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Nancy Dnffy MeCarron, CBN 164780 Law Ofice of Nancy D McCarron u e 950 Roble Lane Santa Barbara, CA 93 103 805-450-0450 805-965-3492 nancydufflsb@yahw.com Real %ate Broker Lie. 853086 Notary Public L c 1791117 i Certified Arbitrator for BBB 30329

Attomey for Plaintiff
SUPERIOR COURT O F THE STATE OF CACIFORNIA

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FOR THE COUNTY OF SANTA BARBARA (AWACAPA DIVISION)

DAVID W. GATES, Trustee for the DAVID W. GATES

T u t dated August 5,1996 rs

Plaintiff,

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) Case No: ) ) )

1384851.:. ,.
.

VERIFIED COMPLAINT

for

) DECLARATORY & INJUNCTIVE RELIEF

MGC Mortgage, Inc., Texas Corporation LPP Mortgage Ltd., LP, Texas Corporation Loan Acquisition Corporation,Texas Corporation

(WRONGFUL FORECLOSURE)

) SLANDER OF TITLE & CONSPIRACY TO SLANDER ) FRAUD (misrepresentation and conceaIment)

) QUASI-CONTRACT (reslitution) Cal-Westan Reconveyance Corporation,T x s Corporation ) ea ELDER ABUSE Welfare & Institutions Code 5 15610.10 ) DB Structured Products, Inc., Delaware Corporation ) BREACH OF FIDUCIARY DUTY (constructive &ud)

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Deutachc Bank National Trust Company, as trustee

1 ) QUIET TITLE (declaratory relief)

22

23
24
25 26

) CONTRACT RESCISSION COMMON LAW ACCOUNTING I Warnu AssetAc'Wtanw o r p O m SPV vehicle bank C ) Request for Attomey Fees W&l. $15657; CCP 81021.5 ) Civil Code Q1717 Washington Mutual Mortgage Securities Corporation, bank ) ) DEMAND FOR J R TRIAL AS ALLOWED BY LAY UY JP Morgan Chase B n . National Association, a bank ak, ) ) F l d nab Motion for Temwrawlniunetiou against ie Defendmk ) foredosure set for 2-62011 and request for hearing on DOES 1 through 50, inclusive, prelimiuary injunction pending outcnme of litigation
W-ton
Mutual B * a national banking association

!

Plaintiff respectfUlIy asks the court to study EXEUBIT C before reading this ccxnplaint as securitization of

21
28

a mortgage into a "Pool of Loans" to be m a r k W s o l d as

(RMBS)and

Collateralized Debt Oblirrations (CW's) on Wall Street is very d i i c u l t to imderstand without broker bin@ Plaintiff's loan w s securitized on 9-29-05. Backwound alleations are imperative for the court's understanding a

.........................................................................................
VERIFIED COMF'LAINT

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\ ~ 1, *

,,

INTRODUCTION
1. Plaintiff brings this action against defendants and Does 1-50 lor ~ i n to sell his Propcrty at a bustee's g sale set for February 6,2012 which win deprive Plaintiff of his property without a lawful claim. Plaintiff seeks to clear his title and recover damages for the malicious and intentional acts of fraud against plaintiff. Defendant LPP Mortgage Ltd., (LPP) does not have standing to foreclose because LPP is not the owner of plaintiffs Note, LPP is not a holder of the Note, and LPP is not a beneficiar~i under the Note. LPP does not claim, nor has it ever claimed to be the owner or holder ofthe Note, nor can LPP claim to be a beneficiary.
2.

1 a loan Even if LPP could prove that it is .
servicer, LPP still could not foreclose on plaintiffs property without authorization from the Lender under Paragraph 22 of plaintiffs Dced of Trust.(see E d . A-25) 1,PP has no standing to foreclose and had no power to substitute a trustee. Paragraph 24 of the deed of trust recites that only the lender may substitute. CWRC has no power to foreclose as its agency power is derived and thus limited by it's principal's power.

3.

Furthermore defendant CWRC failed to comply with the provisions of CCP $2924 governing foreclosure Plaintiff's loan was originated on September 25,2005. No foreclosure could be prosecuted without fust contacti~~g borrower to try to work out a loan modification. CCP 82923.5 No defendant ever complied. the Secondly, the trustee was required to wait until the substitution of trustee was recorded before recording a notice of default. The trustee failed to follow the strict requirements of the code; accordingly the court must resbain this illegal foreclosure. Defendants failed to identify the beneficiap as mandated by 15 USC $ 1 6 4 1 ~ The notice recites the trustee is "either the original trustee, the duly appointed substituted hustee, or acting a

agent for the trustee or beneficiary under a deed ofhrst." This nebulous recitation woehlly fails to compl>r.
Since trustee failed to comply with basic requirements under CCP $2924 et seq. foreclosure is void ub iizirio.

I.

Notwithstanding the procedural deficiencies of the trustee and substantive deficiencies in that LPP has no standing to foreclose because it has no legal or beneficial interest in the Note obligation, the foreclosure is void ah initin as it is based on fraudulently manufactured instruments which were likely forged. (see Exh. M) The questioned instruments must be examined for validity and should not be automatically accepted as valid.

NOTE: Some defendants werelare doing business illegally without reg~steringat the Secretary of State's office.

Plaintiff will object to participation of my defendant until first curing their deficiency with the SOS.
The state of California needs the funds. These bankstem have evaded registering to avoid paying our state.

V E R I F I E D COMPLAIN?

1.

a

HISTORICAL ALLEGATIONS 'ARTIES:
5. PlaintiEDAVID W. GATES, (hereinafter GATES) is a resident of Santa Barbara and brings this action as Trustee for DAVID W. GATES TRUST dated August 5,1996 which owns real property at 1200 Palominc Road, Santa Barbara, CA, the subject of this action. (see Exh. A-Valid Chain of Title). l'he foreclosure is illegal and void ab injtio because it is based upon fraudulent and possibly forged instruments recordcd again$ the properly which purports to assign the trust deed, violating Penal Code S115,132-135. (Exh R 1 to B 4)
6.

The assignmcnt was recorded by a corporation (LPP) having no legal or beneficial interest in the propea Only a real party in interest may prosecute an action. GATES executed a note and a trust deed (Exh.A-5,All to Washington Mutual Bank, FN on 9-25-2005. The trust deed was void ab initio because Washington

Mutual Bank FN was defunct by 4-25-2005 and thus had no power to transferanythu~g 9-25-05. on

7.

GATES is a 69 year-old widower who has been disabled since age 45. GATES wife of 20 years died of anorexia on 11-19-08 and his home of 30 years burned down in the Jesusita fue in Santa Barbara on 5-6-09. The stress of losing his wife and then his home was too much to bear causing heart problems ncccssitating heart surgery. Friends and volunteers helped GATES to rcbuild in the past 3 years which is 80% fmished.
LPP (the pretend lendcr) tricd to convert GATES'S fue insurance proceeds which forms the basis for the frau

claim and the financial elder abuse claim. At all relevant times GATES w a s h disabled and a senior citizen
as defmed under C M ~ $ 1 761. GATES is afforded protection fium financial abuse. W&I Code $15610.27 C.
9.

Defendant MGC Morteane. Inc. (MGC) is a Texas corporation doing business in California, who since July 1,2009 has held itself out to be the "loan service? acting on behalf of thepretend lender. (Exh. F-3)

.

Defendant LPP Morteaee. Inc. (LLP) is a Texas corporation wbo at all relevant times since August 22, 2008 has falsely represented itself to be the lender and assignee of the recorded trust dccd. (Exh. B-1)

10.

Defendant Loan Acauisition Cowration (LAC) is a Tcxas corporation who since August 22,2008 has

Ialsely representcd itsclf as a party to a purported "Master Loan Sale and Interim Servicing Agreement" ("the purchase agreement") together with "DB Structured Products, Inc." (Exh. B-3)
I I.

Defendant Cal-Western Reconvevance Corporation (CWRC) is a Texas corporation doing business in California as a foreclosure mill working for v&ous lenders (real lenders and pretend lenders). CWRC is \~igorously pursuing a fraudulent foreclosure despite warnings and demands to cease and desist from same.

VERIFIED COMPLAINT

I. 3

12.

CWRC noticed a sale for 1200 Palomino on February 6,2012 despite notice of the fraud. (Exh. B-13)

* CWRC is so cavalier in its fraudclosure camvaim that it often imores restraining, orders issued bv courts.
13.
Defendant Deutsche Bank National Tmst Comvany (DB) wadis the current trustee for a large "Pool of

Loans" (RMBS's) which includes GATES' loan after it was conveyed into the trust by the loan's originator. 14. Defendant Washingtonutual Bank (WMB) is a national banking association which, through affiliates,

subsidiaries, agents, securities dealers and brokers, packaged thousands of residential mortgage loans from 2001 to 2008 into Poob ofZoans converted into securities and marketedlsold to investors on Wall Street. This securitization of residential loans through "Pooling and SeMcing Agreements" is explained at Exh. C. 15. Defendant WaMu Asset Acceptance Comoration (WAAC) was a "special purpose vehicle" (SPV) create

by WMB and authorized by the Tax Reform Act of 1986 to act as a Real Estate Mortgage Investment Coudu (REMIC) to issue tax-freepassthroughs in securitizing a mortgage into cerh~crrres sold to investors as bonds 16. Defendant WaMu Mutual M o r t e w Securities Comoration (WMMSC) is an affiliate of WMB who, on

information and belief, was involved in transmuting GATES' loan into a residential morteaee backed securit (RMBS) and who worked on his loan package during the so-called undenvriting of GATES' loan.
17.

Defendant J M o r ~ a n P Chase Bank. National Associatio~~ (CHASE) is the bank who acquired the assets

and liabilities of Wamu Bank on September 25, 2008 for 1.9 billion dollars. The FDIC-appointed receiver worked the deal with CHASE after the Ofice of Thrift Supervision seized it. Wamu fde Ch. 1 bankruptcy. 1

IOES:
18.

Plaintiff is ignorant of the names of those Defendants sued as Does 1-50, and for that reason has sued

them by said fictitious names. PlaintifFu~ill seek leave of the court to amend this complaint to add the name! when they have been ascertained. Plaintiff believes the DOES are liable for their actslomissio~~s alleged o as are in some way liable to GATES for damages, or claim a beneficial interest, title or estate in his property.
LGENCY:

19.

In doing the acts alleged, defendants and each of them acted as either agents, servants, andlor employees

of their co-defendants, acting within the course and scope of said agency, service andlor employment, and with the knowledge, wnsent, and approval of their w-defendants; each defendant's conduct was ratifled by
his or her co-defendants, and each defendant acted in a conspiracy to defraud consumers including GATES.

VERTVIED COMPLAINT

114

GENERAL BACKGROUND ALLEGATIONS
20.

After the Great Depression of 1934, as part of the New Deal our government enactcd thc National Housing Act of 1934 to revive the economy and encourage Americans to work toward home ownership.
The government continued this pattern by creating Fannie Mae, Freddie Mac, Ginnie May, FHA, etc.

Congress passed the Tax Reform Act of 1986 in which it created Real Estate Mortaaee Investment Conduits (REMIC's) to encourage loan originations through a process called securitization. Prior to 1986 a bank lent ; customer funds (from deposits) and held the note in aporNlio until paid. Upon default the bank foreclosed.
21.

The process of securitization is more complicated. Eghibit C is a flow- chart summarizing how it work

with a few pages describing its history, its process, its participants and the dangers of losing its tau-free status
Securilization involvcs the crcation and sale of securities (RMBS certificates) backed by an underlying pool

of thousands of collateralized mortgages held in a trust created for such purpose. The fmancial institution sponsoring the securitization originates or acquires mortgages; it then assigns the notes (as "seller") which ar transferred into the REMIC trust, often through a special purpose vehicle (SPV) typically called the deposifoi The trust then issues different classes of securities and sells them to investors in the form of cerhpcales. Each certificate entitles the investor to periodic disbursements from the cash flow available in the REMIC trust from monthly payments made 011 the uuderlying mortgages, which are allocated to that class of security in accordance with governing rnles of the trust. The trustee manages trust assets and ensures distribution of trust funds to investors in accordance with a governing document called "Pooling andsenicing AgreemenZ' (P&S) signed by the parties. The P&S is a tax-free statutory trust and IRS codes must he strictly followed to avoid losing its tax-free status. REMIC's are governed very strictly by Intend Revenue Code $860(d).

!2.

The Chart at Exhibit D shows who the participants were in the GATES loan and includes what GATES
W W . ' '

believes is the P&S governing his loan. '

Although defendants havc refused to provide GATES'S P&S he helieves this is the one as it closed 2 days after his escrow closed. Each loan, upon closing, was transferred into the next AR series. Once the securitie! offering closed a depositor had only 90 days to add a new loan to the loan pool to comply with IRS mandates Since GATES' escrow closed on September 29,2005 and AR-13 offering closed October 1,2005---the last day that any mortgage could be transferred into the AR-13 trust was December 28,2005. By that date Wamx no longer owned the loan because it necessarily would have to be conveyed inlo the trust by that dotc.

V E R I F I E D COMPLAINT

/IS

23.

GATES' note is dated September 20,2005. (Exh. A-5). The copy shows fold marks because it was

received in the mail after GATES requested it. GATES lost many files when his home burned down in the Jesusita fire on 5-6-2009. GATES signed ihe note and tmst deed while hc was in Idaho on vacation on or
11 about September 23,2005 and was not given a copy of any of the documents. (Exh A1-34). GATES was 10

given any explanation or counseling. During the loan processing a WaMu employee called GATES to warn him not to answer the phone to avoid ail underwriter's call to verify his income. No one ever explained that the recited interest rate (5.5%) was a teaser rate on the $1,142,302 principal balance. 24. Most of the funds were used t pay off existing WaMu loans. No one explained that his $7,014.73 per o

month payment would rise significantly when the teaser rate expired and the adjustable rate kicked in later. Because he had tenants who paid rent GATES was able to make the payments faithfully for several years.
25.

On September 23,2005 GATES believed that be was borrowing money from WaMu as a loan. NO one

involved in the loan process ever disclosed or explained that his loan would be securitized; i.e. "sliced and diced" and "sold and resold" and "&aded and re-traded" until lost in a pool of thousands of unide~~t'ified loans
26.

From 2000 to 2008 WaMu's CEO Keny W i n g e r took home $100,000,000.00 while he led WaMu into

bankruptcy. WaMn in 2006 estimated its internal profit margin from subprime loans could be more than10 times for a govenunent-backed loan product and more than 7 times for a fixed rate product. 27. From the CEO down to loan off~cers WaMu's agenda was to close as many subprime loans as possible tc

surpass Countrywide in market share. Killinger ordered the highest commissions to be paid for the riskiest loans; i.e. loans with tearer rates switchiig to high interest adjustable rates later. Everyone jumped on the bandwagon; i.e, bankers, loan brokers, stockbrokers, and every person who could grab a piece of the action t extort hefty commissions on loans destined for foreclosure. Players counted on a continuing rise in the real estate frenzy or that borrowers would sell before rates rose. It is commonly known the bubble burst in 2008. In September 2008 (3 years after GATES' loan) WaMu collapsed. COUNTRYWIDE also collapsed. There were record foreclosures nationwide. The Office of Thrift Supervision seized both failed banks and pl them into receivership with the FDIC. The FDIC's receiver immediately worked a deal with JF' MORGAN CHASE BANK to acquire the assets and liabilities of the failed WMu bank. On September 25,2008 this dee was consummated by way of a "Purchasc and Assumption Agreement" (P&A) between the FDIC and JPMORGAN CHASE. (see Exh 1-1 -excerpts)

28.

WaMu filed for Chapter 11 bankruptcy which prompted thousands of creditors to file claims, resulting ir

billions in claims from other banks, consumers, insurers, etc. and even from successor CHASE. (Exh. 16) WaMu then sued the FDIC for indemnifkation for billions in claims arising dnring bankruptcy. (Exh. 1-12) Many of these claims are currently under appeal (Exh. 1-17) including WaMu's appeal against the FDIC.
29.

Defendant

was the Trustee in the P&S WaMu AR-13 governing the pool olloans including GATES.

DB was the lead Issuer offcring Residential Mortwa~e Backed Securities (RMBS) on Wall Street to investors while offering high commission to brokers to push RMBSs. DB made billions selling RMBSs to investors. 30.
When DB realized most of the RMBSs it sold were losing money because borrowers were defaulting or

the homes had already foreclosed, DB created a subsidiaty to hedge bets against the very products DB was peddling to unsuspecting investors. (explained at Exh.G) Meanwhile DB put in claims to the government agencies who insured the trust against losses, including AIG. All mortgages closed with ALTA insurance policies to protect against borrower defaults. DB submitted claims and mllected on these insurance policies. DB filed a claim for $10 billion dollars in the bankruptcy court against WaMu who was 111 Chapter 11, arguing that DB's claim should be given priority as an "administrative expense." (Exh. G-5) 31. DB, one of the most profitable banks in Lhe world created ncw ways to profit fiom the market collapse.

DB submined the same claim for $I 0 billion dollars to FDIC. (Exh H-4). After the court sustained FDIC's demurrer to its complaint, havuig read FDIC's arguments that CHASE was liable for WaMu's liabilities as successor, DB filed an amended complaint enjoining CHASE . DB prayed for $10 billion in cash payments for alleged WaMu breaches of aduty to repurchase defaulting loans. The basis of DB's claim is that in its joint venture with WaMu it failed to use proper underwriting procedures in issuing risky loans to borrowers. DB argued if FDIC does not owe them $10 billion then CHASE owes it as successor to the bankrupt WaMu. The theory upon which DB based its claim is that WaMu failed to repurchase defaulting loans pursuant to the terms of the governing PBS's in which WaMu promised to repurchase non-performing loans. (Exh. G-6) 32. DB did not stop at seeking $10 billion from FHA, FDIC, and the WaMu Chapter 11 bankruptcy assets.

On information and belief, DB paid off Edward Liddy, the government-installedCEO of AIG (govenunent insurer of the RMBS's) to push through a $180 billion government bail out funded by the same American taxpayers who lost their homes in fraudulent foreclosures as a result of the DBlWaMu fraudulent loans, as well as the same American taxpayerlinvestors who were duped into buying DB's worthless RMBS's.

V Z R I F I E 3 COMPLAINT

17 1

33.

DB profited even further by creating Yefault credit swaps" shorts against the products it peddled.

As soon as AIG received the $180billion from taxpayers, AIG issued $165,000,000 in bonuses to AIG executives and sent $11.8

billion to Deutsche Bank in Germany. DB fmaUy got its $10

billion in cash. Despite this windfall fiom our taxpayers as a reward for its fiand DB continues to pursue the same $10 billion claims as described above against FDIC, FHA, the Bankruptcy Court, insurers and others. 34. The WaMu defendants (WIvlB, WAAC, WMSC, WMMSC) and successor JP Morgan Chase (CHASE) are engaged in prolific litigation against each other, against Deutsch Bank, the FDIC and bank~~ptcy court. The litigations are aU related to the collapse of WaMu who is jointly liable for the securitization debacle.

35.

While these predators employed lawyers to pursue claims in federal courts 50 state courts, they devised

yet another scheme to bilk even more money by stealing borrowers' homes UI wongful foreclosures.

In breach of DB's trustee duty to preserve trust assets for certijkate holders---DB "assigned the trust deeds.
The P&S ddmes a beneficial bolder as "a Person holding a beneficial interest in any Book-En* Certificate

as or through a DTC Participant or an indirect DTC Participant or a Person holding a beneficial interest in any Definitive Certif~cate."(see Exh. D-7 top) 36. DB blatantly violated its expressed duties assumed by the governing P&S (see Exh. D-9 middle) becaust

those same trust deeds it was selling (assigning) secured the underlying debts on the loans in the pool. Section 2.02 expressly prohibited the trustee fiom alienating any trust asset and to "consider the interest of its t r u s ~ . (see"Exh D-9) The P&S does not aUow the trustee to "possess or assign the

assets" of the trust. (D-9). DB violated an express duty not to defeat the REMIC trust's tax-&ee status. (see D-12) The section recited, 'Weither the trustee nor the Tax Matters Person shall knowingly and intentionally take any action that would cause the termination of the REMIC status." (D-9) 37. The governing P&S expressly set forth the duties and liabilities of the imstee to maintain trust assets and

prohibited the splitting of Trust Deeds from Notes because if the Trust Deed is assigned to another it renders the NOTE unsecured, thereby making the cerh$cates worthless and defeating the trust's IRS tax-free status. 38. WaMdChase breached their fiduciary duty to theu borrowers by facilitating this additional fiaud.

CHASE and DB initiated a campaign to illegally sell arsignment.~ trust &e& securing loans in the pools. of This enabled greedy banksters to buy these illegal and unenforceable assignments and to illegally confiscate thousands of American homes through illegal foreclosures based upon assignments which were void ab initio

V E R I F I E O COMPLAINT

j

:g

39.

DB andlor CHASE, in conjunction with other conspirators, began to manufacture thousands of fraudulen

"assigizmentsof tnrst deeds" with "cut and paste" techniques whenever it was necessary to back-date them.

All of these illegal acts exposed the creators of these fraudulent bust deed assignments to cximinal liability under Penal Codes, Sections 115, 132,133,134 and 135. (Exh. K-13). DBICHASE hired a conspiring enti6 Cal-Western Recouvevance Com~anv foreclose on homes based on the fraudulent trust deed assignments. to These foreclosures were fraudulent because the pretend 1ender.s had no beneficial interest in these notes. The only pelsous who had abeneficial interest in the notes were certificate holders who funded the loans. Splitting off GATES' hust deed which secured the note violated the express terms of the P&S. (Exh. D-9) 40. DB, as trustee, had the power to order foreclosure on any non-performing loan in the respective loan pool

DB HAD NO POWERTO SELL OR ASSIGN TRUST DEEDS TO PRETEND LENDERS. But this is exactly what DBNaMu did. DBNaMu sold trust deeds topretend lenders who had no interest in the loans. These assignments were void a6 initia, not only because they were fraudulently manufactures by persons w h ~ lacked authority to execute them, but because the JIB bustee was not authorized to sell anv assets in the trust. DB, WaMu and CHASE manufactured, back-dated, and recorded a fraudulent conveyance on June 12,2009.

CONGRESSIONAL INVESTIGATION OF DEUTSCHE BANKlWAMU FRAUD
41. Fraudulent foreclosures became so prolific across America that homeowners began to revolt against the

predators by hiring lawyers to defend foreclosures, demanding a Congressional Investigation and making complaints to state and federal prosecutors. Prosecutors began to investigate DB~WaMulChase(see Exh. E). 42.

On April 13,201 1 CONGRESS released a 632 page report entitled "Wall Street and the Financial Crises'
Exh E2 - E8 is 6-pages outlining Deutsche Bank fraud.

43.

i i against Deutscl~e 3,201 1 allegu~g May DB The United States Attorney filed a c v l

repeatedly lied to its agents to he included in a government program to select mortgages to be insured by the government, who paid out billions in losses caused by Deutsche Bank and its affiiiate MortgageIt (Exh E-9) 44. for Then Fannie Mae, et a1 filed a wmplau~t mortgage fraud against Deutsche Bank. @xh. J) On Friday, January 11,201 1 United States Attorney Eric Holder held a press conference to announce tht

45.

launching of a morteage fraud task force including state and federal prosecutors who will join in a campaign to seek justice against Wall Street predators and bank conspirators who caused a collapse in USA's economy, Eric Holder discussed the "robosigning scandal" and promised Americans he would prosecute the predators.

VERIFIED COMPLAINT

1L 9

WEY THE RECORDED ASSIGNMENT O F TRUST DEED IS UNENFORCEABLE
AND EVEN I F IT WERE ENFORCEABLE WHYTHE FORECLOSURE IS ILLEGAL

46.

CCP $2924 requires that a non=iudicialforeclosure sale shall not take place unless it is done on behalf oi

the benepciaiy of the note secured by the trust deed. Therefore, only a benejciary has standing to foreclose. The Notice of Default fails to identify any benejciary. (Exh. B-5) It merely lists "LPP Mortgage L T D as the contact to find out how much must be paid to avoid foreclosure. At no time has LPP Mortgage LTD eve. held any beneficial interest i the NOTE, nor could LPP have acquired any beneficial interest in the NOTE n because the NOTE was assigned to DB Structured Products Inc. on September 25,2005. @xh.A-10) 47. There is a stamp under GATES signature which reads, "Pay to the order of DB Structured Products, Inc

Without Recourse Washington Mutual Bank, FA By Cynthia Riley Vice President." DB was the trustee on the P&S agreement which securitized GATES note. (Exh. D2). The offering on the pool of loans including GATES' loan closed on October 1,2005. (Exh. D2). Once the note was assigned to DB on 9-25-05 the note became an asset of the trust. Pursuant to the goveining documents of the P&S and IRS code, all loans had to be added 90 days after closing.
48.

Therefore, GATES loan became a trust asset as no later than December 29,2005 (90 days post closing)

Accordinglv. there could be no further assiwment to anyone. Once in the trust, the trustee could not spli the trust deed from the NOTE. The trustee was required to hold the original note and trust deed. (Exh. D7) Additionally the trustee must bold originals of all assignments on the note as part of the mortgage file @-7). The P&S defmes the "beneficial holder" as a person holding a beneficial interest in a certificate. (0-7) The trust deed is a voluntary e~icumbrance executed by the property owner. The power of sale is voluntaril: given by the homeowner; thus the trustee may only foreclosure as set forth in the power granted by the trust0 49. The GATES note states in paragraph 7 (Exh.A-7) "If1 am in default, the Note Holder may send me a

witten notice telling me that if 1 do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of Principal that has not been paid and all the interest that I owe on that amount." The Note Holder is defmed in the P&S as any person holding a certificate. LPP is not a note holder. Only the trustee @B) could foreclose on behalf of the certificate holders. 50. Exhibit K contains and appendix of relevant UCC codes governing negotiable instruments for court revie7

V E R I F I E D COMPLAINT

5 1.

A loan s m i c e r is not aNote Holder or a lender and lacks the power or authority to foreclose a note.

Even if a semicer could foreclose on the properly it would not be LLP because it is not the loan servicer. 52. The GATES trust deed, at paragraph 24 authorizes only a lender to substitute a trustee. (Exh. A-26)

The Substitution of Trustee recorded against GATES' property on 11-15-11 is executed by LPP. (Exh. B 10) LPP is not, and never has been a lender. A lender is the person(s) who funded GATES loan; i.e. certificate

n holders who purchased the RMBS's i the WAMUDeutsche AR-13 offering. LPP is not one of them.
LPP is nothing more than apretend lender. 53. Andrew Beal (BEAL) from Plano Texas is a billionaire who owns BEAL BANK. On information and

belief, plaintiff alleges BEAL orchestrated thousands of fraudulent foreclosures to acquire California homes. BEAL owns MGC (Plano Texas) who purports to be the loan servicer and LPP (Plano, TX). BEAL controls (and may own part of) defendant CWRC---the foreclosure fm which has barreled through California like a tornado seizing homes and discarding homeowners' property like trash onto their lawns or into dumpsters. This may be how BEAL became a billionaire. DB is currently in litigation with CHASE and WaMu in state and federal courts, as well as the bankruptcy court. (Exh.G, H and I). The gravamen of DB's claim is that it wants to enforce the warranties given by WaMu in the governing P&S. WaMu had agreed to repurchase any defaulting loan. DB alleged that WaMu continues to deny DB access to files so it can identify defaults. 54.

DB alleges that it is entitled to $10 billion in cash damages instead of an order to compel WaMu to

repurchase the defaulting loans. By this argument DB admits that no loans have been removed from the trust FDIC and the bankruptcy court have frozen assets until al of the disputes are resolved as to a repurchase dut) l Accordingly, GATES' mortgage file, with the NOTE may be under the continuingjurisdiction of the bankruptcy court and other state courts, until these litigations are resolved. (Delaware andNew York). 55. GATES acquired the subject property, 1200 Palomino Road on February 15,1977 and conveyed the asset

into the GATES tnrst on 6-19-88. (Exh. A). GATES executed a note and tmst deed on 9-23-05. @xh.A5-34:
56.

The trust deed is unenforceable and void ab initio because GATES could not promise to pay a dead entity.

.sciii~~o.coi~1il$/SEC/R~~~1~~rn~1~,asp?C'iK=lil.i82S'i shows the last entry on 2002 The SEC website i~ii~:::\.trx-~z,
Washiupton Mutual Bank. FN ended on 3/21/02 (Sec 15-12G) "Certification of Termination of Registration of a Class of Securities Form 15). There were no further fdings. The entity was defunct as of 4-25-05. It is hornbook, common knowledge, that one can not promise to pay a dead person, whether it be a human or not.

VERIFIED COMPLAINT

i\

57.

Even if Washinaton Mutual Bank. E were not a defunct entity on 9-25-05 when GATES closed escrou N

the NOTE is still unenforceable. The signature stamp of Cynthia Riley appears at the bottom of the note. (Exh. A10) Riley signed as Vice-President of Washington Mutual Bank, FA. Cynthia Riley could have not authority to execute any assignment for an enti@ which was defunct long before 9-25-05. 58. Cynthia Riley's name also appears at the bottom of the manufactured assignment of trust deed (Edl. B1)

This instrument was rewrded against 1200 Palomino on June 12,2009 although it was purportedly executed on August 30,2006---- nearly THREE YEARS EARLIER It is common knowledge that Cynthia Riley has already been identified as a ''robosigner" (a person's name converted into a STAMP used on thousands of foreclosure documents). Cynthia Riley and the notary who notarized her signature (G.F. Carney) are both employees of CHASE in Florida. A close look at the document shows the bottom half of the document does not lime up with the top half. The part including the notarized signature of this robosigner Cynthia Riley is th, part which is on an angle. The only way this could happen is if the bottom section (on an angle) was pasted to the document. (Exh B-I) Plaintiffbelieves this document was created with "cut and paste" notarization previously used on some other document. Also, why would it be executed on 8-30-06 but not recorded until : years later 6-12-09 (Exh.B-l)? Riley could not convey any interest because it had already been assigned to DB Structure Products, Inc. two years prior. 59. Typically if an assignee receives an assignment w-orth $1,000,000 he/she would generally record it to

maintain priority in the chain of title. Who would sell a million dollar asset for $lo? (Exh. B-I). 60. Secondly, Cynthia Riley was never the Vice President of Washington Mutual Bank, FN and even if she

were on 8-30-2006 she had no power to assign a trust deed to DB Structured Products, Inc. because this bank did not exist on 8-30-2006. It was completely defunct as of 4-25-2005 with its last filing at SEC in 2002. Finally, it is obvious that the hand-written entries on the instrument were intejected after the assignment was executed by the purported Vice President of the bank (robosigner Cynthia Riley). Both of these persons (Riley and Carney) currently work for CHASE (successor to WaMu). Accordingly, the more reasonable explanation is that CHASE'S low-level employees, at the direction of managers, manufactured the fraudulent document so they could pawn off the trust deeds (which they knew were unenforceable) on secondw market loan purchasers. On information and belief, plaintiff alleges that CHASE, as successor to WaMu on 9-28-08 manufactured this document in the spring of 2009 and backdated the execution of the document to 8-30-2006

V E R I F I E D COMPLAINT

/,/I

It could not have been dated in the spring of 2009 because all assets were f m z n in the WaMu Chapter 11

bankruptcy filed in August 2008 so CHASE would have been unable to assign any interest to DB in 2009.

61.
Com~troller Currencv CHASE (consent order AA-EC-11-15) against pursuing foreclosures. (see Exh. M) of The assignment of trust deed from Washineton Mutual Bank. FN (a defunct bank as or 4-25-2005) to DB Shuclured Products. Inc. is a forgcd and a fraudulently instrument created with (B-1)

62.

Accordingly, the Wamu trust deed assignment recorded 6-12-09 is unenforceable, illegal and ineffective.

ut The subsequent assignment (recorded aminute after the f s bogus assignment) was also manufactured, just
like the prior assignment, and possible forged by another robosigner Shirley Arroyo.
63.

Shirley Arroyo was never Vice-Resident of DB Suuctured Products, IIIC.(DB). Arroyo had no power or

authority to execute and assignment from DB Structured Products, Inc. to LPP Mortgage LTD, It is hornboo. knowledge that one can not get good title from a thief. Since the earlier assignment from the defunct bank to DB Structured Products was void ab inifitio,invalid and assigned nothing, the subsequent was also void. One cannot make chowlate mousse out of w w dong.
64. Assuming the first assignment were valid (it was 1101) DB could not assign the trust deed because the P&S

expressly prohibited the DB trustee from assigning any assets of the trust as alleged in detail above. Secondly to on 9-25-08 WaMu fded for bankruptcy and whether it will be co~npelled repurchase the failing loans from the trust has yet to be adjudicated. AU of these cases are still pending in state, federal and bankruptcy courts.
65.

Considering that the evidence shows DB and WaMu conspired in the securitization of GATES loan to

defraud borrowers as well as investors the more likcly cxplauation for all the improprieties in the fabricated assignments is that DB and WaMuICHASE conspired again by fabricating the fraudulent assignments with specific intent to create a new "product" they could sell to other bankters in the secondary market. In this case, they sold the product to LPP. Or LPP was an additional conspirator who participated in the fraud. Plaintiff intends to discover the answers to these questions by way of vigorous discovery in this casc. 66. PlauttiCf believes that CWRC intends to barrel forward with the foreclosure, !mowing it is fraudulent,

and then convey the property into its parent PROMISS SOLUTIONS, and PROMISS HOMEOWNERS SOLUTIONS to be recycled in the sales market to generate even more profits for the conspirators.

67. PlauttiKseeks a temporary restraining order and preliminary injunction to determine validity of foreclosure

V E R I F I E D COMPLAINT

),I3

I

FIRST CAUSE OF ACTION
(DECLARATORY AND INJUNCTNE RELIEF) (to enjoin foreclosure and quiet title)
(against all defendants and Does 1-50)

1
68.
69.

Plaintiff incorporates allegations in the preceding paragraphs by reference as though set forth in full. An actual controversy exists amongst the parties as to the validity of the loan, validity of the trust deed,

validity of the foreclosure proceediugs, and to who has cxclusive right to foreclose, if such right exists at all. Because such controversy exists thc court is empowered to resolve the disputes by declaring the rights and responsibilitics of the parties. The court has power to issue a temporary order to restrain foreclosure set for February 6,2011 under CCP 8526 and to set a hearing for a preliminary injunction (CCP 9526s) to restrain foreclosure until the court can ascertain which party, if any, has standing to pursue foreclosure. The court ca issue a permanent injunction to forever restrain any party from foreclosing, effectively quieting title. GATES hereby seeks such determinations of the court and files a motion for a restraining order with this complaint. Whatever powers not expressly granted to courts by statute they are granted under CCP $187. 70. A temporav restraining order, and preliminary injunction are n e c e s s q in this case because GATES

properly is unique, rendering money damages inadequate, he has worked to improve the pruperty for 30 year and worked diligently to rebuild the home after it burned down in the JESUSITA fire tluee years ago. 71.
72.

GATES would be irreparably harmed if he loses the property that he has worked on for 30 years. Defendants are not prejudiced by waiting for the court's determinations as the home can only increase it

value as GATES continues to rebuild it. 'The rebuilding is only 80% liuished so it can not be marketed now The property cannot be sold by GATES as defendants' fraudulent hust deed assignment clouds his title.
73.

Defendants are violating GATES rights by foreclosing. A restrainiug order and preliminan injunction

would prevent a muItiplicity of actions because it the home sells on Feb. 6,201 1the sale will be void ab initi because it is based on a trust deed assignment which is at best unenforceable under California law, and at worst, criminally fraudulent under Penal Codes $115,132-134 and $532.
74.

GATES seeks a declaration that the trust deed is unenforceable andlor fraudulent. GATES seeks to

permanently enjoin foreclosure and order cancellation of both trust deeds so that title to the property vests

only in GATES in fee simple, free and clear of all liens. GATES seeks to recover all damages for havu~g to bring the action including attorney fees and costs pursuant to Civil Code $1717.

- 14 V E R I F IZD COYIELAINT

-----------------------------------------------

SECOND CAUSE O F ACTION (SLANDER OF TITLE AND CONSPIRACY T O SLANDER TITLE) (against all dcfcndants and Does 1-50)

75.
76.

Plaintiff incorporates allegations in the preceding paragraphs by reference as though set forth in full. Defendants, and each of them as agents of each other and co-conspirators, co~ispired with other to

fabricate the false documents recited in the next paragraph and caused them to be recorded against plaintiffs

fie property in the County of Sanla Barbara County Recorder's O f c .
77.
On June 12,2009 defendants caused to be recorded, in the County of Santa Barbara Recorder's Office;

two false instruments, which they knew were false before they recording them; to wit, Document Numbers 2009-0034366 and 2009-0034367. From 8-9-201 1 until through January 18,2011 defendants caused a series of false documents to be recorded in the County of Santa Barbara Recorder's Office;to wit, a series of Notices of Default, Notices of Sale and Substitution of Trustee.
78.

Dcfcndnnts willfully, maliciously and without privilege recorded all ofthese false publications which

impaired the vendibility of GATES property and clouded his title. The publications were motivated by oppression and fraud in that defendants knew the statements in recorded instruments were false when made. These acts violated Penal Codes $115, 132, 133, 134, 135 532. Plaintiff is entitled to compensatory damages for the costs of removing the slanderous statements and false instruments from the record. Plaintiff is entitlcc
to punitive damages pursuant to Civil Code $3294. Plaintiff is entitled and seeks an order expunging all false

documents recorded to cloud plaintiffs title.

THIRD CAUSE OF ACTION

(FRAUDAND CONSPIRACY T O DEFRAUD)
(against all defendants and Does 1-50)

79.

Plaintiff incorporates allegations in the preceding paragraphs by reference as though set forth in full. Defendants, and each of them as agents of each other co-conspirators of each other, and alter egos of eacl

80.

other conspired with other to manufacture the false documents recited in the next paragraph and caused them to be recorded against plaintiffs property in the County of Santa Barbara County Recorder's Ofice.
81.

Defendants willfully, maliciously and without privilege recordcd all of these falsc publications which

impaired the vendibility of GATES property and clouded his title and did so with intent to steal the property.

=RIFTED

)#IS

COMPLAINT

82.

The publications were motivated by oppression and fraud in that defendants knew the statements in the

recorded instrumei~ts were false when made. These acts violated Penal Codes 8115, 132, 133, 134, 135, 532

1

83.

Defendants caused the false instmments with false statements to be recorded with specific intent to

facilitate stealing plainWs property and to enable the trustee to foreclose and sell plaintiff's property. Defendants acts were motivated by insatiable greed and w-ith a desire to wronghlly evict plaintiff. 84. These acts violated Penal Codes $115, 132,133, 134, 135,532. Plaintiff is entitled to compensatory

damages for the costs of removing the slanderous statements and false instmments from the record. Plaintiff is entitled to punitive damages pursuant to Civil Code $3294. 85. Defendants ask the court to refer this case to the District Attorney for criminal prosecution under Penal

Codes $1 15,132, 133, 134, 135,532 once the evidence proves these documents were fraudulently manufactured for a malicious and oppressive purpose; and for monetary gain at the d e h e n t to plaintiff. 86. On June 16,2009 which was only 4 days after recording fraudulently manufactured documents with

kiiowingly false statements, MGC sent GATES a letter nohfying him that they were the new loan servicers. MGC and LLP are sister corporations or parent child corporations and both are controlled by Andrew Bed, a billionaire in Plano Texas, who may have acquired his billions though schemes such as these. For the past two years plaintiffhas been making payments to MGC who concealed the fact that they had no right to collet money from him because they were not a lender nor a beneficiary of his note. See UCC codes (Exh. K) 87. Plaintiff has been damaged in that MGC has wrongfully and maliciously collected thousands of dollars from GATES who did not discover the fraud until he sought the advice of counsel during the past year. 88. On 5-6-09 plaintiffs home burned down in the Jesusita fire. GATES submitted a claim to his insurer,

Fanners who processed his claim. Farmers told GATES they would not pay out on the claim until he rebuilt the home. Plaintiff was forced to borrow money on credit cards to pay for material to rebuild the home, which is an ongoing process about 80% f ~ s h e to date. The first week of February 2010 GATES received : d Farmers checks for a total of $202, 548.64 which were reimbursements for materials used to rebuild. (Exh F1 For some unknown reason Farmers issued the checks jointly to MGC and GATES. When he called MGC they told him to sign the checks and forward them to MGC for signature, with a promise to mail the checks back to GATES after they were signed off at MGC. GATES complied. MGC cashed the checks but did not mail them back to GATES. Instead they kept the cash and ignored GATES when he called and wrote letters.

VERIFIED CONPLAINT

~IIL

89.

For nearly six months (from January-30,2010 until May of 2010) MGC ignored GATES desperate pleas

to release the funds to him. GATES was forced to hire counsel to compel MGC to return the funds he was entitled to receive; to wit, the proceeds on a policy in which he was the named beneficiary as owner. Counsel was able to negotiate and get half of the funds released. MGC sent $113,622.96 on 5-12-10 (see E d . F2,F3) 90. At the end of 2010 GATES received a 1099 form from the IRS entitled "cancellation 0 debt." (Exh.F4) 1

Plaintiff'brought the form to counsel for review. The boxes to enter the amount of debt and interest cancelled were left blank. This was suspicious at best. Plaintiff is informed and believes that MGC or Dovenmuehle Mortewe. Inc. (the name on the 1099 form) took a significant tax write-off by charging off the loan. MGC may have submitted its own claim on either its ALTA policy (lenders insurance policy) or some other policy. IRS regulations requires a 1099 form to be sent to the borrower whenever a lender charges off a loan. 91. Defendant MGC willfully, maliciously and without privilege defrauded plaintiff by concealing their trick

to get him to mail them the Farmers fue insurance proceeds checks, and by willfully ignoring his desperate pleas to release the funds with specific intent to steal his money. All of the above-described acts and evil contrivances were motivated by oppression, fraud and insatiable greed. in that defendants knew the promises to mail him back the checks were false when made. Defendants knew GATES was elderly and disabled. 32. GATES justifiably relied on the promises MGC made and was damaged. GATES had to use high interest

credit cards for two years after the fire just to survive while MGC confiscated his insurance proceeds with specific intent to keep them forever. If was only after threats by counsel to file a RICO cases against them dic they actually release a check for half the proceeds to counsel after holding the funds for five months and collecting interest on over $202,548.64. Plaintiff is entitled to compensatory damages and full restitution. Plaintiff is entitled to punitive damages pursuant to Civil Code g3294. Plaintiff seeks attonley fees pursuant to his contract with the pretend lender.

FOURTH CAUSE OF ACTION (BREACH OF FIDUCIARY DUTY -CONSTRUCTIVE FRAUD) (against all defendants and Does 1-50)
93. 94. Plaintiff inwrporatcs allegations in the veceding paragraphs by reference as though set forth in full. Defendants, and each of them, as lender, trustee, mortgage broker, financial advisor, at all relevant times

had, and have a fiduciary duty to plaintiffto advise him and place him on notice of all disclosures that me required by law, especially in a real estate loan transaction, and to provide him with the true facts upon which

V E R I F I E D COMPLAINT
1 1 1 3

he could make a determination as to his need to either close the loan or look for more favorable financing. Plaintiff alleges that on or about September 23,2005 and thereafter, defendants, and each of them, breached their fiduciary duty by failing to provide Plaintiff with the disclosure notices required in Civil Code 51788 Rosenthal Fair Debt Collection Act. As a result of defendants breaches of a duty of care Plaintiff has been damaged and injured both at equity and law, in that plaintiffs property is scheduled for non-judicial foreclosure sale on February 6,2012 aud Plaintiff has no other remedy at law to address defendants' breaching conduct, other than to deny them the opportunity to confiscate his home. 95. Plaintiff is entitled to damages for all costs related to the predatory loan foisted upon him by defendants

in the interest of profiteering ,and high commissions. Plaintiff is entitled to rescind the loan.

FIFTH CAUSE OF ACTION (ELDER ABUSE W&I $15657) (against all defendants and Does 1-50)
96. Plaintiff incorporates allegations in the preceding parag~aphs reference as though set forth in full. by

97. Plaintiff is a 69-year old disabled widower. Plaintiff is in a special class of "elders" protected from abuse under W& I $15657 including fmancial abuse, and is also protected because has been disabled since 45.

98.

On June 16,2009 which was only 4 days after recording fraudulently mannfactured documents with

knowingly false statements, MGC sent GATES a letter nobfy-ing him that they were the new loan servicers. MGC and LLP are sister corporations or parentlcluld corporations and both are controlled by Andrew Beal, a billionaire in Plano Texas who may have acquired his billions though schemes such as what happened here For the past tw-o years plaintiff has been making payments to MGC who concealed the fact that they had no right to collect money from him because they were never a lender nor a beneficiary or obligee on his note. 99. Plaintiff has been damaged in that MGC wrongfully and maliciously collected thousands of dollars from

GATES who did not discover the fraud until he sought the advice of counsel during the past year.
100.

