as I called Judith Sethna at her usual office phone number and spoke with her
instructing her of this emergency motion and that I would email electronically a
copy of this motion at 5:31 pm on November 8, 2011. Ms. Sethna acknowledged
my intent to file this motion and did not indicate whether she and her admitted and
stated counsel would oppose it.
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Pursuant to 9th Cir. R. 27-3(a)(3)(i), the telephone numbers, email
addresses, and office addresses of the attorneys as available, for the parties are as
follows:
Margaret M. Grignon (SBN 76621)Zareh A. Jaltorossian (SBN 205347)
David S. Reidy (SBN 225904)
Email: [email protected] T. Sethna (SBN 232731)Email:[email protected] SMITH LLP
355 South Grand Avenue, Suite 2900Los Angeles, CA 90071-1514Telephone: 213.457.8000Facsimile: 213.457.8080
Appellant further certifies that he has no other actions pending in this court
(other than the related appeal), has never filed or opened any case in this court
prior, nor has had this court rule on any action submitted by him to this court.
INTRODUCTION AND SUMMARY
This emergency motion is filed in this honorable court to stay an alleged
trustees sale of his property on November 14, 2011, that Appellant states is
unlawful and due to a decision in the district court that vacated a Temporary
Restraining Order that Plaintiff-Appellant filed an appeal from to this court.
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Appellant in advance seeks the forbearance and indulgence of this court as
he recognizes his motion has more width and girth than should an emergency
motion contain, but that content is necessary and crucial to convey to the court his
claims and assertions.
The district court on October 20, 2011 granted and dismissed with prejudice
Defendant-Appellees Motion to Dismiss (MTD) causes of action for wrongful
foreclosure and cancellation of written instruments, which were the main issues of
the original appeal.
Appellant timely filed his appeal of the courts order on November 7, 2011,
fee fully paid (Exhibit A). He has not yet been assigned of this time and date a
new case number and does not know if the two appeals will be merged or that they
will be treated as separate actions before this court.
The district court could have and arguably should have held any decision
under advise from the circuit court as the issues in Appellants original appeal were
essentially the same as the ones in the MTD, but chose instead to rule on the MTD,
denying in part and granting in part the MTD and chose to do so in a harsh manner
not allowing Appellant leave to amend, which was an order issued in error (both in
law and in form, as mistakes were present in the order), as stated below.
Appellant seeks an emergency temporary or administrative stay and/or the
requested relief as to an order issued by the District Court dismissing or denying
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certain of Appellants claims that either erred or otherwise overlooked substantial
matters of law in its decision and resultant order and that his appeal to such can be
properly heard by this court without incurring further damages.
Appellant has already filed his opening brief on appeal in relation to a
previous order of the district court vacating an ordered Temporary Restraining
Order (TRO) on August 15, 2011.
Plaintiff had filed a second Ex Parte Application for a TRO preventing
Defendant ReconTrust from holding a sale of Plaintiffs property.
That application and request for TRO by Plaintiff which was granted by the
District Court on July 7, 2011, and further set time and date regarding its Order To
Show Cause (OSC) why a preliminary injunction should not issue. Plaintiff
stipulated to an extension of time for Defendant to respond to the OSC, which
Defendant-Appellee complied with.
In its order granting the TRO and issuing the OSC, the District Court stated:
Mr. Carney has made a showing that ReconTrust might not be the proper
trustee with legal authority to conduct the trustees sale scheduled for July
11, 2011. The issue is whether MERS properly substituted ReconTrust as
trustee in place of First American Title Companypriorto MERS assigning
its beneficial interestin the deed of trust to US Bank, and whether US Bank
has approvedof the foreclosure sale.
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[.]
Defendants have asserted in their opposition [] that MERS substituted
ReconTrust as trustee in place of First American Title Company and this
substitution was recorded, Oppn at 5, but they have not produced the
records indicating that this substitution properly occurredduring the time
period that MERS was beneficiary. (emphasis added)
Inexplicably on August 15, 2011, with defendants NOT addressing the main
issue and reason for the TRO being issued, the District Court discharged the TRO
stating among other things that I failed to allege tender and difficulty in
understanding that I suffered prejudice resulting from irregularities in the
foreclosure process when void instruments was stated.
These were issues not identified in the TRO nor were they germane as
Appellant argued void instruments (SOT and NTS). In effect, the district court
validated the DOT and NTS by its order.
Appellant has clearly stated void (not voidable) written instruments. As to
the SOT and NTS issued and filed in the public record by MERS naming
Recontrust, MERS in foreclosing in its own name clearly violates the strict statutes
requiring proper parties and governing non-judicial foreclosure.
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Appellant states he cannot be prejudiced by void written instruments and
that he has never had any debt due and payable to MERS and therefore, is not
required to proffer tender.
The district courts order dismissing with prejudice Appellants claims of
cancellation of written instruments as to the SOT and NTS has the effect of making
them valid, when they are clearly unlawful, do not state ANY or ALL beneficiaries
and that MERS filed these void instruments in the public record.
The district court in issuing its TRO was correct in stating that Defendants
did not have the proper authority to proceed with a trustees sale and that such
authority was required to be shown in order for them to proceed.
Defendants never stated any authority and instead argued other points of law
that were not germane.
As a result of the courts order discharging the TRO and OSC regarding the
preliminary injunction and improper granting of dismissal with prejudice, the sale
of my property is now scheduled to be held on November 14, 2011, at 12:00pm at
the County Courthouse in Santa Ana, CA which will only add more damages to the
already significant damages Appellant has incurred.
Appellant states and has stated from the outset of this action that the Deed of
Trust and Note that underlie any authority to act against his property are void ab
initio as those instruments were fraudulently created and for that matter, all
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subsequent instruments must necessarily be void as well. He has stated so with
particularity and with facts and declarations as to the first four causes of action as
against BondCorp Realty Services, Inc. (BondCorp) as well as his fifth COA for
Conspiracy to the same, which the court denied defendant-appellants MTD.
All other causes of action in his complaint follow those facts and allege
with facts Conspiracy to the fraudulent acts of BondCorp by Countrywide.
If BondCorp was in fact the true initial lender or GranteePlaintiff avers
strongly it was not with undisputed facts in support (FAC), evidence of the chain
of assignments/transfers/sales and title for any other entity to claim power of sale
to foreclose must exist and a true beneficiary stated clearly in the SOT granting
that Trustee (ReconTrust) with limited power of sale.