On 5-6-09 plaintiffs home burned down in the Jesusita fire. GATES submitted a claim to his insurer,

Fanners who processed his claim. Fanners told GATES they would not pay out on the claim until he rebuilt the home. Plaintiff was forced to borrow money on credit cards to pay for material to rebuild the home, which is an ongoing process about 80% fmished to date. The f ~ sweek of February 2010 GATES received : t Fanners checks for a total of $202,548.64 which were reimbursements for materials used to rebuild. (Exh F1

VERIFIED C O M P L A I N T

1-18

For some unknown reason Farmers issued thc checks jointly to MGC and GATES. When he called MGC they told him to sign the checks and forward them to MGC for signature, with a promise to mail the checks back to GATES after they were signed off at MGC. GATES complied. MGC cashed the checks but did not mail them back to GATES. Instead they kept the cash and ignored GATES w h a ~ called and wrote letters. hc 101. For nearly six months (from January 30,2010 until May of 2010) MGC ignored GATES dcsperate pleas to release the funds to him. GATES was forced to hire counsel to compel MGC to rehun the funds hc was entitled to receive; to wit the proceeds on a policy in which he was the named beneficiary as owner. Counsel was able to negotiate and get half of the funds released. MGC sent $113,622.96 on 5-12-10 (see Exh. F2,F3) 102. At the end of 2010 GATES received a 1099 form from the IRS entitled "cancellation of debt."

Plaintiff brought the form to counsel for review. The boxes to enter the amount of debt and interest cancellec were left blank. This was suspicious at best Plaintiff is informed and believes that MGC or Dovenmuehle Mortgage, Inc. (the name on the 1099 form) took a siguificant tax write-off by charging off the loan. MGC may have submitted its own claim on either its ALTA policy (lenders insurance policy) or some other policy. IRS regulations requires a 1099 form to be sent to the borrower whenever a lender charges off a loan. 103. Defendant MGC willfully, maliciously and without privilege defrauded plaintift-by concealing their trick to get him to mail them the Fanners fue insurance proceeds check, and by willfully ignoring his desperate pleas to release the funds with specific intent to steal his money. All of the above-described acts aid evil contrivances were motivated by oppression and fraud in that defendants knew the promises to mail him back the checks werc fnlse when made. 104. GATES justifiably rclied on the promises MGC made and was damaged. GATES had to use high interest credit cards for two years after the Elm just to survive while MGC confiscated his insurance proceeds with specific intent to keep them forever. If was only after threats by wunsel to file a RICO cases against them which caused them to release the checks t counsel a i t a holding the funds for five months. Plaintiff is o entitled to compensatory damages and full restitution. Plaintiff is entitled to punitive damages pursuant to Civil Code $3294. Plaintiffseeks attorney fees pursuant to his contract with the pretend lender. 105. In engaging in such acts defendants intended to defraud plaintiff, and did de€raud plainti@as defined hy Welfare and Institutions Code $15610.30.

- 19 VERIFIED COMPLAINT

............................

106. As a direct and proximate cause plaintiff has been deprived of his property, namely his money, and has sustained related damages such as attorney fees to pursue his remedies and stop the wrongful foreclosure. 107. Defendants conduct constituted recklessness, malice, oppression and malignant heart. The acts were

willful and intentional. Plaintiff is entitled to recover damages for the sake of example and by way of
pu~~ishing defendants for fmancial abuse pursuant to W& I 515657.5 and Civil Code 53294. Plaintiff is entitled to recover reasonable attorney fees and costs for fmancial abuse under W&I $15657.5

SIXTH CAUSE OF ACTION (QUASI-CONTRACT RESTITUION) (against all defendants and Does 1-50)
108. 109. Plaintiff incorporates allegations in the preceding paragraphs by reference as though set forth in full.

MGC demandedmonthly mortgage payments from Plaintiff starting on July 1,2009 and continued to

collect payments from Plaintiff for the past two years. Plaintiff reasonably relied upon MGC's assertion that was entitled to payments. 110. MGC knowingly accepted payments and retained them for its own use knowing that MGCLLP was no1

a beneficiary under PlainWs Note on the date that its assets were transferred to DB Structured Products, Inc and therefore MGCLLP did not acquire my right from DB to accept or keep Plaintiffs payments. It would be inequitable for MGCLLP to retain the payments it received from Plaintiff. The equitable remedy of restitution, when unjust emichment has occurred, is an obligation created by the law without regard to the intent of the parties, and is designed to restore the aggrieved party to his or her former position by return of the thing or its equivalent in money. 111. The DOT states in Paragraph 23 (Exh. A25): "Upon payment of all sums secured by this Security

Instrument, Lender shall request Trnstee to reconvey the Property and shall surrender this Security Instrumer and all notes evidencing debt secured by this Security Instrument to Trnstee." The obligations to WaMu node the DOT were fulfilled when WaMu received the balance on the Note as proceeds of sale through securitization to private investors, who provided funds to close GATES escrow. MGC has been unjustly enriched by demanding and collecting monthly payments 6om Plaintiff in the amount to be determined in th~ accounting claim below.

VERIFIED COPIPLAINT

1~~

112.

Plaintiff seeks restitution for any payments he made to MGClLPP/Wamu that were not paid to the lender

or beneficiarq, if any, and were i~njustly retained hy MGClLPPNaMn. Plaintiff also seeks damages in exces! of $100,000 for depreciation to his property as a result of the ~ ~ o n g fforeclosure proceedings initiated by nl CWRC on behalf of MGCLLP.

SEVENTH CAUSE OF ACTION (QUIET TITLE) (against all defendants and Does 1-50)
113. 114. Plaintiff incorporates allegations in the preceding paragraphs by reference as though set forth in full. Plaintiff seeks to quiet title against the claims of Defendants and all persons claiming any legal or

equitable right, title, estate, lien, or adverse interest in the Wilshire Property as of the date the Complaint was filed pursuant to Cal. Code Civil Procedure 8760.020. 115. Plaintiff is the titleholder of the 1200 Palomino Property according to the terms of Grant Deed (Exh A-3). 116. WaMu securitized Plaintiffs single-family residential mortgage loan through Washiurnon Mutual Morteage Securities Corn, andlor Washington Mutual Asset Acceptance Corporation. 117. Plaintiff is informed and believes that the lawful beneficiary (the investors) have been paid in full.
118. The DOT states in $23 (Exh. A5):

23. Reconveyance. Upon payment of all sums secured by this Security Insbument, lender shall request Trustee to reconvey the Property and shall surrender this Security Instrument and all notes evidencing debt secured by this Security Instrument to trustee. Trustee shall reconvey the Property without warranty to the person or persons legally entitled to it. 119. The DOT does not state that Plaintiff must pay all sums. It states that all secured sums must be paid The obligations owed to WaMu under the DOT were fulfilled and the loan was fully paid when WaMu reccivcd the balance on the Note as proceeds of sale through securitization of the loan and insurance proceeds from Credit Default Swaps. Chase did not purchase the loan from the FDIC on 9/25/08. 120. Defendants' claims are adverse. None defendant can proye any interest in the Note or show that the Note is secured by the DOT, as well for the reasons set forth in the preceding causes of action. As such, Defendant! have no right, title, lien, or interest in the 1200 Palomino Property. Plaintiff therefore seeks a judicial declaration that the title to the Properly is vested solely in Plaintiff and that Defendants have no right, title, estate, lien, or interest in the Property and that Defendants and each of them are forever enjoined from asserting any right, title, lien or interest in the Property adverse to Plaintiff.

.........................................................................................
VERIFIED COMPLAINT

- 21 -

EIGHTH CAUSE OF ACTION (CONTRACT RECISION) (against all defendants and Does 1-50)

121.
122.

Plaintiff incorporates allegations in the preceding paragraphs by reference as though set forth in full. PlaintBis informed and believes that WaMu routinely approved predatory real estate loans to

unqualified buycrs in 2005 and implemented unlawful lending practices by encouraging brokers and loan officers to falsify borrowers' income and assets to meet underwriting guidelines when borrowers were not qualified. WaMu employees falsified Plaintitrs Income, Assets and Liabilities. 123. Plaintiff followed the instructions of WaMu's loan officer when he submitted a Loan Application to WaMu that contained only his name, address, phone number, social security numbcr, and bank accounts. GATES believes, but is not sure, that an employee filled out the application and presented it for Plaintiffs signature on 9-23-05 showing an inflated market value for the 1200 Palomino property. 124. Plaintiff is informed and believes that WaMu pre-sold Plaintiffs mortgage to investors based on inflated valuation. Immediately after he signed the Note, WaMu transferred all of its interest in the Note to an investment bank that bundled Plaintiffs Note with numerous otllcr residential mortgages into residential mortgage-backed securities ("RMBS") which were structured into synthetic collateralized debt obligations ("CDOs") and sold to investors in Washington Mutual Mortgage Pass-Through Certificate AR-13. 125. Plaintiff is informed and believes that the investment bank intended to short the portfolio it helped to select by entering into credit default swaps to buy protection against the certain event that the promissory notes would default. WaMu expectcd that Plaintiff would not have the ability to repay the loan. It was not jusl that WaMu was unconcerned with a possible outcome that Plaintiff would default; WaMu knew that he could not perform and expected him to default on the loam 126. Washington Mutual Bank, the sponsor of the securitization transaction, was a wholly owned subsidiary of Washington Mutual Inc. Securitizatiou of mortgage loans was an integral part of Washington Mutual Inc.'s management of its capital. It engaged in securitizations of first lien single-family residential mortgage loans through Washington Mutual Mortgage Securities Corporation, as depositor, beginning in 2001. WaMu acted only as a servicer of Plainlss loan.

.........................................................................................
TiERI FIED COMPLAINT

- 22 -

127. WaMu failed to disclose to Plaintiffthat its economic interests were adverse to Plaintiff and that WaMu expected to profit when Plaintiff found it impossible to perform his obligation and defaulted on his mortgage, 128. A necessary element in the formation of au enforceable contract under the common law is a meeting of the minds. Two or more parties must share some expectation that a future event w l occur. Plaintiff expected i l that he would borrow money from WaMu, he would pay it back, and then he would own the Property. WaMl expected that Plaintiff would borrow money, he would not be able to pay it back, and then WaMu or the investors would own the Property. Since there was no shared expectation-no meeting of the minds-no

contract was formed between Plaintiff and WaMu when WaMu falsified his application to quallfy for the loan. 129. In addition to WaMu's expectation that PlaintiEwould lose title to the 1200 Palomino Property through foreclosure, WaMu anticipated transferring the Note to investors immediately after Plaintiff signed the Note. Plaintiff is informed and believes that WaMu purchased credit default insurance so that WaMu would receive
o the balance on the Note when Plaintiffdefaulted, in addition t any money and commissions WaMu rcccived

when it securitized the Note and sold it to investors. 130. Not only did WaMu dispense with conventional underwriting practices in 2005, it also paid premium fee

and other incentives to mortgage brokers who signed up the riskiest borrowers. Fueled by spiraliug profits to Cbasc, WaMu, and other banks, common law principles of contract formation, customary undenvriting practices, and statutory procedures for transferring interests in real property, including the recordation of transfers of interests in real property, disintegrated and the system ceased to function as a reliable means to transfer clear tltle to property. 131. 132. WaMu expected that Plaintiff would not perform as merely one victim in a scheme in which: Plaintiffs participation in the mortgage contract was procured by overt and covert misrepresentations an1

nondisclosures. The parties did not share a single expectation with respect to any of the terms or the mortgag( contract and therefore the contract was void ah initio. 133. No enforceable contract was formed between Plaintiff and WaMu, so his Note and DOT were never assets of WaMu that could be acquired or assumed by Chase f?om the Federal Deposit Insurance Corporation (FDIC) as receiver after WaMu wns seized by the Off~ce ThriA Supervision on September 25,2008. of 134. Plaintiffrequests a judicial determination that the contract was void ah initio and unenforceable.

.........................................................................................
VERIFIED COMP-.ATNT

- 23

-

'1.23

NINTH CAUSE OF ACTION (ACCOUNTING) (against all defendants and Does 1-50)
135. 136. Plaintiff incorporates allegations in the preceding paragraphs by reference as though set forth in full. On Augusl9, 201 1 CWRCLLPNGC caused to be recorded in the Santa Barbara County Recorder's

Office a Notice of Default which recited that plaintiffowed $73,351.90 signed by with robosigner stamp of Marco Marquez. (Exh. B6). It recited: By LSI Title Company, as agent. The LSI company is not in good standing with the State of California. (see Exk L) Not surprisingly LSI was cited for insurance violations o CCR 52694a5 (failed to respond to allegations) and CIC $880 (failed to use its own name) 137. Amazingly, only two months later on Oct. 13,201 1 a subsequent Notice of Default was filed which

recited that plaintiff owed $91,754.18. (Exh. B7) It belies logic to believe that $18,000.00 could be added in only two months when plaintiffs monthly payments were a little over $5,000. This subsequent notice had a different stamp at the bottom with yet another robosigner Vangie Ortega "serviceLink, as agent." (Exh. 88) 138. Both of the above notices were signed by persons who had no personal knowlcdge of what was owed in

contravention to the purpose of the statute which requires the affidavit. It was enacted to make sure the amount recited to cure the default is accurate and not fraudulently inflated with illegal fees and penalties. 139. Due to these irregularities, and suspected forgeries, and the likelihood these amounts are not accurate,

plaintiff is entitled to a full accounting fmm all loan servicers andlor lenders from September 25, 2005 until the present day of all amounts paid by plainla, aU charges, ctc. so that plaintiiTcan determine what he is entitled to by way of restitution for various causes of action herein. Plaintiff requests accounting as follows: 1. 2.
3.
4.

An accounting as to a l money received by any loan servicer or lender (7-25-05 - to date) l An accounting as to money on hand. An accounting as to all money disbursed.
An accounting as to aU accounts outstanding and due.

5.

An accounting by the trustee DB as to how much was paid to investors from AR-13 REMIC trust

VERIFIED COMPLAINT

1

WHEREFORE, Plainarequests judgment as follows: 1. That this court issue a Temporary Restraining Order and Preliminnry Injunction restraining Defendants, m eacb of them, during the pendency of this action, from continuing with their efforts to conduct a Trustee's d sale of the 1200 Palomino Property, and Lhal a permanent injunction to forever restrain defendants from breclosing or attempting to sell 1200 Palomino. 2. That the attempted foreclosure of the Palomino Property be declared illegal and void; and that Defendant ~eforever enjoined and restrained from selling the Palomino Property or attempting to sell it or causing it to be old, either under power of sale pursuant to trust deed or by foreclosure action, and from posting, publishing, or ecording any notice of default or notice of trustee's sale contrary to state or federal law. 3. That the underlying loan transaction be declared void as a result of Defendants'misrepresentations, fraud :oncealment, and predatory lorn practices. 4. That Defendants make restitution to Plaintiff according to proof for payments made to MGC that were nc leposited in the account of the actual lender; i.e. the certiiicate holders in the trust as alleged.
5 . Actual damages for depreciation to the Property in excess of $100,000.00 and related costs

6. General and compensatory damages

7. For pnnitive damages under Civil Code $3294 and treble damages under CC $3345
8. For a judgment determining that Plaintiff is owner in fee simple of the 1200 Palomu~o Property against

he adverse claims of Defendants and that Defendants havc no interest in the subject properly adverse to Plaintff
7. For attorney fees under Civil 81717, Civi11021.5; and attorney fees under Welt & Inst. $15657(a).

8. For interest, including pre-judgment interest where authorized 9. For all costs authorized under the law.

10. For any and all other and further relief that may be just in this matter. DEMAND FOR JURY TRIAL : Plaintiff demands a jury trial on all causes of action and for all damages.

(OTICE: Plaintiff demands that all defendants take notice of Penal Codes §$115,132,133,134,135
These codes make it a crime (either felony or misdemeanor) to enter any document into a proceeding vhich is forged, altered, back-dated, fabricated, or fraudulently altered in any way. It is also a crime to prepare my document to offered into this proceeding which violates any of these sections. The full text is u~clndcd. %is notice provides the "mens rea" need to satisfy the intent element needed for prosecution of the crime. 'enal Code 0 I15 a) Every person who knowingly procures or offers any false or forged instn~ment be fded, registered, or recorded in any to ~ublic office within this state, which instrument, if genuine, might be filed, registered, or recorded under any law of this statf

t of the United States, is guilty of a felony, r

.........................................................................................
V E R i F i E D COMPLAINT

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@) Each instrument which is procured or offered to be f d d registered, or recorded in violation of subdivision (a) shall

constitute a separate violation of this section. (c) Except in unusual cases where the interests of justice would best be saved if probation is granted, probation shall not granted to, nor shall the execution or imposition of sentence be suspended for, any of the following persons: (1) Any person with a prior conviction under this section who is again convicted of a violation of this section in a separate proceeding.
(2) Any person who is convicted of more than one violation of this section in a single proceeding, with intent to defraud

another, and where the violations resulted in a cumulative financial loss exceeding one hundred thousand dollars ($100,000: (d) For purposes of prosecution under this section, each act of procurement or of offering a false or forged instrument to b filed, registered, or recorded shall be considered a separately punishable offense. Penal Code Q 132 Every person who upon any trial, proceeding, inquiry, or investigation whatever, authorized or permitted by law, offers in evidence, as genuine or true, any book, paper, docnment, recod or other instrument in writing, knowing the same to have been forged or fraudulently altered or ante-dated, is guilty of felony. Penal Code 8 133 Every person who practices any fraud or deceit, or knowingly makes or exhibits any false statement, representation, toke& I writing, to any witness or person about to be called as a witnes upon any trial, proceeding, inquiry, or investigation whatever, authorized by law, with intent to affect the testimony of such witness, is guilty of a misdemeanor^ Penal Code Q 134 Every person guilty of preparing any false or ante-dated bookpaper, record, instrument in writing, or other matter or thing, with intent to produce i t or allow it to be produced for any fraudulent or deceitlid purpose, as genuine or true, upon any h a proceeding,or inquUy whatever, anthorized by law, is guilty of felony. Penal Code 5 135 Every person who, knowing that any book, paper, m r 4 instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destmys or conceals th same, with intent thereby to prevent it fmm being produced, is gmlty of a misdemeanor.

I

NOTICE: ALL DEFENDANTS MUST VERIFY THEIR ANSWERS pursuant to CCP 5446

Plaintiffwill move to strike any answer which has not been verified under penalty of pejury as mandated.

.........................................................................................
-VXRIFIED COMPLAINT

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/ * 26

Law office of Nancy Duffy McCarron 950 Roble Lane Santa Barbara, CA 93103

VERlFICATION

4 DAVID GATES, as hustee for the David W. Gates Trust dated August 5,1996 declare:
I am platntiffm the within actJon. I have read the complaint in is entn-ety and declare, under penalty of t
erjwy and the laws of this state,the allegatmns set forth therein are based on p=rsonal knowledge,except as to
hose alIegahms made on informahon and behef and as to those allegations I believe them to be me. kecuted on January 3 1, 2012.

D~VID GATES, as trustee for the David W. Gates Trust dated August 5,1996

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VERIFIED COMPrnINT

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EXHIBIT LIST

Valid Chain of Title Docs Fraudulent Recorded Docs Securitization of Mortgage Backed Securities W S ) Securitization of GATES loan WaMu Deutsche Fraud -US Financial Crisis

MGC Mortgage Inc. Docs
Deutsche Bank Docs FDIC - Deutsche -Warnu - Chase Docs WaMu Bankruptcy Docs
JX.4 Docs

Appendix - Codes

LSI violations
Class Action Against Chase for fabricating assignments of trust deeds

these exhibits are available by request to: they will be emailed to the requestor

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GATES v. MGC Mortgage Inc., et a1

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FIXEDIADJUSTABLE RATE NOTE
(1 Year Treasury Index Rate Caps)

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THlS NOTE PROVIDES FOR A CHANGE IN MY FIXED INTEREST RATE TO AN ADJUSTABLE INTEREST RATE. THlS NOTE LIMITS THE AMOUNT MY ADJUSTABLE INTEREST RATE CAN CHANGE AT ANY ONE TIME AND THE MAXIMUM RATE I MUST PAY.

1200 PALOMINO DRIVE, SANTA BARBARA, CA 93105 . . .

(Property Address)

1. BORROWER'S PROMISE TO PAY In return for a loan that I have received, I promise t o pay U.S. $ 1,142,302.00 (this amount is called "Principal'). plus interest, to the order of the Lender. The Lender is Waehinqton Mutual ~ a n l c ,FA . I will make all payments under this Note in the form of cash, check or money order. I understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the "Note Holder." 2. INTEREST Interest will be charged on unpaid Principal until the full amount of Principal has been paid. I will pay interest at a yearly rate of 5 . 5 0 0 %. The interest rate I will pay may change in accordance with Section 4 of this Note. The interest rate required by this Section 2 and Section 4 of this Note is the rate I will pay both before and after any default described in Section 7(8)of this Note.

3 PAYMENTS .
(A) Time and Place of Payments I will pay Principal and interest by making payments every month.
1 will make my monthly payment:; on the first day of each month beginning on November 1st. 2005 , I will make these payments every month until I have paid all of the Principal and interest and any other charges described below that I may owe under this Note. Each monthly payment will be applied as of its scheduled due date and will be applied t o interest before Principal. If, on October 1st. 2035 , I still owe amounts under this Note, I will pay those amounts in full on that date, which is called the "Maturity Date".

Each of my initial monthly payments will be in the amount of U.S. $ 7,014.73 . This amount may change. (C) Monthly Payment Changes Changes in my monthly payment will reflect changes in the unpaid Principal of m y loan and in the interest rate that I must pay. The Note Holder will determine my new interest rate and the changed amount of my monthly payment in accordance with Section 4 of this Note.
4610 103.011

LOAN SBRVICE, 9451 CORBIN AVE, I will make my monthly payments at or at a different place if required by the Note Holder. NORTKRIDGE, CA 91324 ( 0 ) Amount of M y Initial Monthly Payments

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Page 1 of 6

4. INTEREST RATE AND MONIHLY PAYMENT CHANGES (Al Change Dates The interest rate I will pay may change on the first day of October, 2010 and on that day every 12th month thereafter. Each date on which my adjustable interest rate could change, is called a "Changa Date.' (B1The lndex Beginning with the first Change Date, my interest rate will be based on an lndex. The "Index" is the weekly average yield on United States Treasury securities adjusted to a constant maturity of 1 year, as made available by the Federal Reserve Board. The most recent lndex figure available as of the dnte 46 days before each Change Date is called the "Current lndex." If the lndex is no longer available, the Note Holder will choose a new index which is based upon comparable information. The Note Holder will give me notice of this choice. ICI Calculation of Changes Before each Change Date. the Note Holder will calculate my new interest rate by adding Two & seventy-Pive-Hundredths percentage points ( 2 . 7 5 0 1%) to the Current Index. The Note Holder will then round the rasult of this addition to the nearest one-eighth of one percentage point (0.125%). Subject to the limits stated in Section 4(D) below, this rounded amount will be my new interest rate until the next Change Date. The Note Holder will then determine the amount of the monthly payment that would be sufficient to repay the unpaid Principal that I am expected to owe at the Change Date in full on the Maturlty Date at my new interest rate in substantially equal payments. The result of this calculation will be the new amount of my monthly payment. (Dj Limits on Interest Rate Changes The interest rate I am required to pay at the first Change Date will not be greater than 10.500 % or less than 2.750 Thereafter, my interest rate will never be increased or decreased on any single Change Data by more than two percentage points (2.0%) from the rate of interest I have been paying for the preceding 12 months. My interest rate will nwer be greater than 10.500 %. (E) Effective Date of Changes My new interest rate will become effective on each Change Date. Iwill pay the amount of my new monthly payment beginning on the first monthly payment date after the Change Date until the amount of my monthly payment changes again. (Fl Notices of Changes The Note Holder will deliver or mail to me a notice of any changes in my interest rate and the amount of my monthly payment before the effective date of any change. The notice will indude the amount of my monthly payment, any information required by law to be given me and also me title and telephone number of a person who will answer any question I may have regarding the notice. (GI Failure to Make Adjustments If for any reason Note Holder fails to make an adjustment to the interest rate or payment amount as described in this Note, regardless of any notice requirement, I agree that Note Holder may, upon discovery of such failure. then make the adjustment as if they had been made on time. 1 also agree not to hold Note Holder responsible for any damages to me which may result from Note Holder's failure to make the adjustment and to let the Note Holder, at its option, apply any excess monies which I may have paid to partial prepayment of unpaid Principal. 5. BORROWER'S RIGHT TO PREPAY I have the right to make payments of Principal at any time before they are due. A payment of Principal only is known as a "Prepayment." When I make a Prepayment, I will tell the Note Holder

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Page 2 of 6

in writing that I am doing so. I may not designate a payment as a Prepayment if I have not made all the monthly payments due under the Note. I may make a full Prepayment or partial Prepayments without paying m y Prepayment charge. The Note Holder will use all of my Repayments to reduce the amount of Rincipal that 1 owe under this Note. However, the Note Holder may apply my Prepayment to the accrued and unpaid interest on the Prepayment amount, before applying my Prepayment to reduce the Principal amount of the Note. If I make a partial Prepayment, there will be no changes in the due dates of my monthly payments unless the Note Holder agrees in writing to those changes. My partial Prepayment may reduce the amount of my monthly payments after the first Change Date following my partial Prepayment. However, any reduction due to my partial Prepayment may be offset by an interest rate increase. 6. LOAN CHARGES lf a law, which applies to this loan and which sets maximum loan charges, is finally Interpreted so that the interest or other loan charges collected or to be collected in connection with this loan exceed the permined limits, then; (at any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit: and (bt any sums already collected from me that exceeded permined limits will be refunded to me. The Note Holder may choose to make this refund by reduclng the Principal I owe under this Note or by making a direct payment to me. If a refund reduces Principal, the reduction will be treated as a partial Prepayment. Mlscelleneous Fees: I understand that the Note Holder will also charge a return item charge in the event a payment that I make in connection with repayment of this loan is not honored by the financial institution on which it is drawn. The current fee is $ 15.00 . Lender reserves the right to change the fee from time to time without notice except as may be required by law. 7 . BORR0WER.S FAILURE TO PAY AS REQUIRED ( A l Late Charges for Overdue Payments If the Note Holder has not received the full amount of any monthly payment by the end of Fifteen calendar days after the date it is due, I will pay a late charge to the Note Holder. The amount of the charge will be 5.000 % of my overdue payment of Principal and interest. I will pay this late charge promptly, but only once on each late payment. (el aetault If I do not pay the full amount of each monthly payment on the date it is due, I will be in default. ( C ) Notice of Default If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a cartain date, the Note Holder may require me to pay immediately the full amount of Principal that has not been paid and all the interest that I owe on that amount. That date must be at least 30 days after the date on which the notice is mailed to me or delivered by other means. (D) Waiver By Note Holder No Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in full as described above, the Note Holder will still have the right to do so if I am in default at a later time. (E) P m t of Note Holder's Cash and Expenses If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by Applicable Law. Those expenses include, for example, reasonable attorneys' fees.

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8, GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given to me under this Note will be given by delivering it or by mailing it b y first class mail t o me at the Property Address above or at a different address if I give the Note Holder a notice of my different address. Any notice that must be given to the Note Holder under this Note will be given by delivering it or by mailing it by first class mail t o the Note Holder at the address stated in Section 3(Al above or at a different address if I am given a notice of that different address. 9. OBLIGATIONS OF WRSONS UNDER THIS NOTE If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in this Note, including the promise t o pay the full amount owed. Any person who is a guarantor, surety, or endorser of this Note is also obligated t o do these things. Any person who takes over these obligations. including the obligations of a guarantor, surety, or endorser of this Note, is also obligated to keep all of the promises made in this Note. The Note Holder may enforce its rights under this Note against each person individually or against all of us together. This means that any one of us may be required to pay all of the amounts owed under this Note. 10. WAIVERS I and any orher person who has obligations under this Note waive the rights of presentment and notice of dishonor. "Presentment" means the right t o require the Note Holder t o demand payment of amounts due. "Notice of Dishonor" means the right to require the Note Holder to give notice to other persons that amounts due have not been paid.

11. UNIFORM SECURED NOTE This Note is a uniform instrument with limited variations in some jurisdictions. In addition to the protections given to the Note Holder under this Note, a Mortgage. Deed of Trust or Security Deed (the "Security Instrument"), dated the same date as this Note, protects the Note Holder from possible losses that might result if I do not keep the promises which I make in this Note. That Security Instrument describes how and under what conditions I may be required t o make immediate payment in f d l of all amounts I owe under this Note. Some of those conditions are described as follows: (A) UNTIL MY INITIAL FIXED INTEREST RATE CHANGES TO A N ADJUSTABLE INTEREST RATE UNDER THE TERM STATED IN SECTION 4 ABOVE. UNIFORM COVENANT 1 8 OF THE SECURITY INSTRUMENT SHALL READ AS FOLLOWS: Transfer of the Property or a Beneficial Interest in Borrower. As used in this Section 18, "Interest in the Property" means any legal or beneficial interest in the Propew. including, but not limited to, those beneficial interests transferred in a bond for deed, contract for deed, installment sales contract or escrow agreement, the intent of which is the transfer of title by Borrower at a future date to a purchaser. if all or any part of the Property or any Interest in the Property is sold or transferred (or if a beneficial interest in Borrower is sold or transferred and Borrower is not a natural person) without Lender's prior written consent, Lender may, at its option, require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if exercise is prohibited by Applicable law. If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is given in

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Page 4 of 6

accordance with Section 15 within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails t o pay these sums prior t o the expiration of this period, Lender msv invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. (B) WHEN MY INITIAL FIXED INTEREST RATE CHANGES TO AN ADJUSTABLE INTEREST RATE UNDER THE TERMS STATED IN SECTION 4 ABOVE, UNIFORM COVENANT 18 OF THE SECURITY INSTRUMENT AS DESCRIBED IN SECTION 11(A) ABOVE SHALL THEN CEASE TO BE IN EFFECT, AND UNIFORM COVENANT 18 OF THE SECURITY INSTRUMENT SHALL INSTEAD READ AS FOLLOWS: Transfer of the Property or a Beneficial Intarest in Borrower. As used in this Section 18, "Interest in the Property" means any legal or beneficial interest in the Roperty, including,'but not limited to, those beneficial interests transferred in e bond for deed, contract for deed, installment sales contract or escrow agreement, the intent of which is the transfer of title b y Borrower at a future date t o a purchaser. lf all or m y part of the Property or any interest in it is sold or transferred lor if a beneficial interest in Borrower is sold or transferred and Borrower is not a natural person) without Lender's prior written consent. Lender may, at its option, require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised b y Lender if exercise is prohibited by Applicable Law as of the date o f this Security Instrument. Lander also shell not exercise this option if: (al Borrower causes t o be submitted t o Lender information required by Lender t o evaluate the intended transferee as if a new loan were being made to the transferee: and lb) Lender reasonably determines that Lender's security will n o t be impalred by the loan assumption and that the risk of a breach of any covenant or agreement in this Security Instrument is acceptable to Lender. To the extent permitted by Applicable Law, Lender may charge a reasonable fee as a condition t o Lender's consent to the loan assumption. Lender may also require the transferee to sign an assumption agreement that is acceptable t o Lender and that obligates the transferee to keep all the promises and agreements made in the Note and in this Security Instrument. Borrower will continue to be obligated under the Note and this Security lnstrument unless Lender releases Borrower in writing. If Lender exercises the option to require immediate payment in full. Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is given in accordance with Section 15 within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails t o pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this Security lnstrument without further notice or demand on Borrower. 12. MISCEUANEOUS PROVISIONS In the event the Note Holder at any time discovers that this Note or the Security lnstrument or any other document related to this loan, called collectively the "Loan Documents." contains an error which was caused by a clerical or ministerial mistake, calculetion error, computer error, printing error or similar error (collectively "Errors"), I agree, upon notice from the Note Holder, to reexecute any Loan Documents that are necessary t o correct any such Errors and Ialso agree that I will not hold the Note Holder responsible for any damage t o me which may result from any such Errors. If any of the Loan Documents are lost, stolen, mutilated or destroyed and the Note Holder delivers to ma an indemnification in my favor, signed by the Note Holder, then I will sign and deliver identical in form and contant which will have the effect of the to the Note Holder a Loan Documer~t original for all purposes.

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WITNESS THE HANDfS) AND SEAUS) OF THE UNDERSIGNED.

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Without RecOUrSe

DB S W T U R E D PRODUCTS, INC.

WASHINGTON MUTUAL BANK, PA 1

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DEED OF TRUST

Words I M O ~in multipla sections of this document ere defined M o w and other words ere deftnod in Sections 3, 11, 13, 18, 20 end 21. Certain rules regarding the uMge of words used i n this document are dso provided in Section 16.
1A1 '8.anlcy knhummt' means this document, which Is doted , together with ail Rid076 to this d0~uIYNrlt. (B) 'Bow-' is DAVID W. GATES, TRUST66 OF THE DAVm W. G m TRUST DATED A 8
A T 5 . 1996

--Grrower is the trwtor under this Security Inatrumant. 1C) "L.nd.rm is fi ' ' & ' tender is a
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the laws of Lender's address is

Lender ir the beneficiary under this Seourlty Inwument. (Dl " T ~ s h . ' is WIKRUIA V CiMPIWy ( E ) " N O W means me pmmlasory note rignod by Borrower snd dated September ao, zoos The Note Mates t h e Borrower owes Lender - o T ~ v - ~

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I bIus intmmt. Borrower has p r o m i d to pay this debt Dollars (U.S. $ 1,142,302 .OO in regular Periodic Payments and to pay tha debt in full not later than 1. 2035 IF) 'Roprry" moms the propeny tha I6 dd.cribed below under the heading 'Transfer of Rlgha in the PropMy." (G) 'Loan' meana tho debt btdenced by the Note. Dlun intoma. any prqmvment chwgea m d ime charger due under the Note, and all surna dUL under this Security Inatrumant, plur interest.

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(H)'Rldm" means dl R i i r s to this Securitv lnarument that we executed by Borrower. The following Rlders are to be executed by Barrowar [check box as appllcebbl:
@ AdJusmMsRas Rlda [7 Gradustad Pavrnent R [7 B&an Rider
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1 4 FarnW M a r Blwashiy P a m m Rlder Second Home Rklm

omeru rs~scifv~

(I1 'AppkWo law" means dl controlling spplkable fadad, state and local amuma, regulations, ordlnancea and sdministrdve rules end orders (that have the effect of law) aa well M all applicable flnal, non-appdable judicial 4nlons. (J1 'Camnnmlry Aaaod.tkn Dwa. h . m d h w n m m l e - mema dl d m , fees, a8seasm0nm .. and other chergw that are imposed on Borrower or the Ropsr~y a condominium association, by homeowners msoclaion or similar orgsnlzmion. (K) 'El.c(mnk Fund. Trmafar' means any transfer of funds, other t h m a tranoactlon originated by check, draft, or aimllar paper instrument. which is initluted through an dectronlc terminal, telephonic Instrument, computer. o magnatlc tape so as to order. Instruct, or authorize a financial r institution to debb or credit an account. Such term ,I but ie not Ilmitad to, point-of-rele trsnsfers, automated teller machlne t r e n s ~ o wanofera initiated by telephone, wire transfers, ~, and automated cieeringhouae transfers. (C) ' h a o w I " means those items that are dwrlbad in Section 3. (M1 'Mbmlheow Ramb" means m y comp.n*alon. settlement. awerd of damages, or p r o d s . whether by way of judgment. d e m n t or otherwise, paid by any third party (other g ~ than insurance proceeds paid under the ~ e r a deecrlbed in Ssction 5 ) for: (i)damage to, or dentruetion of, me Property: iii) condemnation or other taking of all or any pert of the Property; fiii) canveyance in lieu of condemnation; or (Iv) misrwrseentations of, or omissions as to, the value andlor condition of the Property. (NI " M Imunner" means insurance Protecting Lender against the nonpayment of, or default on, tho Lorn. (0)'P.rkdic Pqmmt' means the w u l d y a d d u i s d m u t due for li) principal and interest on unda the Note, plus (A) any mourns under Section 3 of thk Security Instrument. (P)'RESPA" means the Red Eaats Ssttlamant Roceduras Act (12 U.S.C. Suction 2801 a am.) and its implwnantlng regulation, Regulation X (24 C.F.R. P a 3600). rn they might be amended trom time to tlme, or any sddltlond or aucwawr legirlotlon or regulation that governs the ssme subject matter. As ueed in this SOCurIty Instrument, -RESPA' refers to all rwulremants and rsstrictlom that are lmpawd in regard to a 'federally dated mortgage loon" even if the Loan does not qusllfy e a "federally rd& m mortgage loanCunder RESPA. (a) "Sumow- h lnnrrt of Eawowa" means my paw that has taken tltk, to the Propany. whether or not t a partv has assumed Borrower'r obligetiorw under the Note endtor this Security hn Instrument.
TRANSFER OF RIGHTS IN THE PROPERTY This Securky lnmrummt recur- to M a r : ( ) the mpaymmt of the Loan. and all renewals, 1 extendona and m o d i i l ~ l o n of the Note; and ( l the patonnm~a Borrower's covenants and r Il of agrwments under thin Securlty Instruman W the Note. For this purpose. Borrower irrevocably

grents and conveys to Trumm, in trust, with power of sale, the folbwing deacrlbed property County, Cdiiornia: located In Santa Barbara JJXU& DESCRIPTION ATTACHBb HERBTO AND MADB A PART HERBOF.

which currently has tho address of
[SuDatl
.

-

,California
R l

93105
p l

("Property Address'):

TOGETHER WITH all the improMmsng now or herwfmf cnected on tha property, and dl swanente. appunmancsa. m d fixtures nuw o hereafter a pan of the proparty. All rapt-ents r and additlone shall also be covered by this Sacwlty Instrument. AN of the foregoing I refwed to s in this Sacurity instrument M the "Property."
BORROWER COVENANTS t h a Borrowor ir IawtuHy asisad of the eatate hereby wnveymd
m has tha right to grant and convey tho P r o m and that the Ropsrty is unsncumbsred, except d for encumbrance8 of record. Borrower warmta Md will detsnd ganerdly the title to ths Property

against d clrlms snd demanda, subject to any sncumbrmcsa of rewrd. l THIS SECURlM INSTRUMENT comblnes uniform covenants for national use and non-uniform covenants with llmlted vsriations by jurlrdlctlon to constitute a uniform mcurity instrument covering red p r o m . UNIFORM COVENANTS. Bonowsr and L d 6 f C Q V m Mid agrse 88 MlOWS: 1. PnymNlt o Rkrdpd, Irmfert, lEwronr itmr. R.p.ynnnt chugs. rrd lato ChmrgaD. f Borrower shell pay when due the principal of, end hereclt on, the dabt evidenced by the Note a d any prepayment charges and lste chergea d m under the Note. Borrower shall slao pay funds for Escrow Items p u r w a t to Sectlon 3. Paymento due under the Note and this Security Instrument shdl be msde in U.S. currency. Howwu. If env check or otha instrument rsodved by Lender a , payment under the Note or thls !%curlty ln8trumsnt is r a m a d to Lender unpaid, LeMLw may require that any or dl wbaequent paymsms due unda 7he Note and this Security lrutrumsnr be made in one of more of the following forms, en selected by Lsndsr: (a) m h ; (b) money order; Icl certlffed check, bank check, treasurer's check or cashier's check, provlded any such check is drawn upon 8n InaiMlon whose daposirs are Insured by 0 federal egency, instrumentality, or entity; or (dl Electronic Funds Trenefer. Paymento are dwmad received by Lendsr when rer*ivsd at the I d o n designated in the Note or a such other location w mey b dodonaad by Lender In accordmca wlth the notice . provlsions h Sadon 15. Iander may mtwn any p s y M or p d d payment if the payment or pertial vayments are inwfflcimt to brlng th. Loan current. Lender may accept any payment or partiel payment insuffkient to bring the Lorn currant, without weher of wry rigMs hereunder or prsludlce to its rights to r W ouch psyment or pertid payin the future, but Lender is not obligsted to apply such payments at the t h e ruch PaVmen(r are accepted. If each Periodic

Psyment is applied as of its scheduled due date, thsn Lendsr need not pay intermt on unspplied funds. Lender may hold such unwplled funds until Borrower makm payment to bring the Loan current. If Borrower d m not do so withln a reasonable period of tlme. Lender shan elthsr apply such funds or return them to Borrower. If not applied earlii, such funds will be appiled to the outstanding principal balance under the Note lmmedistslv prlor to foreclosure. No offsst or claim whlch Borrower might have now or in the future egalnrt Lender shall rellwe Borrower from making payments due under the Note and thls Security ln8trummt or performing the covenants end agreements socurad by this Security Instrument. 2. A p a m of PEymmb or p RU E x w t as otherwise described in this W o n 2, dl payments accepted snd applled by Lander ahall be applied in the following order of priority: (a) Interest: due under the Note; (bl principal due under the Note; fc) cvnounm due undw Section 3. Such payments shell be applled to each Periodic Payment in the order in which it became due. Any remeinlng amounts shall be applied first to late charges, second to any other amounts due under thb Security inlrument, and then to reduce the principal bdance of the Note. If Lender recelves a payment from Borrower for a delinquent Periodic Payment which indudss a suffldent amount to pey any charge due, the paymem may be applled to the dellnqwnt payment and the late charge. if mom than one Periodk Payment is outstandlng. Lmdw may apply any payment received from Borrower to the rqmvment of the Paiodk Payments if, and to the extent that, each payment can be pJd in full. To the extent thst any e x w e exista after the payment is applied to the full payment of one or more Periodic Payments, such excess may be applied to any late oharges due. Voluntary prepayments shall be applied first to any prepayment charges and then as described in the Note. Any appllcaion of payments, inauranor praceeda, or Miacallsneaus R o d s to principal due under the Note shdl not extend or pompone the due date, or change the amount. of the Periodic Payments. 3. Fund. tol. €&wow I. Borrower .hall pay to Lender on the day Periodic Psyments are due under the Note, until the Note is pald In full, a rum (the "Funds') to provide for pbyment of smounts due for: (a) taxm and aseesaments and other items whkh can mein prlority over this Securlw lnetrumsnt 8s a l k n or encumbrance of the Roputy; fb) leasehold payments or ground rents on the Property, il my: fc) premluma for any and all Insurance required by Lsnder under Seetlon 6: and (d) Mongage Insurance prsmlume, if any, or m y sums payable by Borrower to Lender in lieu of the payment of Mortgage lnsurnrcs prwnlums in accordonce with the provisions of SeGtion 10. Thee I t m n are called 'Escrow Item." At origination or a any tlme during the Term of the Loan, Lendw may require that Community Association Dues, Fees, end Assessments, if any, be escrowed by Barrowex. and auch dues, fesm and a w a m e n t s shell be en Escrow Item. Borrower shall promptly furnlsh to Lender all notices of amounts to be w i d under thii Sectlon. Borrower shall pay Lender the Funds for Escrow Items u n b Lander waives Borrower's obligation to pay the Funds for any or dl Escrow Items. Lender may wdve Borrower's obligation to pay to Lender Funds for any or all Escrow ltems al any tlme. Any a h Wdver may onw be in writing. In the event of such waiver, Borrower shall pay dlrectly. when and where payable, the amounts due for any Emrow Items for which payment of Funds has boon wdved by Lender end, If Lsnder requires, shell furnish to Lander receipts wldenclng such payment wlthin such time perlod sa Lender may require. Borrower's obligation to make wch pavmenta and to provide recdpts shall for all purposes be to be a covenant ad agmSmant contained In thls Se42urlty instrument, as the phrase 'covenant and agreement' Is wed in Sealon 9. If Bwrowar lo obligated to pay Escrow items directly, pursuant to a waiver, and Borrower fdls t pay the amount due for en o Escrow Item, Lender may exwcise Its rlghtn Undsr Sectlon 9 a d pay such mount and k n o w e r shall then be obligated under S d o n 9 to repay to Lander m y such amount. Lender mey revoke

.