MERS does not ever state in the SOT naming ReconTrust as Trustee in
place of First American Title, or its defense or elsewhere as to whom it acts as
nomineefor. California law and the Deed of Trust requires that it do so. It
certainly is no longer (if it ever was) Beneficiary, as MERS for value, transferred
and assignedAllof its beneficial interest to US BANK in June of 2010. Although
it assumes such again and unlawfully.
Herein lies the thrust of Appellants overall complaint and from which
spring all the other unlawful acts that have occurred since, which were fraudulent
acts for unlawful gain at the inception of the DOT and Note. If the parties are who
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they say they are or were, from the beginning, and the facts support them, this
would not be an issue.
It is to be noted that Defendant BondCorp has not made any answerat all in
this case. Proper service has been executed and Appellant has even had telephone
and email communications with BondCorp, notifying he and them of motion and
calendar issues. No motions, answers or any statement to the court in response to
the allegations have been filed or lodged by BondCorp, which lies squarely at the
center of the dispute.
This is so because if BondCorp were to reply and provide defense to the
causes of action in the FAC (or original complaint), it would necessarily have had
to provide facts in its defense that would contradict or deconstructively weaken or
obviate the responding Defendants/Appellees defense and likely further expose the
fraud and malfeasance at the root of the issues here. BondCorp as such has
remainedsilent.
There is no documented assignment, allonge or other such instrument in the
record from BondCorp to any known entity. Appellant contends that BondCorp, a
licensed real estate broker, but not a licensed LENDER was never the lender and
has provided facts that show it was never the lender/grantee and acted as such
fraudulently. If it was not and did act in fraud, then MERS is not nor can never be,
nor claim to be a Nominee/Beneficiary of a non-existent Lender/Grantee.
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In Defendants Motion To Dismiss the original complaint, Countrywide
admits that BondCorp acted as merely a broker and does not at all dispute the fact
asserted by Appellant that Countrywide was indeed the party to its Deed of Trust
as true lender and that this was undisclosed to him and stated such (Def. Mot. To
Dismiss Compl. Intro. P. 1 at 21-22):
In particular, Defendant BACHLS appears only to be the loan servicer, and
Countrywide appears to be the lender[].(emphasis added).
It is not in dispute, nor has it been disputed that Countrywide was the actual
lender/provider of funds at his loan closing and Appellant has provided facts in
support that show Countrywide was the originating lender, undisclosed and
concealed from him.
What in fact happened here was that Appellants alleged loan was offered by
BondCorp as Broker, who assumed the role of Lender fraudulently, because it
knew, and with assistance from Countrywide, as sole originator for all loans that
consist of the trust SARM 2005-19XS, was the true source or provider of any
funds involved in the transaction, and BondCorp assumed that role for the sole
reason of reaping secret, undisclosed fees from Countrywide as alleged with
supporting, undisputed facts in the FAC.
Countrywide acted as the sole originator for all loans to be included in the
securitized trust SARM 2005-19XS (FAC Exh 3) to which the subject DOT and
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Note were just recently assigned and transferred to in June of 2010. Responding
Defendants/Appellees do not dispute these facts.
In the mad rush for the secret fees, BondCorp provided a wildly inflated
appraisal, hid legally required disclosures, intentionally concealed facts and took
other unlawful and fraudulent actions whereby Appellant was damaged for tens of
thousands of dollars and was saddled with a damaging Pay Option loan, of the type
that the State of California sued Countrywide over (California v. Countrywide,
LC081846, Superior Court of Calfornia, County of Los Angeles) and for which
Countrywide settled for hundreds of Millions of dollars, the largest such settlement
in California history.
Countrywide, who should have been named the Lender/ Grantee in the DOT
and Note and properly disclosed as such, saved time and expense, for a secret,
outsized fee paid to BondCorp for it to assume the role of Lender and Grantee,
(and for which BondCorp provided no additional service for) acquired another ill-
gotten commitment from an unsuspecting consumer in this case Appellant so
that it could reap fat origination fees and ongoing servicing fees from the SARM
2005-19XS trust.
The fraud and unlawful acts continue. The alleged loan was lodged in the
books of Aurora Loan Services, Inc. as Master Servicer for the securitized trust
SARM 2005-19XS in August of 2005 (as US BANK was also named as Trustee
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for and Document Custodian) and payments made by Appellant (four years) were
applied by Aurora to the unknown certificate holders of SARM 2005-19XS and
continues to this day.
Amid Appellants Bankruptcy case in 2010, after two attempts to modify his
loan with BACHLS which were largely ignored, on June 24, 2010, MERS
executed an assignment and transfer of ..[]ALL BENEFICIAL INTEREST
UNDER THAT CERTAIN DEED OF TRUST DATED 7/20/2005, EXECUTED
BY MICHAEL M. CARNEY..[]TOGETHER WITH THE NOTE OR NOTES
THEREIN DESCRIBED OR REFERRED TO, THE MONEY DUE AND TO
BECOME DUE THERE WITH INTEREST, AND ALL RIGHTS ACCRUED OR
TO ACCRUE UNDER SAID DEED OF TRUST/ MORTGATGE.(emphasis
supplied)(FAC Exh. 9), to US BANK as Trustee for SARM 2005-19XS.
This was the first time that Appellant had ever heard of any involvement of
SARM 2005-19XS, US BANK, Countrywide or Aurora in his DOT and Note
which prompted him to investigate why his DOT and Note would be sold amid a
Bankruptcy proceeding. Prior to this, he had only transacted with BondCorp.
Almost five years after the closing of the SARM 2005-19XS trust (June
2010), MERS attempts to convey into that trust the DOT and Note that legally
were required to be conveyed in August of 2005 in clear violation of the trust
documents (prospectus, PSA).
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On top of all of this, just recently in July of 2011, Appellant received a
letter from Bank of American Home Loans notifying him that: Effective July 1,
2011, the servicing of home loans by our subsidiary-BAC Home Loans Servicing,
LP, transfers to its parent company-Bank of America, N.A. []. On page 3 of 4 of
the letter, at (2)(b) it states: The name of the creditor to whom the debt is owed:
AURORA MSF LEHMAN SARM05-19XS(AURORA). Appellant has since
replied to this letter in accordance with Federal and California law. There has been
no reply to Appellants letter to date other than an acknowledgement that it had
been received by BAC and their response in accordance with law is late, and the
previous attempt/request to obtain the facts and amounts claimed by BAC likewise
went unanswered.
MERS, after the transfer/assignment to US BANK in June of 2010, for value
received, then reappears in May 2011, to execute, as Beneficiary or Investor
(FAC Exh. 6 p. 2) to substitute ReconTrust as Trustee with power of sale to hold a
trustees sale of Plaintiffs property, which is now scheduled for November 14,
2011.
Nowhere in the SOT or Notice of Trustees Sale are either US BANK or
AURORA named or signed as Beneficiary. Nowhere in the public record is their
interest recorded, either, as to the Trustees sale. So we have here MERS claiming
a beneficial interest in the DOT and Note after a full assignment of all beneficial
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interest in the DOT and Note in June of 2010: US BANK being the only known
beneficiary of record and now AURORA claiming it is a Creditor/Beneficiary and
as of March 3, 2011, was listed in the MERS system website as Investor.
Is it no wonder by these actions and others that just recently US BANK has
filed suit against Countrywide and Bank of America Corporation demanding $1.7
Billion in loan buy backs and damages as well as all the other MBS/trust investors
and State Attorneys General legal actions that claim tens of Billions of dollars in
damages because of such fraud and malfeasance.
Appellant again asserts that US BANK and MERS has not authorized
counsel in this matter and in fact are adverse defendants to BAC and Countrywide
defendants.
BAC and Countrywide Defendants/Appellees in this instant matter are
trying to put Humpty back together again.., but ignore the fact that what is begun
in fraud and unlawful actions cannot be made whole or right.
The emergency issue before this court is: Appellant asserts that MERS acts
ultra vires and unlawfully, based on entirely ab initio void instruments, and had
not the authority to substitute the trustee acting as Beneficiary/Investor, and as
nominee under the subject DOT and Note as it does not nameAll or any -
beneficiaries in accordance with Cal. Civ. Code 2934(a) and that the SOT and
Notice Of Trustees sale ReconTrust relies upon to execute Trustees sale are void
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instruments and that at minimum an administrative stay of such sale is ordered, or
a preliminary injunction ordered forthwith.
In Section 2932.5it is provided as follows: Where a power to sell real
property is given to a mortgagee, or other encumbrancer, 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 entitled to payment of the money secured by
the instrument. The power of sale may be exercised by the assignee if the
assignment is acknowledged and recorded.(emphasis added).
MERS is not entitled to any payments of money in connection with the DOT
or Note. As nominee, it must by law and by the express terms of the DOT name
all beneficiaries it acts to substitute trustee for. It does not and therefore the SOT
and Notice of Trustees sale are void and of no legal effect.
The law in California is clear and unambiguous (although MERS would
have it otherwise) as it pertains to non-judicial foreclosure, to trustees and their
role in non-judicial foreclosure and to beneficiaries. More specifically California
Civil Code 2934a states:
(a)(1)The trustee under a trust deed upon real property or an estate for
years therein given to secure an obligation to pay money and conferring no other
duties upon the trustee than those which are incidental to the exercise of the power
of sale therein conferred, may be substituted by the recording in the county in
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which the property is located of a substitution executed and acknowledged by: (A)
all of the beneficiaries under the trust deed, ortheir successors in interest, and the
substitution shall be effective notwithstanding any contrary provision in any trust
deed executed on or after January 1, 1968;or (B) the holders ofmore than 50
percentof 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 equivalent
to a series transaction, exclusive 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.(emphasis added).
As was alleged and shown in Plaintiffs reply to Defendants Opposition to
OSC, as well as was recognized by the District Court, US BANK is the only
known or stated and recorded beneficiary regarding Plaintiffs Deed of Trust and
Note. US BANK neither acknowledged nor executed any substitution of trustee
that has been before the District Court or any court, as the record clearly indicates
they are the only entity with that possible authority. The District Court specifically
required in its Order issuing the TRO that Defendants provide such facts and
documents which they failed to do.
Defendants ReconTrust and MERS offered no facts or evidence that US
BANK or AURORA had duly recorded any interest it may have had in Appellants
property on behalf of any trust it serves or served as trustee for, nor substituted
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ReconTrust as trustee US BANK itself being Trustee itself in contradiction of
The Restatement (Second) of Agency and Restatement of Trusts (Mem. P&As in
Support of TRO p. 11 at 5) nor publicly recorded any interest in the sale of
Appellants property. That is simply because it never happened. The only party
with any remotely cognizable authority to proceed with a foreclosure sale could
only possibly be US BANK as Trustee for SARM 2005-19XS.
Therefore, ReconTrusts reliance upon an void and ultra vires assignment by
MERS, who has been shown to be NOT any realbeneficiary and at best may only
be nominee, especially since it was named as Nominee/Beneficiary of BondCorp
in the DOT and Note Appellant avers are void, then attempts to assign and transfer
for value received allof its beneficial interest, or any it claimed, on June 24, 2010
to US BANK, is totally without standing or authority in its actions as
Beneficiary to substitute a trustee for the expressed purpose to sell plaintiffs
property at auction, without any clear statement of what proceeds of such an
auction sale would be delivered to. As such, the SOT and consequent Notice of
Trustees Sale by ReconTrust is and are entirely void.
Further, the DOT, clearly written to comply with California law, which
Appellees rely on in this present matter clearly states at its paragraph 24 (FAC
Exh. 1) that: [] The Instrument (Substitution of Trustee) shall contain the name
of the original lender, Trustee and Borrower. [] This procedure for substitution
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of trustee shall govern to the exclusion of all other provisions for
substitution.(emphasis added).
It is clear that in the Substitution of Trustee (SOT)( FAC Exh. 6 p. 2) that
the original lender (BondCorp) or any lawful assign or successor beneficiary was
not named or stated by MERS in violation of the DOT directing that such be
stated. The SOT states: []and MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC. was the original Beneficiary..[]WHEREAS,
the undersigned is the present Beneficiary under said Deed of Trust, and[].
While MERS would claim status as original Beneficiary, it certainly was
not the originalLender.. as the DOT requires to be stated in any SOT.
In light of these facts and actions, it is imperative and respectfully requested
of this court that at minimum, a stay of the foreclosure sale scheduled for
September 12, 2011 be ordered so that the court can fully consider the appeal or
that this court issue and order the requested preliminary injunction requested of the
District Court barring any sale of Plaintiffs property until the matters contained in
his complaint can be moved for default on (BondCorp), allowable discovery is
made available and are otherwise fully adjudicated.
Additionally and most importantly in this present motion, the district court
has acted harshly and abused its discretion and authority by dismissing Appellants
claims without leave to amend.