03-0643-070494803-3

the waiver as to any or all Escrow Iterne at m y time by a m i c e ghrm in accordance with S e u h 15 and, upon such revocation, Borrower shdl pW to h d e r all Funda, and in such mounts, that era then required unda this Section 3. Lender may, at m y time. cdlsct and hold Funds in an mount (01 sufficient to psnnlt Lender to apply the Funds at the tlme specified under RESPA, end (b) not to erccwd tb msximum emount a lender can requlre under RESPA. Lender shall d m a t e the amount of Funds due on the basts of current data and reasonable mimetea of expmdltwea of future Escrow Items or otherwise in accordance with Applicable Law. The Funds shdl be hdd in m inatitutlon whom d p &! s o t~ are inrured by a fsderd agency, Ineaumentdil. or s t lincludin~ nw Lander, if Lmnder Is an inainnion whose depoelts are sa Imufed) or in m y W e m l Home Lorn Bank. Lender shdl spply the Funds to pay the b r o w Items no later than the time s w i f i e d under RESPA. Lender Shall not charge Borrower for holding end applying tha Funda. annually analyzing the escrow amount, or verifying the Eacrow Items, unlage Lender pays Bormwer interest on the Funds and Appllwble Law permits Lender to make such e chnge. Unless an egrwment is made in wrltlng or Applicable Law requires interest to be peid on r the Funds, lander shdl not be required w pay Borrower m y interest o emings on rho Funds. Borrower and Lender cen agree In writing, however, that intomat shall be paid on the Fun&. Lender shall give to Bwrower, wlthout &We, en M a t accounting of tfrs Funds 88 required by RESPA. H there in s w r p l w of Funds held in escrow, M ddinsd under RESPA, Lander shall account to Borrower for the excess funds In accordance with RESPA. If there is a shortage of Funds hdd in escrow, as defined under AESPA, Lender ehdl notify Borrower ss required by RESPA. and Borrower shall pay to Lenda the amUnt wcasciafy to make up the short.ge In accordance with RESPA, but in no more than twelve monthly payment.. If them is a deficiency of Funda hold in sscrow, w defined under RESPA. Lender shall notify Borrower as required by RESPA, end Borrowsr ahell pay to Lender the mount necessary to make up the deficiency In accordance wlth RESPA, but in no more them twdve monthly payments. Upon payment In full of all sums secured by thla Sacurity Instrument, Lender shall promptly refund to Borrowsr any Funds held by Lander. 4. Chafgm: b Borrower ahdl pay an taxes, ansomwnts. charges, fines, a d . impositions attrlbutsble to me Propsrty whlch oan attdn priority over this Security Instrument. lowehold payments or ground rents on the PropoW. ifany, end Community Association Dues, Fees, end Aeaetaament~,If any. To the extent that there items ere Escrow Items, Borrower shall pay them in the manner prwlded in Section 3. Borrower shall promptly discharge my lien whlch h m prlorlg over thls Sewrlty Instrument unless borrower: ( 8 ) agrsss in writing to tho payma'It ot the otdigaion escursd by the tien in a manner accaptabb m Lander, but only ao long aa Borrower is psrformlng such agreement: (b) conteats the lien In good faith by. or dstsnd. agdnst m f o r m t af the lien In, legd procsedinga which In Lender's opinion operate to prevent the enforcement of the llon whlla those proceedings are pandlng, but only untll such prooaadlngs are Concluded; o (c) M c u r a from the holder of the r lien en agrwment sstiafactorv to Lender eubordlnstlna the lion to M a Seourlty Instrument. If Lender determines t h a t any part of ths Property is subject to a lien whlch can attain prlorig over Lander may glve Barrower a notice idmtifylng tha lion. WRhln 10 days of this Securky In~rument. ths date on whlch that notice 1 given. Borrower shall d a f y the Aen or take om, or more of the s actions set fbrth above I thls Sectlon 4. n Lender may require Borrowef to pay a one+ttlme Charge for a d atsta tax Mtiflcatim mdlor reporting sewice uWd by Lender in eonneotlon wlth thlr Loan.

6. Proprrty k n u ~ Borrower rhdl Loop the irnprovemnts now axining or hereafter . erected on the Propeny lnwred ~ I IW by fire, hazard8 included within the term "extandeci O M coverage,' and any other hazards indudlng, but not llmitsd to, earthqu&m and floods, f w which Lander requires insurance. This insurance shell ba mclintdned in the amount. (including deductible levels) and tor the periods that Lender r q u k w . ma Lender requlra pursuant to the preceding sentsnces can change dudng the term of the b a n . The insurance carrier providing the insurance shall be chosen by Borrower s u W t t Lender's right to dinspprove Borrower's choice, which o right shall not be exercised unreasonably. Lendw may rOqul10 Borrower l o pey, in connection with this Lorn, either: (a) a onatime charge for flood zone dotenninetion, csnificatlon and tracking mvicm; or (b) a onetime charge for noad zone doterminmlon and mlficstion savices and subsequent charges each time remsppinge or dmiln changsa occur which reasonably mlght affect such dstsrmlnation or certification. Bonowar shall dso be rssponribk, f a the payment of any imposed by the Federal Emergency Managemem Agency in connection with the revlew of any flood zone determination rssolting trom en o ~ t l o by Borrower. n If Borrower fails to maintain any of tha coverqeu deacrlbed above, Lender may obtain insurance coverage. at Lander's option and Borrowor's expense. b n d e r .1 under no obligation t o purchase any psnicuia type or m u t of coverage. Lender may purehaw such Insurance from on InddnE, wfthout limltdon. an dlliate of Lendar. or through m y cornpony aCcaplab(e to L& and Borrowsr aoknowledgss end agree8 that Lender's atfillme mw recelve wrmidwmion for such purchase. nerdore, such coverage Shdl cover Lender. but might or might not protect Borrower, Borrower's equity in the Property, or the wntcnts of the Ropenv, wainst m y risk, hazard or lrsblllty and mlght provide areater or lesser coverage than wss prevlwsly in effect. Borrower acknowledges that the cost of the insurenm covarclge ao obtained might significantly m d the c w t of lnaurance that Borrower could hareobmlned. Any mount8 disbursed by Lendw under this Section 6 shall become sddiiianal debt of Bbrrower secured by this Securm/ Inatrumat. Thane amounts shall bear interaclr at the Note rate from the date of disbursement and shall be psyable, with auch interset, upon notlw from Lender to Bonower r e i n n payment. AII insursnee policiea required by Lender and renewals of such poliocw shall be subject to Lender'e right to disapprove such pollciss, shall inctuds a standard m m ~ clause. and M e I name Lender w mortgagee andlor as an addMona1 l o w payee and Borrower futttw agrsee to -ally mslgn rights to inuurancn proceeds the holder of the Note up to the amount of the outatonding loon b a l m . Lender 8Mll hare the rlght to hold the pdicier, and renewal cmtiticatas. If Lender requires, Borrower shali promptly QIVBLander all receipts of pdd premiums and to ranewal notices. If Borrower obtains any form of insurance coverage, not otherwise required by Lender, for damage to, or deetruction of, the Ropartv, such policy shall include a standard mortgage dause and shdl name Lmdm se mong.gee and101 a8 O additionel loss peyw. n Barrower hemby absalucsly end y 1 m l g n a to Lsndar all of Borrower's r i ~ h t ,thle and interen in and to dl p r o c d s from any imwcmcs p o k y lwhrther or not the insurance policy was required by Lander) that are due, pdd or payable whh r~apact any damage to such to property, regardless of whether the insurencr, pollcy is asrablluhml before, on or after the date of this Security Instrument. By absolutely and lrrwocsbly e~slgnlngto Lertdar all of Borrower'r rlghts to receive any end dl proceeds from any lnwranw pollcy, Rorrower b a b y waives, to the full extent allowed by low, all of Borrower's rlghts to recelve any m d all of auch insurance pro&s. Borrowcn hersby abaolutdy C d InwwaMy rPrignr to LUXku dl of Borrower's right. titfe m and interest in m d to (a) any and all dJm, p r m t and future, known or unknown. atwolute or ccnrlngent, (b) any and all caucurr O action, fcl any M d dl judgments and mlements (whether f through liiigalon, medlation. IIrbiWatl~n O t t w w l ~ ) , ) , m y and all funda sought against or or (dl from any party or partlw whosoaru, and (a) any and all funds recalved or ractwvable in

03-0643-070494803-3

connaction with any damage to such propmty, resulting from m y cause or causes whatsoever, including but not limited to, land subsidence, landslide. windstorm, earthquake, fire, flood or any other cause. Borrower agrees to exscute, ecknowladga if reqlMned, and deliver to Lender, andlor upon notice from Lender shall requwt any inauranm agency or company that has issued m y insurance pollcy to execute and ddiver to Lander, any additional instruments or documents requested by Lender from tlme to time to wldence Borrower's absolute end lrrwocabk, a88ignmanM set forth in this paragraph. In the went of loes. Borrowa ahdl ghre prompt n 0 t h to tho insurance carrier and Lender. Lender may make proof of loss If not made promptly by Borrower. U n l m Lender and Borrower otherwise agree in writing, any insurance proweda, whether or not the undalylng insurance was requlred by Larder. shdl be epplied to remoraion or repdr of the Prop-, if the restoration or repalr is sconomicdly feaslble and Lender's w u r i t y is not lwsened. During such repsir and restorstion period. Lender shell have the right to hold such insurance procads until Lender has had an opportunity to inspect such Property to emure the work has beon completed to Lender's aetlsfactlon, provided t a such inspection shdI be undaalm promptly. Lander may disburss h procwda for the repairs and restoration in e single payment o in a wries of progremm payments as r the work is completed. Unless ar agreement I# mado in writing o Applicable Lsw requircw i n t e r m r to be pdd on such insurance proceeds. Len& ahdl not be requirod to pay Borrower any interest or earnlngs on such procasds. Fees for public edjusters, or other thlrd panles. retained by Barrowa shall not be paid out of the insurance proceeds and ehdl be the sole obligetion of Borrower. If the reatoration or repair is not economlcaliy fesslble w Lender's wcurity would be Iwsoned, the insurance proceeds shdl be applied to the wms secured by this Securlty instrument, whether or not then due. with the excms, if my, pdd to Borrower. Such insurance proceeds shdl be d i d i n the order provided for in Sectlon 2. If Borrower abandons the R~perty,bndsr may file, negotlafo m d settfe m y available insurance clalm end related matters. If Borrower doen not respond withln 30 daye to a notice from Lender that the Insurance carrier has offered to nettle a claim, then Lender may negotiate and settle the claim. The 30-day period will begin when the notlce Is given. In either event, or I f Lender acquires the Property under Saction 22 of otherwise, Barrower hereby ssdgns to Lender (a) Borrowar's rights to sny inaurence p r o d s In an arount not to axcaed the mounts unpaid ~ ! w under the Note or this Security lnatrument, end (b) my other of Borrowsr's rights ( 0 t h than t right to any refund of unearned premiums peld by Borrower) under all inauranee policies coverlng the Property, insofar ss such rights are applicable to the coverqa of the Property. Lender may use the insurence proceeds either to repdr or reatwe the Property or to pay amounts unpaid under the Note or thia Security Inwument, whether or not then due. 8. O D . Borrowsr shdl occugy, tutmblish, and urs the RopatV ar Borrower's principal rwidmce within d a y days aftof the execution of this Security lnamment and shdl continue to occupy the Property as Borrower's principal d d m c e for st h t one war after the dste of occupancy, unless Lender otherwlss wrses in writing, whlch conesnt shall not be unressonably withhekl, or unkas extanuating c l r c u r n s t m exist whlch are beyond Borrower's control. 7 . ~...~.(lon. Munmmm and QrWalbn o ih. l : Inumetbm. Borrower shdi not destroy, damage or impair the Ropwty. w remove O dmnoliah any bulldlng thereon, allow the r Propem, to deteriorate or wmmlt waste on the R o w . Whaha or not Bormwer is rssiding in the Prapargr, Borrowsr a h d l maintdn th. Ropucy in good wndltion and repair in order to prarant the Property from detariorating or decreadng in vdua due to it.condltlon. Unless it is determined pursuant to Sectlon 5 that repair or rsltMaion Is not oconarni~llyfeasible, Borrower shall promptly repair the Property in good and workmanlike manner if damaged to avoid further

deterlormlon or damwe. Lander shall, unless OUIarwire agreed in wrltrng between Lender and Barrower, h w e the right to hold insurmw or condemndon proceeds. If insurance or condamndon proceeds me paid in ~ n n o c t i o n wlth damage to. or the taking of, the Property, Borrower shall be rasponsibla for Wsirfng or restoring the Property only if Lander has r e l d proceeds for such purpose8. Lender m w dl8bur.e procads for the repah and restoration in a single payment or in a serlas O progrwa Payments er the work Is completed. If t e insurance or f h condemnstion p r o d s are not sufflciant to repslr or rwtore the Property. Borrower is not relleved of Borrower's obllgstlon fM the wmplatbn of such repair or restoration. Lender or its agent may mfke rewonable mtrh upon and inspections of the Property. If it has rassonablo cause, Lender may inspect tho interior of ths hnprovmems on the Property. Lender shall g l w Borrower notlce a the tima O or prlor to such an intaior lnapamion .psclfying t f such rewonable causn. Lends d m not mdrs any warrantv or reprmtatlon regarding, end assumes no responsibility for. the work done on the Property, and Borrower ahdl not have any right to rely in any way on any inspectionfsJ by or for Lender or its agent. Borrower shdl be solely responsible for determining that the work is done in a good. thorough, efficient and workmanfike manner in accordance with dl app)lC&b laws. Borrower shdl la) appear in and defend any &on or proossdinp purporting to dfm the security hereof, tha Property or the rights or powem of Lander or Trustow (b) at Lsnder's option. ssstgn to Lender, to the e n m t of Lender's Intomst, m y cldms, demands, or c a m s of action of any kind, and any award, court judgement, or p r d s of settlmwent of any such clalm, demand or cwse of action of any kind which Borrowsr now has or may hereafter acquire arising out of or rdatlng to any intareat In the acquiskion or oHmershlp of the Property. Lender and Truaw shall not have m y duty to prowcute any auch d m , demand or cwse of action. Withwt limiting the foregoing. any auch clelm, demand or caun of action addng out of w relating to any Interest in the acqulsltion or ownership of the PropcmW may indude (1) m y such injury or damage to the Property including wlthout Hmit injury or dunage to my atructum or improvement slhratd thereon. (ii) or any claim or came of 6ctl0n In favor of Borrower which arises out of the transaction financed in whole or in part by the msklng of the loan secured hereby. (lii) any clalm or cause of actlon in favor of Borrower (except for bodllv inlury) which arises ae a result of any neglfgent or improper construction, iMMllatlon or rapalr of the P r o m lncludlng without llmit, any surface o subsurfecs thereof, or of m y buHdlng or ntru~tufa r thoreon or (w) m y p r d e of insurance, whether or not raquired by Lender. pcryclble as a rwult of any dmsge to or otherwise relating to the Property or any interent therein. Lender may apply. use or release such monies 80 received by it in the s m manrmr eel provided In Paagrclph 5 for the proweds of Insurance. 8. Bonorwr'm L o m A p p k d o n . Borrowor shsll be in defsuh If, during the Loan sppllcdon process. Borrower or any persons or entlth. acting at lhe d h d o n of Borrower or with Banowerrs knowledge or conrent gwe materldly fdne, mldmdlng, or inrnxwata informslion or statement8 to Lander (or fdled to provide Lsndsr with material information) in connodon wlth the concaning Loan. Matala1 reprwsmatlons include, but me not limited to, sr Borrower's occupancy of the Property as Borrower's principal rashlance. B . P ~ o f L . n d . r ' s I n ~ h r ) l . R o p . r t y . n d ~ U n d r m * 8 . a r m y l ~ t ~f (a) Borrower fails to psrfarm the covenants and qrwtnonts comalned In thlr Security Inarumant. (b) there b a lwl proceding that mlght algnlflcsntIy affect Lander's interwt In the Property andlor right8 under lhls Security Inhumant (such a a proceadlng in bankruptcy, probate, for condemnadon or forfdulra, for d o r w m e n t of e hwMch msy attsln prlority over this S a d t y ~narumant to enforce law$ or rogulaions), or (c) Borrower haa abandoned the or Property, then Lender may do and p w for whatever is rIImon&le or appropriate to protect Lender's intareat in the Property and rlghta under thls Security Instrumam, including protecting

andlor m m s i n g the value of the Property. and sscurlng mdlor rapairing the Property. Lendw's actlona can include. but are not limited to: (a) paying any sums secured by a llen which has priority over thii Sacurity Inarument; (b) c r p ~ n ig court: and lc) paying r e m a b b attorneys' n fees to protect its intereat in the Property d l o r rights under this Security Instrument, including its secured podtlon in a bankruptcy proceeding. Securing the Property Includss, but Is not limited to, enterlng the Property to make repairs. changa locks. replace or board up doors and wlndows, drain water from pips, eliminate building or other wde violations or dangerous conditions, and have utllltlw turned on or off. Although Lender may take action under this Sectlon 9, Lender does not have to do so and is not under any duty or oMigation to do so. It Is aprasd that Lender incurs no liability for not tsklng m y or all ectiona authorized under this Section 9. Any amounts disbursed by Lender under mls Section B shdl become ddWonal debt of Borrower secured by thia Security Inarument. T h e amounm ahall bear interest at the Note rate from the date of dlsbursmant and shall ba payable, with such interest, upon notice from Lender to Borrower requesting peyment. If this Security Instrument is on a leawhold. Borrower shall wmply with all the provisions of the laase. If Borrower acuuirea fee title to the Property, the l w 8 h d d and the f w tlde shell not merge unless Lender agrecw t the merger in wrlting. o 10. Ma(g.g. I n w r m . If Lender requlnd Mortgage Ineurenca as a condition o f makina tha Loan, Borrower shdl pay the premiums required to mdntain tho Mortgage Ineuranoe in effect. If, for any reason, the MortgInsurance coverage required by Lender cease8 to be available from the mortgage insurer that previously provided such insurance and Borrower wm, required to make sap~ately dwignaed payments towlrd the prmiurna for Mortgage Insurance, Borrower shall pay the premiums required to obtain coverage wbstontidly equivdem to the Mortgage Insuranw prwiously in effect, st a coat aubrtantially equivdent to the coat to Borrower of the Mortgage Insurance prwiously in effect. from an alternate mortgage lnaurw docred by Lender. If subatantidly equivalent Mortgage lnaurance OOvMage is not wallable, Borrower shall continue to pay to Lander the amount of rhe separatdy designated paymen- that were due when the insurance coverage ceased to be In affect. Lender wlll accept, use and retain these payments w a non-refundable lose rewrve in lieu of Mortgage Inswsnce. Such loaa reserve shall be non-refundable, notwithstanding the fact that the Loan Is ultimately paid in full, and Lander shall not be required to pay Borrower any interant or eerningn on such lors renerve. Lmdm can no longer raquire loss r a w v a payments If Mortga~a Insurance wverqle (In the amount and for the perlod that Lender requires) provided by an insurer selected by Lender agdn beoomw ardabte, is obtained, and Lander requires separmdy dmlgnated payments toward the prsmlurns for M o n g w insurance. If Lender required Mongage Insurance as a condition of making the Loan and Borrower was required to make separately dasignmed payments toward the premiums for Mortgwe Insurance, Borrower ahdt pay the premiums requlred to mdntaln Mortgege lnruranco In effect, or to provide a non-refundable 108s reawve. until Lander's raquiremmt for Mortga@e Inwranco ends in accordance with any written agreement betwean Borrower and bnder providing for such terminalon or until terminmion is required by Applicable Law. Nothing i n this Section 10 affects Borrower's obligation to pay interm a the rate pmvlded in the Note. t Mortgage Insurance reimburses Lender (or any entity that purcham the Note) for certain l o a m it may incur if Borrower doan not rway the Loen as w e . Bcrroww is not a party to the ed Mortgage Insursnca. Mortgsee inwrara weluae thdr totd rlrk on J w c h innurmca In ~IXCO from tima to trme, 1 and may enter into agrmenta with other partlen lhat aham o modify thdr risk, or raducs logcw. r Thwe agreammta are on terrna and wndltlana that are satlafactory to the m o r t g w Insurer and the other party (or pmlas) to these qrscunants. Them aQmamentr may require the mortgage

03-0643-070194803-3

insurer to make payments wing any aource of funds that the mortgags inaurar may have available (which may include funds obtalned from Mortgqe Insurance premiums). of the Note. another ineurer, any As a raault of thewr agreements, Lander, m y purchrdnsurer, any other entity. or any affifiate of m y of the foregoing. may receive (directly or indirectly) amounts that derive from (or might bs chnracterized as) e portion of Borrow~'a payments for Mortgage Insurance, in exchange for sharing or modifying ths mortgage insurer's risk, or reducing losses. If such agreement provides that en nf'Hliae of Lender takes a shere of the Insurer's risk In exchange tor a share of the premiums paid to the inaurer, the arrangement is often tsrmed "captive rainaurmw." Further: fm) Any m h ommmtm wl notaffoctth* mantrthat Bonouw h agmd topay tw w r Mor(8.g. Imuma. o my other hrmr of Um Lom. Such r wA nol i n a r a e thm .matnt Banewar wll ow* fa Moftgop Inumo.. m d thav wlll not .ntkk B o m w r t o any refund. fb)Any#uchw l l n o t ~ t h . r l @ ml b n o w n h r - A m y -withnrp.ctm the Mortgage I n r u r m under the Hormownrn Rot.c(ion Act of lS98 or m y olhr imr. Thue right. my indud. me right to roaalve eacdn d*daurr. m nqurn nd obtmln c a n d o n af me Martgmga Invarm. t h w e the MwCO.O. I n a w a w temlnatud wtonmUally, mdlor to o r e a h n e r & m d o f n * . M ~ ~ ~ t h - .~ ta w u n o d u ~ L h . o f ~ ~ ~ h onncdbnm or tamhuthm. 11. Adgnmant of M b o r b u ~ m Raardr, FarMhns. All Miemllansous Proceed8 are hereby assigned to and shall be paid to Lender. if the Propsrty is damsged, such M i ~ l m w u P r o d shall be applied to matoratlon o a r rapalr of the Property, If the restoration or rwair Is economicdiy faseible and Lsnder'a security is not lemsnsd. During such rapair and restoration period. Lender shall have the right to hold such Mlscallaneous Proowda until Lender hep h8d an opportunity to inspect such Property to ensure the work has b m completed to Lendsr's Salafa~tlon, provided that ouch inspection shQ be undertaken promptly. Lender may pay for the repairs and restoration in a single disbursement or in s series of progress payments M the work Is completed. Unless an agreement is made i n wrRing or Appiicabla Law requires intereat to be paid on such Miscdianeoua Proceeds, Lender shall not be required to pay Borrower any intOrWt of earnlngs on such MlsceIl(rn(~~~s Pr&s. If the rmtoratlon or rapalr is not economkdly famlMe or Landor's secdty would be Iewened, the M i d l a n w u a P r d s ehall be qwlied to the sums amired by this Security Instnnnent, whether or not then due, with the exc898. ifany, paid to Borrower. Such Miscellaneous Proceeds shall be applled in the order provided for in Section 2. In the event of a total taking. dwtructlon, or losa in value of the Property, the Mlscdlane~ua Proceda ehall bs applied to the r u m secured by thls Security Innrurnent. whather or not them dw, with the exessa, if any. p&d to Borrowa. In the event of a partial taking, dwtructfon, or loa In value of the Rapany In which the fair rnarka v d w of the Property imrnedlmsly M o r e tha p a i d taking, dsanuctlon, or l o w in value is equal to or greater than the amount of the sums secured by this Security Instrument immedlataiy before the partial taking, destruction, or lms in value, urWm Borrows and Lender otherwise Wree in writlng, the sums secured by thia Sscurlty lnclmrment shall ba reduced by the m o u n t of tha Miffisllaneous Proceeds rnultlplied by the following fraction: (a) the iotd amount of the sums secured immodlatdy before the pwtlsl taking. deatructlon. or lorn in value divided by (bl the fair market value of ths Property l r n r n ~ e f y bdOra the p a t b l taking, dwtruetlon, or loss in value. Any bdance shell be pdd to Borrower. In the event of a partial taking, dwtructlon, or i w 8 in value of tha Property in which the fair market value of the Property immediately befora the partid taking, destruction, or loaa in value is

lers then the amount of the sums secured immediately before the partial taking, dsstruction, or loss in value, unless Borrower end Lender othwwiw 8gfw in wrltlng, the Miscelianeoua Proceeds shall be applied to the sums secured by this Seouritv Inarumart whether or not the sums ere then due. If the Propmy is abandoned by Borrower. or if. sfter notics by bnder to Borrower that the Oppoaing Party (eadefined in the next sentence) offers to make an award to settle e claim for damagea, Borrower talk to r w o n d to Lander within 30 dsys after the date the notice ia given, Lender is authorized to calla13 end apply the M l s m l l m ~ ~ u s Rocwid8 either to reatoration or repair of the Propmy or to t b sums secured by thi SB~urityInmment. whether or not then due. "Oppoaing Pwty' moms the tblrd party that owes Barrowor Mimllaneoue Proceeds or the party against whom Borrower him a right of action in regard to MlsaeHmeous Proceeds. Borrower ahdl be in default if any action or proCeeding, whether civil or criminal, is begun that, in Lender's judgement, could rerrult in forfeiture of the Property or other material impairment of Lender's intdre8t in the Property or rights under this Security Instrument. Borrower cnn curs such a dafarlt and, if sccderation has occurred, reinstate as provlded in Seetion 19, by causing the saMn or procwdlng to ba diamiawd with a ruling that, in Lender's judgamsnt, precludm farfdhrre of ths Property or othu materiel lmpsirment of Lender's intarest in the Propsrty or rights under thla Security Instrument. Tha proceeds of any awwd or cidm for darnageo that are mrlbutable to the impairment of Lender's interm in the Property ere hereby mmlgned end shell be psid to Lender. All Miscellaneous Rocwds that we not a p p l i i to restoration or repair of the Property shall be applied In the order provided for in Section 2. 12. EOROWU MoI R.k.#d: Fmhumm By knkr Not a Wokor. This Security Inmumant cannot be changed or modlfled except as otherwire provlded herain or by a g m e n t in writing signed by Borrower, or any Successor in interest to Bwrower and Lender. Extension of the time for payment or modMcation of arnonlzation of the sums secured by thia Security lnawment granted by Lender to Borrower or any SuccSsaor in Intereat of Barrower shall not operate to release the llebllity of Borrower or any Sucae~~sor lntaremt of Borrower. Lender shall not be in required to commence proceedings agoinst any Suocesaor in Intereat of Borrowar or to refwe to of extend time for payment or othemiae modlty mt~rtkstion the sums secured by this Securitv Instrument by rewon of m y demand made by the originel Bonowar or any Succeason In In-t of Borrower. Any forbearance by Lender in exerasing any right or r a n d y including. wlthout Ifmltation, Lendar's acceptance of psymenfr from third persons, Mltitim or Sucmsscts in Interest of Borrower or in amounts lsss than the amount than due, shall not be a waiver of or preclude the exercise of m y right or remedy. No waiver by Lender of any rlght under this Sacuriw Instrument shall be affective unless in writing. Walver by Lender of any right granted to Lander under this Sscudty lnshument or of any provision of thia Sscurky Instrument aa to m y nanaacrcrion or to any future tlarwactton or occurrence. occurrence shall not be deemed a waiver 13. J d m m d 8.mJ U.bRky; Corlgmn: Z)w#wan md A.rlgn Oow~d.Bwowen covenants m d agrees that Borrower's obligations and iiabllity shall be jolnt and several. However, any Borrower who co-elgns this Security Instrument but dom not execute the Note (a "co-signer"): (a) is co-signing this Security lnafllment only to morteaga, grant and convey the co-signer'a Interwt in the Ropsrty under the terms of tMa Security Instrument; (b) is not personally obligated to pay tha sums 6ocumd by thls Sscurlty Instrummt; and fc) qraea that Lender and any other Borrower can agree to sxtsnd, modify, forbear or m&e any accornrn~d~ona regard to tho term8 of this %curlty lnrmment or the Note wlthout the with co-signer's consent. f Subject to the provlaiona O Section 18, any Socamor in intereat of Borrower who ssaumes Borrower's obllgaions under this .Security Instrument in writing, and is spproved by

Lender, shell obtain ell of Borrower's rights and benefits under this Sscurity Inetfument. Borrower ahall not be relessed from Borrower's obllgatbns and llabllity under this Securlty instrument unlsss Lender agrws to w c h release in wrltlng. The ~ v m m t and agreements of this Securitv s Instrument shall bind (except 8s provided in % d O n 20) and bensfit the succeeaors and wsigns of Lender. 14. Loan C h. Lender may charge Borrowar fsss for service8 performed in connectlon wlth Borrower's default, for the purpose of protecting Lender's Interest in the Property and rlghts under thle Security Instrument, including, but not limited to, attorneys' fees, propem Inspection and vduetlon fses. Borrower shdl pay such othm charges as Lender may deem rawonable for s~vlees rendered by Lender and furnished at the request of Borrower. any Successor in interest to Borrower or m y agent of Borrower. In regard to m y other fwa. the absence of axproan authoricy In this Security lnanrment to chlWg9 a specific fee to Borrowsr shall not be construed as a prohlbltion on the charging of such fee. Lander may not charge fees that are expressly prohlbltad by this Security Instrument or by Applicable law. If the Loen is subject to a law which eets maximum loan charges, and that law is finally interpretad so that the lnterwt or otha lorn chargw collected or to be collected in connectlon with the Loan e x d ths parmirred limits, than: (a) any such loan charge shall be reduced by the amount nscwsary to reduce the charge m the perminad limit; and (bl eny sums already collected from Borrower which excsaded permitted limlts wlll be refunded to Borrower. Lender may chooae to make this refund by reducing the princlpel owed under the Note or by making a dlrect payment to Borrower. If a refund reduce8 principal, the reduction will be treated as a partial prepayment without any prepayment charge (whether or not a prepayment charge is provlded for under the Note.) Borrower's acceptace of m y such refund made by direct payment to Borrower wlll constitute e waiver of any right of m i o n Bonower might have ~ i a i n out of such ovsrcherge. g 16. Notbm. All notices given by Borrower or Lender in connection wAh this Security Instrument must be in writing. Any notice to Borrower i n connection with this Security Inatrumem shall be deemed to have been given to Borrower when mailed by flrst class mail or when actually dellvued to Borrowsr's notice eddrcus If rant by 0 t h means. Notlca to any one Borrower shdl mnaitute notlce to ell BMrowsrs unless Appllcabb Law expres.ly require$ otherwise. The notlce addreae shall ba the Propsrty Addrass unlms Borrower has dmignasd a substitute notice addreas by notice to Lender. Borrower shall promptly notifv Lender of Borrower's change of addresa. If Lender spedfles a procedure for reporting Borrower's chof address, than Borrowa shall only report a change of address through that speclflad procedure. There may be only one designated notlce address under this Security inetrumant at any one time. Any notice to Lender shall be given by dellvaing it or mailing it by firm class mail to Lender's addreu, stated herdn unless Lender has d-nmsd another &drear by notics to Borrower. Any notice in connection with this Security lnsnumant shdl not be dscnned to hare bean g i m to b n d w untli sctually recetved by Lender. If any notice required by this Sacuriry instrument Is aim rewired under Applicable Law, the ~pptlcableLaw regulrement will satlsfy the corresponding requirement under this Security Instrument. 16. Oavwning Law; Sevrrb)lly; R u f a of CaWmdon. TMs Security Instrument shall be governed by fderal law and the isw of the jurisdiction In whlch the Property is located. All rights and obliglrtbns cantehed in this Security Instrument are rubject to any rs&ementa and limitations of Applicable Lwv. Applicable Law mlght axplicly w lmplicltly Jlow the partien to agree by contract or it mlght be ribt, but such dlanca ehdl not be e o n w d w a pmhlbltlon against agreement by contract. In tha went that any provlelon or claua, of this Securlcy Instrument or the Note conflicts wlth Applicable Law, such conflict shall not affsct other provislons of this Security Instrument or the Note which can be given effect without the

conflicting provision. As used in this Security Instmmcnt: (8) words of the maculine gender shall mean and include corresponding neuter words or words of the faninins gendar; fbl words in the singular shdt mean and include the plursl end vice versa; and (cl the word "may" gives sole discretion without any obligation to take any action. 17. Barroww's Copy. Borrower shdl ba given one w p y of the Note and of this Security Instrument. 18. Tmnafar of the Ropefly of a Bm(kld Mmt h brrowu. As used in this Section 18, "Intaren in the Property" meaa m y lagd or benaflcld lntwest in the Roperty, including. but not limited to, those bmflclal inme6tu lranafafred in a bond for dead, contract for deed. installment sdes contreet or escrow agrssment, the 1 of which is rhe transfer of title by Borrower a a future d8te to a purchawr. If all or any part of the Property or any Intarest in the Proparty ia sold or transferred (or if Borrower is not e naturnl perron end a bsneficial intarsat in Borrower is sold or nensfermd) without Lender's prior wrlttm consent, Lender may require immediate payment In full of all sums secured by thin Seeurlty Instrument. However, thls option rhdl not be exerciwd by Lender if such exercise is prohibited by Applicable Law. If Lsndar axerciws this option, Lodm shall give Borrower notice of &ratlon. Ths notice shdl provlde e period of not lam than 30 from t h ~ dmte the notice is given In mxordancs with Section 15 within which Borrower must pay dl sums sscurad by this Securlty Instrument. If Borrower fails to pay these sums prior to the expiration of this period. Lender may invoke any remedies permlaed by this Security I n m m e n t without further notice or demand on Borrower. A* AcdmmUon. IfBorrower meets m a i n conditions. 19. Bonaww'a Rl&t t e Borrower shell have the right t o have enforcamem of this Socuricy inmumant discontinued at any time prior to the earliest of: (a) five days before sale of the Propsny pursuant to any power of ado contained in thie Security Instrument; (bl such other period as Applicable Law mlght specify for the termination of Borrower's right to reinstate; or (c) entry of a judgement enforcing this Security Instrument. Thoea conditions are thet Borrowa: (el pays Lender ell sums which then would ba due under this Securlty Instrument and the Nots as it no ee&etion had occurrsd; fbl cures any default of any other covenants or agrwmenta: (c) pays dl expenass incurred in enforcing this security Instrument, Including. but not limited to, r e m o ~ b l e attorneys' fses, propony inspaotion and vsluetion fees, and other fees incurred for the purpose of protecting Lender's intersst in the Property and rlghts under this Security Instrument; and (dl takes such action aa Lender may reawnably require to assure that Lender's interest in the Ropwtv and rlghts under this Security Instrument, ard Borrower's obligmlon to pay tha sums cured by this Securhy Instrument, shall continue unchanged. Lender may require that Borrower pay svch relnststsment sums and expenam in one or more of tha following forms, an doctad by L 6 m k (8) cwh; (b) money order; (cl wrtlfisd check, bank c W , tremunr's check Or ~88hler'scheck, provided any such cheek is drawn upon an inrtitutlon whose depostts ars insured by e federal agency, instrumentnlity or entity: or (dl Electronic Funds Transfer. Upon reinstAment by Barrower. this Security Instrument and obligaion~ secured hereby shall remain fully effeotlve as if no awderntlon had occurred. However, this right to rainstwe shall not apply in tho cane of ~ u w l o under Sectbn 18. n 20.5.k o Noto: Ca f o Lom &rubw IYatk. of @lovmm. The Nota or a partla1 f intamst in the Nom (together with M a Security Instrument) can be sold one or more times wlthout prior notice to Bonowar. A sob might result In a change in the mtlty (known aa the "Loan Servlcw"1 that collect8 Perlode Peymenta due under the Note and this Security Instrument end parforms other mortgage loan servicing obligations under the Note, thie Securlty Instrument,

03-0643-070494803-3

m d Appllc*le Law. There also might be one or more charges of the Loan Servicer unrelated to e sale of the Note. If there is s change of the Loan %wicer, Borrower will be given written notice of the c m e whlch will date the name and a d d m of the naw Loan Ssnrlcer, me addreaa to which paymants should be made and my other information RESPA requires in connection with a notice of transfer of ssrvidng. If tha Note is sold and thar~ftsr Loan is m i c a d by a Loan Ssnricsr the other than the purchaeer of the Nots. tha mortgage loan servicing obligations to Borrower will remain with the Loan Servicer or be transferred to a succeesor Loan Servicer and are not assurnad by the Note purchaser uniese otherwise provlded by the Note purchamr. Melther Borrower nor Lender may oommence, join, or be joined to any judicial action (as either an individual l i m t M the manbar of a claea) that arises from the other party's actions pursuant to this Securlty Instrument or thst ailagw ma the other party h m breachd any provision of. or any duty owad by r m n of, this Security Instrument. until such Borrower or Lander has notifled the other party (with such notice given in compliance with the requirements of Section 15) af such alleged breach and afforded the other party hereto s reenonable period after the giving of such notice to takq corrective actlon. If Applloable Law provides a time period whlch must elepee before m a l n action can be taken. thal time period will be deemed t o be reaeonable for purposes of thls parsgraph. The nonce of acceleration and opportunity to curs given to Borrower purauant to oc n S ie t 22 snd the notice of accderation given to Borrower pursuant to Section 18 shall be deemed to satisfy the notice end opportunity to take wrrsctlve action provisions of this Section 20. 21. naudaua Subatmaas. As used In thia Section 21: (a) "Hazardous Subatencw" ere those 8ubatencas deflned ao toxic or hazardous substances, poflutants, or westby Environmental Law end the following s b t m s gsallne, kaowna, other flammable or toxic u aa a : petrotaurn products, toxic pesticide8 and harbiddaa, volatile solvents, mataids containing esbwtos or farmddehyde, and radbactive masrids: (b) "Environmental Law" means federal laws end lews of the juridlction where the Property lo located that relate to health, sefety or environmantal protection; (c) 'Environmental CIeaup' includw any reaponaa actlon, remedial action, or removal action, as defined in Envlronmental Law: and Id1 en 'Environmental Condition" mea condition that can cause, contribute to, or otherwise Ulg!pr en Environmental Cleanup. Borrower ahail n t c w m or permit the p r m c e . u.e, disposal, storage. or relawe of any o Hazardous Substances, or threaten to release any Hazardow Substancu8, on or in the Property. Borrower shall not do, nor ellow anyone else to do, anything affecting the R o p e y (a) that is in violation of any Environmentel Law, Ib) whlch Greeten an Environmental Condition, o (c) which, r due to the prewncs, we, or release of a Hazerdous Substancs, creates a condition that adversdy affscta the value of the Property. The preceding two m t e n m shall not apply to ma presence, use, or atorage on the PropetW of small quaritlth of Hazardous Subotances thst are generslly recognized to be mrbpriate to normd rasidmtlal uses and to mdntenanw of the Propwty (including, but not ilmlted to. hazardous rubstance in conrumor products). Borrower ahdi pramptty giva Lsndw written notice of (el any invemgation, claim, demand, Iawsult o other action by m y !JOVeJrnm(Ma regulatory OQmcy or privats paRy Involving the r or Property and any Hazardous Substance or Environmental Law of whlch Borrower hm actual knowledge, Ib) eny Envlronmental Conditlon, indudlng but not limited to, any spilling, leeking, discharge. release or threat of r a h of m y Hazardous Subatmoo, and (c) any condition caused by the presence, urn. or rd.we of a Mazerdous Substance wMch adversdy affects the value ot the P r o m . I f Borrower h r n a . or 1 n0tIfl.d by any governmeW or ragulatary authority. or my 0 prlvsta pwty, that any removal or other r w d l a t l o n of m y Hazdous Substance affecting the Property Is nmxsaary. Barrower ahdl promptly taka all neces8arv remedlal actlons in accordance wlth Envlronmental Law. Nothing hereln ehall create any obllgstlon on Lender for an Envlronmental Cleenup.

03-0643-070494803-3

NON-UNIFORM COVENANTS. Borrower and Lender furtha covsnant and agree follows: 22. A c m b d o n : Ram&#. kndr . .l dvm n o t k . to Bonomr prkr to hl f a l l o w m a ~ a k w h o f m y ~ o r ~ t h t h * ~ l n r ( r u m r r t l b u r n o t plorto.cc~undr~18unh.r*ppliw#.Lawpwfb.oth.mb.).Thr~~dl s m . (el the d f n (b) the d o n r a n d to eure the d f u : lc) a date, not hu thm 30 .w: ..k d m tmm the date the notloe l ghnn to Bonomr, by whlch ths d.huh muot ba CUM: (d) a md thbt hl lm to curs the dstwk on a bbfom the Me apodfhd In the noUm mny mauk In dabnoftherumwcundbytM.8.#r*ylnmnnnt.ndr~othh..th.& shallfur(h.rhfonnBaravu~tharlgMmnkrmaalt.r~.ndth.~MtobClga court .ctlon to . . r tha non-.lhtonca of e d o h i l t a my other dsfinn of B.. t o to ~ . n d o d e . I f t h . d . M t i . n o t a u d o n o r k l k . t h . ~ ~ k , t h . n o t h . , Len& at it. option may r.quln lmnwdl.1. payment In full of dl aunts secured by t h 8.curlty h lnshrment without futihm dammd and msy bvoka thb powr of ad. and any othar medk. permmad by Appllabk Law. b d shdl k .ntW to cdkct dl bxpmaaa lncunsd in punulng nn the ranalk. pravldad In mk W o n 22. hchdhg. kn not l l to, r a o . b mommy& f.a mM 8 m nb andc~~ofHtkbddonom. HBannvoramyruccruorhlntuattoBorromrffba(orhnfl~ qdntt B0wow.r or W m c w a M I in knrm t Bonowr) a h k r u p t e y pdtlon und.r Tltle I or o I m y e w a a f f ~ o f ~ ~ S t . b r C o d . w N o h p r o v l b . f a c h . ~ g o f p . ~ d . h u k due on lhe Not.. intubst a e n . d.t.rmlned by the Caun ahall be p.ld to L m d r an t t pont-pdtlon awesn. It Lender lnvokw the powa ot ado, lrndr . .luo h o oaaw Trwtoa to ex.ouh a hl . u r w~natlcaofth.ofth.oocun-of.nd.vmtofd.fult.ndotL.nd.r'..kc(lontothe~tobMld.TN.l...MI~1M.notk.takroonldhuch~lnwMohmy p.rtdth.RoO.rtyb~.L.ndrorTNmrah.lm.il~dih.nd#a~by Appb&le Law to Bowowor m d to thb othr PomOm pnrabnl by AppHollbk L . T N ~ Wh m 0l . m e publkr n d c a of ablb to the pomotu m d k tha rnonnw pfwa(b.d by Applleclbk Law. Aftu , ma time required by Applkmble Law. Tnuh.. umhout -d on Bormwer, s M sdl tha P r ~ p . ~ y atpuMk arction tothe h l a h ~ t b l d d u ~ t h m U m o a n d pl0Lmmd unduthehm#dalpn.trdhthe

~afa.lsAawamon,prcrlrdhmyonkrTr~rtndrrmnh.TN.h.nuypor~
sob of d o r m y p a r d o f t h o R o p r t y b y p u W o n w t stthethm.awl p h o f m y l parlanly.ch.dukdrrJ..LrndroritrdrlgH.nwypurch.n~aRoptr.t.nyuh. Trwtas ahdl d.Wva to thb purohaau T~.t..'m dud convoyha the wl(hout my commt or wrrmty, exprnaOd or ImplW. Th. mdt@bn th.T ~ m t n ' ad a d 8 . I h k pdma fa@# l .vM.na of the t m h of the mmemsnta m.d. m d n . TN.h. a . apply the ptucada of the u l e h# In fdowhg ordr: (d to dl sxpEft#W at th. #Oh. Induang. but not l l m k d to. nuroruMe Tnmm'a m d cmorruy.'fan: lb) todlrumr ucud byW 8awrlW hwbumrrt: .nd (cl mrtxmatothoh.onapnomkg.~~toh. 2 . kcanvayanw. Upon payment of dl w m t secured by t i Sewrity Instrument, Lender 3 hs shell request Trustee to reconvey the Property and clhdl8urrcmder this Securltv Instrument and all notea widencing debt recured by this Securlty Instrument to Trustee. Trustee &dl reconvey the Proparty without warranty to the perron or psrsons lagally entitled to it. Lander or the Truaw (whether o not the T r m m is nfflllatd whh Lander) may chaga su& person or peraons s r reawn& fee for reconveying the Roperty, but ody if the hcharged d m not excaed the fee sat by AppllcaMa Law, the fee io eanclwlvdy p m u m d to be rmwneble.

24. Bubsmuh Trultn. Lender, et its option. may from time to d m appdnt a successor trustee to any Trustee appointed hereunder by an instrument executad and acknowledged by Lender and recorded in tha office of the b o r d e r of the county In which the Property is located. The Instrument shell m a i n the n m e of the orlglnd M e t . Trustee snd Borrower, the book and p s ~ e h w this Securtty lnstrument is rsoorded a d tha name end address of the euccsssor w trustee. Without conveyance of the %party, the succescloc truatee shall succeed to all the title, powars end dutlea conferred upon the Trunw herein a d by Applicable Law. Thla procedure for rubaitution of trustee shall govern to the exclurion of all other provlsions for substitution. Truatae may destroy the Note rmd the Security ln8trument three 13) yesrs after issuance of e full reconveyance or rdeeae lunlssr directed in such r a q m to rstsln them). 28. f%mmmto WlgMh F a . Lendsr mry cdlecl a fee not t o exceed the maximum f amount permitted by Applicable Law for furnlbhlng the statement of obligstion as provided by Section 2943 of the Civil Code of Calltornis.
BY SIGNING BELOW, Borrowu acwptt3 end qreeo to tha terms end covenants contained in this Security instrummt and i n any Ridw exaculed by Borrower and recorded with it.