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Appellant as a pro se litigant has done his level best to comply with and
adhere to the rules of the of the district court, yet his complaint, in the order
granting dismissal with prejudice and not allowing leave to amend, states serious
questions of fraud and law and factual allegations in support that demonstrate a
fraud upon him which the court acknowledges facts present and properly alleged in
support of such claim.
Further, the district court is very much aware of the wide berth given pro se
litigants and yet chose to adhere to a very narrow, abusive and incorrect theory in
dismissing his claims with prejudice, not leaving to amend.
Well settled law has stated that pro se litigants are to be afforded the widest
of spaces to argue their cases within the rules of the court and that defects in
complaints be adequately demonstrated and communicated to the pro se litigant so
that he/she may amend accordingly.
What instead occurred in this matter and present appealed order by the
district court was that the wide berth was confined to a matchbox and there was
absolutely no explanation from the district court as to the deficiencies in his
complaint. This is an unjust result and order that must be reversed as to leave to
amend, if not in whole, in addition to the granting of the relief requested.
Lastly, Appellees have also filed a motion to dismiss this appeal as moot. At
minimum, this can only be seen as an opportunistic attempt to have this court not
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consider the serious matters of law that Appellant has advanced and persisted to
advance and have heard.
At maximum, it can be seen as a desperate attempt to have this honorable
court not consider the serious questions of law raised so that their myriad other
defenses to actions brought by other consumer persons or corporate persons will
not be affected. They are wrong in their motion as moot as they are wrong in
every other aspect of their defense.
ARGUMENT
This Court considers four factors in determining whether to grant a stay
pending appeal: (1) whether the stay applicant has made a strong showing that he
is likely to succeed on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the public interest lies.
Golden GateRestaurant Assn v. City and County of San Francisco, 512 F.3d
1112, 1115 (9th Cir. 2008)(quotingHilton v.Braunskill, 481 U.S. 770, 776
(1987)).
The Court has further explained the relationship between these factors by
grouping them into two interrelated legal tests that represent the outer reaches
of a single continuum.Id. (quotingLopezv.Heckler, 713 F.2d 1432, 1435 (9th
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Cir. 1983)). At one end of the continuum, the moving party is required to show
both a probability of success on the merits and the possibility of irreparable
injury. . . . At the other end of the continuum, the moving party must demonstrate
that serious legal questions are raised and that the balance of hardships tips sharply
in its favor.Id. (quotingLopez, 713 F.2d at 1435). A stay is required under either
formulation.
I. This Court Should Issue An Administrative or Temporary Stay Or
Grant The Requested Injunctive Relief Sought As Serious Questions Of Law
Have Been Raised And Probable Success On The Merits Is Shown.
The California Appeals Court stated in relation to Wrongful Foreclosure and
related trustees sale That rule is that a trustee or mortgagee may be liable to
the trustor or mortgagor for damages sustained where there has been an illegal,
fraudulent or willfully oppressive sale of property under a power of sale
contained in a mortgage or deed of trustMunger v. Moore (1970) 11 Cal.
App. 3d 1 [89 Cal.Rptr. 323].
The District Court in this case issued a TRO and OSC RE: Preliminary
Injunction on July 7, 2011. Defendant Appellee and Appellant filed opposition
and reply to such, respectively.
That Court then decided and issued an Order vacating the TRO on August
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15, 2011 which in effect allows Defendants to proceed to conduct a trustees sale
of his property as per the publickly recorded documents it has filed in the Orange
County Clerk/Recorders office that Appellant states are unlawful and void.
That order and decision erroneously focused on issues not related to the
granted TRO and misplaced its discretion and judgment. That order and decision
should be reversed with a stay of the foreclosure/trustees sale be issued by this
court upon full consideration of the appeal, or, and if necessary or seeming just and
proper, that the injunctive relief requested by Appellant be granted by this court
presently.
A. The District Court Erred In Dismissing Certain COAs In
Carneys Complaint With Prejudice And Without Leave To Amend.
The Supreme Court has set precedent that instructs federal courts liberally to
construe the "inartful pleading" of pro se litigants.Boag v. MacDougall, 454 U.S.
364, 365, 102 S.Ct. 700, 701, 70 L.Ed.2d 551 (1982) (per curiam);Hughes v.
Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 175, 66 L.Ed.2d 163 (1980);Noll v. Carlson,
809 F.2d 1446, 1448 (9th Cir.1987);see Draper v. Coombs, 792 F.2d 915, 924 (9th
Cir. 1986) (should treat pro se litigants with great leniency when evaluating
compliance with the technical rules of civil procedure).
Thus, before dismissing a pro se complaint the district court must provide
the litigant with notice of the deficiencies in his complaint in order to ensure that
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the litigant uses the opportunity to amend effectively.Noll, 809 F.2d at 1448-49
(courts must draft a few sentences explaining the deficiencies to the pro se prisoner
plaintiff).
Further inNoll, 809 F.2d at 1448 , A pro se litigant must be given
leave to amend his or her complaint unless it is "absolutely clear that the
deficiencies of the complaint could not be cured by amendment."Broughton v.
Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980) (Per Curiam).
The Ninth Circuit and other US appeals courts have consistently ruled that
pro se litigants are to be afforded the widest interpretation and instruction of the
courts in order to properly assert their claims.
Because this court dismissed Plaintiffs original complaint with leave to
amend with no notice of any deficiencies contained in the original complaint or
FAC, he is to be afforded the ability with instruction of this court as to
deficiencies to amend his FAC so as a result of the dismissal he can clearly
understand the reasons why his complaint cannot proceed as a matter of law or as a
matter of substance and provide the necessary factual allegations and evidence to
cure his otherwise substantive claims.
The court has relied uponKendall v. Visa U.S.A., Inc. 518 F.3d 1042 1051-
1052 in determining that granting leave to amend would be futile, but Plaintiff ,
appearing pro se, had not the benefit of either discovery or notice or instruction
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from the court as to the defects in his original complaint asKendalldid -, as it
was dismissed as a late filing. In his FAC, Plaintiff has only now come to
understand the courts determination of defects that Plaintiff asserts are not fatal
and that can be cured.
Nor wasKendalla pro se Plaintiff.
This is particularly true of the order concerning both claims of
wrongful foreclosure (COA 6) and cancellation of written instruments (COA 7)
which were not included in the original complaint.
The court has provided only one ruling and order as pertains to the
complaint itself. His FAC, referred to in the appealed order as his SAC, is the
only time Plaintiff has understood what, if any deficiencies in relation to the
complaint exist and the court has not stated that any of his causes of action are
fatally flawed, which Plaintiff states they are not as he can provide additional
factual allegations as well as a more concise legal theory.
Appellant filed his original complaint in April of 2011. That complaint was
dismissed with leave to amend based on a misunderstanding by Appellant of the
dates his opposition to defendants MTD was due and amid an urgent ex-parte
application for a TRO to stop the unlawful sale of his property.
The dismissal of his original complaint contained NO statement by the
district court or defense of any defects that Appellant could understand and cure.
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Further, the court makes numerous factual mistakes that Appellant takes on
their face as just mistakes but nonetheless characterizes his FAC as an SAC and
also denies the MTD as to Conspiracy in its preliminary statements, but then grants
the MTD as to the Conspiracy in its conclusion.
B. The District Court Erred in Accepting Defendants Argument
That Carney Did Not Plead, Nor Could Plead Prejudice As To Any
procedural defect.
Defendants almost entirely rely uponKnapp v. Doherty, 123 Cal. App. 4th
76, 94 (2004) in their argument, whereby the California Appeals Court ruled that a
procedural defectalone is not enough to warrant setting aside (not preventing or
barring) a foreclosure if [t]here was no prejudicial procedural irregularity.
Appellees-Defendants would and did argue essentially that a Harmless
Error occurred and that Appellant was not prejudiced by such. They argue in
error and the District Court likewise decided in error relying upon such argument.
In System Inv. Corp v. Union Bank, 21 Cal. App. 3rd 137, 153 (1971):
[]It has also been said (34 Cal. Jur.2d, Mortgages, pp. 161-162) that a sale under
a power in a deed of trust has been considered a harsh method of foreclosing the
rights of the grantor; that courts have scrutinized such sales with great care; and
that unless the sale was conducted with fairness, regularity, andscrupulous
integrity, it is not likely to be sustained. (emphasis added).
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InKnapp v. Doherty, supra, the California Appeals Court stated that we
conclude that the sale notice was served slightly prematurely, but that this minor
procedural irregularity was in no way prejudicial to Borrowers. They received
adequate notice of the trustee's sale; indeed, they received nine days more than the
20-day notice required under section 2924b, subdivision (b)(2)...
Defendants would equate slightly premature notice as noted inKnapp v.
Doherty, with Appellants allegations of void, fraudulent and unlawful
substitution of trustee and consequent notice of trustees sale when the core of his
complaint is that the parties (not the notice(s) or any other typo or delay of mails
or such) are in error and act unlawfully and ultra vires. Appellant never alleged
procedural irregularities anywhere in its complaint and subsequent motions or
applications, but instead wholesale defects and voidinstruments.
55 American Jurisprudence Second states: "[D]efects and irregularities in a
sale under a power render it merely voidable and not void.... However,
substantially defective sales have been held void where the defect lay in a
particular as to which the statutory provision was regarded as mandatory...." (55
Am.Jur.2d, Mortgages, 746, p. 673.)(emphasis added).
It is mandatory that any and all Beneficiaries be named in the SOT. It or
they are not.
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As well in Scott v. Security Title Ins. & Guar. Co., 9 Cal.2d 606[L. A. No.
16216. In Bank. September 28, 1937.]: "In California the same rule prevails as in
Massachusetts to the effect that without lawful notice no trustee's foreclosure sale
can be had. (United Bank & Trust Co. v. Brown, 203 Cal. 359 [264 P. 482].) It
follows that the [9 Cal.2d 614] attempted sale of February 7, 1931, was a complete
nullity.
Carney presented facts that the parties that publicly recorded documents
against his property ultra vires and intend on selling his property, did not name the
proper parties, did so without authority and very likely fraudulently, as the parties
to the unlawful SOT (MERS) and Notice of Trustees Sale (ReconTrust) knew
they were not the parties properly and truly authorized to act as such, since they
received value for the transfer of the property a year earlier from the present
nominator/ principal/beneficiary, US BANK.
As well MERS and ReconTrust know full well that the statutes and the DOT
require that the Beneficiary of record be named in the SOT as they both are and
have been in the real property (and foreclosing) business for many years.
Carney has no real idea as to whom with to attempt cure and/or to redeem
his property. It is and has been made quite clear that he cannot rely on the servicer
(BACHLS/BANA) of the alleged loan, as he has multiple times made written
request as to such, with no reply.
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C. The District Court Erred In Not Properly Applying Clearly
Established Statutes And Laws In California Designed To Protect Consumers.
Application of 2932.5 to deeds of trust advances Californias statutory
scheme to protect borrowers, consumers and otherwise, from a wrongful
foreclosure. Further 2924 et seq. provides the statutory scheme by which non-
judicial foreclosure proceeds in California.
California Law is also clear in its Civil Code and in 2934a(1)(A) says all
beneficiaries must execute the Substitution of Trustee and be named, as
referenced in more detail above. The DOT is also very specific in this regard and
is such in accordance with California law. Nowhere in the unlawful SOT is US
BANK or AURORA mentioned nor does either of its interest, agreement or
consent appear in the public record as to the proposed sale. Nor is the original
Lender named, as the DOT requires it to.
Even if MERS could convince this court that is was at one time in fact a
Beneficiary, it certainly would be presently a junior one to US BANK, as itfor
value received, and transferredALL beneficial interest in the DOT and Note and
monies and interest accrued to US BANK and no record contra wise appears in
public or otherwise. There is no document presented by Defendants that controvert
that standing fact, nor has it been disputed by Appellees.
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Instead they argue that MERS can, for value, transfer assign all its
beneficial interest and somehow remain Beneficiary, when it is clear that only US
BANK is entitled to the monies, interest and basically the benefits of the DOT and
Note. They also more sanely argue that MERS now acts as Nominee, too, but as
nominee, it must name the Beneficiary or all Beneficiaries, which it has failed to
do in the SOT.
Therefore, the SOT and Notice of Trustees sale instruments can be of no
legal effect and are voidas any concurrent Trustees sale would necessarily be
void. In Miller v. Cote, 179 Cal.Rptr. 753, (Ct of App. Fourth Dist. Div. 2 1982),
the Court, in calling the notice of defaultfatally defective (which here the case is
the SOT, but Appellant has also averred that the Notice of Default is equally fatally
defective on the same grounds) stated: The procedure for foreclosing on security
by a trustees sale pursuant to a deed of trust is set forth in Civil Code section
2924, et seq. The statutory requirements must bestrictly complied with, and a
trustees sale based on a statutorily deficient notice of default is invalid.(System
Inv. Corp. v. Union Bank(1971) 21 Cal.App.3d 137, 152-153, 98 Cal.Rptr. 735;
see California Mortgage and Deed of Trust Practice (Cont.Ed. Bar 1979) s 6.40, p.