DAVID W. GATES. TRUSTEE OF THE DAW) W. GATES TRUST DATED AUGUST 5,1996

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before me,

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parsondly known to me (or proved to me on the bmls of mlsfsctory evidance) to be the personfs) whom m e l a ) islare subscribed to tho wkhln lnarument and odcnowledged to me that hslahelthsy executed the mme in hislh~lmeirauthor~zd capacity(ies1. and that by hisherhheir slgnmre(s) on the I r \ S h u ~ the Person(S) or the 8ntity upon behalt of which the psrson(o) ~ t acted, executed the inmumern. Witnsss my hand 8nd offidd seal

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eJ

Notary Public in and for the State of

Ordu No. 220641

EXHIBIT "ONE"
That portion of P m d 1 of Mission Ranchos, in the County of Santa Barbara, State of California, according t the map thereof f W October 11, 1956 in Book 37, Page 5 of o k Records of Survey, in the office of the County Recorder of said County, described as follows: Beginning at the Nonhwest corner of the nllct of land described in the Deed to Joseph A. Berti, recorded August 9, 1958 as lnntrument no. 15563 in Book 1395, Pnge 23 of Official Records, records of said County, being a point of the Westerly line of said Parcel 1, from which a 2 inch brass capped survey monument set at the Northwest corner of Parcel 1 bears North 0°14'20" East 377.56 feet; thence along the Northerly line of said Berti tract of land, the following courses and distances; North 7g047' East, 101.89 feet; South 83°53'30"East 50.03 feet; North 58O13' East 197.01 feet; North 60°25'20" East 158.91 feet; and South 49°06'10" East 49.1 9 feet to a 314 inch pipe on the center line of Palomino Road and a point on the Easterly l i of said Parcel 1 at the beginning of a non-tangent curve, concave to the West. having a radius of 100.23 feet, a delta of 130°28'30"snd whose radial center from said point bears North 49°06'10" West; thence along the Easterly, Northerly and Westerly lines of said Parcel 1, the following courses and distances; Northerly and Northwesterly along the arc of said curve, 228.25 feet to the end thereof; North 8°25'20' East 30.00 feet; North 8S034'40"West, 410.46 feet; and South O0 14'20" West 377.56 feet to the point of beginning. The land herein described is shown with other property on a map of sunray filed in Book 38. Page 54 of Record of Surveys, in the office of the County Recorder of said County.

SECOND HOME RIDER

THIS SECOND HOME RIDER is made thls day of ,is inwrporaed Into and shdl ba deemed T emend m supplment the Mortgage, Dead of Trust, or o d Security Deed (the "Security Instrument") of the name dnte given by the undersigned hhe "Emrower," whether there are 01-10or more psnona undersigned) to sucure Borrower's Note to ilaahixMton mtual W. PA (the "Lender') of the =me date ad covering the Property described in the Sswrlty Instrumdnt ( the 'Ropsrty"1, which is locaed a:

In sddltlon to the covenants and agreemanta made in thn Sscurlty Instrument, Borrower and Lender further covenant and agree that Saction 6 and 8 Of the Security hstrumenf are dde~ed and are rsplscad by the following:
6. Oacup~oy. Borrower shall oocupy, and shall only urn, ?ha Prapertv as Bcrroww'a second home. Borrower shall keep the ProPafW wallable for Borrower's exdueive use end enjoyment st dl times, and shdl not wbjncl ? e Propem to any timesharing or other h ehared ownarshlp orrangernant or to any rental pool or agrwment t h a requirw Borrower either to rent the Proparty or give a management finn or m y other p w m m y control over the occupancy or w e of the Property.

8. Bonowr's b a n AppkWiw. Bonowcw shdl be In default if. during the Loan spplicetion process, Borrower or any peroons o entttluu clcting at the directton of Bwrowar r or with Borrower's knowledge or conmnt @arematerially talw, misleading, or inaccurate Informaion or amamants to Cedar (or failed to provide Lander wlth rnmerld informstlon) in connection with the Loan. Materid reprsaantatlone include, but are not limitad to, rapremntmiorm oonc~lng8orrowa'r occupancy of the Property w Borrower's second home.

BY SjGNING BELOW, Borrower acWpt6 and elm to the tErm6 provisions contained in this lr t

Second Home Rider.

DAVID W. GATES. TRUSTEE OF THE D A W W.GATES TRUST DATED AUGUST 5,1996

FIXEDIAWUSTABLE RATE RIDER (1 Yoar Trsarury index ROW Capsl

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FlXEDlADJUSTARE RATE RIDER is made this 20th day of , cmd is inwporstad into and shall be deemed to m e n d and supplement the M o r t g ~ beed of trust or Security bwd (the 'Ssourity lnawurnent") of the same , dam given by the undersigned (the "Borrower") to secure Borrower's Fixed/Adjusteble Rae Not. (the "Note') to FA ('Lender") of the same date and covering the proparty dascribed in the Security lnstrumsnt and loomed st:

THIS

septenber. 2005

--

Fa
(Propmy Address)

ptLa5

-,

THE NOTE PROVIDES FOR A CHAW€ IIY IHE BORROWER'S AXED INTEREST RATE TO AN A W U S T A W INTEREST M T E . THE NOTE LIMIT8 THE A M BORROWER'S ADJUSTABLE INTEREST RATE CAN =WE AT ANY ONE TrmE AND THE MAXIMUM RATE BORROWER MUST PAY.

ADDITIONAL COVENANTS. In addition to the covmcmEl and agreements made in the Security Instrument, Borrower and Lender further covenant and agree aa follows: AIUUSTABU RATE AND W H L V P A W CMANOEB The Note providua for en initial fixed intrest rate of 5 .SO0 %. Tho Note also provides for a chaw6 i n the initial fixed rate to en adjustable interwt ram. aa follows: 4. ADJUSTABLE INTEREST RATE Am) MONTHLY PAWENT CHANQES (A) Charge D e t w The lnitiel fixed interest rate I will pay will change to an adiunable i n t u a fate on the f l r a day of October, 2010 , and the adjumble interm rate I will pay may change on the day w w y 12th month theredtor. The date on wMoh my initial flxed imerest rete changee to an adjustable interest rate, and w c h date on whlch my edjumtable interm rats could change, Is culled a "Change Date.' (B) Tho lndox Beginning with the firm Change Date, my adjustablr Interm rate will be baed on an Index. The "Index" is the weekly werage yield on Unlted States Trewun, ascurities sdjusted to a conaent maturity of one yeer, as made wdlable by the Federal Rawwe Board. The most recont
A.

Index figure available as of the date 45 days before each Chage Date is callad the "Current Index." If the Index is no longer avsilable, the Notu Holder will chows e new index that is based upon comparable information. The Note Holder will give me notics of this choice. (C1 c.laulatloll of c m h g Bsfore each Chmge Date, the Note Holder will calculate my new intereet rate by addlng TWO 6 seventy-P~M-~undrsdth~ percentage points ( 2.750 % i to the Currant Index. The Note Holder will then rwnd the m u l t of this addltion to the nearest oneeighth of one percentage point (0.1 26%). Subject to the limits meted In Ssction 4D)below, this rounded mount will be my new interest rme untll tho nsxt Change D m . The Noto Holdor will rhen determine me mount of tho monthly paymant that would be sufflclent to repay the unpaid principal that I am expected to owe a ttm Changa Dete in full on the Mmurhy Data at my new interest rate in lubstantlally equd paymenfs. The result of thls cslculation will be the new mount of my monthly payment. (Dt Limb on lnHrrt R.N Ch.ngu The interest rats I am requlrsd to pay at the first Ch Date will not be greater than lo. 500 % or ku thm 2.750 %. , my adjustable intersst rote will nwer be increased or decreswd on m y single Chnoa D m by more than two percentage points (2.0%) from the rate of interest I have been paylng for the prwedlng 12 months. My interest rate wlll 10.500 %. never be greater than (Et Efhcthn D m of Chmg.. My new interest rate will become effective an each C h m p Date. Iwill pay the amount of my new monthly payment beginning on the first monthly p a p a n t dote a e r the Chenga Date untll the amount of my monthly psymmt chRlWes agsin. IF1 WW Ch.ng.. of m e Note Holder wlll ddlver or mdl to me a notice of any changes in my initlat fixad intersst ram to en adjustable intorest n)te and of m y changes in my adlustsbla Intareat rate bstore the affective date of any change. The notiw will include tho amount of my monthly payment. and any information regulred by lew to be glvm ma and a180 the ride and telephone number of a parson who will answer m y question I may h w e regarding the notice. cb ~.llun MOICO ~ d m m m m a to If for eny reason Note Holder fails to make an adjustment to tfw intereat nte o payment r emounl as described in this Note, regardlam of any notice requlrwnent, I agree that Note Holder may, upan discovery of such failure, then make the edJumntua If thev had been made on time. I also sgree not to hold Note Holder responsible tor m y d m q m to me whlch may result from Note Holder's tdlun, to make the Mljustmant and t let the Nota Hold=, at its option, apply any o excess monles whlch Imay have paid t p d d Prwcryment of unpaid 'Rindpal." o

B. TRANSFER OF THE PROPERCY OR A BENERCIAL lWE#%IT IN BORROWER 1. Undl Borrowar's initial fix& intarest rate chmgss to an adjuaabk, inter0M rate under the terms stated in m i o n A above. section 18 of the Security Inatrumam shdl read sa follows: T&r of ik. Pmpwly a a Bww(kk( lntrrt In B m u As uMd in this Saction o w. 18. "Intersst in the Property" means m y legal or beneficial interest in the Property. including, but not llmited T , those beneficial interests tranafwed in a bond tor deed, o contract for deed, inataliment selss contract or escrow agreement, the intent of which b the transfer of title bv Borrower at s future data to purchaser. If dl or any p a t of the Property or m y Intereat in the Property is sold or nen.fsnad tor if Borrower is not a natural pamn end a beneficial interest in Earrower is sold or tramfsnod) without W 8 prior wriftm axwont, Lender may require immadlate payment in full of dl sums secured by this Securlty Inatrumant. However, this option shall not be exercised by Lender if such exwciw, Is prohibited by Appllcsble Law. If Lender exercises this option, L d e r shall glve Borrower notice of mceleration. The notice shall provide a period of not leas then 30 days from tho date the notice is given in accordmca wlth Section 16 wimin which Borrower muat pay dl sum# secured by thb Sscurlty Inarmmart. If Bwrowsr feils to pay thase sums prkrr to ths expiraion of this parlod, Lender may Invoke any rernedks pemltted by this Security Instrument without further notice or demand on Borrowar. 2. When Borrower's initial fixed ~ntumt rate champ to an eustable intorent rote under the terms stated in saction A above. Ssction 18 of the Security Inarumem described In aectlom 8 1 above shall then ceaw to be in effect. and the provisions of Section 18 of the Security lnsuument shall be amended to read aa follows: Trnahr ofthe h w Bandhid . In krarrt. A8 ueed In this Section 10, "Interest in the Property" mewa any lead or banafkicll intwost in the Propem/, including, but not iimltsd to, those ~ a f l c l a inrawlts Ranaterred in a bond for deed, l contract for deed, inotellmnt d e s contract or escrow mgrsanent, the intent of which i s the transfer of title by Borrower at a future date to purchmr. If dl or m y part of the Property ar any I ~ t s l O I i in tito Propafty is 80ld or tran~fstred t lor if Borrower Is not a natural paraon and a beneficial intofaat in Borrower is sold or transferred) without Lender's prior written conmt, Lender may require immadleta paymmt in full of all sums secured by this Swurity Inanrment. However, thin option shdi not be exerciwd by Lender If .uch axmcise ia prohibited by Appllcebla Law. Lander also shall not exercim thls option if: (3Borrower cMnss to be submitted to Lender information required by Lender to cwdueta the Intended transfsrse as if a new loan were being made to the transferee: and (bl Lendu reaonaMy dasrmina that Lender's security will not be

.

impaired by the loan assumption and mat the rbk of a breach of m y covenant or agreement in this Security Instrument is ecceptsbla to Lender. To the extent permitted by Applkable Law. Lender may charge a rawonable fee as a condition to Lender's consent to tho loan assumption. Lender mey dsa requlre the transferee t o sign en m m p t i o n agreement that is acceptable to Lender and that obligates the trmsferea to keep all the promises and agfwments made in the Note and in this Security Inatrumant. Borrower will continue to be obligated undo? the Note and this Security Instrument unleas Lendar relaaaeis Borrower in writing. If Lender exeroises the option to require imrnediata payment in full, Lender shall give Borrower notice of accelaration. The notice shall provide a period of not \ass than 30 days from the date the notice is given in accordwith Section 16 within which Borrower must pay dl wms recurad by this SsCurlty Instrument. If Borrower falls to pey these sums prior to the expiration of this period, Larder may invoke any remedies permitted by this Sscurlty Instrument without further notice or demand on Borrower.
BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this FixedlAdjustable Rate Rider.

ASSIGNMENT OF DEED OF TRUST
Lorn N . Ww948033 O:

umuod BY DAYID

To: Wub(ngfonMrdn.IIb& FA

vhkd

w GATES ,Tip. i k muid u)- Ck t -s , 1qZb

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+

KNOWN ALL MP.N BY lHPSE PWBNlS Wt t co&dcdrn or the awn o f m md n n o l i a w WLLARS md OUIWWA lad n l m b ~ e - ~ a m p i d sid l o w - I i X u r n ~n mbovemed
~hc ~ b c d o l ~ r u l ( nld

&with l h c ~ oar o l t n i

msrnancnr h pmm, ar rhcenti~ bsb.IEarwhichfhcpmm pMnuu&uled¶h~a e upon uvtwnmt
WllNESS MY t

W AND OPF1CIU SEAL

Offielrl knrrh County of

Rd &

I ECFfE
I

17.1

I Bnta Barbara I Jetrph E. HDllrnd I
This DocumentPrepared By and Please R u u n T : o MCC MORTGAGE, ZNC.
Am: Alli.wn Mlmin. M a n a m Documcnl Crmlrol

I

P.O. Box 2516116 Plano. Texas 75025-9933

ASSIGNMENT OF DEED OF TRUST
AFN No:
Grantor: Grantee:
&a

DB STRUCTURED PRODUCTS, PIC. 60 Wall Street. 15th Floor, New York, NY 10005
LPP MORTGAGE LTD, A TEXI\S LlMITED PARTNERSUIP (5000 Legacy Drive, Plmo, TX 75024
1200 PALOMINO DR, SANTA BARBARA, CA 93105

Property Address:

BC:

658006

ASSIGNMENT OF DEED OF TRUST

THIS ASSIGNMENT OF DEED OF TRUST (this "Assignment'? is made by DB STRUCTURED PRODUCTS, INC. whose address is 60 Wall Street. 15th Floor. New York. NY 10005 ("Assignor"), to and in favor of LPP MORTGAGE LTD., A TEXASLIMITED PARTNERSUIP, whose address is 6000 Legacy Drive, Plano, TX 75024 ("Assignee"), pursuant to the terms of that certain Master Loan Sale and Interim Servicing Agreement, (the "Purchase Agreement"), effective August 22, 2008, between DB STRUCTURED PRODUCTS, INC. and LOAN ACQUISITION CORPORATION.
THIS ASSIGNMENT WITNESSES THAT, in consideration of T n Dollnrs ($10.00) and e other good and valuable consideration paid by Assignee, Assignor hereby assigns, transfers, sets over and conveyx to Assignee and its successors and nssigns, without remurse and without representation or warranty, whether express, implied or creatcd by opmtion of law, except as expressly set forth in the Purchase Agreement, the following:
1,

that certain Deed of Trust from David W. Gates, Trustee of the David W. Gates Trust Dated August 5, 1996, dated September 20,2005, and recorded September 29, 2005, in Book nla, at Page nla, as Instrument No. 2005-0094620, in the Clerk's O f c of the County of Santa Bnrbara, State of California, (the "Deed of fie TrusP'), which D e of Trust secures that certain Promissory Note dated ed September 20,2005, in the original principal amount of $1,142,302.00, executed by David W. Gates and payable to the order of Washington Mutual Bank, FA. as modified or amended (the 'Tote"); iuch other documents, a-enls, instruments and other collateral that evidence. s&we or otherwise relate to Assignor's right, title or interest in and to the Mortgage andlor the Note andlor the loan evidenced by the Note, including without limitation the title insurance policies and hazard insurance policies relating hereto that are in effect.

2.

RC: 658006

I WITNESS WEJEREOF, Assignor has ca N delivered by it$ Authorized Representative as o f the

this Assignment to be xecuted and .-day of 2009.

DB STRUCTURED PRODUCTS, INC.

By:

STATE OF NEW YORK

8
5

F

COUNTY OF QUEENS

Before me, the undersigned, a Notary Public, on this day personally appeared Richanl Della Pietra, Asst. Vice President, and Sheily Armyo, Vice President, of DB STRUCTURED PRODUCTS, INC. and the person who executed the foregoing instrument by virtue of the authority vested in hirnhq and hdshe acknowledged to me that helshe executed the same for the purposes end consideration therein expressed and in the capacities therein stated. Given under my hand nnd seal this

\ lo

doy of

P V C ~2009. ,

!

i

Notary Public, State of NEW YORK
My commission expires: 9-15-2012
A F F 1 X NOTARY SEA1

DANIEL KIM NOTIRV PUBLlCdTAlE O NEW YOQK F NO. 01Kl6193481 Quollfled I Oumnr Comly n r:r Commlsrlon trplrar Ssplamber I5.1011

T i e Court Service
Recordlng RequWed By When Recorded Mall To CaCWestern Recoaveymnce Corp. P.O. Rox 22004 525 East Mala Street El Cajon C 92022-9004 A
Tmstn Sak N . 1336895-02 o AF'N: 0 --

.

. ~.. " ... ..U ..

"1

r011-0045189
Recorded O f f i c i a l Records

I REC FEE

21 00

County a f Santa Barbara Joseph E. Holland County Clerk REcorderl

I I 1 I I

I EC 08:OOAM 09-~ug-2011 I page 1 of 2

7

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Soace Above This L' e For Recorder's Use 3

3

Ref: GATES, DAVID W Property Addmy: 1200 PALOMINO DRIVE, SANTA BARBARA CA 93105

five business days prior to the date set for the sale of your property. No sale date may he set until approximately 90 days from the date this notice of default may he recorded (which date of recodntlon appcus on tbis notice). This amount is $73,351.90 as of August 08,2011, .ad will increase until your account becomes current. While your property is in foreclosure, you still must ay other obligations (such as insurance and taxes) required by your note and deed of trust or mo age. f you fail to make future payments on the loan, pay taxes on the roperty, provide insurance on t e property, or peg other obligations as required in the note and deed o trust or mortga e, the beneflclary or mort agee may l a h t that you do so h order to reinstate your account i good s t a n h g . In addition, the b a e rinq n a ce may require w a condition to relastatement that you provide reliable written evidence that you a5 a 1senior Hens, property taxes, and hazard insurance premiums. &on your written request, the beneficiary or mortgagee will give ou a writtea itemization of the entire amonnt you muat pay. You may not have to pay the entire unpa d portion of your account, even though full payment was demanded, but you must pay all amounts in default at the time payment i s made. However, you and your beneficiary or mortgagee may mutually agree in writing prior to the time the notice of sak is posted (which may not be earlier than three months after this notice of default is recorded) to, among other thin ,(1) provide additional tlme in which to cure the default by transfer of the property or otherwise; or ( ) establish a schedule of payments in order to cure your default; or both (1) and (2). Followlag the expiration of the time period referred to in the first paragraph of tbis notice, unless the obli~atlon heln foreclosed upon or a separate written agreement between you and your creditor permits a longer perio$ you have on1 the legal right to stop the sale of your property by paylag the entire amount demanded by your crditor. To flnd out the amount you must pay, or to rrr-ge for payment to stop the fomiiosnre, or if your property is in foreclosure for nay other reason, contact: LPP MORTGAGE LTD.

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 legal right to bring your account in good standin b p. ' g all of your past due payments lus permitted costs and expenses within the time permitted f y r r" reinstatement of your account, wgich i aw or
19 normally

NOTICE OF DEFAULT IMPORTANT NOTICE

P

'3 P

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7

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C/O CAL-WESTERN RECONVEYANCE CORPORATION 525 EAST MAIN STREET P.O. BOX 22004 EL CAJON 9804 CA 92022-9004
(619)590-9200

If you have any questions, you should contact a lawyer or the governmental agency which may have insured your loan.

Page 1 of 2

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LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT ACTION.

Notwithstanding the fact that your proper@ is in Yoreclosure, you may offer your ro rty for sale, U MAY rovlded the sale is concluded prior to the conclusion of the foreelosure. Remember,

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NOTICE OF DEFAULT AND ELECTION TO SELL UNDER DEED OF TRUST
NOTICE IS HEREBY GIVEN: CAL-WESTERN RECONVEYANCE CORPORATION is either the ori&al trustee, the duly appointed sabs(l~cd trustee, or actlng as agent for the trustee or beneficiary under a deed of trust dated September 20,2005 executed by
DAVID W. GATES,TRUSTEE OF THE DAVID W GATES TRUST DATED AUGUST 5,1996 as . trustor, to secure certain obligations in favor of WASHINGTON MUTUAL BANK, FA, A FEDERAL ASSOCIATION as beneficiary, recorded as document 2005-0094620 on September 29,2005 in book XX page XX official records in the office of County Recorder of SANTA BARBARA County, California, dencrihlnp land therein as:

COMPLETELY DESCRIBED IN SAID DEED OF TRUST, sald obllgatlons including 8 promissory note for the priucipsl sum of Sl,l42,302.00. That r breach of, and default in, the obligations for which such Deed of Trust is security has occurred i n that payment has not been made of: Failure to pay tbe monthly pryment due December 1,2010 of principal, interest and impounds and subsequent installments due thereafter; plus late charges; together with all subsequent sums advanced by beneficiary pursuant to the terms and conditions of said deed of trust. That by reason thereof the present beneficiary under such Deed of Trust has deposited with said trustee sach Deed of Trust and aU documents evidencing obligations secured thereby and has declared and does hereby declare all sums secured thereby immediately due and payable and has elected and does hereby elect to cause the h u s t property to be sold to satisfy the obligstions secured tbereby. The mortgagee, beneficiary or authorized ageat for the mortgagee or beneficiary pursuant to California Civll Code 5 29235(b) declares that the mortgagee, beneficiary or the mortgagee's or heneflciary's authorbRd agent has either contacted the borrower or tried with due diligence to contact the borrower as required by California CivU Code 2923.5. T.S. 1336895-02 Dated: August 08,2011 CAL-WESTERN RECONVEYANCE CORPORATION Signature By

Marc0 Marquez

By L I Title Company, As Agent S

9
~ I ~ ~ ~ i~ I ~ : / I i I( ,I 'XVI .:\!)lcl

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Order: 00000W Titlc Ollicer: 00 Comment:

Recording Requested By When Recorded Mail To Cnl-Western Reconveyance Corp. P.O. Box 22004 525 East Main Street El Calnn CA 92022-9004

fMIIIBI~~1111BRIII11WiW88R 2011-0058657
Recorded Offrcral Reoorda
County of Santa Barbara

I REC FEE

2 4 00

Joseph E Holland county Clark Recorder1

I I I I

I UL 08:OOAM 13-Oat-2011 I Page 1 of 3

Troctrc Sale No. 1336895-02 APN: 023-190-01-00 . Space Above This Line For Recorder's Use Re? GATES. DAVm W Properlv Addrew 1200 PALOMINO DRIVE.SAhTA BARBARA CA 93105

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havelegal right to brink your account in good standin b pa 'ng all of your past due iayments luc permitted costs and expenses within the time permitled %y k w $r reinstatement of your account, w{iei! IS normally five business days prior to the dale set for the sale of your properly. No sale date may be set until approximately 90 d a p from the date this notice of default may be recorded (which date of recordat~onappears on this notice). This amount is S91,754.18 as of October 12,2011, and will increase until vour account becomes current. While your property is in foreclosure, you still must ay other ohlig&ons (such as insurance and taxn) requ~red your note and deed of trust o r mort age f vou fail by to make future paymenlr nn the loan, pay taxer on the mperly, provide insurance on t i e &opkrly, or pay other obligations a s required in the, note and deed o trust or mortga e, the beneficiary or mortgagee may insist that you do so in order to relnrtate your account in good Stan Ing. In addition, the beneficiary or inort a ee may require a s a condition to reinstatement that you provide rcliablc written cvidenre that you paiffa?l senior liens, property taxes, and hazard insurance premiums. Upon your written request, the beneficiary o r mortgagee will givc you a written itemization of the entire amount you must pay. You ma not havc to pay the entire u n p a ~ d portion of your accnunt, even thoaph rull payment was demauded,Ybut you most pay all amounts in default a t the time payment is made. However, you and your beneficiary o r mortgagee may mutually agree in writing prior to the time the notice of sale is posted (which may not be earlier than three months after this notice of default is time in which to cure the default by transfer of recorded) to, among other thin s, (I) provide add~tional the property o r nthenvise; o r establish a schedulc of payments in order to cure your default; o r both (I) indi2). Following the expiration of the time period referred tn in the l i n t paragraph of this notice, unless the obligation hein foreclosed upon o r ascparate written agreement b e h e e n you and your creditor permits a loneer neriot, vou have only the legal right to stnp the sale of your properly by paying the entire nmo& dimaudeh by your creditor. To find out the amount you must pay, o r to arrange for payment to stop the fnreclosure, o r if your nmnertv.iq in Rreclosure for any other reason, contact: ,. .r .. ~ ., ..~ . ~-~ I.PP MORTGAGE LTD.

" - - -----,

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C/O CAL-WESTERN RECONVEYANCE CORPORATION 525 EAST MAIN STREET P.O. BOX 22004 151. CAJON 9004 CA 92022-9004 (619)590-9200
Ifyou have any questions, you should contaet a lawyer o r lhc governmental agency which may havc

insured your loan.

NODCA

Page 1 of 3

Printed on 11/22/2011 2:45:?6 Plv!

7
Order: 0000000 Tilie Oficer: 00 Comment:
Station Id :N2LI

Nohvithstmdimg the fact that your property is in krcclosurc, you may offcr your rope* for sale, provided the sale is caneladed prior to the conclusion of the foreclosure. Remember, \OU MAY

LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT ACTION.

NOTICE OF DEFAULT AND ELECTlON TO SELL UNDER DEED OF TRUST
NOTICE IS HEREBY GIVEN: CAL-WESTERN RECONVEYANCE CORPORATION is cither ihe original trustee, the duly appointed ruhstituted trustee, o r acting as agent for the trustee or beneficiary under a deed of trust dated September 20,2005 executed by DAVID W. GATES. TRUSTEE O F THE DAVID W. GATES TRUST DATED AUGUST 5.1996 ar trutnr, tn secure certain obligations in favor of WASHINGTON MUTUAL BANK, FA, A FEDERAL ASSOCIATION ar heneficiary, recorded as document 2005-0094620 on September 29.2005 in honk XX page XI( official records in the ofiice of County Recorder uf SAN'I'A HARRARA Countv, California, describing land therein aa: COMPLETELY DESCRIBED IN raid obligations including a promissory note for the principal sum of 51,142,302.00. That a hreach of, and default in, the obligations for which such Deed of Trust is security has occurred in that payment has not been made of:

subsequent i"stallmrnis dnc thereafter; plus late charges; toeether with all subsequ~nt ;urns

Failure to pay the monthly payment due December 1,2010 of principal, interest and impounds and advanced by beneficiary pursuant to the terms and conditions nisaid deed ol trust.

That by reason thereof the present benelieiary undcr such Deed of Trust has deposited with said trustee such Deed of Trust and all documents evidencing obligations sccured thereby and has declared and does hereby declare all sums secured thereby immediately due and payable and has elected and does hereby elect to cause the trust property to hc sold to satisfy the ohligations secured thereby. The martgage, beneficiary o r authorized agent lor the morigagcc nr beneficiary pursuant to Cxlifnmia Civil Code 8 2923.5(b) declares that the mortgaplee, heneficiary or the mortgagee's or beneticiary's authorized agent has cither contacted the borrower or tried with due diligence to contact the borrower as required hy California Civil Code 2923.5. T.S. 1336895-02 Dnted: Oetoher 12,2011 CAL-WESTERN RECONVEYANCE CORPORATION SmimUnk, a8 agent Signature By
c,

I'

Page 2 of 3

Printed on 11/22/201 1 2:45:36 PM

1 , /70

8s.

'7
Order: OOODOOD Tirle Officer: 00 Comment:
Station

Id :NZLI

ALTA Losn Polinv (10-17-921 wlForm 1 CoV.
OrdW No.
PsliCy No. 27-042.92

220841

3460956

EXHIBIT "ONE"
That oortlon of Parml 1 of Mission Ranchos, in the County of Santa Barbara, Stam of C ~ I I ~ O ~ I ~ , according to the map thereef fllcd October 11, 1955 In Book 37, Page 5 of Records of Survey, in the office of the County Recorder of said County, described as follows: Beginning a t the honhwest corner of the trsct of land described in the Deed to Joseph A. Beni. recorded August 9. 1956 as Instrument no. 15583 in Book 1395. Page 23 of Offiela, Recof6s. records of said ~ouniv.belnm a oolnt on l h e Wntsrlv line of said Parcel 1 from which a 2 inch brass canoed . ----survey monu&mtsu at theNorthwest cornerof saidPerecl 1 bears North 0°14'20' Esst 377.56 fet: thence along the NorIheriv llnc of said Berti tract of land. the tollowlng counas and d~stances: Nonh 73 O 4 7 ' East 101.89fwf: S o h 83'53'30' Ean 50.03 fseC North 56OI3' East 197.01 feet; Nonh 80°25'20" Esst 158.91 feet; and S o h 49°06'10' E m 43.19 feet l o a 314 inch pipe or the center line of Palamlno Road and a win* on the Easterlv l ne of sold Parcel 1 at the bw~nnlng a non-tanaent a of curve, concava to the West. having a radiw of 100.23 feet. 6 delta of 130'28'30'and whosn redid .. . . center lrom sa~d point beers North 49'06' 10' West: thence along the Easterly, Nonherly and Westerly Itncs of satd Parcel 1, the tOllOw#ngcoursrs and dntances; Northeh and Narthworterly along the are of saidcurvc. 228.25 feet totheand ihsrsof: North 8°25*20" Ean 30.00 fen: Nonh 8S034'40' West. 41 0.46 feat: and South 0'14'20' West 377.56 fento the point of beginning. The land herein described is shown wlth other propew on a map of survey filed In Book 38. Page 54 of Record of survey$, in the office of the County Recorder of said County.

Printed on I IR2IZOI 1 2:45:36 PM

R m i n g~
AND WHEN RECORDED MAIL TO:

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m

M~~~MM~MIAQIIWIIIRIBIIIIIIIRY MI 2011-00657 95
Recorded I REG FEE O f f x u a l Records I C o u n t y of I Santa Barkmra I Joseph E. H o l l a n d I county Clerk R e c o r d e r 1 I I ML 08:OBAM 15-Nov-2011 1 P a g e 1 of 2
21.00

RECORDING REQUESTED BY: ~6fUic81ink

C A I .-WESTERN RECONVEYANCE CORPORATION 525 EAST MAIN STREET

P.O. BOX 22004 FL CAJON CA 92022-9004
.~ -

V.5931
T.S. NO.:1336895-02
was the originel T m o r .

SUBSTI~Z~TION TRUSTEE OF

SPACE ABOVE TNlS LINE FOR RECORDERS USE._--

WHEREAS, DAVID W. GATES, TRUSTEE OF THE DAVID W. GATES TRUST DATED AUGUST 5.19% CALIFORNIA RECONVEYANCE COMPANY
lnas the

original TIlBke,

and WASHINGTON MUTUAL BANK, FA, A FEDERAL ASSOCIATION was the original Beneficiary under that

certain Deed of Trust dated September 20.2005 and recorded on September 29.2005 as Insb'ument No. 2005-0094620. in honk XX, page XX of Ofiicicial Records of SANTA BARBARA C u t ,California, a d ony WIiBREAS. the tmdmigned is p?cscm Beneficiary undn said Deed of TNS, and WHEREAS. the undersigned desires to substitute a new Trustee under said Deed of Tnnl in the place and stead of present Trustee Ihmundn; in the manner in said D e of Trust provided ed NOW. THEREFORE, the undersigned berrby mbsimta. CAL-WESTERN RECONVEYANCE CORPORATION a California Corporation whose address is 525 EAST MAIN STREET, P.O. BOX 22004. EL CAJON CA 92022-9004 as Trustee under said Deed of Trust. Whenever the context hereof so require& the masculine gender includes the feminine andlor neuter, and the singular number includes the plml. Dated:

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State of
I 'ounty n

AulhorIz&R@iet-

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s&anm($on the insuument the &n(s), m the miry upon behalf of which instrument. I certify under PENALTY OF PERJURY under the laws ofthe S foregoing paragmph is m e and coma.

penonolly appeared 7. 1 ,who pmved to me on whose name(s)islare subsaibcd to the within imtnunent and the basis ofsatisfa~fo~y eridcnce to be the acbowlcdecd to me that helshehhey cxeeutsd the same in hislherltheir authwaciMies), and that by hidhnltheir . . . .~
.r Xnrsry cb ic.

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CAL-WESTERN RECONVEYANCE CORPORATION
'1'.S NO.

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PURSUANT TO CALIFORNIA CIVIL CODE 9293411

AFFIDAVIT OF MAILING SUBSTITUTION OF TRUSTEE

STATE OF CALIFORNIA COUNTY OF SAN DlECU

THE UNDERSIGNED DECLARES UNDER PENALTY OF PERJURY:
A COPY OF THE SUBSTITUTION OF TRUSTEE HAS BEEN MAILED, PRIOR TO OR CONCURRENTLY WITH THE RECORDING THEREOF, I N THE MANNER PROVIDED IN SECTION 2934. OPTHE C I V I L CODE OF CALIFORNIA, TO A L L PERSONS TO WHOM A COPY OF THE NOTICE OF DEFAULT WOULD BE REQUIRED TO BE MAILED BY THE PROVISIONS OF SUCH SECTION.

I~RIc~.

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.Jeanne Pinman Slate or Calirornir County of Sun Dirgo

onbefore me. Rosalyn Hall-, a ND O, I Public, penona~ly appeared Jeanne Piitman. who proved l o me on the basis of satisfanory evidence l o be the person whose name is subscribed to the within instrument and acknowledged to me that she eKecu1ed the same in her aulhorized capacity, and lhal by her signature on the instrumrnt the person. or the entily upon behalfof which the person acted, executed the instrument. Iccnify under PENALTY OF PERJURY under the laws of the State o f California that the foregoing paragraph is m and correct. e
~

NOV 0 9 2011

Wln\lFSS my hand and ofFicial seal.

(Seal)

COMM. a1793727

RECORDING REQUESTED BY And When Recorded Mail To: CAL-WESTERN RECONVEYANCE CORPORATION 525 EAST MAIN STREET P.O. BOX 22004 El. CAJON CA 92022-9004

APN 023-290-01-00

Trustee S a l e N 0 ~ ~ 6 ~ ~ ~ 2

- Space Above .

This Line For Recorder's Use --

NOTICE OF TRUSTEE'S SALE
REF: GATES, DAVID W Ropn?, Addreu: 1200 PALOMTNO DRIVE.

TRA:086012 UNVER SANTA BARBARA CA 93 105

IMPORTANT NOTICE T O PROPERTY OWNER: YOU ARE IN DEFAULT UNDER A DEED OF TRUST, DATED September 20,2005. 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 On Febrnnry 06,2012, at 1:OOpm. CAL-WESTERN RECONVEYANCE CORPORATION, as duly appointed trustee under and pursuant to Deed of Tmst recorded September 29,2005,as Inst. No. 20050094620,in book XX.page XX, of Official Records in the office of the County Recorder of SANTA BARBARA County, State of CALIFORNIA executed by: DAVID W. GATES, TRUSTEE O F T H E DAVm W. GATES TRUST DATED AUGUST 5.1996
WILL SELL AT PUBLIC AUCTION TO HIGHEST BIDDER FOR CASH. CASHIER'S CHECK

DRAWN ON A STATE OR NATIONAL BANK, A CHECK DRAWN BY A STATE OR FEDERAL CREDIT UNION. OR A CHECK DRAWN BY A STATE OR FEDERAL SAVINGS AND LOAN ASSOCIATION,SAVINGS ASSOCIATION. OR SAVINGS BANK SPECIFIED IN SECTION 5102 OF THE FINANCIAL CODE AND AUTHORIZED TO DO BUSINESS IN THIS STATE:
~ ~

AT THE NORTH DOOR OF THE MAIN ENTRANCE TO T H E COUNTY COURTHOUSE, 1100 ANACAPA STREET SANTA BARBARA CALIFORNIA all right, title and interest conveyed to and now held bj it under said Deed of Trust in the property situated in said County and State described as: THAT PORTION O F PARCEL 1OF MISSION RANCHOS, IN T H E COUNTY O F SANTA BARBARA, STATE OF CALIFORNIA, ACCORDING T O THE MAP THEREOF FILED OCTOBER 11,1955 IN BOOK 37,PAGE 5 OF RECORDS SURVEY, MORE COMPLETELY DESCRIBED IN ATTACHED EXHIBIT A.

Rev 10/011!0

1.94

NOTICE OF TRUSTEE'S SALE
Trustee Sales No. 1336895-02 The street address and other common designation, if any, of the real property described above is purported to be: 1200 PALOMINO DRIVE SANTA BARBARA CA 93105 The undenigned Trustee disclaims any liability for any incorrectness of the street address and other common designation, if any. shown herein. Said sale will be held, but without covenant or warranty, express or implied, regarding title, possession, condition, or encumbrances, including fees, charges and expenses of the Trustee and of the trusts created by said Deed of Trust, to pay the remaining principal sums of the note(s) secured by said Deed of Trust. The total amount ofthe unpaid balance of the obligation secured by the property to be sold and reasonable estimated costs, expenses and advances at the time of the initial publication of the Notice of Sale is: S1,213.690.25.

IF the Trustee is unable to convey title

for any reason, the successful bidder's sole and exclusive remedy shall be the retarn of monies paid to the Trustee, a n d the successful bidder shall have no forther r e c o u n e

The beneficiary under said Deed of Trust heretofore executed and delivered to the undersigned a written e Declaration of Default and Demand for Sale, and a written Notice of Default and Election to Sell. n undersigned caused said Notice of Default and Election to Sell to be recorded in the county where the real property is located.

FOR SALES INFORMATION: Mon - Fri 9:OOam to 4:OOpm (619)590-1221 GALWESTERN RECONVEYANCE CORPORATION 525 EAST M A I N STREET P.O. BOX 22004 EL CAJON CA 920223004 Dated: January 17,2012 CAL-WESTERN RECONVEYANCE CORPORATION

By:
Autbrimd SigmW

Borrowing Under a Securitization Structure

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from tesfimony of Sheila Bair (FDIC Chair) t Congress 4-17-07 o

SECURITlZATIOhl OF MORTGAGES
After the Great Depression as a part of the New Deal the federal government of the United States created the Federal Housina Administration (FHA) with the National Housina Act of 1934 to assist in the construction, acquisition, andlor rehabilitation of residential properties. The FHA helped develop and standardize the fixed rate mortaaae as an alternative to the balloon pavment mortaaae by insuring them, and helped the mortgage design garner usage. In 1938. the government also created the governrnentsponsored corporation Federal National Mortaaae Association (FNMA). colloquially known as Fahnie Mae
to create a liquid secondary market in these mortgages and thereby free the loan originators to okginate

more loans, primarily by buying FHA-insured mortgages. In 1968 Fannie Mae was split into the Jurrent Fannie Mae and the Government National Mortaaae Association (GNMA), colloquially known as Ginnie Mae to support the FHA-insured mortgages, as well as Veterans Administration (VA) and Farmers Home Administration (FmHA) insuredmortgages, with the full faith and credit of the United States government. In 1970, the federal government authorized Fannie Mae to purchase private mortgages, i.e. those not insured by the FHA. VA, or FmHA, and created the Federal Home Loan Mortaaae Corporation (FHLMC), colloquialfy known as Freddie Mac to perform a similar role to Fannie Mae. Ginnie Mae does not invest in private mortgages. Ginnie Mae guaranteed the first mortaaae passthrouclh security of an approved lender in 1968. In 1971 Freddie Mac issued its first mortgage passthrough. called a participation certificate, composed primarily of private mortgages. In 1981 Fannie Mae issued its first mortgage passthrough, called a mortqaqe-backed security. (MBS) In 1983 Freddie Mac issued the first collateralized mortaaae obliqation (CMO). In 1960 the government enacted the Real Estate lnvestment Trust Act of 1960 to allow the creation of the real estate
investment trust

(REIT) to encourage real estate investment. In 1977 Bank of America issued the first

private label passthrough, and in 1984 the government passed the Secondarv Mortaaae Market

Lnhan~ement (SMMEA) to improve the marketability of such securities. Act The Tax ReformAct of 1986 allowed the creation of the tax-free Real Estate Mortaaae Investment Conduit (REMIC) special pumse vehicle (SPV) for the express purpose of issuing passthroughs. The
Tax Reform Act significantly contributed to the savings and loan crisis of the 1980s and 1990s that resulted

in the Financial Institutions Reform, Recoverv and Enforcement Act of 1989 (FIRREA), which dramatically changed the savings and loan industry and its federal regulation, encouraging loan origination.

The process of securitization is complicated, and is highly dependent on the jurisdiction within which the process is conducted. The basics are: mortgage loans (mortaaqe notes) are purchased from banks and other lenders and assigned to a trust. The trust assembles these loans into collections, or "pools." The trust securitizes the pools by issuing mortgage-backed securities (MBS). These securitization ~ N S ~ S include government-sponsored enterprises and private entities which may offer credit enhancement features to mitigate the risk of prepayment and default associated with these mortgages. Since residential mortgages in the United States have the option to pay more than the required monthly payment (curtailment) or to pay off the loan in its entirety (prepayment), the monthly cash flow of an MBS is not known in advance, and therefore presents risk to MBS investors. In the United States, the most common securitization trusts are Fannie Mae and Freddie Mac, U.S. government-sponsored enterprises. Ginnie Mae, a U.S. government-sponsored enterprise backed by the full faith and credit of the U.S. government, guarantees its investors receive timely payments, but buys lirn~ted numbers of mortgage notes. Some private institutions, such as Investment Banks. Real Estate Mortqaqe Investment Conduits (REMICs) and Real Estate Investment Trusts (REITs), also securitize mortgages, known as "private-label" mortgage securities. (PLMS) Issuances of private-label mortaaaebacked securities increased drarnaticallv from 2001 to 2007 and ended abN~tlV 2008 when real estate in marketsee-~n falter. to
A REMlC is a creation of the tax law that allows the trust to be a pass-through entity which is not

subject to tax at the trust level. The MBS transaction is structured and priced based on the assumption that it will not be subject to tax with respect to activities; therefore, compliance with REIWIC regulations is essential. MBS has become an attractive capital source for commercial mortgage lending because the bonds backed by a pool of loans are generally worth more than the sum of the value of the whole. The enhanced liquidity and structure of MBS attracts a broader range of investors to the commercial mortgage market This value creation effect allows loans intended for securitization to be aggressively priced. benefiting Borrowers. Once the loan is transferred to a trust and securitized, the loan is serviced in accordance with applicable loan documents and the Poolina and Servicinu Aareement (PSA) for the trust. The PSA governs the allocation and distribution of loan proceeds and losses to the bondholders. It also describes in detail
how the loans are to be serviced and includes guidance to ensure that the trust continues to comply

with the REMlC provisions of the tax code i n order for the trust to maintain favorable tax treatment.

source: www.wikipedia.org

1.

78

CMBS INDUSTRY PARTICIPANTS The following parties are typically involved with a loan once it has been securitized:

. . .