295; see alsoBisno v. Sax (1959) 175 Cal.App.2d 714, 720, 346 P.2d. (emphasis
added).
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A seriously deficient not irregular in the sense Defendants assert -
substitution of trustee and consequent notice of trustees sale are equally invalid or
void. The fact that US BANK or AURORA is no where named in the SOT or any
consent of it is given is not a procedural irregularity or harmless error. It
shows MERS and ReconTrust acting ultra vires and in a knowing unlawful
manner, hoping their actions would not be contested, adequately or otherwise by
Appellant and MERS seeks to avoid mandatory notice in violation of law for aims
known only unto them, but remain unlawful nonetheless.
D. How Can Appellant Be Prejudiced By Void Documents?
The District Court in its vacating of the TRO and subsequent dismissal of
COAs for wrongful foreclosure and cancellation of written instruments never
addresses the validity of those documents, nor the underlying documents that
Appellant states are void. The Court never states that the written instruments in
question are valid, but by its actions validate them. Instead, it seems to reach to
remote and unrelated issues of equity, which is fraught with serious questions of
law as to:
i) No known or stated entity entitled to receive such equity other than
MERS, which is not able to receive such equity.
ii) To whose benefit any equity Appellant might proffer, would satisfy
sufficiently and with amounts and terms with clarity sufficient so that Appellant
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might rightly understand that any equity he would perform would have the effect
on his property.
iii) That with underlying claims of fraud that are heretofore not disputed
have serious implications of offset and/or remediation of any equity that the district
court seems to defend, and that Defendants do not.
iv.) That the fraud and conspiracy thereto are not reasons to deem the DOT
and Note Void and as such of no effect.
Appellant has stated with particularity and facts that a fraud was perpetrated
upon him that have not been answered and that a conspiracy to the same by present
defendants was also involved. The district court acknowledges that facts and
allegations are sufficient to further Appellants claims of Conspiracy to fraud, but
acts to validate the written instruments that were a result of the fraud and
conspiracy.
Appellant again avers that the instruments, ab initio are void and seeded and
founded in fraud and any consequent documents cannot be valid. Even if the
written instruments that defendants rely upon to usurp his property were based
upon a valid DOT and Note, they are not valid and in fact clearly void by
California statutes as has been advanced above.
How can Appellant be prejudiced by void written instruments?
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II. Tender Or Bond Is Not Required.
A. Tender Or Bond Is Not Required As The Written Instruments
Are Attacked As Being Void In Their Execution By Means Of Fraud And/Or
Ultra Vires.
There is no requirement to tender the debt where the amount owed is
disputed or the basis for relief is fraud. If there is no dispute as to the default or
the amount in default, in order to obtain an injunction the trustor must do equity
and offer to cure the defaultbut if a temporary injunction is sought in an action to
rescind for fraud a tender should not be required. 5 Baxter Dunaway, Law of
Distressed real Est. (Thomson Reuters 2009) Section 64:167 (citing, e.g., Stockton
v Newman (1957) 148 Cal. App.2d 558, 563).
Because the SOT and Notice Of Trustees Sale are rightly attacked and
evinced as being void in their execution by way of fraud as they violate the statutes
and the DOT that Appellees rely upon but Appellant states are void, as well as rely
upon foundational documents Defendants seek to execute such a sale of
Appellants property as also being void (not merely voidable) in their execution
because of a fraud perpetrated upon Appellant, tender or bond is not required and
would be grossly inequitable for this or any court to order such tender or bond as it
would affirm the debt in terms of its veracity and to whom it would potentially
benefit without such beneficiary being clearly stated. It certainly cannot be MERS.
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Additionally, any offset of fraudulent monies received as a result of the
fraud and damages due as a result must be taken into consideration by the courts.
As the California Appeals Court found in Onofrio v. Rice (1997) 55
Cal.App.4th 413 [64 Cal.Rptr.2d 74]: "[A] tender may not be required where it
would be inequitable to do so." (4 Miller & Starr, Cal. Real Estate, supra, Deeds of
Trust & Mortgages ? 9:154, at pp. 508-509, fn. 86.) "Similarly, when the person
making the claim has a counter-claim or set-off against the beneficiary, ... it is
deemed that they offset each other, and if the offset is equal to or greater than the
amount due, a tender is not required .... Also, if the action attacks the validity of
the underlying debt, a tender is not required since it would constitute an affirmative
of the debt." (Id. at p. 512, fns. omitted.).
The distinctions of void and voidable written instruments are well stated and
accepted in California law. This is an important distinction as to the void or
voidable aspects of the written instruments in question.
Appellant avers here, and has in his FAC that there has never been a
contract between he and Defendant BondCorp Realty Services, Inc. as
Countrywide was truly the party to any contract or agreement and was not named
as such and more so, was fraudulently concealed from Appellant as the true party
to his contract.
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"There is a manifest distinction between fraud in the execution--in the fact of
whether or not an instrument has been executed at all, and fraud in the inducement,
that is, where because of the fraudulent representation of the payee, the maker
knowingly and voluntarily executes the note, but it is voidable because of the fraud
inducing him to execute it. In the former there is no contract whatever. In the latter
there is a contract which is voidable for fraud." (C.I.T. Corp. v. Panac, 25 Cal.2d
547, 548 [154 P.2d 710, 160 A.L.R. 1285].)
The District Court citesFleming v. Kagan, 189 Cal. App. 2d 791, 796-97
(1961) as its steering guide in its order. The facts are thatFleming v. Kagan supra
relied heavily on C.I.T. Corp. v. Panac supra in its decision and that ruling did in
fact make a clear and unambiguous difference as to void and voidable contracts.
Additionally, the SOT and NTS that were executed by MERS unlawfully
and likely fraudulently naming ReconTrust do not at all apply to the district courts
order. Written instruments that are void by the statutes and the DOT do not and
cannot require any form of tender.
Further, inDimrock v. Emerald Properties, 81 Cal.App.4th 868, 878 (2000),
which held: In particular, contrary to the defendants argument, he was not
required to tender any of the amounts due under the note in order to attack a void
trustee sale. The Court inDimrockfurther stated: To avoid confusion and
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litigation, there cannot be at any given time more than one person with the power
to conduct a sale under a deed of trust.