Primary or Sub-Servicer Master Servicer Special Servicer Directing Certificateholderl Controlling Class! B-Piece Buyer Trustee Rating Agency(ies)

PRIMARY OR SUB-SERWCER: In some cases the Borrower may deal with a Primary Servicer that may also be the loan originator or Mortgage Banker who sourced the loan. The Primary Servicer maintains the direct Rorrower contact. and the Master Servicer may sub-contract certain loan administration duties to the Primary or Sub-Servicer. The Master Servicer remains responsible to the trust for the Primary Servicer's performance and actions. While Mader Sewicers maintains all of the responsibilities and duties to the trust under the PSA. a sub-servicing agreement between Master Servicer and Primary Servicer typically mirrors the servicing provisions under the PSA so that the Primary Servicer's discretion is fairly limited and subject to the same servicing standard as the Master Servicer. Given their role in the origination of the loan, the originator or Mortgage Banker's involvement as a Sub-Servicer allows for Borrower relationships to be maintained wh~le adding to the collective servicing knowledge about the loan. MASTER SERVICER: The Master Servicer's responsibility is to service the loans in the pool through maturity unless the Borrower defaults. The Master Servicer manages the flow of payment and the information and is responsible for the ongoing interaction with the performing Borrower. The Master Servicer is responsible for collecting the payments from the Borrower, holding and making any disbursements from escrows and performing most routine loan administration functions. The Master Servicer is also responsible for collection and analyzing rent rolls, operating statements and other financial and property information from the Borrower, as well as conducting periodic physical inspections. A Primary Senricer may perform many of these responsibilities to the extent a sub-sewicing arrangement is in place.
The Master Servicer is generally required to process all Borrower requests related to consents, waivers,

and modifications related to performing loans. The Master S e ~ c e r ' s ability to waive, consent or modify terms of any mortgage loan is governed by the PSA. Many material servicing requests or modifications will also require the consent or approval of the Special Servicer. In some cases those decisions are further subject to approval by the Directing Certificateholderor review by Rating Agencies as described later. SPECIAL SERVICER: Upon the occurrence of certain specified events, primarily a default, the administration of the loan is transferred to the Special Servicer. A Borrower will receive notificationfrom the Master or Special Servicer if its loan has been transferred to Special Servicing. Besides handling defaulted loans. the Special Servicer also has approval authority over material servicing actions, such as loan
?7;st!rnp!~ons

ser0jcerspecialist in dealing with defaulted mortgage loans and is usually selected the is a DirectingCertificateholder. In many cases the Special Sewicer is a related entity to the Directing Certificateholder. Like Master Servicer, the Special Servicer has a duty to the trust and is subject to the serving standard. The standard usually mandates that the Special Server must act to maximize the .ecovery on the mortgage loan to the bandholders (as a collective whole) based on an analysis of collection abrnatives using a net present value methodolcqy. The Special Serviar d m"sider mMiPle l alternatives as part of its analysis including loan m d f i u C m , f o m u r e . d u n - l i e u , negobatd myoflor F ?' " . n Frequently t k Dfieeina ceflfi#fehd/,jor 'a 'pRfai semicer's actions with rag^ to defaulted
The

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DIRECTING CERTIFICATEHOLDER ICONTROLLING CLASS I BPIECE BUYER: The investor in the most subordinate bond classes is commonly referred to as the"EPiece Buyer." 6-Piece Buyers generally purchase the B-Rated and BBIBa-rated bond classes along with the unrated class. The most subordinate bond class outstanding at any given point is considered to be the Directing Certificatehilder, also referred i o as the Controlling Class. Given that losses come out of the lowest rated bonds, the PSA provides the Directing Certificateholder the opportunity to play an active role in monitoring the performance of each loan, make decisions on key asset issues and appoint andlor terminate the Special Servicer. The . -. y --e TRUSTEE: .. .-Trustee's primary role is to hold all the loan documents and distribute m m nts received from the Master Servicer to the bondholders Although the Trustee IS typically given broao authority w~th respect to certain aspects of the loan under the PSA, the Trustee typically delegates its authority to either the Special Servicer or the Master Servicer. As holder of the loans, the Trustee will be named in enforcement actions related to the loans (such as lawsuits or non-judicial foreclosure actions) yet in most instances the Trustee is acting by and through either the Master Servicer of the Special Servicer. All Borrower interaction rarely, if ever, interacts with the Trustee. RATING AGENCY(IES): There will be as few as one and as many as four Rating Agencies involved in rating a securitization. Rating agencies establish bond ratings for each bond class at the time the securitization is closed They also monitor the pool's performance and update ratings for investors based on performance, delinquency and potential loss events affecting the loans within the trust. The bond ratings assigned at the time the securitization closes assume that the credit quality of the loan pool will not change significantly over time. As such, some decisions cannot be made without respect to the loans in a securitized pool without rating agency confirmation that such actions will not cause a downgrade of any of the bond class ratings. Rating Agency confirmation is frequently required with respect to actions on the largest loan in the trust, but certain items such as approval of subordinate financing may also require Rating Agency confirmation regardless if the size of the loan. The Rating Agencies will work directly with a servicer in processing these types of requests and will not interact directly with the Borrower. Who to Contact Borrowers should aiways initiate their requests with the Primary or Master Servicer, as they know who the players are in the securitization, what the process is, what information is needed for the specific request and whose consent is required. Even if the request must ultimately be approved by the Special Servicer or Directing Certificateholder, there parties will still generally look to the Primary or Master Servicer for a recommendation. It is common practice for services to send an introductory letter to the Borrower at the time a loan is closed or securitized, which typically includes a contact address. In the event such correspondence is not availabk. Borrowers should review their monthly billing statement to locate the identity of the Primary or Master Servicer for their loans and obtain contact information
CMBS SERVICING

COMMON BORROWER REQUESTS: Just as portfolio lenders service loans to protect their interests, CMBS servicers will act to protect the interests of the certificateholders as a whole. Unlike portfolio loans, where serving decisions are guided by the leaders' own internal policies, CMBS servicers' discretion in servicing loans is governed by the PSA and, in some instances, restricted by the REMlC regime. Complying with REMlC regulations is central to most CMBS transactions t o maintain the trust's favorable tax treatment One of the primary restrictions imposed upon the trust by the REMlC regime is the requirement that the loan constitute a "static pool."This means that substitution of collateral cannot occur nor can the loan be materially modified unless specifically provided for in the loan documents or ~ ~ n l e the loan has defaulted or default is deemed imminent. Many Borrowers offer good solutions to ss problems that are. however, not permissible under REMlC regulations and are frustrated when the CMBS servicer must reject their request.

Borrowing Under a Securitization Structure

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Step 4 - n15 Srzr~:excalltdsm y p a y n d r ;
h m t k B m m w r a n d d s paymds totheIrsuer. TheSeNirerandtheTtwteema~ge e h q w n t l o ~ d accaadingb temrr set b h m the Rmling & & r ? i c i n g A ~ ~

'from ~ s t i m o n y Sheila BairlForC Chair) to Congress 4-17-07 of

EXECUTION VERSION
WaMu ASSET ACCEPTANCE CORP.,

as Depositor

and
WASHINGTON MUTUAL BANK,
as Servicer

and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee

and

DEUTSCHE BANK TRUST COMPANY DELAWARE,

as Delaware Trustee
POOLING AND SERVICING AGREEMENT $3,901,265,905.06 WaMu Mortgage Pass-Through Certificates Series 2005-AR13 Trust

WaMu Asset Acceptance Corp. WaMu Mortgage Pass-Through Certificates
Series 2005-AR13

Cut-Off Date: October 1,2005

This Pooling and Servicing Agreement, dated as of October 1.2005 (this "Amment'?, is by and among WaMu Asset Acceptance Corp., as depositor (the "Comoany'), Washington Mutual Bank, as Servicer, Deutsche Bank National Trust Company, as Trustee, and Deutsche Bank Trust Company Delaware, as Delaware Trustee. Capitalized terms used in this Agreement and not otherwise defined have the meanings ascribed to such terms in Article I hereof.

PRELIMINARYSTATEMENT
The Company at the Closing Date is the owner of the Mortgage Loans and the other pmpmty being conveyed by it to the Trust. On the Closing Date, the Company will sell the Mortgage Loans and certain other assets to the Trust in return for the WMIC I Regular Interests, the Class PPP Certificates and the Class R-1 Residual Interest and will be the owner of the REMTC I Regular Interests, the Class PPP Certificates and the Class R-1 Residual h m t . Thereafter, on the Closing Date, the Company will acquire the REMIC I1 Regular Interests and the Class R-2 Residual Interest from the rust as consideration for its transfer to the Trust of the REMIC I Regular Interests and will be the owner of the REMIC U Regular Interests and the Class R-2 Residual Interest Thereafter, on the Closing Date, the Company will acquire the Certificates (other than the Class PPP Certificates) from the Trust as consideration for its transfer to the Trust of the REMlC U Regular Interests and will be the owner of the Certificates (other than the Class PPP Certificates). The Company has duly authorized the execution and delivery of this Agreement to provide for (i) the sale to the Trust of the Mortgage Loans and certain other assets, (ii) the issuance to the Company of the REMIC 1 Regular Interests and the Class R-1 Residual Interest representing in the aggregate the entire beneficial interest in REMIC I, and the EE I Class PPP Certificates, (iii) the conveyance to the Trust of the R R MC I Regular Interests, (iv) the issuance to the Company of the REMIC II Regular Interests and the Class R-2 Residual Interest representing in the aggregate the entire beneficial interest in REMIC II, (v) the conveyance to the Trust of the REMIC U Regular Interests and (vi) the issuance to the Company of the Certificates (other than the Class PPP Certificates). TZle Company and the Servicer are entering into this Agreement, and the Trustee and the Delaware Trustee are each accepting the h s t created hereby, for good and valuable consideration, the receipt and sufficiency of which am hereby ackmwledged. The Certificates issued hereunder, other than the Junior Subordinate Certificates and the Class PPP Certificates, have been offered for sale pursuant to a Prospectus, dated October 21, 2005, and a Prospectus Supplement, dated October 21, 2005, of the Company (together, the %m,ectus"). The Junior Subordimate Certificates have been offered for sale pursuant to a Private Placement Memmdum, dated October 25, 2005. The Trust created hereunder is the "Trust" described in the Prospectus and the Private Placement Memorandum and the CRtificates are the "Certificates" described therein. The following tables set forth. the designation, type of intensf Certificate Interest Rate, initial Class Principal Balance and Final Maturity Date for the MMIC I Regular Interests, the REMIC II Regular Intefests the Class R Residual Interests:

REMIC I Interests Class Designation for each REMlC I Regular Interest and the Class R-l Rcsidwl I111cmt Class LTI Class LT2 Class LT3 Class LT4 Class R - l t

Certificate

Type of Intm
Regular Redar

Iraast
Rate (I) Variable (2) Variable (21 Variable i3j variable (4j
4.963%

Re& ~ e Residual

b

Initial Class Principal Balance $3900,664,441116 18798 7.8.8 21 1:336.71 2111336.71 100.00

F i d Maturih,
Date* October2045
Octohrr - M.- ... 7 .C . ..

Cktober 2045 - . ~ c t o b2045 ~r Odober2045

Thc M b u t i o n Date m the specihtd ubmlh, which is the month foIlowiOg & month in which the latest mahning M t a c Law muutc%For feden1 imnnc Mpupows. far each Class of REMlC I Regular and mg g Residual Interests, (he "latest poasiblc mahuity dab" shall be the F n l Mahrnly Date. ia

t
(I)

'lbeC h R-1Reaidual latnrst is entitled to mciw the agpliubk Residual Dishiiution Amount and any Excess Liquidation Rmcds.
Inleresl distnhtcd lo rhc R W C I R* e lntuub(otherh a tbe Class Ll3 Regular lotmest, which shall mlbeentirldtorrnivcany~mof~)sndthec1.ssR-l Rcsiduallntmstoneacb Dishihution Dak wl have .cmndat ibe a p p h b l e per Pmuuo C u il me ft i Interest Rate on the applicable C h RimipalB8hnce outslanding unmediatcly before such Dkhibution Date.

(2) (3)
4)

F r each Dismbutiw Date, the Certificate l d r c s t Rate on the L?ass LTI and Class 1.T2 Regular Intererk o shall eqnal (be Weighted Avenge Pas-Thmugh Rate fasuch Distnibutioo Date.

The Class L l 3 Rgular h t m s t shall w t be cntitkd to receive any d i s b i i o n s of inmest,
F a each Disbibhon Date. (be Cerbficate I~~cIuIon tbe CLrs LT4 Rrgular Tntmst shall equal two R.tc (2) tims the Weighted Avnage P r s s T b u g h Rae for such Disbiiution Date.

As provided herein, w t respect to REMIC I, the Senricer will cause an election to be ih made on behalf of REMlC I to be treated for federal income tax purposes as a REMIC. The REME I Regular Interests will be designated regular interests in REMIC I and the Class R-1 Residual Interest will be designated the sole class of residual interest in REMIC I, for purposes of the REMIC Provisions

Class Dni@cm h r cach Class OF REMlC I1 Regular Interests and the C a s R-2 ls Residual Intcmt .. -. . Ciaas. A-IAI-L Class A-IAZ-L Clms A- I N - L Class A-IBI-L Class A-192-L Class A-IB3-L Class A-ICI-L Class A- lC2-L Claw A- I C3-L Class A-IC4-L Class X-L Class 9-I-L Clasv 8-2-L Class 8-3-L
Class B-4-L

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Class 8-5-1. Class R-6-1. C l m 9-7-L Clws B-8-L Class B-9-L C l m B-IC-L Class El-l I-L Clew 8- 12-L C l w 813-L Class B-14-L Class R-2 (2 1)
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Regular W a r W a r

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kd=
Red= Reeular Regular
Regular

Rate (1) Variable (2) (2 1) Valiable (3) v d l e (4) 0 1 ) Variabk (5) (21) Variable (6) (21) Variable (7) (21) Variable (8) (2 1) Vniable (9) (21) Vuisble (10) (21) Vuiable (I I) (21) V d b k ( I 2 ) (21) Variable (14) (21) Variable(l5) (21) Variable (16) (21) Variable (17) (21) Variable (18) (21) Vmiable (19) (21) Variable (20) (21) Variablc (20) (21) Variable (20) (21) Variable (20) (21) Varisble (20) (21) Variable (20) (21) Variable (20) (21) Variable (20) (2 1)
. .. -.

Residual

FiilM e h Q Date* October 2045 October 2045 Oaobcr2045 October 2045 October 2045 October 2045 Octobcr 2045 October2045 ocmbcr 2045 Ocmkr 2045 Oaober 2045 Ocmber 2045 October 2045 Ocmber2045 0*ober 2045 Onobe~ 2045 October ZM5 Odober 2045 October 2045 Octob~ 2045 October 2045 ocmber2045 October 2045 October 2045 Omber 2045 Onober 2045

The Distribution Date in the mitied month which is the month followine he month in which the latest mmtwmg Morgage LOM m& a For fcdcral intax pnpasw.f a c a ~ l s s of REMIC II Regular and h ; s Rendual lntcrcs@.mC"laW possible malnnty dak" shall be the F W M Datc. a w
~tdistnboadtotbe~CnkgularlnlensWooclcb~~Dahvillbaveaccruedatthe amliable as amnmCerci6catcInkrest Ran on the spdiuble C a s Rincioal Balana(or. in the case of UK. ls dbss X-L. kegularlnmt, at the Class X-LNotional h u u t ) oulsbmd;rg5bdiateli&fore such Dism'butim Date.
IbeCe~tihate IMmst Rate on the Class A-IAI-L Rermlar InnraR for (fi each D h i t i o n Date on of ~~~. - ~ -~~ -~ b f thc CkeUp Call O p h Dale, shall ml the kast of (a) the ~ j t d em dk c Weighed Average Paps~~~~~

(I)

12) ,-,

i i Date, @)%OR plus 0.290% UNI 10.50%; and (ii) each Disbibution (c) Wte aflcr (he Clan-Vr, Call Option Date, Jball equal the l a t of(a) the MiusledWeiahtcd Average Pawes Through Rate for socb-Dislriiiion Date, @) L M R plus 0.58(Phaha (c) IO.MO/o.

Tlologb M e for such D

(3)

'The Cmificste Incaest Rah on the Class A-IAZ-L Regular lnLocst for cach Distribution Date shaU equal (he Icwx of (a) dm Weighted Amage Pass-ThroughRate for such D i s b l i o n Date and (b)U i Index plus the
'Ilac Ccrlikatc lnmat R& on he class A-1.43-I. RcguInr Inarcst fn (i) each DistributionDalc on or before thc Clcnn-UpCd Optioo Date. shall equal the least of (a) the Adjusted Weighted Average Pass-

(4)

Excerpts from:

WaMu Mortgage Pass-Through Certificates Series 2005-AR13 Trust

This Pooling and Servicing Agreement. dated as of October 1. 2005 (this "Aareernent"), is by and among WaMu Asset Acceptance Cwp, as depositor (the "Com~anf). Wash~ngton Mutual Bank. as Servicer. ~eutsche Bank ~ational Trust C m a n y , as Trustee, and Deutsche Bank T ~ sCompany Delaware, as Delaware Trustee. Ca~ltaiized t terms used in this Agreement and not otherwise defined have the meanings ascribed to such terms in ~ r t i c l dhereof. I
~~

PRELIMINARY STATEMENT n e Company at the Closing Date is the owner of the Mortgage Loans and the other property being conveyed by
it to the Trust. On the Closlng Date, the Company will sell the Mortgage Loans and certain other assets t o the

Trust In return for the REMlC IRegular Interests. the Class PPP Certificates and the Class R-I Residual lnterest and will be the owner of the REMlC IRegular Interests. the Class PPP Certificates and the Class R-I Residual Interest. I Thereafter. on the Closing Date. the CotnDany will acquire the REMlC I Regular lnterests and the Class R-2 Residual lnterest from the Trust as consideration for its transfer to the Trust of the REMlC IRegular Interests and will be the owner of the REMlC I1 Regular lnterests and the Class R-2 Residual lnterest. Thereafter, on the Closing Date, the Company will acquire the Certificates (other than the Class PPP Certificates) from the Trust as consideration for its transfer to the Trust of the REMlC II Regular lnterests and wilt be the owner of the Certificates (other than the Class PPP Certificates). The Company has duly authorized the exeC~ti0n delivery of this Agreement to provide for (i) the sate to the and Trust of !he Mortgage Loans and certain other assets. (ii) the issuance to the Company of the REMlC I Regular lnterests and the Class R - l Residual lnterest representing in the aggregate the entire beneficial interest in REMlC I, and the Class PPP Certificates, (iii) the conveyance to the Trust of the REMlC IRegular Interests, (iv) the issuance to the Company of the REMlC II Regular Interestsand the Class R-2 Residual lnterest representing in the aggregate the entire beneficial I interest in REMtC I .(v) the conveyance to the Tmst of the REMlC II Regular lnterests and (vi) the issuance to Company of the Certificates (other than the Class PPP Certiicates).The Com~any and the Sewicer are entering into this Agreement, and the Trustee and the DelawareTmstee are each accepting the trust created hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged. The Certlficales issued hereunder, other than the Junior Subordinate Certificates and the Class PPP Certificates, have been offered for sale pursuant to a Prospectus, dated October 21.2005, and a Prospectus Supplement. dated October 21,2005, of the Company (together, the "Prospectus"). The Junlor Subordinate Certificates have been offered for sale pursuant to a Private Placement Memorandum, dated October 25. 2005. The Trust created hereunder is the "Trust"described in the Prospectus and the Private Placement Memorandum and the Certificates are the "Cerfificates"described therein. The following tables set forth the designation, type of interest, Certificate lnterest Rate, initial Class Principal Balance and Final Maturity Date for the REMIC I Regular Interests, Ihe REMlC II Regular lnterests the Class R Residual Interests: As provided herein, with respect to REMlC I, the Servicer will cause an election to be made on behalf of REMlC I to be treated for federal income lax purposes as a REMIC. The REMlC IRegular lnterests wilt be designated regular interests in REMlC Iand the Class R-I Residual lnterest will be designated the sole class of residual interest in REMlC I, for purposes of the REMlC Provisions. In addition. the Trusl will issue the Class R Certificates. which will represent ownership of the Class R-I and Class R-2 Residual Interests. In addition, the Trust will issue the Class A and Class B Certificates, each of which Class will represent ownership of (I) the Corresponding Class of REMlC I Regular Interests and (ii) with respect to the each Class of I Class A Certificates (other than the Class A-1A2 Certificates) and Class B Certificates, the applicable rights specified in the second and fifth sentences of Section 4.04(a), and wilt issue the Class X Certificates, which will represent ownership of (i) the Class X-L Regular lnterest and (ii) the obligations specified in the second sentence of Section 4.04(a). In addition, the Trust will issue the Class PPP Certificates. which will not have a Class Principal Balance and will only be entitled to receive on any Distribution Date the aggregate Of all Assigned Prepayment Premiums. The Class PPP Certificates will not represent an interest in any REMIC.

nsf, the cut-OR Date, the Mortgage Loans have an aggregate Principal Balance of 0,901265,905.06 and, as of t h e clmine D a r the Certificates have an Aggregate Cerfificate Principal Balance of

$3,901,265,g,J506,

/, g L

DL

WHEREAS, the Trustee is a national banking association duly organized and existing under the laws of the United States

of America and has full power and authority to enter into this Agreement; WHEREAS, it is the intention of the Com~any, Servicer, the Trustee and the Delaware Trustee that the Trust created the by this Agreement constitute a statutory trust under the Statutory Trust Statute. that this Agreement constitute the governing instrument of the Trust, and that this Agreement amend and restate the Original Trust Agreement; Authenticating Agent: Any authenticating agent appointed by the Trustee pursuant to Section 8.1 1 Beneficial Holder: A Person holding a beneficial interest In any Book-Enhy Certificate as or through a DTC Participant or an Indirect DTC Participant or a Person holding a beneficial interest i n any Definitive Certificate. Certificate: Any one of the Certificates issued pursuant to this Agreement. executed by the Trustee on behalf of the Trust and authenticatedby or on behalf of the Trustee hereunder in substantially one of the forms set forth in Exhibit A and B hereto. The additional matter appearing in Exhibit H shall be deemed incorporated into Exhibit A as though set forth at the end of such Exhibit Certificate of Trust The certificate of trust Cled with respect to the Trust with the Secretary of State in accordance with Section 3810(a) of the Statutory Trust Statute.

X

Cl,t-Off Date October

1,2005

Depositary Agreement The Letter of Representations, dated October 24. 2005 by and among DTC, the Trust and the Trustee. The Trustee is authorized to enter into the Depositary Agreement on behalf of the Trust Inlial Custodial Agmemenf: The Custodial Agreement, dated the date hereof, among the Trustee, the Servicer and the lnltial Custodian.

'$/

Initial Custodian. Washington Mutual Bankfsb. Insttrance Proceeds: Amounts paid or payable by the insurer under any Primary Insurance Policy or any other insurance policy (including any replacement policy permitted under this Agreement) covering any Mortgage Loan or Mortgaged Property, including, without limitation, any hazard insurance policy required pursuant to Section 3.07, any title insurance policy and any FHA insurance policy or VAguaranty, to the extent such amounts are not released to the Mortgagor in accordance with prudent mortgage loan servicing practices. Investment Depository: JPMorgan Chase Bank, or another bank or trust company designated from time to time by the Sewicer. The Investment Depository shall at all times be an Eligible Institution. LiquidatedMortgage Loan: A Mortgage Loan (other Man a Mortgage Loan with respect to which a Payoff has been made) for which the Servicer has determined i n accordance with its customary servicing practices that it has received all amounts which it expects to recover from or on account of such Mortgage Loan, whether from Insurance Proceeds, Liquidation Proceeds or otherwise. For purposes of this definition, acquisition of a Mortgaged Property by the Trust shall not constitute final liquidation of the related Mortgage Loan. Mortgage: The mortgage. deed of trust or other instrument securing a Mortgage Note.

*

Morfgage He: The following documents or instruments with respect to each Mortgage Loan. (X) with respect to each Mortgage Loan that is not a Cooperative Loan: (i) The original Mortgage Note endorsed (A) in blank, without recourse, (B)to the Trustee, without recourse, or (C) to the Tmn. without recourse, and all intervening endorsements eviden~i"pa complete chain of endorsemen& from the originator to the endorser last endorsing the Mortgage Note. or. In the event of any Destroyed Mortgage N o t e . a copy or a duplrcate ong~nal the Mortgage Note (& portion thereof. as applicable). together with an original lost of note the Origfnabr of the Mortgage Loan, the applicable Seller or the Company stating that &

or/gfnal

.Mortgage Note (or portion thereof, as applicable) was lost, misplaced or destroyed, together with a copy of the Mortgage Note (or portion thereof, as applicable); provided, however, that in the event that either (a) Washington Mutual Bank or Washington Mutual Bank fsb is the Seller of the Mortgage Loan or (b) Washington Mutual Mortgage Securities Cop. is the Seller of the Mortgage Loan and purchased the Mortgage Loan from Washington Mutual Bank or Washington Mutual Bank bb, then the Moilgage Note need not be endorsed in blank or to the Trustee or the Trust as provided above, but, if not so endorsed. shall be made payable to, or properly endorsed lo. Washington Mutual Bank or Washington Mutual Bank fsb. as applicable:

& 2005,

MoIf9aqe Loan Purchase Agreement The Mortgage Loan Purchase and Sale Agreement, dated as of October 25 among the Company, Washington Mutual Bank and Washington Mutual Bank fsb, as supplemented and amenbed by the Term Sheet. dated the Closing Date. between the Com~any and Washington Mutual Bank and relating to the Certificates and the T e n Sheet, dated the Closing Date. between the Comvany and Washington Mutual Bank fsb and relating to the Certificates.

Mortgage Note The note or other evidence of the indebtedness of a Mortgagor under a Mortgage Loan. Mortgage Pool: All of the Mortgage Loans Mortgage Pool Assets: (i)The Mortgage Loans (including all Substitute Mortgage Loans) aentified on the Mortgage Loan Schedule, and all rights pertaining thereto, including the related Mortgage Notes. Mortgages. Cooperative stock Certificates. Cooperative Leases. Security Agreements, Assignments of Proprietary Lease, and Recognition Agreements. and all Minimum Monthly Payments due afler the Cut-Off Date and all other payments and diitribulions collected with respect to the Mortgage Loans on or after the Cut-Off Date; (ii) the Certificate Account, the Investment Account, the Yield Maintenance Account, and all money. instruments. investment property, and other property credited thereto. carried therein, or deposited therein (except amounts constituting the Servicing Fee); (iii) the Custodial Accounts for P&i and any Buydown Fund Account (to the extent of the amounts on deposit or other property therein attributable to the Mortgage Loans). and all money, instruments, investment property, and other property credited thereto. carried therein, or deposited therein (except amounts constituting the Servicing Fee); (iv) all pmperty that secured a Mortgage Loan and that has been acquired by foreclosure or deed in lieu of foreclosure or, in the case of a Cooperative Loan, a similar fonn of conversion, after the Cut-OffDate; (v) each FHA insurance policy, Primary lnsurance Policy. VA guaranty, and other insurance policy related to any Mortgage Loan, and all amounts paid or payable thereunder and all proceeds thereof; and (vi) the Yield Maintenance Agreement. Pass-Through Rate: For each Mortgage Loan, the Mortgage Interest Rate for such Mortgage Loan less (i) the Sewlcing Fee Rate for such Mortgage Loan and (ii) if such Mortgage Loan was covered by a Special Primary lnsurance Policy on the Closing Date (even if no l0KW so covered), the per annum rate at which the applicable Special Primary Insurance Premium for such Mortgage Loan is calculated. For each Mortgage Loan, any calculation of monthly interest at such rate shall be based upon annual interest at such rate (computed on the basis of a 360-day year of twelve 30-day months) on the unpaid Principal Balance of such Mortgage Loan divided by twelve, and any calculation of interest at such rate by reason of a Payoff shall be based upon annual interest at such rate on the outstanding Principal Balance of such Mortgage Loan multiplied by a fraction, the numerator of which is the number of days elapsed from the Due Date of the last scheduled payment of principal and interest to. but not including, the date of such Payoff, and the denominator of which is (a) for Payoffs received on a Due Date. 360. and (b) for all other Payoffs. 365.
Primary Insurance Policy Wlth respect to any Mortgage Loan, a primary policy of mortgage guaranty insurance, If any, on such Mortgage Loan (including any Special Primary lnsurance Policy).

Prospectus- The Prospectus, dated October 21. 2005, and the Prospectus Supplement, dated October 21. 2005, of Cornpan1

;v

Recording Documents: With respect to each Mortgage Loan, the original recorded Mortgage relating to such Mortgage Loan and any intewening assignment thereof required t o b e included in the Mortgage File with evidence of recordinq thereon (or a copy of such original Mortgage o r intervening assignment certified by the applicable recording office) (which may be i n electronic form). .. -. - -

-

REMIC: A real estate mortgage investment conduit, as such term is defined in the Code

Senricer Washington Mutual Bank, or any successor thereto appointed as provided pursuant to Section 7.02, acting to service and administer the Mortgage Loans pursuant to Section 3.01.

1 SB

D*

Serviong Fee: For each Mortgage Loan, the fee payable to the Servlcer for servicing and advancing certain amounts with respect to such Mortgage Loan, equal to 1\12 of the product of (i) the Servicing Fee Rate for such Mortgage Loan and ( 1 the outstandlng Principal Balance Of such Mortgage Loan. In addition, the Sewicer will be paid, as 1) addltlonal servicing compensation, any prepayment penalty received o n a Mortgage Loan that i s not an Assigned Prepayment Premium, and any late charges, nonsufficient funds fees and other fees and charges collected on the Mortgage Loans. Serv~cing Fee Rate: 0.375% per annum.

'

Transferee: Any Person who is acquiring by Transfer any Ownership Interest in a Residual Certificate.

'

Tntst- WaMu Mortgage Pass-Through Certificates Series 2005-AR13 Trust, a Delaware statutory trust, created pursuant to the Original Trust Agreement.

Tr~wtee: Deutsche Bank Natlonal Trust Company. or its successor-in-interest as provided in Section 8.09, or any successor trustee appointed as herein provided. Undenuriters: WaMu Capital Corp. and Greenwich Capital Markets, Inc.

Section 2:01 The assets of the Twst shall remain in the custody of the Trustee or the Custodian, on behalf of the Trust, and shall be owned by the Trust. Moneys to the credit of the Trust shall be held by the Trustee and invested as provided herein. All assets received and held by the Trust will not be subject to any right, charge, security interest, lien or claim of any kind in favor of either of the institution acting as Trustee or the institution acting as Delaware Trustee in its own right, or any Person claiming Mrough either. Neither the Trustee nor the Delaware Trustee shall have the power or authority to transfer. assign, hypolhecate, pledge or otherwise dispose of any of the assets of the Trust to any Person... Section 2.02 Trust shall not, and none of the Trustee, Me Delaware Trustee, the Company or the Sewicer shall (except by amendment of this Agreement permitted b y Section 10.01) knowingly cause the Trust to, do any of the followlng: (vil) possess or assign- - . assets of the Trust for other than a Trust purpose; . - the--.. .------.---..,....-.
~

. -

Separateness Requirements. Notwithstanding any other provision of this Agreement and any provision Section 2.03. of law that otherwise so empowers the Trust. so long as any Certiiites are outstanding. theTrust shall perform the following: (i) except as expressly permitted by this Agreement or the Custodial Agreement, maintain its books, records. bank accounts and f s separate from those of any other Person; i l e except as expressly permitted by this Agreement, maintain its assets in its own separate name and in such a manner that it is not costly w difficult to segregate, identify. or ascertain such assets: conslder the interests of the Trust's creditors in connection with its actions; hold itself out to creditors and the public as a legal entity separate and distinct from any other Person and correct any known misunderstanding regarding its separate identity and refrain from engaging in any activity that compromises the separate legal identity of the Trust prepare and maintain separate records. accounts and financial statements in accordance with generally accepted accounting principles. consistently applied, and susceptibie to audit. To the extent it is included in consolidated financial statements or consolidated tax returns. such financial statements and tax returns will reflect the separateness of the respective entities and indicate that the assets of the Trust will not be available to satisfy the debts of any other Person; allocate and charge fairly and reasonably any overhead shared with any other Person;

(ii)

(iii] (iv)

(v)

(vi)

( ~ ~ 1 )transact all business with affiliates on an arm's-length basis and pursuant to written, enforceable agreements:

I

I%'?

fi \'i

"Z

(viii)

conduct business solely in the name o f the Trust. In that regard all written and oral communications of the Trust, including, without limitation, letters, invoices, purchase orders and contracts, shall be made solely in the name of the Trust: maintain a separate office through which its business shall be conducted, provided that such office may be an oRce of the Trustee. which office shall not be shared withtor any affiliates of the Company; in the event that services have been or are in the future performedor paid by any Person on behalf of the Trust (other than the Trustee, the Delaware Trustee. the Servicer or the Tax Matters Person as permitted reasonable value of such services or herein), reimburse such Person. as applicable, for the ~O~mercially expenses provided or incurred by such Person. Accordingly. (i) the Trust shall reimburse such Person, as applicable, for the commercially reasonable value of such services or expenses provided or incurred by such Person; (ii) to the extent invoices for such sewices are not allocated and separately billed to the Trust. the amount thereof that was or is to be allocated and separately billed to the Trust was or will be reasonably related to the services provided to the Trust; and (iii) any other allocation of direct, indirect or overhead expenses for items shared between the Trust and any other Person, was or will be, to the extent practicable, allocated on the basis of actual use or value of services rendered or otherwise on a basis reasonably related to actual use or the value of services rendered: except as expressly permitted by this Agreement. not commingle its assets or funds with those of any other Person; except as expressly pemlitted by this Agreement, not assume. guarantee, or pay the debts or obligations of any other Person: except as expressly permined by this Agreement, not pledge its assets for the benefit of any other Person; not hold out its credit or assets as being available to satisfy the obligations of others; ---

(ixl

(x)

(xi)

(xii) (xiii)

,

>k

(xiv) (xv) (xvi) (xvii)

-

pay its liabilities only out of its funds; pay the salaries of its own employees, if any: and cause the agents and other representatives of the Trust. if any, to act at all times with respect to the Trust consistently and in furtherance of the foregoing. Conveyance of Mortgage PoolAssets; Security Interest.

Seclion 2.04.

to the ~ s a ~ n ~ e y The Company does hereby i ~ e v o C a b l y ~ . e ~ ~ ~ s ~ e r , I a s s i g n , a ~ t t o . v e r ~ a n d d o t h . e ~ ~Trust,cwithout recourse, all the Company's right, title and interest in and to the Mortgage Pool Assets. The Trust, as payment of the purchase pdce of the Mortgage Pool Assets, shall, on the Closing Date, issue (i) REMlC IRegular the Interests and the Class R-I Residual Interest to the Company and (ii) the Class PPP Certificates to Company or the Company's designee i n Authorized Denominations. The REMlC I Regular Interests, the Class PPP Certificates and the Class R-I Residual Interest shall together be a separate series of beneficial interests in the assets of the Trust consisting of the Mortgage Pool Assets pursuant to Section 3806(b)(2) of the Statutory Trust Statute.

-

I is the express intent of the parties hereto that the conveyance of the Mortgage Pool Assets to the Trust by ! C o m m as provided in this Section 2.04 be. and be construed as, an absolute sale of the -Mortgage Pool Assets. .

... the Trust shall have all of the rights and remedies of a secured party under the Uniform Commercial Code as in force in !he relevant jurisdiction.

Section 2.05.

Delivery of Mortgage Files.

# 'On the Closing Date,the IniHalmCustodian deliver to andFiles, with,shallcause to be delivered to andthe records of the C o ~ a nshall t deposit or deposited wlth, the Trustee or the Mortgage at all times be identifled in
Which

the Trustee or the Initial Custodian, as applicable, as being held b y or on behalf of the Trust. Concurrently with the execution and delivery hereof, the Comoany shall cause to be filed with respect to each Cooperative Loan . . - llCC assionment or amendment referred to in clause (Y)(vii) Of Me definition of 'Morlgage File." In connection - . . . the - - . - - - " with its servicing of Cooperative Loans, the S e ~ c eshall use its best efforts to file timely contimuation statements. if r necessary, wilh regard to each financing statement relating to a Cooperative Loan.
.

the Trustee shall remain liablefor its own negligent action, its own negligent failure t o act and its own willful -.misconduct to the extent provided herein. Any documents delivered by the Company or the Servicer to the Custodian shall be deemed to have been delivered to the Trustee for all purposes hereunder; and any documents held by the Custodian shall be deemed to be held by the Ttustee for all purposes hereunder. There shall be a written Custodial Agreement between the Trustee and each Custodian. Each Custodial Agreement shall contain an acknowledgment by the Custodian that all Mortgage Pool Assets, Mortgage Files, and other documents and property held by it at any time are held by it for the benefit of the Trust. Neither the TNstee nor the Tax Matters PerSon shall knowingly or intentionally take any action that would cause the of the REMlC status of REMlC

.k

The Trustee acknowledges that all Mortgage Pool Assets, Mortgage Files and related documents and property held by it at any time are held b y it as Trustee of the Trust for the benefit of the holders of the REMlC 1 Regular Interests, the Class PPP Certificates and the Class R-I Residual Interest. The Trustee agrees to review (or cause the Initial Custodian to review) each Mortgage File within 45 days after the Closing Date and deliver to the Company a certification (or cause the Initial Custodian to deliver to the Company a certification, which satisfies the applicable requirements of this Agreement If the Trustee finds any document or documents required to be included in the Mortgage File for a Mortgage Loan to pursuant to the definition of "Mortgage Filemnot have been executed and received, the Trustee shall promptly so notify the Servicer. An exception report delivered by the Custodian to the Sewicer pursuant to the Custodial Agreement shall be deemed to constitute such notice. Upon notice from the Trustee or the Custodian that any document required to be included in the Mortgage File for a Mortgage Loan has not been executed and received, the Servicer shall promplly notify the applicable Seller of such defect and take appropriate steps on behalf Of the Trust to enforce such Seller's obligation, pursuant to Section 2.4 of the Mortgage Loan Purchase Agreement, to Correct or cure such defect or repurchase or substitute for such Mortgage Loan. in accordance with and subject to the t i e limitations set forth in such Section 2.4

.-

provided however, that the Servicer shall not require or permit a Seller to repurchase a Mortgage Loan pursuant to such Section 2.4of the Mortgage Loan Purchase Agreement more than two years after the Closing Date unless (a) such defect would cause the Mortgage Loan to be other than a "Qualified mortgage" (as defined in the Code). (b) such Mortgage Loan is in default, or default is in the judgment of the Sewicer reasonably imminent, or (c) the Servicer. at the expense of the Seller, delivers to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee to the effect that the repurchase of such Mortgage Loan will not give rise to a tax on a prohibitedtransaction. as defmed in Section 860F(a) of the Code
The representation and warranty set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as Me case may be, and shall continue throughout the term of this Agreement. Upon discovery of f by any of the Company, the Servicer or the T ~ s t e e a breach O the foregoing representation and warranty which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the party discovering such breach shall give prompt written notice to the others. Within 90 days of its discovery or its receipt of notice of breach. t h e y shall repurchase or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof by the Trust. unless it has cured such breach in all material respects. Any such substitution shall be made within the three-month period commencing on the Closing Date (or within the two-year period commencing on the Closing Date if the related Mortgage Loan is a "defective ob1igation"within the meaning of Section 86OG(a)(4)(B)(ii) of the Code and Treasury Regulation Section 1.860G-2(f)). Any such repurchase shall be made at the Repurchase P i ;provided. however, that no Mortgage Loan shall be repurchased pursuant lo this rm Section 2.08 unless (a) the Mortgage Loan to be repurchased is in default, or default is in the judgment of the Sewicer reasonably Imminent, or (b) the Servicer, at the expense of the Company, delivers to the Trustee an Opinion of Counsel addressed lo the Trust and the Trustee to the effect that the repurchase of such Mortgage Loan will not give rise to a tax on a prohibited transaction, as defined in Section 860F(a) of the Code. If such breach would cause the Mortgage Loan to be other than a "qualifiedmortgageW(as defined in Me Code). theo notwithstandinn fhr nrrvintm eantnnm +ha-..-.. -. ./ - .. .h I

or. suhntitution must occur within the sooner of (i) 90 days fmm the date the defect was discovered or (ii) in the case of substitution. two years from the Closing Date.

[

Sectlon 2.11. Acknowledgment of Transfer Of Momage fool Assets. The Trustee hereby acknowledges and t accepts on behalf of the Trust the tfansfer and assignment pursuant to Section 2.04 to the T ~ sof the Mortgage Pool Assets, but wtthout having made the review required to be made within 45 days pursuant to Section 2.07, and declares that as of the Closlng Date it (Or the Custodian on behalf o f the Tmstee) holds and shall hold any documents constltutlng a part of the Mortgage Pool Assets, and the Mortgage Pool Assets, as Trustee in trust, upon the trust herein set forth, for the use and benefit of all present and future Holders of the REMlC I Regular Interests, the Class PPP Certificates and the Class R-1 Residual Interest. Sectlon 2.12. Conveyance of REMlC I1Assets; Security Interest. The ComDany does hereby irrevocably sell, transfer, asslgn, set over, and otherwise convey to the Trust, without recourse, all the Comoany's right, title and interest in and to the REMIC II Assets. The Trust, as payment of the purchase price of the REMlC I Assets, shall I issue the REMIC II Regular Interests and the Class R-2 Residual Interest to the Company on the Closing Date. Pursuant to Section 3818 of the Statutory Trust Statute, the REMIC IRegular Interests shall not be cancelled and shall be held as treasury interests owned b y the Trust. The REMlC I1 Regular Interests and the Class R-2 Residual Interest shall together be a separate Series Of beneficial interests in the assets of the Trust Consisting of the REMIC I Assets pursuant to Section 3806(b)(2) of the Statutory Trust Statute. I

(

h and the Trustee acting on behalf of the Trust at the e The Company shall file such financing statements, and t direction of the Comoany shall, to the extent consistent with this Agreement. take such other actions as may be necessary to ensure that, if this Agreement were found to create a security interest in the REMIC I1 Assets, such security interest would be a perfected security interest of tirst priority under applicable law and will be maintained as such throughout the term of this Agreement. In connection herewith, the Trust shall have all of the rights and remedies of a SWured party under the Uniform Commercial Code as in force in the relevant jurisdiction.
I

Nelther the Trustee nor the Tax Matterr Person shall knowingly or intentionally take any action that would cause 1 the terminatlon of the REMlC status of REMlC 1. Section 2.17 legal entity. Section 3.04.

Legal Title. Legal tine to all assets.of~_ . _Trust shall be vested at all times in the Trust a k a separate the .. ._ . - - .-

_

-

The Certificate Account.

On or prior to the Closing Date, the Trustee shall establish or cause to be established the Certificate Account. (a) Promptly after the Closing Date. the Trustee shall communicate to the Servicer the account number and wiring instructions for the Certificate Account.
~ olater than the Business Day prim to each Distribution Date. the Servicer shall direct the Investment Depository t (b) to withdraw from the Investment Account and deposit in the Certificate Account (or, in the event any such amounts have not been deposited in the Investment Account, the Servicer shall withdraw fmm the Custodial Accounts for P&l or the Buydown Fund Accounts. as applicable. and deposit in the Certificate Account) the following amounts (in each case, net of any amounts that the Servicer is entitled to withdraw from the Custodial Accounts for P&lpursuant to Section 3.D5(a)(i) through (v)): Scheduled installments of principal and interest on the Mortgage Loans received by the Servicer which were 0) due on or before the related Due Date; (ii) Payoffs received by the Servicer during the related Payoff Period, with interest to the date of PayoK

Curtailments. Insurance Proceeds (except Insurance Proceeds required for the resroration or repair of the (iii) related Mortgaged Property), Liiuidati Proceeds. Excess Liquidation Proceeds. Subsequent Recoveries and Repurchase Proceeds received by the Servicer during the Prior Period (iv)
(V)

the Assigned Prepayment Premiums for such Distribution Date; any Monthly PSI Advance required to be made by the S e ~ i c efor such Distribution Date; r

1.92-

amounts paid by the Servicer in connection with the exercise of its option to terminate this Agreement (vi) pursuant to Section 9.01; and any other amounls required to be distributed from the Certificate Account on such Distribution Date pursuant (vii) V lo Article I (other than amounts to be deposited in the Certificate Account by the Trustee pursuant to clause (c) of this Section 3.04). On each Distribution Date, the Trustee shall deposit in the Certificate Account amounts withdrawn from the Yield (c) Maintenance Account, in accordance with Section 3.16. Funds held in the Certificate Account shall be invesled at the written direction of the Servicer in (i) one or more (d) Eligible lnvestments which shall in no event mature later than the Business Day prior to the related Distribution Date (except i f such Eligble Investments are obligatiis of the institution acting as the T ~ s t e esuch Eligible lnveslments may , mature on the Distribution Date), or (ii)such other instruments as shall be required to maintain the Ratings. The Servicer shall be entitled to be paid as additional servicing compensation any gains earned on such Eligible lnvestments and shall bear any losses suffered in connection therewith. If the Trustee has not received such written investment directions from Ihe Servicer. the Trustee shall not invest funds held in the Certificate Account. The Trustee shall have no liability for any losses on investments of funds held in the Certificate Account Section 4.01. Distributions to Holders of REMIC IRegular Interests and Class R-1 Residual Interest. On each Distribution Date, the Trustee (or any duly appointed paying agent) on behalf of the Trust (i) shall be deemed to have distributed from the Certificate Account the REMlC I Distribution Amount to the Holders of the REMIC I Regular Interests, and to have deposiled such amounts for their benefit into the Certificate Account and (ii) from the Cerlificate Account shall dislribute to the Class R Certificateholders. in accordance with the wrilten statement received from the Sewicer pursuant to Section 4.02(b), the sum of (a) the Excess Liquidation Proceeds and (b) the amounts to be distributed to the Holders of Ihe Class R-1 Residual Interest pursuant to the definition of "REMIC IDistribution Amount"for such Distribution Date. Amounts distributed punuant to clause (ii) above shall be distributed by wire transfer in immediately available funds for the account of each Class R Certificateholder, or by any other means of payment acceptable to each Class R Certificateholder of record on the immediately preceding Record Date (other than as provided in Section 9.01 respecting Ihe final distribution), as specified by each such Certificateholder and at the address of such Holder appearing in the Certificate Register. Notwithstanding any other provision Of this Agreement, no actual distributions pursuant to clause (i) of this Section 4.01 shall be made on account of the deemed distributions described in this paragraph except in the event of a liquidation of REMIC I1 and not REMlC I. . Liability of the Company and the S e ~ c e r Each of the Company and the Servicer shall be liable in Section 6.01. accordance herewith only to the extent of the obligations specifically imposed upon and undertaken by the Company or the Servicer, as applicable, herein. Notification t Certificateholders. Upon any such termination or appointment of a successor to the o Section 7.03. Servicer, the Trustee shall give prompt written notice thereof to the Certificate holders at their respective addresses appearing in the Certificate Register. Trustees May Own Certificates. The Trustee, the Delaware Trustee or any agent or affiliate of such Section 8.04. trustee, in its individual or any other capacity, may become the owner or pledgee of Certificates with the same rights il would have if it were not trustee. Tmstees May Own Ceftificates. The T ~ s t e e , Delaware Trustee or any agent or affiliate of such the Section 8.04. trustee. in its individual or any other capacity, may become the owner or pledgee of Certificates with the same rights it would have if it were not trustee.