While the language of Fed. R. Civ. Proc. 65(c) suggests that a
restraining order or injunction will not be issued without security by the applicant,
this Court has wide discretion in setting the amount of a bond and it may order no
bond is required. SeeConnecticut Gen. Life Ins. Co. v. New Images of Beverly
Hills, 321 F.3d 878, 882 (9th Cir. 2003). The district court may dispense with the
filing of a bond when it concludes that there is not realistic likelihood of harm to
the defendant from enjoining his or her conduct.Jorgensen v. Cassidy, 320 F.3d
906, 919 (9th Cir. 2003).
Here, there is no harm and Defendants cannot state a harm or damage as
they (ReconTrust, Countrywide/BAC, BACHLS, MERS) have no authorization or
documents stating, nor have stated in this case they are entitled to any such
protection or relief. As importantly, ReconTrust has stated that the sale price for
any such sale is far lower than any debt they demand and that Defendants will
experience a greater loss were the Trustees sale to be allowed to occur. See
Exhibit B, as incorporated and made part of this appeal.
III. Merits Of Case Are Compelling And Clear And Likely to Be Successful.
It is clear that MERS and ReconTrust act to usurp Appellants property
without lawful authority. MERS Cannot be and in fact is not the beneficiary of the
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DOT. There is no named beneficiary in the SOT and ANY and ALL beneficiaries
must be named in the SOT. Therefore the SOT (and consequently the NTS) is
seriously defective and voidas an instrument to be implemented to supplant
Appellant from his property.
Defendants act hurriedly and without authority not because they are
uninformed or have made an excusable mistake, but rather because they wish to
elude the central facts and claims against them, hold the wrongful trustees sale
and gain title and possession of Appellants property to gain a superior position.
The facts are that BondCorp, who has yet to respond to any complaint or
motion related to this case, was in fact named as Grantee when it never proffered
any funds and was used by Countrywide to both gain secret, concealed fees and
allow Countrywide to further gain based on intentional concealments, lies,
misrepresentations and related actions.
As has been stated, the core of this matter is the claims against BondCorp
acting at the behest of Countrywide. If BondCorp was found to have acted
fraudulently, as asserted and supported by facts, every other claim and defense is
affected accordingly.
What this court is presented with is a defendant in BondCorp who has
chosen to remain silent in the face of substantial allegations and facts against it,
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and a foreclosing entity defendant (MERS) that is acting without authority and in
clear violation of the law.
Meanwhile, Appellant has had to defend and counter all such actions and to
drag out all the facts, all while in the face of losing his family home and efforts to
understand what options would be available to him to avert such a catastrophic
result.
Up until August/September of 2010, Appellant was resigned to the fact that
his misfortune would likely lead to the loss of his family home. It wasnt until he
received and further researched the information regarding the assignment/transfer
of his DOT and Note to US BANK (June 2010) that was entirely first time news to
him, that he began to understand and realize the fraud, malfeasance and
misfeasance enacted upon him and then which drove him to seek relief and
damages for.
The facts of the case as pertains to BondCorp are clear and undisputed.
BondCorp was not the lender. It only acted as such to attain secret fees.
BondCorp utilized illegal, fraudulent means to sell and convince Appellant that the
loan BondCorp wished to engage him in was in his best interests, when it was not
and that all the facts represented to him regarding the alleged loan were true, when
they were not and the real facts were concealed from him and that he was
defrauded of tens of thousands of dollars in the process.
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Countrywide was an active conspirator as it allowed BondCorp to utilize its
technological assets, its underwriting resources, account numbering system and
other aids and benefits to entrap Appellant into a loan that was damaging, stated
the wrong parties and took illegal and undisclosed fees.
MERS, something of a phantom entity and ReconTrust, subsidiary of BAC
and not an independent entity, acting in BAC/BANA/Countrywides interests, now
are trying to come in and clean up the mess made by the fraudulent DOT and Note
by BondCorp in a conspiracy with Countrywide, not because they are any real
beneficiary and have or will experience any real loss, but rather to gain substantial
fees from the SARM 2005-19XS Trust for foreclosing on Appellants property.
It is truly curious as to why the proper parties in this matter are not named
and Appellant posits that other, unrelated legal actions are likely a reason. That
said, Appellant has shown good cause why a trustees sale should not proceed so
that the status quo is maintained while he presses his case in the District Court.
Equally of interest is EXHIBIT C, as incorporated and made part of this
appeal, which is a NOTICE TO SHAREHOLDERS AND/OR CERTIFICATE
HOLDERS..[]. This document, recently found at the US BANK website
(August 2011), says many things of interest, but the most important and overriding
aspect is that it is clear that US BANK acts as Trustee for SARM 2005-19XS and
that by those documents and the aforementioned publicly recorded transfer and
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assignment to US BANK as Trustee, it is also clear that MERS is no beneficiary,
nor can be.
IV. The Balance Of Hardships Tip Sharply In Favor Of Appellant.
The Harms implicit in MERS and ReconTrusts orchestration and execution
of an unlawful Trustees sale will harm Plaintiff greatly. He will have to displace
from his family residence of nine years and relocate by means of a subsequent writ
to do so. His realignment and adjustment to a less favorable and disadvantageous
surrounds will be severe and the effects therewith be long lasting.
Additionally, the harms include a multiplicity of legal actions, loss or
slander of title and onerous costs to litigate and recoup title and property.
Conversely, the facts in this case show clearly that ReconTrust is not an
authorized Trustee with power of sale. Additionally, neither it, nor BACHLS,
Countrywide/BAC or MERS are beneficiaries with proper standing as the only
beneficiary stated in the public record as of June 24, 2010 is US Bank.
Defendants can only fail to exhibit, state or demonstrate what harm they
may incur. EXHIBIT B, as incorporated into this appeal, shows that Defendants
would experience a loss far greater than any alleged debt owed by Appellant. They
state in their void Notice of Trustees sale an amount of $791,751.55 as due and
owing with something like $110,000.00 in unsubstantiated and inflated arrears, but
ReconTrust has listed an Opening Bid Amount of $562,500.00 (Exhibit B).
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Therefore, Defendants/Appellants incur no or negligible loss by the issuing
of a Stay or Injunctive Relief so Appellee can properly proceed with his claims.
Twice Appellant has requested a proper accounting of such arrears
(EXHIBIT A) and the proper parties and true creditor(s) and to date both requests
have been ignored.