# .

Section 9.03.

Trust Irrevocable. Except as expressly provided herein, the trust created hereby is irrevocabje.

Section 10.01. Amendment This Agreement may also be amended from time to time by the Servicer, the ComPany and the Trustee with the (b) consent of the Holders of Certificates evidencing Percentage lnterests aggregating not less than 66% of REMIC II, for the purpose of adding any provisions to, or changing in any manner o eliminating any of the provisions of, this Agreement or r of modifying in any manner the rights of the Certificateholders: provided. however, that no such amendment shall, withoul the consent of the Holder of each Certificate affected thereby (i) reduce in any manner the amount of, or delay the timing

r .a2

n

-of, distributions of principal or interest required to be made hereunder or reduce the Certificateholder's Percentage Interest, the Certificate Interest Rate or the Termination Payment with respect to any of the Certificates, (ii) reduce the percentage of Percentage Interests specified in ts Section 10.0g which are required to amend this Agreement, (iii) h i create or permit the creation of any lien against any part of REMlC Ior REMlC It, o (iv) r modify any provision in any way which would permit an earlier retirement of the Certificates; provided, further. that any such amendment which modifies e the rights or obligations of the Delaware T ~ s t e hereunder shall require the consent of the Delaware Trustee; provided, luffher. any such amendment which modifies the rights of the Class PPP Certificateholders to receive Assigned Prepayment Premiums. including any amendment to Section 3.20. shalt require the consent of each Class PPP Certificateholder.

Section 10.05. Governing Law. This Agreement shall be construed in accordance with the laws of the State of Delaware without giving effecl lo its conflict of laws provisions and the obligations. rights and remedies of the parties hereunder shall be determined in accordance with such laws without giving effect to conflict of laws provisions. in the case of Deutsche Bank National Trust Comvany. Alan Sueda Trust Administrator Deutsche Bank National Trust ComDany 1761 E. St. Andrew Place Santa Ana, CA 92705 Tele~hone: (714) 247-6315 Facsimile: (7_fi) 247-6329 Evidencing a beneficial interest in a pool of assets consisting of beneficial interests in another pool of assets consisting of beneficial interests in another pool of assets consisting of, among other things, conventional one- to four-family mortgage loans formed by WaMu ASSET ACCEPTANCE CORP. Portion of the Class A-1A1 Principal Balance as of the Cut-Off Date Evidenced by this Certificate:

Series 2005-AR13

Class &?A1 Certificate Interest Rate. Cut-Off Date: First Distribution Date: Last Scheduled Distribution Date: Class A-1A1 Principal Balance as of the Cut-Off Date:

Variable October 1. 2005 November 2 5 , 2 0 2 October 25, 2045 $1,937,535,000.00

WaMu Mortgage Pass-Through Certificates Series 2005-AR13 Trust Reutsche €k National Trust Company, as Trustee a ln 1761 East St. Andrew Place Santa Ana, CA 92705 Attn: Trust Administration WAOSAB WaMu Asset Acceptance Corp. 1201 Third Avenue, WMT 1706A Seattle. WA 98101

end

The Case Against Washington Mutual Bank and California Reconveyance Company
on March 10; 2011 three hlghly respected mernbers of the Wliiomia Office of the Attorney General parllcipated in a teleconference meeting wlth five members of the WAMU Chase Homeowners Action Alfianw. Please find betow the agenda and outllne of three plsssntatlons and our list af wcommendatlons to deal with the fraud perpetrated on borrowers In
Callfornla was Washington Nlutual Bank, Washington Mutual Bank FA, and CalHomla Reconveyance Company. This information is baaed on official documents, personal experiences of the participants, and Information in the public domain.

AGENDA: Thursday. March 10,2011 3:30 430 PM
Representing theSan FrancJsco, Califamia office of AHomoy General: K m n n Sears, Supenrlslny DepAy Attorney General. California Deoattment of Justlce. Ofh% of the Attorney General; and schedule PerInittinQ. Joseoh A. Raqano. De~utv . -. . . - Attornev General and ~enjamh; Diehl, &pity ~ t t a m General e~ Representlng the WAMU Chase Homeowners Action Alliance: Brenda Reed. James Kelley, Lwanson C a y 8 Tess Schoenbarl

-

" 330 PM
335 PM
3 4 5 PM
.lames Kplla, ,-"

Welcame and Purpose, chairperson: Brenda Reed WAMU's lending p r a d i i s and impad on foreclosure

Introductions
in CA: Brenda Reed fraudulent foredosure practices:

2005. WAMU management shifted strategy away from or~gina'lng tradlionai fixed rale 6 conforming s~ngle family res dential loans towards riskier nontradilionai b a n products and subpnme loans Purpose - t compote ~ I t h C w n t r y w i d ~ l n a n c i a l o s Corporation which in 2005 WAMWs CEO saw as'arguable the strangest competitor." B boost its bottan line. WAMU in 2006 estimated its internal p r a t margin b m subpime loam could be more than 10 times for a gov't backed loan product and more man 7 times for f drate l ~ produd S~b(rime i n Loan = 1% basis points return

. . .-,.-,

Wasfilngton Mutual Bank. FA -history and issues of legal status, standing, and

WAMU FRAUD Senate committee presented evident mat WAMU cxrartives knew about the frnud 6 knowingly failed to take adion on pmduwng offices in CA WAMU InternalInvestigation found Mat in Southern California that Subprime lendlng fraud was out of control.

-

WAMU failure was Mused by greed and more greed.

WAMU paid huge comrnlsslons to broken 8 ban offrcet-s worst the terms of the loan for the borrower, the better the commissbn.
WAMU1s chief rlsk ofher (hired t o control risk) had 35% of her pay tied to growth 8 only 25% to risk Management h ~ 5 0 0 2 N . p d

-

h t t p : l I e n . w i k i p e d i a . o ~ ~ a s h iMutual f n~

'Washington Mutual Bank. FA" ceased to exist April 4,2005, yet continued to make loans as such. Are these loans legitimate? O are r they a product of fraud7 On January 1.2005, the Company's state savings bank. me fcrmerflashington Mutual Bank merged into Washinaton Mutual Bank, FA. arid ceased t n subsequently, changed its name to Wa6hincRon Mutual Bank. FA changed i name to flashinqton Mutual t s Bank ["WMB"]. Consequently, fhe Company no longer owns a date savings bank that is subjeU to regulation and supe~ision the by f Director of Rnancial InstiMions o the State of Washington. Its nonhank finandal subsidiaries are subjed to varimus federal and state laws and rqulatlons.

7

From April 2005 -September 2008 tens ofthou~ands Loans were made in the name of a nonexistent bank -Washington of Mutual Bank. FA Loem lhat are bmkered ere required t disclose the Yield Spread Premiums a Making a bmkered loan in h e deedneme of the Washington Mutual Bank. FA' aflowed the Yield Spread Prem,um to be treated as a unr@orIable "Service Release Pmlum'. The fraud evades the fiduciary duty between the "Broker" by claiming the dead bank as a-loan Orlglnator. This mkes it difliculi (if impossible) fir the B o m a c r m Inter I-r not damages if Borrower sues the ilon-mistmt bank.

United States Senate

PERM;INENT SUBCOMMITTEE ON RVVESTZGA TIONS
Committee on Homeland Security and Goverarnental Affairs
Carl Levin, Chairman Tom Coburn, Ranking .Minority Member

I

WALL STREET AND THE FINANCIAL CRISIS: Anatomy of a Financial Collapse
MAJORITY AND MINORITY STAFF REPORT
PERMANENT SUBCOMMITTEE ON INVESTIGATIONS
UNITED STATES SENATE

April 13, 2011
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Wall Street and The Financial Crisis: Anatomy of a Financial Collapse
April 13,201 1

In the fall of 2008, America suffered a devastating economic collapse. Once valuable
securities lost most or all of their value, debt markets froze, stock markets plunged, and storied financial f i n s went under. Millions of Americans lost thcir jobs; millions of families lost their homes; and good businesses shut down. These events cast the United States into an monomic recession so deep that the country has yet to funy reoovcr. This Report is the prod~~ct a two-year bipartisan invatigation by the U.S. Senate of Pennanent Subcommittee on Investigations into the origins of the 2008 financial crisis. The goals of this investigat~on were construct a public rccord of the facts in order to deepen the underslanding of what happened; identify some of the mot causes of the crisis; and provide a factnal foundation for the ongoing effort to f d f y the colurtry against the recurrence of a similar crisis in the future. Using internal documents, communications, and interviews, the Report attempts to provide the clearest picture yet of what took place insidc thc walls of some of the financial irlstitutions and regulatoty agencies that contributed to the crisis. 7he investigation found that the crisis was not a natural disaster, but the result of high risk,complex financial products; undisclosed conflicts of interest; and the failure of regulators, the credit rating agencies, and the market itself to rein in the excesses of Wall Street. While this Report does not attempt to examine cvcry key moment, or analyze every important cause of the crisis, it provides new, detailed, and compelling evidence of what happened. In so doing, we hope the R p r leads to solutions that prevent it from happening eot again.

:

A. Subcommittee Investigation
ln November2008, the Pennanent Subcommittee on Investigations initiated its investigation into some of the key causes of the financial crisis. Since then, the Subcommittee has engaged in a wideranging inquiry, issuing subpoenas,conducting over 150 interviews and depositions, and consulting with dozens of government, academic, and private sector enperis. The Subcommittee has accumulated and reviewed tens of millions of pages of documents, including court pleadings, filings with the Securities and Exchange Commission, trustee reports, prospectuses for public and private offerings, corporate board and committee minutes, mortgage Bansactions and analyses, memoranda, marketing materials, correspondence, and emails. The Subcommittee has also reviewed do cum en^ prepared by or sent to or fiom banking and

securities regulators, including h n k examination reports, reviews of securities firms, enforcement actions, analyses, memoranda, correspondence, and emails. In April 2010, the Subcommittee held four hearings examining four root causes of the financial crisis. Using case studies detailed in thousands of pages of documents released at the hearings, the Subcommitteepresented and examined evidence showing how high risk lending by U.S. financial insritutions; regulabny failures; inflated credlt ratings; and high risk,poor quality financial products designed and sold by sane investment banks, contributed to the financial crisis. T i Report expands on those hearings and the case studies they featured. The case hs studies are Washington Mutual Bank, the largest bank failure in U.S.history; the federal OKice oEThrift Supervision which oversaw Washington Mutual's demise; Moody's and Standard & Poor's, the country's two largest credit rating agencies; and Goldman Sachs and Deutsche Bank, two leaders in the design, rnmkdng, and sale of mortgage related securities. This Report by devotes o cbapter to how cach of the four causative factors, as il~ustrated the case shdies, fueled the 2008 financial crisis, providing findings of fact, analysis of the issues, and recommendations for next steps.

B Overview .
(1)

High Risk Lending: Case Study of Washington Mutual Bank

Tlie first chapter focuses on how high risk mortgage lending contributed to the financial crisis, usirrg as a case study Washington Mutual Bank (WMII). the time of its failure, WaMu At w s the nation's largest thrift and sixth largest bank,wt $300 billion in assets, $188 billion in a ih deposits, 2,300 branches in 15 states, and over 43,000 employees. Beginning in 2004, it embarked.upon a lending strategy to pursue higher profits by emphasizing high risk loans. By 2006, WaMu's high risk loans began incurring high rates of delinquency and default. and in 2007, its mortgage backed securitiesbegan incumeg ratings downgrades and losses. Also in 2007, the bank ibelf began incumng losses due to a portfolio that contained poor quality and iiaudulw~ loans and sccurities. Its stock price dropped as shareholders lost confidence, and depositors began w t d a i g funds, evenNaUy causing a liquidity crisis at the bank. On ihrwn September 25,2008, WaMu was %-zed by ib regulator, the Officc of Thrift Supervision, placed in receivership with the Federal Deposit Insurance Corporation (FDIC), and sold to JPMorgan Chase for $1.9 Billion. Had the sale not gone through, WaMu's failure might have exllausted the entire $45 billioe Deposit Ensuraace Fund.

This case study focuses on how one bank's search for increased growth aud profit led to the odgi-n and securitization of hundreds of billions of dollars in high risk, poor quality mortgages that ultimately plun~rneted value, hurting investors, the bank, and the U.S. financial in system, WaMu had heId itself out as aprudent lender, Bat in reality, the bank turned increasingly to higher risk loans. Over a four-year period, those higher risk loans grew &om 19% of WaMu's loan originations in 2003, to 55% in 2006, while its lower risk, fixed rate loans fell from 64% ta 25% O its orightions. At the same timc, WaMu increased its securitization of f

(2) New Developments.................................................. -315 (3) Recomrnmdations.................................................... 316 a I . Rd Credit Rating Agencies by Accuracy.............................316 2. Help Investors Hold CRAs Accountable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316 316 3 . Strengthen CRA Operations........................................ 4. Ensure CRAs Recognize Risk....................................... 316 5 . Strengthen Disclosure............................................. 317 317 6. Reduce Ratings Reliance............................................

VI. INVESTMENT BANK ABUSES:

CASE STUDY (FGOLDMAN SACHS AND DEUTSCIiE BANK.................318 I A Background............................................................ 321 (I) Investment Banks to General............................................ 321 (2) Roles and Duties of an Investment Bank: Market Maker, U~iderwriter. Placanmt Agent, Broker-Dealer ......................................... 322 (3) Shuctured Finance Products............................................ 325 B. Running the CDO Maehine: Case Study of Deutsche Bank. . . . . . . . . . . . . . . . . . . . 330 (1) Subco~n~niKee Investigation and Findings of Pact...........................333 (2) Deutsche Bank Backgmnd............................................ 334 (3) Deutsche Bank's $5 Billion Short ....................................... 337 (a) Lippmann's Negative of Mortgage Related Assets................. 337 @) Building and Cashing in the $5 Billion Short ..........................341 (4) The "CDO Machine" ................................................. 346 (5) Gemstone........................................................... 350 (a) Background on Gemstone.......................................... 350 @) Gemstone Asset Seleztion.......................................... 353 (c) Gemstone Risks md Poor Quality Assets.............................. 357 (d) Gemstone Sales Effort............................................. 363 (e) Gcmstone Losses................................................. 371 (6) Other Deutsclx Bank CDOs ............................................ 372 (7) Analysis............................................................ 374 C Failing to Manage Conflicts of Interest: Case Smdy of Coldman Sachr.......... 376 (1) SubcommitteeInvestigation and Findings of Fact........................... 376 (2) Cmldmn Sachs Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .378 (3) Overview of Goldman Sachs Case Study. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382 (a) Overview of How Goldman Shorted the Subprime Mortgage Market . . . . . . . . 382 (b) Overview of Goldman's CDO Activities............................... 388 (4) How Goldman Shorted the Subprime Mortgage Market....................... 398 (a) Starting $6 Billion Net Long........................................ 398 (b) Going Past Home: Goldman's First Net Short. . . . . . . . . . . . . . . . . . . . . . . . . .404 (c) Attempted Short Squeeze........................................... 425 (d) Building the Big Short. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430 (e) "Get Down Now"................................................. 440

.

.

VI. INVESTMENT BANK ABUSES: CASE STUDY OF GOLDMAN SACHS AND DEUTSCHE BANK

A key factor in the recent financial crisis was the role played by complex fu~ancial instruments, often referred to as struchrred finance products, such as residential mottgage backed securities (RMBS), collateml'i debt obligations (CDOs). and credit default swaps (CDS), including CDS contracts linked to the ABX Index. These financial products were e~lvisioned, engineered, sold, and traded by major U.S.investment banks.
From 2004 to 2008, U.S. financial institutions issued nearly $2.5 trillion in R M B S securities and over $1.4 trillion in CDOs securitizing primarily mortgage related products.1237 Investment banks charged fees ranging from $1 to $8 million to act as the underwriter of an RMBS ~ecuritization,'~~~ and from $5 to $10 million to act as tlie placemen1 agent for a CDO securitization.1239 Those fees contributed substantial revenues to the investme~~t which set banks up structured finance groups, and a variety of RMBS and CDO origination and trading deslcs within those groups, to bsndle mortgage related securitimtions. Investment banks placed these securities with investors around the world, and helped develop a secondary market where private RMBS and CDO securities could be bought and sold. The investment banks' trading desks participated in those secondary markets,buying and selling RMBS and CDO securities either for their customers or for themselves. Some of these financial products allowed investors to profit, not only from the success of an RMBS or CDO securitization, but also fiom its failure. CDS contracts, for example, allowed counterparties to wager on the rise or fall in the value of a specific W B S security or on a collection of RMBS and other assets contained or referenced in a CDO. Major investment bauks also developed standardized CDS contracts that could be traded on a secondary marlcet. In
314/2011 "U.S. Mortgage-Reluted Securities lrsuance" and I11/201 1 "Global CDO Issuence," charts prepared by Securitie? Industry and Financial Markets Associstion, www.sifma.orglresea~ch/~Iatisdcs.~sp~. RMBS tctal The does not include about $6.6 (rillion in RMBS securities ismed by government sponsored enterprises like Ponnie Mae and Freddie Mnc. "'"me, e.g., 21201 I charf "Goldmnn Sschs Expected ProRt from RMBS Sccuritizations," prepared by t l ~ e U.S. Senate Permanent Subcommittee on Investigations usinb Goldman-produced document8 for securitizatians from

'nI

2005.2007 (underlying documentsrctained in Subcommittee file): 3/21/2011 letter from Deutsche Bank counsel,

PSI-Deutschc-Bank-31-0001.
IU%c "Banks' Self-Dealing Super-Chargcd Financial Crisis," ProPublica (8126120 lo), ht~://m.propublica.crg/a~icIe/bank~-seIf-deaIiug-rmper~harged-finan~ial-ciis ("A iypical CDO could net the bank thnt crented it bctwecn 55 million and $10 million - about half of which usually ended up as cmployeo bonuses. Indeed, Wall Srreet awarded record bonuses in 2006, a bcRy chunk of whieb same from the CDO business."). Fee il~formation.ohtained the Subcornmince is consistent with t h i s rnnge of CDO fees. For exnmple, Deutsche Bank by received nenrly 15 million in fees for Gemstone 7, and the bead of its CDO Gmup snid that Deutsche Rank received typically between $5 and I0 million i n fces,while Goldmati Sachs charged s range of 95 to 030 million ill fees for Camber 7, Fort Deoisan, and the Hudson Mezzanine 1 and 2 CDOs. 12120/2006 Gemstone 7 Securltizntior Credit R e p r f , DBlPSI-00237655-71 and 311512007 Gcmltone CDO VII Ltd. Closing Memorandum, DB-PST-001335364 1; Subeominirtcc interrim of Michael Lamont (9/29/2010); and Goldman Seshs rsylonre to Subco~nn~ittee QFRs at PSI-QFR-OS0249.

addition, they established the ABX M e x which allowed counterparties to wager oa the rise or fall in the value of a basket of subprime RMBS securities, and which could be used to reflect the state of tlie subprune mortgage market as a whoIe. Investment banks solnetimes matcbed up parties who wanted t tale opposite sides in a o structured fmnee transaction, and other times took one or the other side of a transaction to accommodate a client. At still other times. inveshnent banks used these financial instnunents to make their own proprietary wagers. In extreme cases, some investments banks set up structured finance transactions which enabled thein to profit at the expense of their clients. Two case studies, invoiving Goldman Sachs and Deutsche Bank, illustrate a variety of troubling and sometimes abusive practices involving the origination or use of RMBS,CDO, CDS, and.ABX financial instruments. Those practices included at times constructing RMBS or CDOs with assets that senior employees within the investment banks knew were of poor quality; for underwriting securitizations for lenders known within the indust~y issuing high risk, poor quality mortgages or RMBS securities; selling RMBS or CDO securities without full disclosure of the investment bank's own adverse intsests; and causing investors to whom they sold the securities to incur substantial losses.
In the case of Goldman Sachs, the practices included exploiting conflicts of interest with the firm'sclients. For example, Goldman used CDS and ABX contracts to place billions of dollars of bets that specific RMBS securities, baskets of RMBS securities, or collections of assets in CDOs would fall in value, while atthe same time convincing customers to invest in new RMBS and CDO securities. In one instance, Goldman took the entire short side of a $2 billion CDO known as Hudson 1, selected assets for the CDO to transfer risk from Goldman's own holdings, allowed investors to buy the CM) securities without fully disclosing its own short position, and when the CDO last value, made a $1.I billion gain at the expense ofthe clients to whom it had sold the securities. While Goldman sometimes told customers that it might take an adverse investment position to the RMBS or CDO securities it was selling than, Goldinan did not disclose that, in fact, it already had significant proprietary investments that would pay off if the particular security it was selling or if RMBS and CDO securities in general fell in value. In another instance, Goldman marketed a CDO lmown as Abacus 2007-AC1 to clients without disclosing that it had allowed the sole short party in the CDO,a hedge fund, to play a major role in selecting the assets. The Abacus securities quickly lost value, and the three long investors together lost $I billion, while the hedge fund profited by about the same amount. In still other insmces, Goldman took on the role of a collateral put pmvidn or liquidation agent in a CDO, and leveraged that role to obtain added iinancial benefits to the fiscal detriment of the clients to whom it sold the CDO securities. In the case of Deutsche Bank, during 2006 and 2007, the bank's top CDO trader, Cheg Lippmann, repeatedly warned aid advised his Deutsche Bank colleagues and some of his clients seelune to buy short vositions about the poor quality of the W S securities underlying many CDOs, describing some of those securit&s as "map"and "pigs." At one point, Mr. Lipprnann

was asked to buy a specifk CDO security and responded that it "rarely trades," but he "would talte it and tryto dupe someone" into buying it. He also disparaged RMBS securities t b t , at the same time, were being included in Gemstol~e a CDO being assembled by the bank for sale to 7, investors. Gemstone 7 included or referenced 1 15 RMBS securities, many of which carried BBB, BBB-, or even BB credit ratings, making them among the highest risk RMBS securities sold to the public, yet received AAA ratings for its top three tranches. Deutsche Bank sold $700 million in Gemstone securities to eight investors who saw their investments rapidly incur delinquencies, rating downgrades, andlosses. Mr. Lippmann at times refeled to the indastry's ongoing CDO inarlceting efForts as a "CDO machine" or "ponzi scheme," and predicted that tbe U.S. mortgage market as a whole Would evenmally plummet in value. Deutsche Bank's senior management disagreed with his negative views, and used the bank's own funds to make large proprietary investments in mortgage related semities that, in 2007, had a notional or face value of $128 billion and a market value of more than $25 billion. At the same time, Deutsehe Bank allowed Mr. Lippmann to develop for the bank a $5 billion proprietay sl~ort position in the RMBS market, which it later cashed in for a profit of approximately $1.5 billioi~Despite that gain, in 2007, due to its substantial long investments, Deutpche Bank incurred an overall loss of about $4.5 billion from its mortgage related proprietary investments. The two case studies illustrate how investment banks engaged in high intensity sales efforts to karket new C W s in 2007, even as U.S. mortgage delinquencies climbed, RMBS securities incurred losses, the U.S. mortgage market as a whole deteriorated, and investors lost confidence. They demonstsate how these investment banks benefitted from structured finance fees, and had little incentive to stop producing and selling high risk,poor quality shuctured finance pmducts. They also illusbate how t e development of complex structured finance h wp, products, such as synthetic CDOs and naked credit default s a s amplified market risk by allowing investors with no ownership interest in the "reference obligations" to place unlimited side bets on their performance. Finally, the two case histories demonstrate how proprietary trading led to dramatic losses in the case of Dmtsche Bank and to conflicts of interest in the w e of Goldman Sachs. Investment banks were a major driving force behind the structured finance pmducts that provided a steady stream of funding for lenders to originate high risk, poor quality loans and that magnified risk throughout the U.S. financial system. The investma banks that engineered, sold, traded, and profited from mortgage related structured finance pmducts were a major cause of the financial crisis.

PREET BtlARAFU United States Attomcy for the So~&emDistrict ofNew York

Jua6E KAPLAN

Bv: BRIAN M. FELDMAN ~isistanl united States Attamey 86 Chambers Street, T l M Floor New York, New York 10M)7
TeleuhoneNo. (2 12) 637-2777 ~acsimile (212j637-2717 NO. Brian.Peldman@usdoj.go~

UNITED STATES DISTIUCT COURT SOUTHERN DISMCT OF NEW YORK UNITED STATES OF AMERICA,
Plaintiff,

I

1 I Civ.

-

me.,
-

DEUTSCHE BANK AG and MORTGAGEIT,
Defendants.

Jury Trial Demanded

The Utiited States of America ( t h e " h m m t " ) ) , by its attorney, Prcet Bharam, Unlted States Attorney for the SouthemDis!rict ofNew York, brings Wts action against Deutschc Bank
AG CDeutsche Bwh") and Mo~tgagelT, C'MortgageST'') (coll~tively Inc. "Defendmts"),

alleging upon information and betief as follows:

1.

This i a civil mortgage fraud lawsuit bmught by the United States awinst s

Deutsche Bank and MortgagelT. As set forth bciow, Deutsche Bank md MortgageIT repeatedly

lied to be included in a Oovernment program to select mortgage3 for insurance by the

Government. Once iu that program, they ~ecWessly selected mortgages that violated program

mles i Matant disregard of whether borrowers could make mortgage payments. While Dewtsche n

Bank and MortgagelT profited from the resale of these Oovernment-imredrn~rtg~ge~,
thousands of American homeowners have faced default m eviction, and the Government has d

--

paid hundreds of millions of dollars in insurance claims, with hundreds of miltions of dollars more expected to be paid in the fuhue. The Government brings this action seeking damages and penalties for the past and f u t m claims that violate the False Claims Act, 3 1 U.S.C. 46 3729 ~t
seq., and t i e common law.

2.

The ~edkral Housing Administration ("!FHA") of the Department of H a u s i ~ ~ ~ and

"U") Urban Development ( H D ' is the largest mortgage insurer in the world. FHA mortgage
insurance makes home ownership possible for millions of American fsmilies by protecting
lendera against defaults on mortgages,thereby cnwuraging lendas to make loans to hnowera

~ h might not be able to meet conventionalunderwliting requirements. FHA accepts a fixed o level of risk set by statute andHUD ruIes.

FHA relies on Ulis fixed level of risk to set

appropriate mortgage insurance premiums to offset the costs of paying FHA insurance claims. By controlling risk and setting appropriate insurance premiums, FHA 6ss been able to operate based solely on the income it genemtes f o mortgage insurance premium proceeds. Since its rm inception in 1934, FHA has insured more than 34 million homemortffages. FHA currently insures approximately one tbird of all new residential moagages in the United States.
3.

To assist as many qualified homeowners as possible, and to provide maximum

econolnic opportunities to lenders interested in obtaining FHA msurance on mortgages, FHA opaatcs a D i t Endorsement Imder program with lenders in&e private sector. The Diect 6ndorsementLcnderprogram grants participating lenders the authority to endorse mortgages that.
are qualified f r FHA insurance. In reviewing mortgages for eligibility for FHA insurance, o

226.

By virtue of the above, tho Government is entitled to indemnification of its losses

relating to FHA-insured mortgages endorsed by Modgagem.

WHEREFORE, the Oovemment respectfully requests that judgment be entered in its
favor and against Deutsche Bank and MortgageIT as follows:
a.

For treble the Government's damages for past claims paid by the Government, in an amount to be determined at t i l ra;

b.

For wmpensatory damages for past claims paid, and future claims
expected to be paid, by the Government, in an amount to be
determined at trial, and, in the alkmative, for indemnification;

c.
d.

For such civil penalties as are required by law; For punitive damages; For an award of costs pursuant to 3 1 U.S.C.5 3729(a); and For an award of any such further relief as is proper.

e.

f,

Mortgage fraud task force launched
U.S. attcrrney issues subpoenas to 11 banks over MBS
By Ronald D Orol, Marketwatch .

WASHHGTON (MarketWatch)- More than three years aftw the hebht of the financial crisis,federal and state regulators on Friday launched a mortgage fraud task force to investigate the pooling and securitization of mortgage securities by big banks.
Regulators said the new task forcewill not interfere with efforts to reach a settlement with a group of five financial institutions over questionable foreclosure practices. Specifically, the Justice Department, along with d h e r state and federal regulators, announced mat the new working group will consist of at feast 55 Justice Department attorneys from around the country. The team joins existing state attorneysgeneral and federal investlgatols at Me securities and Exchange Commission already examining the conduct by big banks.
IJ.8. Attorney General Eric Holder said that as part of the efforl the Justice Department recently issued civil subpoenas

focusing on residential mortgage-backed wurifies to 11 financial institutions, adding more will come. ~tis unclear how the tesk force will impact year-long efforts by states to reach a settlement with five big banks over questionable foreklosure prsctices that emerged as part of the so-called "robo-signing" scandal, where banks rapidly approved numerdus foreclosures with only cursory glances at the paperwork Read more about state. Feds discussinq bank-settlement aoals. lJntilrecently, a settlement appeared close to completion. However, New York Attorney General Eric Schneiderman, who will co-chair the working group, told reporters Friday he was still not ready to participate in state settlement negotiations. Schneldermanhas objected to portions OF the p10pr;ed settlement agreement for months. California Attorney General Karnala Harrisalso hasn't signed onto the deal. Despite Schneiderman's concerns, U.S. Housing and Urban Development Secretary Shaun Donovan said the introductior

of Me fraud task force doesn't interfere with the foreclosure settlement negotiations.
He said the releases from legal claims federal regulahx are considering as part of the bank settlement negotiations are "narrow enough" to allow regulators to go forward "aggressively" with the mortgage fraud task force. Donovan added that the focus of the task force will really be on m fraud committed in the packaging and pooling of y mortgage securities, not servicer problems. "This announcement today makes very clear that the focus we have and the releases being contemplated are narrow while still completing the servicing [settlement]," Donovan said. "The focus here [with the tasJ enough for us to go f o r ~ a r d force] really is on.oecuritization related origination conduct."
1 1

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Regulators said !he combination of resources among federal and State regulators helps the investigation move forward. 'The jurisdictional poinl is &tical," Schneiderman sald. "flaving all of us together enables all of us to go places where each of us individually could not go. Attorney General[Beaul Biden and 1 have jurisdiction over the trusts that are the brioks and mortar of the ent-ke ~t~uCtUre." Having an official from the Internal Revenue System on the team, said ~chneldbrman, opens up the possibility of looking at tax issues wfiich "hasn't existed before." The details released by the Justice Department comes after President Barack dbama announced the formation of the task force in his State of the UfliOn speech on Wednesday. Jaret Seiberg, analyst at Guggenheim Securities LLC in Wash~ngton, said that the creation of the financial-crimes task force could derail the state settlement with banks. "Since ~ e d n e s d a the talk in Washington has grown inaeasingly hostile toward the settlement and we now believe the ~, odds are against a deal," Seiberg said.
He argued that the task force that is just starting wiil likely "cover much of the same territory' as the state attorney general

settlement efforts. However, he adds thot one ofthe goaB of the task f0tCeWill be to bring criminal charges against individuals, rather than instituh'm. He added that there is still major litigation risk for Dankseven after a selilement Is agreed to and Me task force could lead to a coordination of all other claims into a big deal that seeks to end be litigaflon. Geoff Greenwad, spdesman For Iowa Attorney General Tom MiLler, said he did not believe the task force will impact settlement negotiations at all. Miller is helping to lead the talks between Stateattorneys general and federal prosecutors and the fne big banks: Bank of America Corp. J.P. Morgan Chase & Co. , Citigroup Inc,, Wells Fargo 8, Co. and Ally Financial lnc. (formerly GMAC). Greenwood said that while states would release servicing and origination claims against the f i e big banks, they would nc grant criminal immunity to bank executives. Greenwood added that banks involved would not be released from any fraud related to securitizetions anb that the settlement does not involve other companies that originated fraudulent loans.

.

"so there are many other pieces of the puzzle, and this announcement dll enable states and our federal partners to contlnue to work together to address fhose other pieces,' Greenwoodcommented.

Om1is a Marketwatch reporfer, based in lV~shingtofi. Ronald 0.

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---------------------------------------------------------------------------------PAYEE NAME DAVID W GATES & ADDRESS 1200 PALOMLNO DR SANTA BARBARA CA 93105 CHECK-WBER

MGC MORTGAGE, I N C MACHINE DISBURSEMENT CHECK VOUCHER

05/12/10

PAGE

12

: 143386

PAYEE CODE: 1423941895
LOAN-NO SHORT-NAME I N I T NAKE PROPERTY ADrjRESS

BATCH: RWN
DESCRIPTION

PAGE

1 OF

1

TRAN DATE
CODE

AMOUNT

_-_______________-_-------------------------------------------------------1423941E95

--------------------------------------------------3ISB REQUEST
304
113,622.96 113,622.96

DUE

DW GATES
1
ITEMS

CHECK TOTAJd

1 CORPORATE MINE, M E ZURICH, L 80-7

sum SO
380-40-4032

36-2435132

S A m A BAR
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1200PALOHfN

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12M PALOMMO AD SANTA WMlARA CA

99105-2100

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IMPORTANT TAX INFORMATION ENCLOSED

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Beal v Doe

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BreaMng Ihe Bank by Gary Heclor

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t51ate. pnlng and ~ndghj, energ% power, gas. manmerwlng.fhllber.transpolhltlm B, dlstrlbuuon, and mertangIh& ass-s.

Uuard dHnnor National Coupriratirs Bank I W right ~ NO FD-,
Criticism
Contemporary Lnprary cfiiclsm: Ke.;elr,.leas.
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DEUTSCHE BANK
DEUTSCHE BANK AG (lilerally "German Bank"; pronounced [udgvtle Ubankj) is a global banking and
financial services company with its headquarters in Frankfurt, Germany. It employs more than 100,000 people in over 70 countries, and has a large presence in Europe, the Americas. & i Pacific and the emerglng markets. Deutgche Bank IS the largest foreign exchange dealer in the Worm with a market share Of 21 percent After Adolf ~ i t f & r came to power,' institutingtheThird Reich, Deutsche Bank dismissed its three Jewish board members in 1933. In subsequent years Deutsche Bank took part in the arvanization of Jewish-owned businesses: according to its own historians, the bank was involved in 363 such confircations by November 1 9 3 8 . M aurlng the war. Deutsche Bank incorporated other banks that

Deutsche provided banking facilities for the Gestapo and loaned the funds used t build the Auschwitz camp and the o nearby fG Farben facilities. Deutsche Bank revealed its )nuolvement in Auschwitz in February 1999. In December 1999 Deutsche, along with other major German companies, contributed to a $5.2 billion compensation fund
fell into German nands during the occupafion of Eastern Europe. following lawsuits brought by Holocaust survivors. The hlstory Of Oeutsche Bank during the Second World War has been

documented by independent histor(ans~~~rnissi~r!ed Bank by the
25% return on eauity, something the bank achleved in 2005...

...In October 2001. Deukiche Bank was listed on the
.

New York Stotodc Exchange (NYSE).TWSe formed part of an Overall growth strategy that also targeted a sustainable

In May 2009 Deutsche Bank informed the public that the executive management learned about posslble violations which occurred in past yearsof the bank's internal procedures or legal requirements in connection with activities hvoIving Ihe bank's corporate secuiiiy department.
was Deutsche ~ a n k one of the major drivers of the collateralized debtobliqation (CDO) market during the houslng

credit bubble from 2004-2008, creatlng -$32.000,000,000 worth. The 201 1 US Senate Permanent Select Committee on lnvestlgatlons report on Wall Street and the Financial Crisis analyzed Deutsche Bank as a 'case studv of Investment banking Involvement in the mortgage bubble, CDO market, credit crunch, and recession. It concluded that even as the
market was collapsing In 2007, and is top global CDO trader was deridlng the COO market and betting against some of the t

mortgage bondsin its CDOs, Deutsche bank continued to chum out bad CDO products to investors.

Deutsche Bank reported i s first annual loss in flve decades, despite receiving billions of dollars from lts insurance arrangements wt AIG, including ih $1I.8bn from funds provided by US taxpayers to bail out AIG. From as late as 2001 to at
For the 2008'financial year. least 2007, the Bank engaged in covert espionage on its critics. The bank has admitted to episodes of spying in 2001 and 2007 directed by: its corporate security department, although characterizing them as "isolated."L231 According to the Wail

Street .iournal's pageone report, Deutsche Bank had prepared a llst of names of 20 people whO it wlshed investigated for

criticism of the bank, including Michael Bohndorf (an adiiist investor in the bank) and Leo Kirch (a former media executlve
in litigation wifh bank In May 2009 Deutsche Bank informed the public that the executlve management learned about possible violations which occurred in past years of the bank's internal procedures or legal requlmments in connection with activities invdving the bank's coporate security department. The report focused on one COO,GemstoneVII, made largely

of mortgages from Long Beach, F ~ m o n tand New Century, ail notorious subprime lenders. Deutsche Bank put risky assets , .
~

into the CDO, like ACE 2006-HE1 M10, which its own traders thought was a bad bond.

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It also put in some mcrtgage bonds that its own mortgagedepartment had created but couldn't sell. from the DEALT
Zoo6 series.The COO was then aggressively marketed as a good produd. with most of it being described as having A level

ratings. By 2009 the entire CDO was almost worthless and the investws (mcludlng Deutsche Bank Itsem had lost most of their many. Gregg Lippman, head of global CDO tradlng, was betting against the CDO market, with approval of management, even as Deutsche was continuing to churn out product. He was a large character in Michael Lewis'

"m

Short", which detailed his effortsto find 'shorts' to buy Credlt Default Swaps for the construction of Synthetic CDOs. He was one of h e first traders to foresee the bubble in the CDO market as well as the tremendous potential that CDS offered in this. As portrayed in the book "The Big Short" of Michael Lewis. Lipmann in the mid of the CDO and MBS frenzy was orchestraling presentations to investors, demonstmting his bearish vlew of the market. offering them the idea to start buying
CDS, especially to AIG In order to profitfrom the forthcoming collapse. As regards the GemstoneVII deal, even as

Deutsche was creating and selling it to investors. LipprI?anemailed colleagues that it 'blew', and he called parts of it %rap' and 'pigs' and advised some of his dlenb lo bet against the TIortgage ~ e a I r i t l e ~ made of. Lippman called the CDO It was market a 'ponzi scheme', but also tried to conceal some O hk views from certain other parties because the bank was trying f to sell the products he was calllng 'map'. Lipprnan's group made money off of these bets, even as ~eutiche overall lost money on the C W &a*etbW Deutsche was also involvedwth Maanetar Gaoitai In creating ls first Orion CDO. Deutsche had its ~ w n - ~ r of u ~ o bad CDOs called START. It worked with Elliot Advisers on one of them; Elliot bet against the CDO even as Deutsche sold parts of the CDO to investors as good investments. Deutsche also worked wlth John Paulson, of the Goldman Sachs Abacus
COO controversy, to create some START CDOs. Devtsche lost money on START, as it did on Gemstone.

source: http:llen.wiki~diaora~ki/De~tscl.1eB~nk

BiRions of American taxpayer dollars used to bailout insurance giant AfG are
flowing to some of the largest foreign banks in the world. according to new documents rebased by beleagueredcompany Sunday. The revelation seemed sure to cause polltical cornpllmtions for President Barack Obama and his economic team, already on the defensive Sunday over why they coukln't stop AIG from
lo some of its top corporate officials

doling out $165 million in bonuses

-even as the crtmpany was receiving a massive infusion of taxpayer funds. The
in aid that AIG has received,

documents AIG released account for some of the more than $180 billion

and they detailed for the flrst time whlch fhlancia! firms are benefiiting fran the federal handout. In all, AIG disclosed payments of $105.3 billion between September and December 2008. And some of the biggest recipients wwe European banks. Societe Generale, based in France, was the top foreign recipient at $11.9 billion, Deutsche Bank of

Germanv aot $1 billion 1.8

and Barclays, based h England, was paid $8.5 billlon. Here in the

U.S.,

Goldman Sachs received $12.9 billion. Edward Liddy, the-government-installed CEO of AIG, sat on the
board of directors of Goldman Sachs until he joined AIG. He took

Sectem Henry paulson

-

the position whlle President George W. Bush's Treasury

*0

unnjoining a adrnbktrafbn had served a
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Oeulr.che Bank Nbllona' Tfu-t Ca. ~orm~riv~sok~~s~~lurl~o~~all~mla W 8Hj96 3P a ~ P l m 1N?Ftm?twine CA 9261e MaunQ:1761 Eosj6tnndwwt'l. 2ndFLno~SamaAnaCA9270~ 193 13-3317003 7,443 SEC ~lllngr/ 516197 -2fl4!11

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6OwallSlhPf VYlnDo5 71 2-25n9340FakZ1:-7~7-5;6 Pman Confact E R S Oeplcla DeulscneBanl~NA W E R ORB IE1UUZBIY Llppe 0rB11q1ne9+: SONICBI, Bubseni~sr, lnterlm FUnL181, IrmBSbr, QOcufnent

custodian
eFieglsl~Padcip'~nl. NU eDeIww ParUclpirnt NO

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m!ss~3ru~~Sr?eCmd I L B ~ ~

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Morgan, Lewis & Boclius 1 v 1711 Main Slrcet. Sulle 3200 Dallab, TX 75201 7347 Tel: 214.456.4000 Far: 214.466.4001 wwwmorganlnniJ.rorn

Ann Merle Painter Padnsr 214.486.r1zi annmda. Patnbr@MogmLavls.com

BY HAND DELIVERY
Federal Deposit Insurnnce Cmrporalion 1 60 1 Bryan Street Dallas. Texa? 75201

Re:

Dewche Bank Natioael Trust Com~aw Proof of

Dear Sir or Madam:
Enclosed please find a Proof of Claim, which is hereby submined on behalf of Deuuche Bank National Tma Company. If you have any questions, please do not hesitate to contacl me directly.
Sincerely.

Ann Marie Painter AMPIph
Enclosures
cc:

Jolln Rosenthal -Morgan Lewis, San Francisco Ktistine Bailey -Morgan Lewis, San Francisco

Federal lhpoait Insurance fh?'pwationas Receiver for:

.---

(Meme otOanlFlna~ia1 w f i u and c~GG~--+i ~

Wsshfngton Mutual B z k
PROOF OF CLAIM

--.-------

*

1 D

The udersianed. (2) Barbara Campbell. Vice Presldent

says that the ~ r t M u t u a l & &
j 5 indebted lo (3) vY

(Named k n M i n d I I

~

~

n

)

now in llqufdetim is
in me sum of

-Nation

(4)

$18,1~8,398,880a ~ l x m i m g a Attsohment 4 ( ~ $ 4
hvolcp) d e w

Ddbrs upon thb follawing Clalm.

1

ClebilA Ntlmber

1

&gun1 MClalrn 16.761206.446 to ---7

I _ (

M

s

TMal crlm: (e)

. -

iApproxlmawty

$14.ld~,389,~0 (me httachnmnt A).

i

lhe underagned further slalas ihat helehe makas this ClaimonbehK of
(7) ll>yI.p_ohe Bank t h t k o a l ~ n ~
that no p ~ raf Said debt has been paid, that t

---"-

I m k m a e n ~ t ( ; o q B n V 1 l n d i v M u d ~ I b ~ h ~ ~ g e ~ ) has given no endorsement o assignrnenl ol tlm m e w any part thereof. and ihal thera is no setaff or r
countercbim, a olhw legal or q(titable debnse lo seid Claim or any pan therM.

(8) l

NAME (9)

Barbaw Campbell

.Vice President

AOORESS(10) f76l East Sf A n d m L ClTYlSTATERlP

.

Santa An*, CA927064934
714-2476278

-

TELEPHONE NUMBER
101 the p

The pennty 6ar kn-h, rnaki? w invmng reliance of any fake forged,or cnunk*.it statement, docvnel~t. h i or u w of iofl~tendng any wa) the adior of me FedeGi Deposll fnsuranca ComraOon is a fineof not m m in than $ 3 M)OflnO orimflwnmsnllornu1 mcm man chi- yon*.or balh (18 U S C Sedan ~ O D T ) .

CONFIDEMTIAI, TREATMENT REQOESTED

I.

( " a 01' Ctdi~n") ' f t $ is r d by O ~ i ~ i s c h e nC Un.rlk Narionnl '['rust Cniltkjany (''!#lN-TC") (a) ns mrsw ("~:IIs&~".) the ~wlrritimtiontrusts listed on SOT Exliibi~A-l autachcd bcraw (thc. 'cmW). behall' nF ilselC the .l'nts~s and the on nwncrs of certain rcsidendai rntmgapcl backed scc~irities issued ry i1i.e 'l'txiats (the b l .'Sccurilios"). (h) as irustw ofcrnain "nel'inlcresl margirl" LTu~ISiisfed Exhibi~ ., - . . -. - .. (m A-? ("?jJ,pLjlgw&''. and ci)llccli!~clywith ihc 'l'rr~ws,lire " S ~ ~ $ j j g ~ ~ i ~ ~ [ j ~ s ~ < ) )ru.rsuent ru rvl\icli IIBNTC owns. on bchelr r)S NIM Trust bmcficinrics, imcrests in callain Sccilri~ics@In- "&JI-Cr_uti'') and (c) as ci~str?diaa (the C ") a n t b ccrtsin ci~s!oct~ ~ c u i e n t u u lisrctl on Exhibit 8 - 3 (tlte "Custody /\~met~raiis") and aiireng by IN1NTC7, and u ~ i c ra.li%orc iSa.rhingior1 Mtrtunl Bank (in ~ o ~ iarses, ns yucccssctrof ic i~~-hicl.csl l,nng Beiich Mrl~tgagc)ai~ild/or its nfliliaies (collcativ~.l~. to "'W,4klll"). t~nd!or third pnrLyIcndc~s prtrchasor.~ or col'ti~~rtgage lot~ns.

'I'his pl.i>oT ar oluim

3.

Wilh tr.vccr to ckwl> Tnlst, LT13NTC c~nercdinto one or more l'c~olinpand Servicing Agrce~iie~~ki, Sclvicir~gAyecmccnts. lideniurrs ui. 'ktst Apeemnuts, and miwtsd alicillary ,agtcctmcnls (collcctivoly. Ihe " C ; O \ ~ C ~ I I ~ ~ P ~-D~~cilnet~&"j. Uovcrlling 'I:hc Dl?uumcnts :ire volurnitlnla BIICI in the pos~asioo bod1 the Tms~ec WAMII. arc or uncl Accordingly, it is impmainl am! waileft11 to alrnch t11rnl in thfs ProtrT crf C:lnim. Additic)na[ docu~nc~italicrn regarding h e l'nrsts is nvailable on the SET3 EDf31iJt ~.cIisitcnl h~&,/~~go~i, d the tnoiid~ly clis~ribution roposorts nrid pnrspttet.rrs w stipplcmcnln Tor t.mli T?rus\arc ~v0il2bk thc T~USL~F'J rcpurcillg iwbsitc at on itlv~stoi~ h r.lpon b ~ . . ..l @ & : ~ ~ $ & f i & ~ d ~ l . ~ Q ~ requwt by the FUlL. ihc 'l'naluc will furnish ciixirf~nic had copies af'aiy ('io~cminy or 130~ulilcnts its pusscssion. in

4.

Ptirstwnf 113 the Govcniinp Doa~menls each Trust! WAMIJ sofb c i k r dircclly or. for intli~zcll~. rnortgap loans ima the related 'Trr~sw. L conuction with such sales. n WAMtI also matlc nomcrr\ils rcprcscnlatic>ns. wltrranties md covenalits and W&cgg') corrcm,ing lllc IwYlgagt loans, dbch [<cp~scnir,~i~ills Warantics 6vc1.c ultimately assigj:r,otl to llle 'Trurirs pkcrsuwt i l ~ imd (io\eminp I'locumenls and &wain nr~cillarya-men~enls. 7 % 'Trusts 11ave claims Y r ~ b brcsch of such Kcpr~~~nldtiuils U~itrrdti~i~s R R ~ as hrr~hcr described herein.
D R M C has also scrved as Custodian nndcr ihc C~tstody Apcnientt. I'rirsunn~to the Cuslody Agnrmenu. DBN'I'C has held in custody moflgage loan files cndencir~g

5.

niorrgapc loarls aiigitiated, purchascd. finatlccd and/or sctvImd by WAblii.

m

Case 1:09-cv-01656-RMC Document 32-1 Filed 09108110 Page 4 of 52

59 60 61 , 62 63

64 65
66 67 68 69 70 71 72 73 74 75

76
77

78
79

80 81 82 83 84 85 86
87

88 89

iD No. Transactinn WAO3A2 Washington Mutual Mortgage Securities Corp. WA03A3 Washington Mutual Morlgage Secuiiee Corp. WAD3A4 Washirgton Mutual Mortoage Securities Carp. WA03A5 Washington Mutual Mo&+ge Securities Gorp. WA03A6 Washington Mutual Mortgage Secuifes Corp. WAWA7 Washington Mulual Morlgage Secu&s Cmp. WAWAB Washington Mutud Marlgage Securities Corp. WA03A9 Washington Mutual Mortgage Securities Corp. WAWM Washirgton Mutual Mortgage Securities Corp. WA03AB Washington Mutual Mortgage Sewribas Corp. WA03AC Washington Mutual Mortgage Sscurities Corp. WA04A1 Washington Muluai Mortgage Securiks Corp. WA04A2 Wshingtan Mutual A4omage Securities Corp. WAMA3 Washington Mutual Modgage SecuriUes Corp. WA04A4 Washington Mutual Mor'gage Sscurities Corp. WA04A5 Washington Mutual Mortgage Securities Corp. WA04A6 Washington Mutual Momage Securities Corp. WAD4A7 Washinylon Mutual Mortgage Secuifies Corp. WAWAB Washington Mutual Mrtgage Securifies Corp. WA04AA Washiwn Muhlal Mordgage Securities Cop. WA04AC Washington Muhralkrtgage Securities Corp. WAMAD Washington Mutual Mortgage Securities Corp. WAO5A1 Washington Mulual Mortgage Securities Corp. WA05A2 Weshmgt~n Mutual Mortgage Securities Corp. WA05A4 Washington Mutual Mortgage Securitiss Corp. WA05A6 Washigton Mutual Mortgage Skutities Cop. WAOSAB Washington Mutual Mortgage Sscurities Carp. WAO5A9 Washington Mutual Mortgage Securities Corp. WAOSAA Washington Mutual Morlgage SearriUeti Corp. WA05A8 WaMu Asset Acceptance Corp. WAOSAC WaMu Asset Acceptance Corp.

-

Series 2003-AR2 ?DOMU3 2003-AR4 200SAR5 2002-AR6 2002-AR7 200SARB 2003-AR9 2005ARf0 2003.ARli 2003AR12 2004-AR1 2004AR2 2004-AR3 2W4-AR4 2004-AR5 20D4-AR6 2004-ART 2004-AR8 2004-AR10 2004-ART2 20WAR13 2005-AR1 2005AR2 2005AR4 2005-AR6 2005ARfl 2005-AR9 2005-AR10 2005-AR13 2005-AR16

DBMTC Rde(s) Trustee Trustee, Aucfon Administrotor Trustee, Au&n Adminishatar Trustee, Auction Administrator Trustee Trustee. A u a n Administrator Trustee Twslee, Audion Administrator T~ustee. Auction Administrator Trustee, Auction Administrator Trustee, AucSon Adminisbator Trustee T~stee Trustee Trustee, 4uction AdminisIratar Trustee, Auction Adminishalor Trustee Tmstee. Auction Adminishlor Trustee TNstee Trustee Trustee Twlee Trustee Trustee, Auction Administrator T~dee Trustee Tmslee Trustee Trustee Trustee

'

WaMu Rolets) Depslor, Service!, Seller Daposibr, S e ~ c e rSeller , Depositbr, Servicei, Seftir Depositor, Se~cer,Seller Depositor, Se~icer, Seller Depositor, Servicsr, Seller Depositor, Sewicer, Seller Depositor, Senricer, Seller Deposilor, Servicer, Seller Deposbr, Senricer. Seller Deposcor, Sewker, Seller Depositor. Sewicer, Seller Depositor, Sewicer, Sellar Deposibr, Servicer. Seller Depositor, Senricer, Seller Depositor, Se~icer, Seller Osposhr, Sewcer, Seller Depositor, Senricer, Seller Oepffiitor, Servicer, Seller Depositor. SeNicer, Seller Depositor, Custodian, Senricer, Seller Deposjtor, Servicer, Seller ~ D s i t 0 1Servicer, Seller , Depositor, %Nicer, Seller Dewitor, Servicer, !Seller Depositor, Senricer, Sellec Depositor, Se~icer, Seller Depositor, Senricer, Seller Deposlm, Se~icer. Seller Deposita, Sewicer, Seller Depasilm. Senricer, Seller

MLPA Date

PSA Date 211103 211103 3Hm3 411103 5H103 BH103 TI1103 811103 SHD3 1Wli03 1211103 211104 411104 411104 511R4 5/1/04

5HIW
5/1/04

6MlW
711104 1011104 1111104

llli05 1/1&
3/1/05 411105

-10125/05 IOIW05

711105 711105 61105' 10IIM5 11/1:05

Page 3 of 4

Beutarehs Bank
1761 East St. Andrew Plstre Sonta h a . CA 9!2705-4834

E

T t ~ l7 14 247 6000 Fax 714 247 € 0 09

'I'm ALL 1IOLI)ERSOP RESIDENTIAL MORTGACX BACKED SECURITIES FOR WHICH
UI-IIYPSCIjE BANK NAl'lONAl. 'IRUSTCOMPANY OR DEUTCHE BANK TRUST (:OMI'ANY AMERICAS ACTS A s S l ~ c U l ~ r r ' l ~ A rTRUSTEE 'l~N

FROM. DEI:?'SCHI: HANK TRIJST NATIONAI, ' ' I S COMPANY,AS TRUSTEE AN11 IIUT l>l:,UI'SCIIE R A W TRLIYT COMPANY AMERICAS, AS TRUSTEE (the 'Trustee")

Date October 25,2010

Ite: Cc~ain Allegations Regarding I.oan Scrvicer I:ureciosure Practices
As widely rc])n~tcd the news media, several ~najnr in U.S. loan scrvicers rcportedljr have snspcndcd certain foreclosures in same or all states due lo allegations and invesiigations pertaining to allcgcd dcficic~lcies legal docurncnts filed by them in in ccrtain foreclosure proceedings ithe "Alleged Deficiencies").

:TheTmytec is aware of these repom and has con~municalcdwith loan servicers rcgmding the m t e . Spccificnlly, the Tiustce issued, on Octobcr8,2010, the atmebed atr mcniurandum to all loan selvicers for U.S.rcsidcntial mortgage bsckcd securities trusts Tor which it acts as Trustec, among other things, demanding that servicers cornply with all applicable laws rclating to fo~~eclosures. 'liustec also has communicated with Thc ccttnin loan scnlicers that have a~nouncud suspensit~ns fowclosure activiiy to rutpest o$ additional infoimaLion about the portfolios lhal ihcy service on behallof thc trusts and the extent, isany, 10 whjch such s~~spensions the Allrgcd bficicncies may aiFcct and
loans hcltl hy lhc trust?..
The 'kuslee-renlinds invesbrs that the y o ~ ~ m i n g documents fir securitization trusts typically allow holders of a requisite porcmllage in principal aanlollnl of securities to direct: the time, place and mwncr olnny renxdial aclions by the Trustee, subject to condilions s~ntrd the yoverning documents. In that regard, any such instruclions or in other corninmications eonccming these issues sl~ould directed to thc 'Stustee at the bc folInwir~g address:

Deutsche Bank National ' h s t Company, ns lrustce Ile~rtsche Bank Trust Chrnpany .4i11eri~is.as truslcc 1761 Easl St. Andrew Place, Sanb Ana, CA 92705-4934 ATI'N: 13arid Co, Dircclor

Tel: 714-247-6000 Pax: 7 1 + t ~ w ~ u v

tRGENT AND 'F~ME-9ENSTTfVE MEMORANDUM
TO.

SFXURI%ZPiPION LOAN BERVICERS

f'RI)M:
I)A TE:. KE:

1?EUTSC:tIE BAhW NATKWAI. TRUST COMPANY, As 71RUSW!2
QP,\rTSCHE BANK TRVS 1' COMPANY AMEREAS. AS TRU.mE Octobw 8,2010 SLloptlom Re--ling Ccrtsin ScrM'cing Forcrlnsuru Prwedure

Fach addressee ofthishfemonndurn (the "Scrvicers")services mmQit#c bans on bzhdfof one or mon sectairizat~on rrusrs @he "Trums") b which DEunche Bank National TmComp,vy or r I?t1r.:lrxhe %nk TTN Company Amcricts (ur~lccrivcly,"Destscke Bank") arxc ar trls!ec (in such carac~ty, "Trusac") Tkirr Mm8mndtrm cnnrerns ati argent h e mqviring your tllc a s u lrnrneJlste nttenenn. A eopy afthis 3fernormdum and an artachrhpnts ?Il~ovld forwnrdcn ba i r n d l n t e l y to yoor Legal Deparhneak or Genersl Counsel's nflieo

The pooling and sewic[hg q-wrnntsw ohm govaming docurnetus for the TmLP (.sollectivcly, the *Gavcn~ing Document$') provide that l h Solrvkcr issalely responsibtefor the p&rmoncc cif ~ oil loan-level med.ial wllection neiirity on hehalf ofthc.hcdtcisrEsll Ofthe mtstci, including, lviiho[nlirniration. dl-fmti(15~e aotivily and all mainlcnnnce ond sales of tcsuifing RE0 ~ W P G ~ ~ C S . ~ ~ v c n r i n ~ ~ a o n m nL ~ nIt s I I ? ; require the mstcc to furnish Mf S ~ r v i c a 'rhc c ~ cP with powem of attorney && ullow the Selvicer lo ~ i g n documents and inrtilute legal mions, including brrclonrre pioceedings, in 1hQmml: *o T m r e e wb bchrlrof ihr Trusts in cmnection with thwe of scrviclng activitiss. The Cmvming Do~unmh provide h t the 'rrwstee shall nut be nlso m n s i b l e Crn the acts ar omissions o tha Scrvicer. inc!?ldiI~g 3 or omlsslcns relarjm to the use f m or mix= cif such powerj O f ~ ~ ~ W .
AS llrc 'I'rusrcr her adsised on nwethnn weoccasion, at1 Servicers and the3r~cna(includinp,any suhserviccrs, sutrconmmm and profkssionnls engaged by Servicers an&or by their agents) mu31

Memorandum to Scrviccrs

Omhcr 8,2010
Pagc 2 n 3 T
condcet all snvicingnt~ivilies, Including fmclosure pmeedings. in accwdance w ~ the h Cicvcming Documents andall r ~ l i u b l e law. Plcase reeview a$ata. i parttwlur, the T m w s n m:tnonndj, m all Services datcd Augus13O7ZO[nand luly 28,2008 (the "Prior Mcmorondavj,

cqics of which am mcloscd.

RL.CWTmcdin repons r l t s c m the hllqed Forcclo~ure neficicnn'esmay include the exauiw d fililig by certain Scrvfc~tr aird:or their a ofpokmialb defcotivc documents, paaelbly mnfaining alkgcd untruc asscnbn.~ afafct in oomrectia d 1 m i forecbulre prucetldiP1gs. l ~ 4 n Thc i c y m d %ope of such 8iIcgcd ~r~ctices the possibility ththd sodl dccumenismay have rnism berm liicd in c m n M i u n with forrclusum proceedings nclatlng L morlgagc bans owned by thc a 'l'rrsts nnd nlmy hme heen ~ c c t t n e d n d colw Of Oirc or m r e p w v s ofatmmey gnutea to u ~ Senlieen purrurn lo tbc Oovc*ng D o c ~ t I m t Any such actions by a ~ c ~ ~or i#:agcnrs ~. c e r v~orild mr~stitrrh n.brc;tch ortlrRt S ~ i c t s obli@ms unckr the Ciovming Doeumm~ii cvcr' arni eppticnhk inw.

imm&ze&; ---

In light oithcse iccctnt hdopmc~ms. T~uSrcc Lhc dmsnds &at edch Scrc-tcor(imluding its a g ~ w ) ,
P Inform ibc 'l'rustmo: 0)n A'llegud Pormlornre Defictenctesrclntiq to f w a o r f ~ s ffaunsncmfred by tho Sawlcer w bchaif of the Troslrr, and (ii) SIIY l suspenshna by the Seruioer ~Ffureclo.vure proceedings relating to m a r m e laana a r v l o ~ d the Senicer on bebnlf of the Trusts due to m aacb Alleged by y
?- Ceaseand desist from taking any anlawfnl or lrnprapar actinn wlth respect to + the servicing of Trust Rwi9, inchfling, h r ~ no( Ihniled to,muMi~p, false or t nny mi%leadin~ alaromertrs in ally filing, motice, docnment or p w r afung Idnd.

P

C ~ Y C desist *ow aoclltimg my dhcfime~it b e h a oe[the Yrwtce or on nnd an paver ofelfVlrn~q~otbe~fae, aad anfii unless hchnlf ofnap TnM, rlndeb the !4edmtand its apnfs hnm: [a) varlfied that dl sfab?mats in sncb dacurncpt are m , eomplete and correct; and @) Qdermirid ftwt lkeewntim e wrl titfng Ifdsucladnctrmrnt arc in frill rvdtplinnec 4 t h (IN applicable laws.

rules and regulatiors, inclncling all applienMe rules of court.

F Cease md desist froan epea~tiig docvnreni in a mluroc that iulliwtes or any
L I I ~ Cthm . V I tbe&pdury is nu

ollice~ smpbye Or the ~rustce.' or

P RfquirecaEB of its SgeOts toCQmpiywith the forglolng demands and all legal
~equlrcmenrs appItoPbIe to any ~ m l e tbat Ulcy p ~ f ' f o m bObelfaI rltc ~9 00 'b-ru~t9.

PIense he adviqcd the ifrustm ill rcqnke cacti Beniror to indcmaify and hold bnmlcm hcutschh-Ban&idivMnnlly m ~ d tLi: cnpncitJ. P. Trustee, tlw Trastn and tbetuveators inthe In .' T h e q u b m w . t lh4t SEfi*rrrs cyautc and 610~ ~ U R I C ~a @ ia mannuti~nt pmperlyd~smibcsUloirrcpm?mWve
cnmzigr was nddrc~~cd. 5 n l l y ~

m me Prlw Mtmmmdn.

Momarandun~ Servicers 10
October 8,2010 Pg 3 of 3 :o

Txsrs from ell li~Mlfty, loss.roJr and eqmnse of any kind @nulPdlngsitorncy# f !and @s cnsts) srbinpl direct& or %dire@@ Worn sw Alleged Pareclesarc Dcii&icaeies or h m amg otlrr &kg& acts or ornWms at the Sewicw andlor its agents diiiiag to m y s d d ~ nctivities rn b m o h ort1'0t~6an of* G-iag DocumcGW and/or applicable law, i d d i n k witholat limihtinn, any liahilfty, loss, emf or cxpnse artsing Pram any relatod legal pmccudlng add g n ernmar*or rmlstary invwti@iovs. Tho mst alany suck ~ intlcmniflcotiod and BRY k x m ~ b 1 m c l b m a 4ervieer in respfct of any A4kged For&lmre hy RePieieneim or asq ntlrcr ,servicing acrh%cs in breach or v2otnchn of fke Cdwdm Uocamfne eutY:nr ~pplfcnMe must be p i d by the Servlcet oar o f ihr own Rand8 and law should noi be rtlrrrgd sang Scrviccr a m a t nry Tmt. Tkc Trustee rsmes. ~ l t d e not b $ vr~ive, ufberrighm or md4 8 8 1 k attd/et the T r m may kave u any ~ & fllc Gwentlng Dornmcnts reprtlfnfl fiwe matters.
ALL corres@on&nm and questions regnrdlng this matrtr should b.e dircctd IQ David Co, Dirwtm, as( i+l.@cp tvd-&~l o by telephone at (714j 247-6272. r
Thsnk you for your msper.sfim.

nF,GTSCKE. BANK WATIOffAL TRUST COMPANY, ss Trastm DE'flTSCHL BANK TRlJST COMP.4NY AMERTCAS, as Tr-

We
TU

Bank

n<247BWO
714Pltr.WS

F*

MEMORANDUM
TO:
SEXURITIZATION LOAMSERVICERS

FROM DITUTSCXE BANK VATONAL 7RUST COMPANY, AS TFWSTEE !IEUTSGHk EANK T U S T COMPANY AMERICAS, AS TRUSTEE

RE: Complhnce W#ll. Laws, Rules and Regulations In ConnectlPn W h
= ,

and GW o -

Forec(osure5 On SDartitired A s e R ts;ltenIlvenW t Cemlm CommurrPy o Concerns; Proper DeeuiptiOn Of Lcge! G a m e s .

of thc addmsees of* memoinndm servfas r n m e Lnrns ao behalfafoocor matt securirWgn bnsa ( "Trusb'1for which Ckut9d1zB l N u d d 'rnut + h at n Cu~npaoy V7)MVTC'') or Dcu~lche Bank Trust Company h c i i c a s CDBTCA') s as t rnx:;mc (tbe "Tlustrr").

FA*

As mu a r no d a u b r m q due to m ~
act vjtm s&&s-moit
W C U ~ rame or ,

t rcaI cdah, mmksrconditiml U number of p

in er~icti&of&iming termntr, wha mry o h w i s e l a . l l y d of thc prmdsos Sudl wkbons me d r a w i l ~ f enen#m and policy r%mnm public offlcibkr md cammnity organimttom, who areexprllssing ifom corcdms abcut the %ignificanthai&hip i n g impSul on t % t %iacludkg law-inwmc k €~L

In light of them dcv~lopmcna. Trnmw mpccdully requcsfs that sA Wims &o
rervblnp loan$ on kelssYwf2he TIWI~:
s) Exncisp diligo,c. tcr assvn that all foreclosures andell acficmz with r e t REO o prrprnies (includinn IIdboJ affrcnng tcnWtS on such pmpcttie) a m d v c t t d in n colncli.mcc with all lidtrd. v r and lod mla dn~;ulations, PC particularly thcst

b) Cbnr8.g devdoplNgworking Monships with locd hawing a t and mW

nmmprtato cmmnnity ~ ~ m eddtess pubiie w M m a ~egm&g&racloaure ~ e s impede and afleviaionpmrmedmps t*mt might &&a load ta pub% re"p6nw thd

thc wliel!m of vohte On the TNsrS' m3ITgRg~ w1.5 wd R&Q pmpcni~s. io Such

~Whnshipsn~ay Eo mn+= s~&n$@ficIudiaa mft * e approp~&c,wnsi&a%~>~ of roks of RE0 prora?ics to I ~ M T P O ~ I govcmmmt sgonmred o ~ t n i m t i a s ) or Uiar rrd~tlrra @pet of ibmclW=on RBIgkborhoactr, mt~rmcing value ofrnwi w r ; the dte ap
c) TOthe mtmt pci~nsnerl appljrable sa~~~Tifi&o by he, EK&~C sound c h s c ~ o u eveharing wbbc0k.r or not wietiotl of gfianeohrwiae law&lly 8eoupy@ in T r R E 0 p, 8 ?e lvjll mkniztthn r&mtion of value on Tr~ist w rv 1 i P asset%if miation

will rro( mhame the Mac?mkbility ai male Wlue &Trust REO pmmfim, mairming nccqxm7 mcy p r ~ a w e ~ nei&borbowds and tbnehy ww %evrlue of RE0 . d pr
pm?cr(u; and

d) .92ell:imrv prpply ldmtW~om hprasemtre =pm1t~,as sdm, and 13BIQC1s or DIfTCA's cnpecity *as TmLe of lin4tkt nwne of telavailt kustp' hi all natices, p l r d i n ~ s~ ~ ) m ~ r OX othm docummtsrelaingmthe mongage toms,R ! , ~aw~e EO brotciric~ and clhcr Th.Rt gCSEt9 T ro pm@cs sbould novm be kM, nmieo & a &
conterninsnrwntias &odd w e r be issued. h DBXC's orDUNX'J o m s witbout

nrebelime thst these "gucd hoaekcuphg pdnejp1~6 help nads m " w i ~ ~ i n " an riNatIw ftn inv?mrsaed comtnunitl~s, p d d e a model k h-hg nn dad i r corpm@e rcs~ontibr?iriwith o!!rlMal dUtYtrr p l W a ~ t h ~ hW*S~ f s x u c t t i a bW&%.. ..
~ ~~~

Thi;s g p & h slw c i m nth the f d i fimmial ilr$imtioos regulatory & t s em aumcim' p:pn1 18,2007, !?x?dementon Worldng r ~ % MoQage 80-a:' h
The fcdcrat fmncid imMutIms r e g u l a t t ~ @mdas m ~ a r fhmcial m ~ ~ j~x$tx?ioqrto W& w n ~ t i v ~mb re61dcnrisl ~DRORZO~ @ltWoi&lly lt y nhd unabk to make tnes wnuacrualpapd e b l i o n s on their Mmn Ianns, mdent I V & ~ mgemcnrs rhat WB c o with , ~ Baa m n l&kg & rd m c m im pa@& h th.long-ern best intmzt of boUl &h+idd ~ticutfonwulthc~or.

~ncram to hcp f a e i I M implon:mdon ofLbisappmsch hTmrusta fs p m p ~ ao; d Fjcjpact with &erp in ongoing public W a p t witbpblic official$ and eondty gaups in a &@rt to ~ 4 T h s s hecanm &c thotaq bwe mbcd.

FROM DEUTSCHE RANK NAEONAL TRUST COMPAKY, AS TRUSTEE UEUTSCI@, BANK IXUST CDMRANY AMERICAS, AS TRlf%IEE
DATE: Juij, 28,2008

RE:
Exh ddresscr of ~ i ~ M e t n o m d uservices mnrtpge lwos on bebalfdma or mare m sect~ritimtion sts (Chc 'Trusw'7 for which Deutschc Bank Natjonal Trus Company or W &uWhe Bank .l',wd Conpeny Amffiuts R C as trunce (the "Trwtee"). This ~ memorandum fun~seson c L i i n isucs dntlng t servicing pwlow dmt hewe wme to o the attunlion of the Trustee sice We lssnanoe of it8 M ~ n w m ~ ~ d u r n m Srtturifization Lone Scrviccrs d&d August 30,2007(!hc "First S m i c n Memomod~mm'--copy ~ticIo.red). Bccausw the issues s$dTesscd iothc Firs1 Saviccr Memoradum cantinuc to bp rclevnnt in the cunmt sewicing mi m n,Ihe T ~ c r r a ~ t f i ~ l l y that at1 s c r v i ~ e r s tm e t requcets w i c w the First SmiterMemorandum and adhercto the practies thnt ir dkqcribes, m w e l l n9 Mosc d c s r k d in thirMemorandmn. Tho wnlinued dirtrwsd . t of rsidmtial rcoJ cstaW m~rkm placed incrc&ed me has hil:de.!ia on all piirtilrs involved in ihe lass mitigation prwcgq inehrQiw scmicjns (IC,~.WLNIC~, third-pany cont?actots and prafessimals cngwed by wsnvicm, govommcnt agencies, S H Xbonawers. I udilitlon, the fncrOssed numbm of deliapuencics md ~ n fi~rccl~sures. rwhirtg fi~rancial ant! lasses Ilavc lcdto actimm in whichthe porbrmtmfe dsecudtiiotionpal?tiesi hcinp serutlnized mmFvlly by vnioar s

ran.~imencia.
A.gainst illis bnckproullb, thc Trunee thercforo aaks Thar all serviccrs servicing bans on h~hnlf'oFll,eTn~sts remain parlicula~ly inindfbl of the fellowing isrrres.

(0 ~ u w l o s u r P r w d s r , w Proof 08"T)wnershb"o Lnnm. e f

As sleccd in the Fiiat

rbrmQsurw and nthcr aOions with r e s p ~ cto RBO properlieliea (including actions affecting t lenom of such pmpertiei) in compliance rviih all fcdual, siate. and Jacal laws, ~ J c s , rcgpktions and omni procedures. In recent months. iL has been mported hut thc numbw n l wnts~~cd foredlowre pmedingx 1.as substamialfy increased naflonwjwle. In thc

Scrvica ~on~oratdi~rn. servicers must c l i c ~ i dillgencc t assure thar they cnad~lct ~c u all

Ssrnrilizntbn Scrvicen July 28,2058
Page 2 of 4

context of lhcse advursdal pmcecdings, same cotlrts are demanding tljal the scckihg to .Prmclosc prove "awnnship"sad other patticulars of lowns earuer in h e pmcardings. uod rvirh more exacting stsndards of pro06 L mhas previously been h customnry. Othcr courts evaluating the pmpriny of varieur olhw sawicing, foxdowrc, and rvorbut p t i w c s . Rccausc! loan servicen. have contractual obfiggxbs rn handle workoUt$$nd foml03ufcs in.conlpfiance with 147 a d in accor6anm with i~dllstly stnndmrfs, @cy Wllst Rwkc sure &atall servicing pcrwnnci and praPa@ianals handltg Fnrrclos~rc~on behalf ofthe Tmsts, including lezd cmngtl rctdncrd by serviccrs, firlly anderstsnd and comply with these changmg standards and legal requirrmem. Failure tedo 50 may m l t in servlm liability to the Trrrsts t i I(t(ims causcdhy dclays or, in somo sitmions, fodkitureof colia%nsl.
In this regard thc Trustee is comcrncd that scrvlcen make oimr w Uycir servicing prrsannct and other profe*im&, inclrtdillg icgal connsel retamed by srrvlcets, that sccurirbetbn trusts typically b e e ~ n e o ~ r s o fand take title to, motlgap -1 the , thc tlme cllc scrnririr~Qn maat5 a r e formed. While ms use of powers of anopn6.y t o ct~mplm raodd chams of title may be npprapnate in some circumsmncos, scrvicers mca take care not to canfuse the record regarding the time at which m~lritizatlon mss actually firsi obtair l ~ o l l y enforceable nght8 inIhe mongnpc loans. Scmhw+ rnstirc thrtt losq m&&fian personnel a i d u r n f m i 0 u Q f k ~ i n c l ~ ~ lRent c 3 n s J rereincd bv ~erviccrr, io~ uodentmnd the mcchlulie ofrelevaaf ~nriW.isallt~e traarections. awl rcinkd eurrMlfal orwcices, in ruff~dcntdctoilt~ -. 8d.ddrcrasurh oucsffom in @firnet+ a t e manner. ID niwrbtar,serYiding a ~ofa&& mast b~~~mcmuff~cicntiv with iha Ems o f t h a r m bmilnr secur(btiqn documents for ench TNS fqr whlch Niey act to cxu(BJnsad. where -rove those terms snd the rr~nlflnr ownersbfaintcmts to courts no4

-

(2) P W r Dewriotion of tho Sewicer. @ Tmsreesnd their Qksim Pmceedine for the h e n d l cf the Truns. and in the name cf thc Truslce. but arc no1 Sewicers themselves rbe TruSa. Ser~icingprofcssonai~ odrcr agcnrs engagd by m'cers nad have @opted widdy varying approathes m identieing rhc source oftheir anthority. Some gay rhw represent "the .%mviscr," atllms say they repm.w:nt"the tnmtec" or "ihe tms~'' some simpty ssy they yeprescnt "thc bank" or "tic Icnder." These disparate and practices havg caused aipificnnr confusion regarding the mlcs of the perties tb

seouritlrarion transactim. T4c Tmtee believes that ell pepersms~od 'the scrvi~cr by arsawing. For should amuracely identify the speifrc role w capacity it1 which s~amplc. aaomcy for a servicer krccinsing on a property rnoqagcd t s an o ?ccuriti7ationTnat r*ould I?l s accurate in h i s rc.qlect i f he or &a claimed to bo n es ~.~ "phxc], Anorney for mame of Trustee]." A more &wmlc stacemmt woold be "INnnl~]~ Attorney for [S~wiccr Snrm~I, AeZin~ @lame ofTtustee] 3sTrusrcc.ofthe for pameof Trusty. In no evcntshmld sewi~cr*relained fomlosuw p r o h l o n d ~ induding wunscl, mislead third F i e &including muns, iato believing that the Trwec di.rwtly wnvols khc forcelosum p r o w s a r m y rclatcd liiigarion pr6cers. In addMon,rhe Tmste-2shoutd never be dcscribcd 8s L o w who "made" or is in "h thc busims of
~

mkin#/securiiizin#" Imm. Such descriptions iwcuratek rcflcct ~k ofa role securitizationtnrstcc and ma?: exposc 1hC T V U and tht TNStec to unwmr~rnted lS kgal iiabiliv and cxpcnse.
(3) 3)~aintcnan~e RE0 Provcrties. The Trustee has reccivecl a number of inquiries of and comphinw from governmenr officialsand community gmops about the physical condition of RE0 properties. Such inquiries and wmplalnrs also are recnviny i m ~ i n g attention from the media. law afolcemmt agencks, and mum. Uhdwsfmdavrl s~carirization docurnCahit-h scryicers are exprep,lv rosowMs lor m~RaQ?13& ill1 asrrects d the RlEO d j n o s k t m t m n ~mccu. ioelu&hr n~nrou&e I ' these rcsponsihil$tiexmay expwR E 0 nrmre?Y!*r. Faifwz t a financial lose%, poantMlp dapmslny the vsluc of Trust propeny and axpasirrg the T n r a to lcgal and lin&ncial liability. Becnu?ctitle to RE0 propeEiei typically includes rhr name of th? T ~ s l e e inatitution these f a i l ~ r also cxpose the Trustee to legal dabs c~ and icpltational h m . 'To pratect againsr such conscqucnces, whtch are l i I y to give r i fn~indemnidosrloncls~ qaimt services, tile Trustee urges servicess to e o c s xrie beighlcncd diligcncc with rrspecl to R E 0 n~eintcnmcc d disposition. T addition, we a n urgc Sarvicms to i n p m p w managas who wiKrafie pwofipcsaps to po nRE0 re propcnics, capccinlly wllfi~ hey arr vacant fcr mendcd periods of time.

..

Eaeazis~ PrbltcPrf~-ate in Irrhiatives. 'The Trusicc urges xrvicers lo stay abreast of and, whcre opproprialc. paaclpatc in. govcmmntal pol~cy dt~ussions end nrrrlc-making pmccsqes that inay &et -icing activirios. Ghen the widespread rni~i~ndn~~l~dig of how securittnationtransactiunswork, scTyieerseers lrustecs, nnd orher fiwncial instih~fims involved in rhe administration of aceurRkatiQnmnsactionv sheld seek to edizcnte othcm npproprtmly atrouc rhc rights and rc~pgn~fbiltiesthe parties co of thee ~msections Without adequnle und~Tstanding scnsitiviQto fhcsc issrrm. and oficids r v adopt rules or poncies lhat 8d~e:rscly n ittYkct the inrerusts of sccui:limnt~on ,nvcfii(ors. Active perticipation in govcm~nnr-indushydt.wussions ofthcse issues may h&lpavcrt such olltcomrs. Rortly eRc7 the h u a n ~ of ihcFlrsr S i Mcmomndum, c mw &dnrni and sta*e banking re~platars issued their "!%atfmcnt 4n LCss MMRitiw Straogies far swicen afResi&W~l Mo@$igfs." In addition, in DocemberaOl)7sthe American Secr~rttizalion Fomm, in cornultatian with U.S Treasury Officiak pmmutptcd tile .'Stmmtined Foreclosure and Loss Avoidance Framework for Seourltizcd alubprime A$urublo Rnk M o t r ~ ~ g e Loans." Rolh ol'thcsc docunlm %flea kind ofcareful the bnlnncfn2of policy abjwhes mdcontract rigMs thnt can be achtevcd By engaging in reswn$blc subycmtivc discnss~onu vvitl~ affected comritueilcies. In oddition, C e Twtce urges .wrv~ccrs excrcl% diligence md where appropriate, snvolvc ar wopcrsre with to 19% enf~rcqcm agencies rcprding a variety of unethicsl and. in s m o cases, il-l real esmm rtaosncflvn schemes Ui~gcting diat~mrd borrowers. In partimior, serviccrs should be on fhc lookow for tl~ird pnnies who: (a) seek private data concerning bolmwrs, loans or lonn pnnFolios without pmpr aufhodzation or (b) purpon to ncl based on nn asserted ~tfilil?tion wsmciation with the ervicer, the Trustee or L c Trusu. Such pmticcs may or h vt,biW bwrowem, servtcets, the Txsm and the Trusts to finsncll and ~purational hnml.
(4)

m = @r n l

TI= msnc bt.I?wes adhemce rn the fmgoiag seummnrdotiens on a rondslent f that h.~ris p o l only protEct The intcrcsts of invsrors, bin bemf* all cons@hcnch >dl? by rrinimianp mi~munder~tsndings im@c timely and fkir rcsolutlon o fW~~lasun that f
mallerr.

'Thank yau far your mopcmrion

PEWSCRE BANK NATMNAL TRUST MMPANSI, as Trustee DE~~TsC~IIE TRUST EOMPAPJY AMERICAS, rur Trnatec RANK

SUPRE.llECOURT OFTHE STATE OF N E W Y

W

(301!NTI'00 ? YTORK MW

Index No.

v

1

COMPLAINT

S C C Z . ~ J ' J ~ I W :DB muucnraeu ES. PRCiUL!CTS INC.; ACE SEOJRIILES CORP.: ANT) DEllTSCWE ALT-I\ SECURITIES INC.

~ r r R " n~ M A N u E l ~

lintiled Notes Page 4

I ' l a i n ~ iUwia SAM\< Ilmia Holdings. Tnc.. FSA AswI Mnnagcmenl LLC. Dexin ~ C ~ k l iL w s l SA (collenlvdy, "R@xh" "Plaintiffs"), by t l i r a m y s Bemreirr Litt>$$ik t ar
Dcrger R Ckassmunn 1-LP, For tlluir Complaiilr lherein agailtst. Deutsshe h n k iiG: 'D~utsebe

Hnnk Scc~~ririex, ACE Sewin'er Carp.. Deutsche AIt-A Securifieh Inc. onrl DR SIn~ctu~*('d LIC.. Privjucls, lnc. (cdlecrively, "Dettmhc Bnnlr" or 'Dcfo110a11u"J. allcgc as follows:

I.

SIIbBlARI.'

OFTBE AClTWN
acrinn invidvcs s fmcld pu~l!arnlod by Datrsclle Bni~kegninrr Dexia in

1.

7%

crinl~ectionwirl~i.wor SI billion of resi<let~tial mongnac-bzckcd seuaities ("RlulBS-') that l)~~tx:K1(1a k sdd l o hxin. Dmaclre R n a n y i m d . purchased. tinmced, ~ n sm~~itized ha 7k d rxmplionally hi@-ri$k los~ls L e e R M S all rvl>ilainternally dispreging the poor qoalify into R B,

of Ithe% loal~s the REV1I)S t l q backed us ".p;~" rllcl 'emp.'. Deutshe Hnnk's sinlJuln~iy and nighve vi&v oof Ilrc lnrns and RMRS il ,wid lo Dexin led
mpninnt the l1.S. I~o~tring mnrkcl. ~rllimntelv cluvelopign
it,

uerIi119 early na 2005. ra bet na

SIO lri1h11':vhnn",p~~rici~~~r that pnid

off dten the snntr loansbacking theRktBS i~ to Dexia atd o1hci-s failed. sdd

2

M~w*vnn? Detllsche Dank recretly viewed tile llh.IRS i t sold or "generally thal

limdble'' i ~ war d ~ bclling- wid1 ia mvn crpirnl thal lllcy wnutd WI. Dmla im:cs)cd in ?hoseDe{lschc RII~I~ RhlNB in reliance im the cellmil nllc lllnl DeutscheHbnk plnye~l n.eitlirt$ h e ill

RblBS. nnd on llle re]~renenlntionsDetrtschr Bank (~lavidedin rel)iSnaion stmerncnlr, fclni
sllccrs, prurpeclures, dnR paspea18supplcmms. p.crpmfur nlp~lfmenls and athermnaterj;llr

und cu~~llnunicotirms " O L r i l ~ g (the Maw~ials'l ~Wsting the loans backing the W H S had lllnl
bmt p~udentlyrmrlcrwrivriben nnrl

r a d by ildcqunk c~dlllalcmlin necardance with the

nI~JErrvitiny gtidolieas at'Ibr companies that oliei~innd fllvsr ittorpaycs, and Uta1 Daraclie

Baal; tlad T w i t i d ~ h c qaalig ivf tllc lnans. Dwtsche Rtutk's due diliplse purportedly
confinedUtrt the srcudtica ilsolB Dcsia wnrmnled thc slcrlutg clpdit nrlinys tllcy carried when

scild.

Untiled Notes Page 8

3.

Deutsche Bmk i r l a y ~ dr l~biqititous mle i n the nlortguge nrigioation nnd

securitiaation p w r . lntleed. the n~njvrily~. nppraxian~elp$3.9 billion in hee n n ~ m ~ ~ l r - - . ~ f ' -or tlrr lota~s hacking lhc Dcutsche finllk, RhmS the1 Dcxia pitrcl~osed were originated by DeuDeire Hntrt;'s otvl) snblxime 1norCnye a.i&i~iamrsub~idillrics nnd utXlintes, M ~ j ~ ~ g u g c D . lT U l.endi118 1.I.C 1 1 6 H a m i ) and TIB SlntcturK( PnlCluclk Inf T'DUSP") "1

Home

ln L e OH>riny h

D n i a ' s Derttvchc Rank

RMB%-when p m l e s i n g loasr tlltmty\i

11s

cmwpondnfi TI%-ASAP

lmrlit~u proyrnm. mnly ocqttiml INII~.

firnn -t~pprc,ved loan rollers that lnev I)RSP'$ miaimium

rcquire~nrnts ntld tbnl '.mil of the Mortgtige Lo~rtis"Ihat wve~,ri~tcluded lltr sccitritization were ill vntcd by 138SP m~derw~ilcrs enutre rhey tnctlmmtb DRSP'n nod chc loen Ilellets' uttdcrurritinp m guidclincr! Wowver. Oe~nncheRant c l l i n m l la hare regularly conduclcd a 'Yrtll
1.e-

astl~mnrlfin~ a nmtlorn selecrh!r ofrnor7$&seloans to nwl?renslet qlmlily" to cnntirm "tlflrc of
F~,~SIPIJ~C

nnll ~ r c t ~ r i ~fc j11,qfI 1111~.unfinf,~, d I/I%IIH(I~~~~O~, o * c ~ t
9tatd

apprnisnl

RNN/J~F;.V11nd

rrerlmvvin'~~,~ dw;d<~n." and

that rhe f i n d i l l s of rllis mview were "salt moslhly to

[l30sP] tnansyeme~trrr rcspnnse.' Ueulsc"(~@ nlso nn~lcnvrnte snldRhfRS moidnin,y Bank and
loans isued by other ori@nUors-iocludithg Invexmiesr irnd l..rmn ("FEIIIOII~").

indyhiac Etrck FSB (aIndyhMc"). Fretnor

Alnericnn llome h.lrufyngc (".41lleticas Home") anrl staled i ~ tt i ~ c Ofiring Molcrinls that theac ln;\riu

C.mt~~[rywdc Finnncinl ("Counifpide")--and

met tllr crrigltmatm' staled 1111demi611s guidcli~~as, were wpy41r4 by adequatnale collnterzl and

were atllicialt to wnrranl B e AAA r a t L ~ g a s i g l e d the RMRS purchnsed by Dexin. D e ~ t m l n to
Bank taprrscrtred, mion# orl~crIlltngs, tllal lbe lontls cantalnetl i n tlw Dwtrcche Bnnk

RMBS

\\ere t~ocscriwsly delintptcnt at the t i n ~ c tiley scc~trilimd.
11.

'rhosc $epresestnliottr vier? h l s r I n r&~lily.t11e CHl'eriug Mutetials nud credit

mlitrs

lnoteriaily mirrcprcsntcd the quality and prrportcrlly consmarivc na(urc of die

kMRS-and D m c l l e Bank, thmujh its cxrenshe involuctr~entk rha seeluitixniion pmecrs,
btvv

this was the caw. Indeed. L e due diligr~ice s r r s d ~ Rarlk clain~cd t hacl performedIIL D r i I

Unfiled Notes Page 9

these lcnder~and llie lonns tluy m'ginaral trveeltd, in crplicil c h i b i l . their tnrC quality. Tile
~~cccun~a$erieliciunc IVBIIS of identified rlirwgli llint c l ~ ~ ei l i ~ n c e d prortns

- which Deutnchc
Ho[diw%, 4nc.

Rnrrk genereliy or~tsourcect 10 aid-party maitgap cnnsuluns Clayton

c"rlnyton-.j and LylifinQnta Smiccr I"Lyd~an").-dernonsrmles tlrnt DWsche BHnk k n c r rl~ar

dr 01iki.in;rhin rrrufinely djfiregurded did< OH-11rslclenwifin@ jx~illelines.twi~inarerfloans beretl
an inflatel ~pprnisnlv~lncs,and manip~llntctltlre undenuriliog

pmcss to ivsun loans to

bannvers ,vlin had no plnwiblc moans w repity rhm. According to ovidmcc rclmed by lho congressinnal rinarrcial Crisis ioquirv Coniniirrion ("FCIC"). IXutSel~c Bar& pt~rcl~;aed and wcuritirrd ororlg half af

LC sampled I h n r

rlayton lirjected for failing to coniply d t h I11e

~ri~inotnrz' ultdclwciting gr~ideliner For lonns Ilia1 Dw~uchs Bnuk itself originntc.d through Mnrtyr~gclT.Dl3 Umiic nnd DESP. s u d ~ due diligcocc uniy ctrtbmmed whet llc~flsclicRnek nbrit&y blew: thnr 11tc loan pods iv .wuuitirerl ueia riddled with ddccrivc lonnn tho% were innprolmly unkknvrjnen i n dim1 wntrasr l o Dm~gelre Bank'n reprcaenmtimr i n tilt OJkrin$ hlalcrialr.
5.

lki~lzcl~c BRnk'3 clr~ss ~rlatio~~slhps i l ~ mrhprifi~e sit11 c lcm~lers oopinaird t l t r tliol

loony bickirrg the RMBS in M c h Uerin invested fnve tilml urliplre in4ight inlv the qctslity of tliote lnnns. 'Ibese relaliar~~iups i~~clr~cled Deunchc Ilnnk's role ar. one of Uie lmg-I icndars to
II~~~PIIS

mrebt~se

subprimo Iendcrs, areriding li~les credit rvtnling billions oFddlatx tn of

several oftlic oti~nnmm whm tcwa hackedtbe D u h Bank ~hdFl~.sLldDtxia, bci!rdi;q ewe In
NETYC'cnluly. I'alrrltyr.idc. American Hnn~e.Option One n ~ i dIC ~ I B A ~Q I O.