V. No Harm Is Experienced By Defendants Nor Have They Claimed Any
Harm.
In addition to the above, BAC, Countrywide, MERS, US BANK, AURORA
are multi-billion dollar enterprises. A relative short stay so that this court can
properly decide the serious questions of law at issue will in no way harm them.
Additionally, Defendants listed sale price is considerably less than any
alleged and purported monies due by Appellant and their loss will be greater with
any alleged trustees sale.
VI. The Public Interest Will Be Served By A Stay Or The Granting Of
Injunctive Relief Sought.
By the Court issuing a Stay or the relief requested, the public interest will
have been served by virtue of the fact that the scheduled Trustees sale is
unauthorized, is based on fraudulently conceived documents and is in violation of
clearly enumerated law.
VII. Mootness Issue.
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Appellees have filed a MTD this appeal based on mootness. They err in
their motion on many points, prominent among them being: Under 28 U.S.C.
1291, the court of appeals has jurisdiction over all final decisions of the district
courts . . . except where a direct review may be had in the Supreme Court.
Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981). Section 1291
has been interpreted to confer appellate jurisdiction over a district court decision
that ends the litigation on the merits and leaves nothing for the court to do but
execute the judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978)
(citations omitted).
The finality rule is to be given a practical rather than a technical
construction. Stone v. Heckler, 722 F.2d 464, 467 (9th Cir. 1983) (citation
omitted);see also Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842,
845 (9th Cir. 2009) ([T]he requirement of finality is to be given a practical rather
than a technical construction. (quotation marks and citation omitted)); Eisen v.
Carlisle & Jacquelin, 417 U.S. 156, 170 n.9 (1974) ([I]t is impossible to devise a
formula to resolve all marginal cases coming within what might well be called the
twilight zone of finality. (citations omitted)). For example, an order that does
not end the litigation on the merits may nevertheless be appealable under 1291 if
it satisfies the collateral order doctrine or is certified under Fed. R. Civ. P. 54(b).
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The lead case cite that Appellees offer this court is in fact a decision refuting
mootness, but would bend certain meanings within the opinions of the Supreme
Court to further its aims and unduly influence this court. They choose a case of
public nudity as their lead argument when that same court stated Although the
issue is close, we conclude that the case is not moot, and we turn to the merits.
City of Erie v. Paps A.M., 529 U.S. 277, 289 (2000).
This present issue is not nearly as close as City of Erie and the merits are
indeed worthy of review by this court.
The appeals court has jurisdiction over final orders and decisions. A district
courts decision is final for purposes of 28 U.S.C. 1291 if it (1) is a full
adjudication of the issues, and (2) clearly evidences the judges intention that it be
the courts final act in the matter. Natl Distrib. Agency v. Nationwide Mut. Ins.
Co., 117 F.3d 432, 433 (9th Cir. 1997) (citations omitted);see also Elliott v. White
Mountain Apache Tribal Court, 566 F.3d 842, 846 (9th Cir. 2009);Romoland Sch.
Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738, 747 (9th Cir. 2008); Way
v. County of Ventura, 348 F.3d 808, 810 (9th Cir. 2003). The purpose of 1291 is
to disallow appeal from any decision which is tentative, informal or incomplete.
Citicorp Real Estate, Inc. v. Smith, 155 F.3d 1097, 1101 (9th Cir. 1998) (quotation
marks and citation omitted).
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The district court dismissed Appellants causes of action for wrongful
foreclosure, cancellation of written instruments and California UCL violations with
prejudice, effectively closing the door on Appellant in his effort to try and argue
those causes of action. Therefore, the appellate court has jurisdiction and right to
review that order and Appellant has timely appealed them and that his claims live
for such review.
VIII. The District Court Seriously Erred In Dismissing Appellants Claims
With Prejudice And Without Leave To Amend.
The Ninth Circuit and other US appeals courts have consistently ruled that
pro se litigants are to be afforded the widest interpretation and instruction of the
courts in order to properly assert their claims.
The Ninth Circuit appeals court stated inJames v. Pliler: before dismissing
a pro se complaint the district court must provide the litigant with notice of the
deficiencies in his complaint in order to ensure that the litigant uses the opportunity
to amend effectively. Ferdik, 963 F.2d at 1261.(quotingFerdik. V. Bonzelet
andNoll v. Carlson)(emphasis added)(Forgive incomplete cite).
Because the district court dismissed Plaintiffs original complaint with leave
to amend with no notice or statement of any deficiencies contained in the original
complaint, he is to be afforded the ability with instruction of this court as to
deficiencies to amend his first amended complaint (FAC) so that he may
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clearly understand the reasons why his complaint cannot proceed as a matter of law
or as a matter of substance.
In fact, Appellants FAC contained two COAs that were not in the original
complaint. One new COA was for Wrongful Foreclosure and the other was a new
COA for Cancellation of Written Instruments (related to wrongful foreclosure).
Appellant never heard from the district court on his complaint for those two
COAs and therefore never had an opportunity to understand any defects within
them so that he could properly cure and amend to.
This court has provided neither notice nor instruction in its present order to
dismiss with prejudice nor had it done so with Plaintiffs original complaint.
Therefore the district court erred in dismissing with prejudice Appellants claims
and thereby disallowing him to amend to further perfect his claims.
CONCLUSION
Appellees (those properly represented by and to whom by, to this court) do
not want and feverishly attempt to avoid a reasoned adjudication of the serious
questions of law contained in Appellants complaint, motions, statements and
assertions.
Fraud is always a moving target. It never sits still as truth does. Because
there are large financial institutions and untold beyond ramifications involved that
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Appellant cannot calculate, this does not in any way diminish nor demean his
claims.
Appellant is here now before this court to seek its judgment as to his family
home and property and the fraud and unlawful acts taken against him and it, which
for generations before and after will be affected by and that Appellant trusts to - a
decision that it will justly take and deliver as to the fraud and unlawful acts
Appellant has asserted as well as the errant defenses and orders of the district court
in his case.
Therefore, for the strong showing of law and facts as well as reasons, the
Court should stay the district courts order (a) vacating the TRO and (b) dismissing
with prejudice certain of his causes of action pending resolution of the Carneys
appeal and should grant at least an immediate temporary administrative stay and/or
the requested relief as would be equitable and just.
DATED: November 8, 2011
At Costa Mesa, CA
Respectfully Submitted,
__Michael M. Carney /s/_____
Michael M. CarneyPro Se
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