A9 n ~q1111 i t s fff

clo5c reliltiaiiahipn will^ laan wipsamrs
muiribiILiun dtdlnr secmitizatiat pnrlncr
p*~ctises. ttc~derwriting ylriddinn.

- as *I

rtTilrrle. ,nultibilliln~ mrllor lender. arid l oriyionrin~r ~

- Dunvclic Uolik knew in smnukm daril r
- these oriEikxarS

an11i l ~ e qk'nlily ofthe oliginnsd lmlts. As Da~~gche Ralik a~nong the

knrw - brr euenm lib Dmin w w ~ l d !l discwer only . a
rmsl

nf t . suhpnme inun!~uiage lmdcn. wilii~lg h to-just giv[cj nlnyoac q loan who wants " I . I~'

sccl.lre in ,lie i;no\rlcdye thnr llteir U'oII Streel pnnnrlr like DcuLrrlle ~ e l l k iw,l,rlrl llcm fnislihc loanr on ~8%9u~lr~clifiy invmlon. like nmia.

6.

Par thost! loalrr DBSP p~~rclasefl sr'alritizrtion througll its rorrespo~tdem for

Iendiog prilsrnlo, Dwtxhe Rank advancud the Ib11di11g neceswry lo urigirmte tilose loan* ewll lhchrc thcy Ltld hem Issued 2nd kc~>l tnnardinarlly dose eye an their pcrihrmance HI~CI. nn

Ihc) r c r r r purchnscd. To riiis OII~. DRSP had n slnlcd policy o f rcquirins nny l~rnn scllpr in its
corr~posdartImrlbg pr~lgnllll o repi~rcbasc lwll ' i f rlny nf llle tirst Illme 0) i a paynlene due after thc purcl~asc t c a n thirty 09)days dcl~lrquent."wllrch was nmenllcd il hfaralcl~ h l 2006 to rcqorrc an). sellcr lo rcpurcltnsc o lm if rhc Rmr hvo pnynicnls had not h m made. Ilndor this e prwmm. ~ ~ B S P clorcly lmclted Yell early pnrrnent tlefmla FEPDs") and rvas keenly nwsrc dl81 lotins is,~led its conrspondr~rt by ler~dem---i~rcludin~ fy-hyaiglrt ru~bprirnc lenders Mnribcllu

nlortpylr 1.t.C ("Maihclln"),

Canlrron Finercia1 Group. Inc.. dWa I" Clloiec M n n g r ~ e

("Cameron.'), anrl Pmjna (imp. lnc.. dhlo 1-ibeny hlortgapc FunGng ("Libeq")--weie
defnulli~iprvili~in R i several ntoiub nftcr is?anocc at nlnrniiny nw. Such mdy deFa111ts !he n aliowcd thnr 1.11~loans ucver shauld have bem issued in the tirat p!acc. Moreova. D~IISC~L' Bnnk \va$ ow:i~r thec these lelldcrs rverc co~lrin@ and- ilrcleerlng W~landals i r w : , I other it~vesllnent bank lenri bilyan hegun dmmdinp rcp~lrchare f such lonns. I~lstead o olcultailis~ its busi~less r~latindrips uilb lhcsc lcndcrs, or men enlacing iLn rigllrs under i EI'D program, a nGr~tscltr Bank-raced with hoviy l o suYl'cr iht lorr on tlia Ion11irself if llic lender \vaw to

d ~ l o l o bbsnkmptcy--ehme t sec~~ritize loans a d sell them as Rh'M to Dwia even dler s o lhoa
tiiey wcl.c.nlready deliaquenl.

7.

lndcerl. ns rdlccrcd En eouo fi1itib.s i s n~trsqt~cnf rcpurchast liligntitwl bmr~pltl hv

w S P . scorn nf such BPD loans w r e nee~ritiawl snld ns Oeatcche Bonk RMRS. Ench of and
tlrcre loans--identitied by DBSP ill coun f i l i n p ns having dcfmited under the lenns of its o w Et'l) p l r , ~ ~ i m ~ 111elirsr scvrrni ntonlhr ofIiavirty heen isruert--rm iacludcd i n D c t ~ ~ x h e rvirllil~ [)s!ik ItMBS prrchnwd by Percia. despilc the rnplicil repwscslations In fie Offcrlng Muerials
that the loons hnd heen vndenvrinen in ncmdawe will1 lX5SP.s own eadenwitiug ~ilidclincs,

indcpe~~dently rcvicwed by DBSP's nxvn undet~witea, and in tlnt ~nntradicticn none of lhc lllB

Ionnz t\wc in serious delinqnang *tams at fflc timc ~ F s r i w r i t ~ m t i o ~hrcredalaaly. DBSP, ~."

ill

its cmil-t 0lin:l.l. alleged il1.1l.it tu;ci h n becnr~rc wnr "unable lo include cernin af the Earl?; nd il I';~yn~en~ DcFntrII Lwns i n senltttiznrions," despilc A* lilcl that it almndy ltarl dalr so. rrld sold sccuritiss bnched by d ~ w loans I:<, c x i ~ . e D 8 %wlsclie Rank also h d t~~tiquc insiyht inlo tile prnclices aFllte oriyi~rnrotv dirmr

loans i t s e ~ ~ r i r j z c d through icy rple os lru~tcc lilt fil$t? backcd the 11MnS i t securitized. of that Elwployeer at Dnllhdlc Rnak's hlatec arms. D e ~ m c l ~ e Bank Nationnl Troa Cnmptip rlnd Oeuaclie R i r ~ k Tnmi Canpa~ly 4 n l c n c ~ ~ . (collectively.

"Deuwhc Bank Tn~<r")--wl~rch tl!c wms

sgpshnd n ~ m r g n g ariginntioil praCllCc3 rhnt wcrc p ~ e w l e ~iin lhc Dfulsclle Bunk RhZBS t

pltrchsd hy Deria. For m~mple.n sene$ of Dcutsche Rank Tmut memo~andn10 RMBS
Grr-iccrs be$Iing
in Augtst 2007 details incrrasirxr eel>cerlls tllm 'Boot1 ht~mrkecpin~"

measures wcre nut being follo~vedto estnblish thc KMRS Inla's m v t ~ e d ~of the mortgngc ip iannu A+. nqdmur u~rmvered fomclasl~relili9niion acroa t l ~ w11111ry IT$$ rct~cnlui, in r since the mortpye lone6 hackin# Deutsclic bank RMBS-incliding

loans bncloing thr Deumcitr Uatk
Thrnt~gh<hex

RMBS ~nrrtl~nsed Dexia--.were 1%

ncvcr properly trnlfernd l a Nre mlcvnet fnw. in dinw

cinlrndictin~~ Deulsclic Bmili'r r1nle111unls in the ORcri~lykiaterials.' lo

j~crivities. 8'1d Cnr nrey scc~rrilization in which Du~lwclrcBonk sold ccrtifica1r.s hi Rcxia. ~ c u r ~ l l c ~ had in-depth knowledge of rhe m~dcrwririog ank practices ofeach lvnnwiilyinaior: the d ~ l i t w o r t l i i n c s ~ llrc loans il was kecurilizing nnd x l l i n ~ RMRS. nlld the vnlidify of the or as

-:'For exn~til)lc,D a ~ n c l ~ c rcpluscnred ill the Offcri~ly Rmk Materials for rlie ACE 20M-ASPI RMBS in rultich Durin illvested met $12 ndllion Lot "IVrr Mn17ga#eLnnn #rillhc ~ r o ~ - i I u.to tn rfws deJi~yncnr5 @Ute C ~ F v ~ l > n m . " 61.
: As discursad bdou,, Deunche Rank's lnerlce ant1 is c t ~ m n l l y the subject dinvesri~nlin,rIhy 130th ihc 1 1 5. Dcnnmnent ofJbslice and thr .tlumr.vs Geticral o f New York and Delawnx llls ............. nrc la,kiny into ?rnll~l, f 0 ~ 4 r y bnd nllier ~sircenduclctmcertiing the xcuciliratio~~ pmccss alld trl~st sssa recovery i n Piiwciusure litipnrion.
!

Unfiled Notes Page 12

9,

Rather than disclosc the t n ~ e nnnlre and qualily nf the N B S Deutdc Bank so:d
fnckrr.a Dcuaclte Brink cvpbitell thisinsigl~t dwine a 3t ! lo -w
10

to nerin. zmior

,prof,\ off

trf tlrir cvsnn~al default.

h~dced, as detailed by Scn~le &maomit Sutromini~hu on

Investisntinns ("Scnnrc Stbeommiltte") ill its April 1011 rcpon .'Wnll Stnei und the Pinatlc:sl C'l.irir: Analonly nT a Wnancial Collapse" llhc "Smate Repon"). O n r ~ s J t e Hnnk s&nr rrnrlcrs itj*enliy

and secretly belittled IIle Det:l.pclte Rank RMBS y~nchnrcdby Dwin nvd

fie

mitjnntors who iscud the underlying lonns a "cnp.' "'pip.' ''gcnemlll; Iruwihi~:' l"u and
l , f t a? r l r m sccurin'c~'wpeclcd Dilure, trmdc~s D e ~ ~ l s c lBank &vn'opCrl anrl r n iOR nt ~e

sok
Dad

pasirimls in

~dJ.~ef3lizrtl det.t ollligntinns ("CCN)fl

und crulit dP;lult

swaps C'CDSs") ro bct

un

~ I Cvahlcs

of(and in mnte cascr, aninim~zc own crpwsute io)RhiBS sctcb as t l ~ m e irc ir

w c r d c ad d~ mld ir tn!.wmn alclr iu Dmia. In Fnct, U r t ~ r ~ R R I Irvns one 17 lreclcrs o f R l hc ~ ITVO
ccnsotri~mm ofbankg that devclgul an index lhar tmckud HIC pcrtiinnce of tharwlablccl IleuIsr.Ilc sank rmders m plvop such buts in the t i n t place. 10
o

grmtp of RlLDS

Ow XL mrler. Grey 1.ipyrnm11, who p l a y d n cerlral role in lalping Deiibche C I

.Bmk excnlre rbiu s c :epeatadly &tided lRe \,try R l S Illat Dcuuclic Balk itselfh~d m, hm

ncnect, marketed and $old. In 3(Na. hlr. Lippna1111 n ~ n i k d colleaya almu atc l>cueclze c ltis
Hack RhInS <ledin d ~ i c l Ir h i n had i n v e n d ovcrf:3 millinn. Wki ln "DO1TWr TFtR Dk?r\l, ni g
o~.QM'['.'~ to wh;cb il,e mder rr(~1ird"u.e.q ir hlorvs I ntl!

seeing 20405% writdou.~rr."

j ~ c ~ ~ t sB ~ r ck ~ l n wcnf tcr gnmt lengths tn kc)? ia tmden' views of drc subprima RnmS tllar
i

Oo~mie Bank sold to itwulors like Dcrin

- wrd D n ~ i s c lBank%strategy lo profit off oftltrii r
vas

c g i a p s a secl.el, As ratlmcd in the Scnale rep in^, i t wvas d e a r $hatDButsdae Bank a?!waaled tlrut stmlegy bcfitvsr i t \\,as iroe:illiny t sacrllicc illr pwfirs if c
ntxl cufiionkt Snchise* husine.%q-i.r!..

..

mnl;Snp From its "new issue

tlic ~ i ~ o ~it c y m a k i * ~ ssoriliang alld selling i was hy

One of Mr.Lip~mano's tritderu. Rwky Kurin, put i t &in way top ill niid-2005. "(li'.7e htnv 11, IWNK'C ltrancy. Cir.rbr*er Irr~)?]~inc.s b

bM rra cmnnol h w xighi oftbe tra.?f#g de~kl'/v nthrr rob flf.wppoHtn~ isslle rtnd the ~ ~ , ~ I I h ? m ~ r h i ~ r c . " selv 111 2007 email to a client Mr.Lipprnann wore: "'\plIelllic ple~rsc a do nof.fmrvad Acw cmailq nrrlsirlr ~ j w u r , l i r n r I(10 IlM rrstrr b lic Cbmcrl h.r rhq rrclrf h u e pm,l,tfiw dmmyi~rx fltcir
n *nnnrlm,goal

...

h~rsinm.q."

I I.

So col~lidcnr I.ipp111ium and Deuthclre Bnrrk bt rlrc suntcgy to profir act-nl'd,o wire

call~rpre RhlRS like thuseit sold lo l'kuia Ihat ;~laagpnl rr, mail twa Ilrdge 011rrJ of in iinvewr in N o ~ m h c r 201)s Lbnt "he was short I billion dell,m

af this snrff nr~dwas going to make

ass a l i t t l e scat?."

1 the elrd of ?(107. Ocutahe Bank's ''shorf' p o s i l i ~lrnd 9r0ll.1~ sf0 % l~ to

lhitlio~t. o r l i n ~ c L>et~t.pclw Bank .ap)rmuin~oblyS I GI) strillion pcrycnrto wininrain 12. While DczltrchcBnnL wnn huildlng iu $10 hillion b agnitra [ aRMBS it s s u l n

~ e l l i r end lhe U.S.b r i n g nlorka i o pcnornl. Dmin. i t , relianee upon the smrrn~mrn tltc r~ in {,XT.rirzg hlal~~iairdlr 1.k1rladn Ban)k'.r 1rlxtla5ar, ilve.51cd over PI billiar in Dculsshc DnnL nnd

RblBS ie 32 offering b m m n 2005 ond 2007 (rhr "Crrtiflcates")

-- all of .rshiclr were ratsd
m
renp

AA.4 hy pnr)ronedlg irrdrpe~rdenr rnlinj agaicie6 at tlre time of im~aiice.As Deurwbr Bank
eSyect4. ho\'C'eLw.Iheae RbiDS ewIlhlally plum-wtl I n va;llac m h l i n 2 Uallschc Bank

ono~i~moa prolira on chc "dtor:" bets ir lwd llncrd ~girriast tllcsc #n~rilies-&scribedby I.ippinnan
;~r " ~ h la@ew [he c

profir obtaincd h r r ~ i l t ~position il Dcrrcsche Bank histow: on le l

I(llfoflon;ltcly, tiir iffvc$torslib 1)cxik llonleor~lem lhc yiobal ewnonry, Deolsclrr t l n c k s irrrd rniscondad Im bee11devasmlin~. 1.3. Oeufscho . b n k h minaonrlucl hns n s d t n l in astoundina rum

d cI&ul~

on the

loans iinderlying tlicDeunche Rank RHkS and mnrrive downp.rnde$ oftlie Cmlticnbs. which
are dl narv caisMcred "junk." As of'hfay 20 1I, I awra5e. alnlaw 35% of (Be 111mqnp loans O

underlyin_n tlie Ceniticnws w r e nvcr bO d m deliequrnr. in hreclosule, bunkn~prcy.or

raposminn as rcflcacd by tlw chert belorv This figure dn(s not include tlrs sulmantiel loves

suffwed by Dcxia since B c KMRS' issunuce clue u?foreclon~~rcr deFoulD. nnclllrc ret~i<~val a~rd or
tl!os. !'ailed storrcp$ loans fioni l l ~ otrrrln iiwr lwl nod arrrcnr delisqumcy fiptorep, ir~deecl. e

Unfiled Notes Page 14

..

.

. . , .... . . .

&WB&:;.'' ,,!pp@*, ..
rid'

d . L... * .

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DEUTSCHE BANK NATIONAL TRUST COMPANY 300 South Grand Avenue Suite 3950 Lor Angeles, California, 90071-3175, Plaintiff,
v.

Civil Action No.

FEDERAL DEPOSIT INSURANCE CORPORATION, in its capacity as Receiver of WashinHon Mutual Bank. 550 17th strdet, N.W. Washington, DC 20429

JURY TRIAL DEMANDED

COMPLAINT

Plaintiff Deulsche Bank National Trust Company ("DBNTC"), by its undersigned counsel, alleges as follows:

PARTIES
1.

Plaintiff DBNTC is a national banking association organized under the laws of the

United States of America to carry on the business of a limited purpose hust company. DBNTC's main office and principal place of business is located at 300 South Grand Avenue, Suile 3950, Los Angeles, California, 9007 1-3175, and a site of its trust administration is located at 1761 Bast St. Andrew Plaffi, Santa h a , California, 92705. 2. DBNTC serves as trustee, document custodian, and in certain other trust-rclated

capacities (collectively, sometimes reti:rred to bereinafter as the 'Trustee") under the governing ngeements, custody agrehncnts, and various subsidiary or related fiducisry arrangements

(collectively, the "Governing Agreements") for over 159 Trusts created, sponsored, andlor serviced by Washington Mutual Bank,its predecessorsin-interest, andfor their affiliatesunder their contml (collectively, "WMB'') betwen, 2000 and 2007, described more fully herein as the "Trusts."

3.

The T m t s currently hold, as bust assets or collateral, mortgage loans that WMB

originated or acquired, serviced, a d o r sold into the T ~ s i s .
4.

The Trustee brings this aetion for and on behalf of the Trusts, investors in the

Tmsts and itself as Trustee.
5.

The Trusts at issue are "express trusts" created by written instruments manifesting

the express intention LO create a trust and setting forth the subject, purpose, and beneficiaries of

thc Trusts. The Trustee therefore brings this action pursuant to Federd Rule of Civil Procedure

1 '()I() )o()E
investors.
6.

as the t m e e of an express trust for the benefit of the Trusts and the Trusts'

Defendant Federal Deposit Insurance Company C'FDIC") is an agency of the and related

United States aeated by the Federal Deposit Insurance Act, 12 U.S.C. 5 181 1

laws and regulations. The FDIC acts, from time-to-time and among other things, as a receiver andtor conservator of banking institutions.

7.

This Complaint asserts claims against the FDIC in its capacily as receiver of

WMB. The term "FDIC" includes the FDIC in such capacity.

JURISDICTION ANI) VENUE
8.

Tl~is actioa arises under the laws o f the United Stales and is a suit on a claim

submitted to the FDIC pursuant to 12 U.S.C. 5 1821(d). TBls Coun has subject matter jurisdiction over this action pursuant to, inter alia, 28 U.S.C.

8 1331, 12 U.S.C, 55 1819[a),

1819@)(2)(A) md 1821(d)(6), and 2 U.S.C. R

8 1367. Jurisdiction also exists in this Court

pursuant to 28 U.S.C. 8 1349 because the FDIC is a corporation incorporated by an A a or

Congress and the United Slates owns morc than one halfofits capital stock.
9. Venue is proper in this Court pursuant to L U.S.C. 5 1821(d)(6), which 2

authorizes suit on a claim submined to the FDIC to be brought in this district.
BACKGROUND

A.

Proof o f Claim
lo.

On December 30,2008, the Tmtee timety filed with thc FDIC as receiver for

WMB a proof of claim on behalfof theTrusts and the 'rmstee pursuant to 12 U.S.C.5 1821(d)

(togetherwith all cxhibits thereto, the "Proofof claim'?, outlining various c~aims against the
FDIC u~lder related to the Governing Agreements. A copy of the Pmof of Claim is attached or
hereto as Exhibit 1. Exhibits A-l, A-2, and A-3 to the Proof of Claim identify the'rmsts at issue

in this case and on whose behalf this action is brought.

II.

The Trustee hereby i~~wrporntcs reference as if set forth herein Wl the by

entirety of its Pmof of tIaim, along with the exhibits thereto and materials refaaced therein ~ n hereby as&s d

all claims, causes of action or rigllls lo niicf'that are included in or arise from

the Proof of Claim or the facts referenced therein.

12.

On inromation and belief, other partics with interests in or obligations to the

Trusts filed proofs of claim with the FDIC,including securities underwriters, depositors, Ionn

servicers, insurers and investors. The ciaims asserted in these other proofs of claim may be
related or ~upplemental the claims asserted by the Trustee and the T u t in this action. The lo rss
T~ustee hereby incorporates by refcrenee my such proofs of claims, along with theexhibits

hereto and any materials referenced lbercin a !he exten1 appopriate andlor necessary.

CgaeelDQEBwO0666BaWt4EC tff3oomsehQO-3 Filed OB/~@I'~JB Page 356Q37

-

Federal Deposit Insurance Corpration as Rsceiver for: W s h h t a n Mutual Bank
[~snuot B

e n W h i e n d d l G ~ ~ PFU3W OF CLAW

U I

c O N F I D E N T ~ ~ A T M E N REQUESTED T
AMnchrnenfA EoncehtswnffdMtlal,ncfkpubllo tinancblhfimmilah C ~ ~ D e ~ e ~ n k N a l ITWrt 0 1 Campany mquoebp that Vlc EMIT, n infannatan w W e In AtkhMittB, md U)o nmpuPJIc daeumrnU U r n nd oUmhad k t . a be ~ J d w and beW B wntkImnr*l M

SStVTax ID f [ ) 33-084341$ I
The undersigned, (2) B a M Campbdl, VleePresldent

says that the W
juat\y indobtsd to (3)
(4)
C

M eolSanlJF~m~l m Im~Uonl b u t w h o Bank Netlad Trust Corn-

n Mulusl sank

now h ilquldath i s
~ upon the fallowing CWm: c s
Ambunt n f m i m $6.764,2i34W t0 (see AUachmt A).

O r d r l d u ~ U J o R W A m a r d b n R ~ ~ '~ ~

$10,1~.~am,m (apprmimately, see A t t a c h m e n t . ~
Dssafihcn of Onvuloa) cl8bn:

- - in the

sum ot

LiaYW Wmbar

(5):SeaExhibit A

L A
I
T m l CMnX (8)

rre,rease.aso WWOXX.

4
I.

I

A W r m b
Attaehtrtent A). $10,146,399,)99,QO ( 3 ~

-

I

The undersigned further 6tatB t b l heishe makes l b Ciwim om behaK of hs

tM m part of mid debt hss been pdd, hat

(B)p_eubchs Bank W a n d Trust Cocn~anv ( ~ i Y u a K J ~ m a m Q n P a ~ ~ A e e n ~ ) has @'wenno endoraemnnt or assl@nment the same ar anyoErt ther&- and that thorn is no aal-off or uf countercldim, ar olher kqa)a equitable d&nse to saidCla\m or any part thereof.
NAME (9)
Barbera Campbell

.Vice Presldsnl

ADDRESS (10) =East%

ARdm PI

CIWISTAERIP

Senta Ana. GA 927bUP34

TELEPHClNE NUMBER

714-247-fMB

-

.-

The pe?alty for knawiogL medng orbrvlln: relante ot any false, lori~ed, ~ountefiell or statemnl, document or IF,ing b- he purposs d lnfluznctng heny wny the bcfbn 01he Federal Depoen Insbrnrm CaporsUon Is a nfbaol nit fh7? S1.000.003 wlmDllsonmenl f o ~ mwe man mmy yeam, or b o h (W U 6 .C S m 1007). not a 1

~ m e l . 1 3 0 ~ ~ 0 lZon11m~hP6-3 Fiied OBl2BlO0 Page 5ibbQ37 b 6 6 ~

-3>~dilition, porsc~nntlo ccrlilin Cuslvtly Ayrccmcnls, lltc Custodian held :md disbursed linils with rrspcct lo the luntfing untilor linancing ol' such nlortgngc It~ilns in accnrd>lncc with inslructions furnisllcd to (hc Custodien by WAMII, loall purcliasers 01. Icndcrs. 'l'hc ('ustody Ag~vcmcnls voluminous il~iclBIU i n tlic pusse~sion arc oj'both the 'I'rtrs~cc and WAMlJ. Accordingly. i t is impractical and unocccssary to k~ttachtheni to this I'r(~ol'ot'(Ilaim. IJpon requcsl by thc FDIC. tlie 'I'rustcc will (iirnish elc~trunic or Ihitrtl copies of'any Custody Agrccnicn~s its posscsuion. in
6,

IIHWI'C is awan. Ihat ccrlain inhcr panics to tlic 'l'rusa, includiny, without limilation. secnritics underwritcis, depositors. loon scrviccrs, insurers and investors, intend to file protrli <>I' clailii in dtcse praccctiiogs rclaiing to thc (iovuming Documents and ancillary agrccmcnls which lnay be duplicative of. or snpplemcntal to. thc claims skulcd Iicrci~~ '"rliird I'artv 'I"ru~t (the Related Claims"). '1'0 tlie extent thut such 'I'hird l'orty Trust Kclatcd CI:linis relate to or arc propcrly o r tlic ' h s t s . I>UNl'C incorporatcs such 'lkird Party 'l'rusl Kelatcd Clainiv hcrcin by rererencc.

Claims. Arising from Breach of Kenrcsentrttions and Warrfintica (Estimated Rancc: $6.764 billion to $10.146 biBion)

7.

I'ursclant to thc Governing Ducumcnts, WAMU. as scller and lmavteil scrvicer, made certain Rcprcscntations and Wawdnlics in connection with the salc ol' the mortgage llnns lo the Trusts. WAMlJ has hrenchcd certain of these Representations and Wa~~antics. Pursuant to thc Governing Documents, WAMlJ has express contractual obligations ( i ) lo notify ccrtzin parties to the Governing Documenls, including the 'frustee, whcn WAMU becomcs aware o breaches of Representations and Warranties, f (ii) tu ~nakcccrtain curc pay~ncnkwill1 respect to ccrlain such breaches or (iii) to repurchasc tlic morlgagc loans aficclcd hy WAMU's breaches, at the repurchase price (thc "j7epurchnse Price") spccificd in the Governing Documents (typically equal to the unfiid principal balance of such mortgage loans, plus accrucd inlerest thereon through thc dale of repurchasc) (the "Reourchase Obligations"). Further, as described below, WAMIJ is liable to lhc l'rustce and the 'Crusts for all liability, loss, cost and expense arising from breaches of Keprcsentations and Wananties, including all costs and cxpcnscs of cnforcemcnt of these obligations. Rased on the pubfic statcmenls of the FDIC, it is unclear lo the Trustee which obligations rmdcr ihe Govcniing Documents the FDIC purports to have assumed and assigned to JPMorgan Chase Rank, National Association ("IPMC"). Moreover, thc FDIC has not notified the Trustee whether it intends to repudiate any obligations of WAMU under the Governing Documents, many of which obligations are execulory in nature. The Trustee asserts that the FDIC does not have the power, with respect lo the Govcrning Documents for any parlicular Trust, lo "cherry pick" valuable contractual rights bf WAMU, such as servicing rights, while repudiating potentially burdensome obligations of WAMU, such as Repurchase Obligations under those same contracts. Rather, ic the FDIC wishes lo reap the benefits of these contracts (by receiving the purchave price paid by JPMC for WAMU'S assets), it must also accepl thcir burdens. Accordingly, to the extent that the FDrC purports to have assumed and assigned to JPMC any rights and benefits of WAMU to service Mortgage Loans under thc

8.

Case 1:09-cv-01656-RMC Document 32

Filed 09/08/10 Page 1 of 44

I TEE UNITED STATES DLSTRICT COURT N
FOR TECE DISTRICT OF COLUMBIA

DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Tmstee for the Tmsts listed in Exhibits 1-A and 1-B,

Plaintiff,
v.

Case No.: 09-CV-1656-RMC Hon. Rosemary M. Collyer

FEDERAL DEPOSXT INSURANCE CORPORATION, as receiver for Washington Mutual Bank; JPMORGAN CHASE BANK. National Association: and WASHING TO^^ MUTUAI. MORTGAGE SECUTUTIES CORPORATION,
Defendants.

JURY TRIAL DEMANDED

J

I

AMENDED CO1MPLAINT
Plaintiff Deuische Bank National Tmst Company, as trustee for the Trusts li&d in Exhibits 1-A and I -B("DRNTC" or the 'Trustee"), for its Amended Complaint ("ComplainC') against the Federal Deposit Insurance Corporalon, as receiver for Washington Mutual Bank; JPMorgan Chase Bank,National Association; and Washington Mutual Mortgage Securities Corporation (collectively the "Defendants"), upon information and belief, alleges as follows:
PARTIES

1.

DBNTC is a national banking association organized under the laws of the United

states of America to cany on the business of a limited purpose imst company. DBNTC's main

office and principal place of business is located at 300 South Grand Avenue, Snite 3950,T.o~ Angeles, California 90071, and the principal site of i$ administration i located at 1761 trust s
&st

St. Andrew Place, Santa Ana, California 97025.

2.

DBNTC serves as trustee and in various other relatcd capacities for 99 trusts (the

"Primaty T u t " created, sponsored, and/or serviced by Washington Mutual Bank, its rss)

Case 1:09-cv-01656-RMC Document 32 Filed 09/08/10 Page 2 of 44

subsidiaries, their predecesm~-in-interestand their affiliates, including Washington Mutual Mortgage Securities Corporation (%'bB"). See Exhibit 1-A. The Primary Trusts provide for

the issunnce of residential mortgage-backed securities and ceTtain other mortgage-related
securities. The himary Tmsts curiently hold, as trust %iseta or collateral, mortgage loans originated or acquired by WMB and sold into the Primary Trusts.
3.

DBNTC also serves as inde~~ture trustee or in other capacities for 28 secondary

trusts or entities through which WMB issued mortgage-backed or derivative securities whose pfonnance is dependent, in whok or in part, on the perfomance of the Primary T u t or of rss other residential mortgage-backed securities issued by WMB (the "Secondary Trusts'?. See Exhibit I-B. The Secondary Trusts ase express or implied third-party bmeficiaries of the
Prirna~ Trusts and, ns such, have standing to enforce the terms and conditions thereof, See, c . ~ ,

Poaling and Servicing Agreement for Long Beach Mwtgage Loan Trust, Series 2005-3, passinr

(Issue ID No. LB0503) (voting, consent, payment and other rights of NIM Insurer, Other NIM
Notes and.Holders of Class C and Class P Certificates); Indenture Agreement for Long Beach Asset Holding COT. CI 2005-03ussue ID No. LB05N5) (Granting Clause conveying LB2005-3

Class C and Class P cUnderlyingCertificates" as T u t Estate; 5 1.01, definition of 'TJnderlying rs
Ageement" and "Underlying Certificates"; Article 6, "Administration of the Trust Estate";
9.1 1, "Certain Representations Regarding the Trust Estate"). The Primary T u t , the r s s and

4

Secondary Trusts, as appropriate, are referred to herein collectively as the ''Trusts."
4 .

The Primary Tmsts' original principal balance olltstanding was appmximately

$165 billion. As of September 25,2008, Rimary T u t ' current principal balance the rss

outstanding was approximately $45 billion. As of September 2,2010,the Primary Trusts' current principal balance outstanding was approximately $34 billion.

Case 1:09-cv-01656-RMC Document 32 Filed 09/08/10 Page 3 of 44

5.

The Trustee brings this action on behalf of the Tmstsand the investors in the

Trusts.

6.

The Trusfs are "express trusts" created by wfittcninstruments manifesting the

express intention to create a trust and setting fonh the subject, purpose and beneficiaries of the Trusts. The Tmstee therefore brings this action pursuant to Federal Rule of Civil Procedure
17(a)(l)(E) as the bustoe ofan express trustfor the benefit of the Trusts and the investors in the

Trusts.
7.

The Federal Deposit Insurance Coqomtion ('FDIC") is au independent agency of

the United States created by the Federal Deposit Insurance Act (the6TDIAct"), 12 U.S.C.
i 81 1
S, J. IJ

6

and related laws and regulations. The FDIC acts, t?om time-to-time and among

otl~er tliings, a3 a receiver for andlor conservator of banking institutions. The Trustee brings this action against the FDIC solely in its capacity as receiver for WMB.
8.

JPMorgan Chase Bank,National Association (collectively, wt it8 affiliates, ih

including but not limited to Washington Mutual Moagage Securities Corporation, "JPMC'') is a national banking association under the provisions of federal law, pursuant to the National Bank Act, 12 U.S.C. 4 2 1 e t a . , with its principal place of business in Columbus, Ohio.

JPMC

maintains an office at 800 Connecticut Avenue NW, Washington, DC 20006. JPMC is a whollyowned subsidiary of JPMorgan Chase & Co.,a corporation organized under t laws of the statc b
of Delaware.

9.

Washington Mutual Mortgage Securities Corporation C'WMMSC") is a Delaware

corporation. W M S C w s a wholly-owned subsidiary of WMB, and is currently a wl~ollya owned subsidiary of JPMC.

Case 1:OQ-cv-01656-RMC Document 32 Filed 09108110 Page 4 of 44

1'0.

WMB was the United States' largest savings and loan association wt total assets ih

of over $300 billion as of June 30,2008. On September 25,2008, the Director of the Office of

Thrift Supelvision COTS"), by Order Number 2008-36, shut down WMB and appointed the
FDIC as receiver for WMB. 1I.

On September 25,2008, JPMC entered into a hrchase and Assumption

Agreement datcd as ofthe same day (the 'QAA") with the FDIC, under which JPMC agreed to

purchase substantially all of WMB's

assets and assume substantially all of

its liabilities

(including WMMSC). The FAA was facilitated by the FDIC and the FDIC was a party to the

FA4 in botb its corporate capacity and as receiver for WMB. The PAA is incorgorated herein
by reference and attached hereto as M i b i t 2.
12.

In connection with JPMC's purchase of WMB, JPMC conducted a due diligence

review of WMB,including a review oPWMB's loan tapes and data and discussions with WMB

employees. 13. The Tiustee originally bmught this action againd the FDIC, receiver for W B . as

The FDIC now m rs that all of the liabilities with respect to the claims asserted by the Trustee et on behalf of the Trus.tshave been assumed by PMC. JPMC denies that it has assu~ned these liabilities. The Tmtee thus brings this action against WbfB and its successors or successors-ininterest, whoever they are adjudicated to be (collectively, "WaMul').

THE PROOF OF CLAIM AND OIUGNAL COWLAINT
14. On December 30,2008, the Trustee timely filed with the FDIC a Proof of Claim

on behalf of the Trusts and ihe Trustee piusuant to 12 U.S.C. 5 1821(d). The Proof of Claim.

which is incorporated herein by reference and attached hereto as Fxhibit 3, sets forth various
claims again&the FDIC relating to the Tmsts.

Case 1:09-cv-01656-RMC Document 32

Filed 09108/10 Page 5 of 44

15.

Pursuant to 12 U.S.C. 5 1821(d)(5)(A)(i), the FDIC should have determined

whether to allow or disallow the Ttusree's PNuf of Claim within 180 days of Deccmber 30,
2008.

16.

Pursuant to 12 U.S.C. 6 1821(d)(fi)(A)(iv), the FDIC was hrther required to give

the TruW notice of disallowance of its claims, which notice was required to contain "a statement:of each reason for the disallowance7'and "the procedures available for obtaining agency review of the determination to disallow the claim orjudicial determination of the claim."

17.

The FDIC failed b respond to the Proof of Claim and failad to issue any notice of

disallowance to the Trustee.
18.

Pursuant to 12 U.S.C. 182I(d)(B)(A#i), the FDIC's failure to respond timely to 5

the Proof of Claim triggered the T m W s right to "We suit on such claim in the distiict or territorial court of the Uniled States for the district within which the depository institution's principal place of business is located or thc United States District Court for the District of Columbia.(and such court shall have jurisdiction to hear such claim)" within 60 days thereafter.
19. On August 26,2009, the Trustee timely filed this action against the FDIC as

receiver for WMB.

JURJSDICTION . W VENUE
20. This action arises under the FDI Act, 12 U.S.C.8 1811 am., amended. The as

claims r a i d hereill include, without limitation, an appeal f o the FDIC's rejection, pursuant to rm
12 u.S.C. 5 1821(d)(6), of the Pmof of Claim by virtue of the FDIC's failure to respond to the

proof of claim, The staktorily-prescribed proper € o m for jurisdictionand venue for such an
appeal expressly includes the United States District Court for the District of Columbia. 12

*

-

1

-*.'

7

Case 1 :09-cv-01656-RMC Document 32

Filed 09/08/10 Page 6 of 44

U.S.C. 5 1821(d)(6). This Court has jurisdiction over the subject matter of this action pursuant
to 12 U.S.C. 21.

55 1819@)(2)(A), 182 l(d)(6) and 28 U.S.C. 5 1331.
The FDIC takes the position in its motion to dismiss the initial complaint (docket

entry 20) that pursuant to the PAA, the FDIC transferred to JPMC,and JPMC expressly agreed
to assume, all of WaMu's "Trust-related" liabilities and obligations, including "liability for all

Trust-related claims" ass&

in this action by the Trustee. The PAA was entered into pursuant

to and in furtherance of the federal statutory provisions governing the FDIC's administration of the receivership of WMB. Determination of the relahve rights and responsibilities of the FDIC and JPMC under the PAA is therefore a federal question pursuant to 12 U.S.C. 1821(d)(6) and 28U.S.C. 5 1331.
22.

55 1819@)(2)(A),

This Court also bas jurisdiction over the subject matter of this action pursuant to

2s U S.C. 8 1332. 23.

This Coue also hasjmisdiction over the state law claims in this action pursuant to

28 U.S.C. Ej 1367.

24.

Venue is proper in this Court pursuant to 12 U.S.C. 5 182l(d)(6) and 28 U.S.C.

9 1391(e).
BACKGROUND
A.
25.

WaMu sponsored mldlor otherwise participated in the isauance of mongage-

backed securities pursuant to which WaMu sold investors interests in residential mortgage loans originated by WaMu or by thud party loan originators from whom WaMu had acquired loans. These securities ale commonly refened to as "Residential Mortgage-Backed Securities" or

"RMBS."

Case 1:09-cv-O1656-RMC Document 32 Filed 09/08/10 page 7 of 44

26.

Many RMBS, inctuding most of the securities issued by a TmStS,are h te

established under a provision of the Tax Code allowing for the creation of a Real h b t e
Mortgage Investment Conduit (aUREMIC") which allows the issuance of multiple classes of securities in [rustcertificate form, with rnonthlypaymentsand no residual equity, that are treated as debt for tax purposes (plus an equity-like clas called the "residual interest"). Revenue Code $8 860A-860G.
27.

Internal

Securitization is acommon financing tool used to pool and convert fmancial

assets such as residential mortgages into financial instruments that can be sold U the capital I markets. Between 2000 and 2007, WaMu securitizedapproximtcly$77 billion in principal amnunt of subprime home mortgage loans.
28.

Al(hough the exact Sbuctures of RMBS transactions are varied and can be fairly

complex: the structure of the Primary Trusts, as well as most RMBS transactions, involves the following paTties:

a

Depositor and Seller: The depositor is the entity that acquires the pool of

mortgage loans and deposits theloans in a hust formed by the depositor pursuant to the governing documents for the transaction. The depositor assigns the legal and beneficial interest in the mortgage loans, including related coJ.l~teml, lhe trust. In many RMBS to transactions, the depositor purchases the mortgage loans Ikom another entity, referred to

as the seller, and deposits the pool of loans into the trust. As set fonh in Exhibit 1-A,
with respect to the Primary TNsts, WaMu served as the Depositor andtor Seller for 97 of the 99 Primmy T u t . Thmugh a series of assignments and other agreements, WaMu rss indirectly undertook responsibilities substantially similar to those of a Depositor or Seller two for the remai~i~ig Primary T~usts. Exhibit I -A, n.1.

,=-=-=

\.

1

'

*:-' J

Case l:09-cv-01656-RMC Document 32

Filed 09/08/70 Page 8 of 44

b.

The Trust: The trust purchases the mortgage loans Born the depositor

and issues RIVIBS,which represent specific interests in and entitlements to the cash flows derived from the trust's assets (k mortgage loans). The governing docun~ent~ the forming the trust typically appoint an independent trustee and specify the m t e e ' s rights, responsibilities and powers in respect ofthe FMBS transaction. c. Jnvestors: By purchasing RMBS, investors acquire the right to receive

monies ftom the cash flows of the underlying mortgage loans held as trust assets or collateral hy the trust (in the form of borrower payments of principal and interest and proceeds fmm the liquidation of loan collateral). Those cash flows are applied to payment of the RMBS pursuant to a contmctually specified distribution plan and schedule. d. Servicer: The service1 is the day-to-day admillistrator of the mortgage

loan assets held by the trust. Under the governing documents forming the trust, the servicer is required to administer the mortgage loans in the best interest8 of RMBS investors. The senicer's responsibilities include collecting payments due f o the rm borrowers, remitting those payments to the trust for uItimate payment to the mvestors, and Eurnishing the trustee or a securities administrator #tb perfonname data regarding the mortgage loans in the pool. Thc servicer-generated data is used to calculate the distribution of funds and report pool performance to investors. The servicer also default on their conducts all remedial activity on behalf of the tmst when l~ortowers loans. Sucl~ remedial servicing activity requires the senricer to review relevant loan files,

act as the trust's sole source of contact with the borrower, and inquire into the status of

thc borrower and the mortgage loan collateral. As set forth in Exhibit I -A, WaMu is the

Case 1:09-cv-01656-RMC Document 32 Filed 09/08/10 Page 9 of 44

Servicer or Masm Servicer for the mortgage loans included in the Primary Trusts, in addition to serving as the Depositor and Selleras set forth above.
B.

WaMo's C o n t r a c @ l

(1)
29.

The Governin~Doeuments the Trusts for
The dutias and responsibilities ofthe various parties to finRMBS transaction are

set forth in the governing securitization documents. These documents generally include a mortgageloan purchase agreement (''MLPA'') md a pooling and servicing agreement ("PSA'?. The MLPA and PSA provide for the sale of the mortgage loans and containrepresentations,
warranties and covmlvlts made by the seller andtor depositor concerning the nature,

characteristics, history and quality of the mortgage loans nnd mortgage Ioan files soId to, and deposited in, the ttusts. These documents also provide for the establishment and administration ofthe Wst, includikg setting forth the responsibilities and duties of the depositor, hstee, seller,

and sewicer wiih respect to the trust.
30.

The PSAs and MLPA8 for the P i a y T~usls listed in Exhibit 1-A. The rmr are

relevant agreements for the Secondary Trusts are listed in Exhibit I-B. Bectronic copies of the documents referenced in Exhibits I-A and 1-Bare G n g submitted to tlte Court and the padies as

Exhibit 4 and are i~zcorporated herein by reference. The PSAs and MLPAs for the Primary
Tmts aml the relevant agreemetlts for the Secondary Trusts (each a ''Governing Document" and collectivetly, with ail related ancillary documents and agreements for the Trusts, the "Governing

Documents") contain representations, warranties and covenants made by WaMu,as Seller andlor
Depositor, concerning the nature, characteristics, history and quality of the mortgage loans and

mortgage-Ioanmes sold to, and deposited in, the Trusts (the "Representations and Warranties'')).

Case 1 :09-cv-01656-RMC Document 32

Filed 09/08/10 Page 10 of 44

The Governing Documents assign to the Trustee the right t enforce the Representations and o Warranties for the benefit of the Trusts' beneficiaries.
3 1.

The Governing Documents represent an integrated set of contractual undertakings

on behalf of WaMu with respect to the formation of the Trusts and the servicing by WaMu of the loans sold t ,and deposited in, the Trusts. o 32.
33.

contmct that is not divisible. Each Governing Document is a u n i t a ~ ~ The Governing Documentq are executory contracts that involve obligations that

are ongomng, mutual, and interrelated. 34.
l'lie Governing Documents are fully integrated "Qualified Financial Co~hcts''

under 12 U S C 4 1821(e)(8)@) and, as such, they must be t r a n s f e d or retained in whole by ...

the FDIC as receiver for WMB. 12 U.S.C. Q 1821(eX9)(i)-(ii). 35.
12 U.S.C.5 1821(e)(2) reqrnres the FDIC to make any determination to repud~ate

or dissafirm a conttact of a failed institution for which it acts as receiver 'Within a reasonable time" following its appointment as receiver.
36.

The FDIC has not within a reasonable time made a determination to exercise any

nght, as receiver for WMB, to repudiate or disaffm any Governing Document pursuant to 12

U.S.C. 5 lRZl(e)(l).

37.

Given the passage of two years since the FDIC was appointed as receiver for

WMB, the FDIC can no longer make such detaination to repudiate or dissafm "within a
reaso~~able following its appointment and is now barred from repudiating or disaffirming time" any Coveming Document. 38. The PAA expressly provides that JPMC "specifically assumes all mortgage

PAA (Exhibit 2), 5 2.1. servicing rights and obligations of [WMB]."

Case 1:09-cv-01656-RMC Document 32

Filed 09/08/10 Page 11 of 44

39.

The FDIC assigned to JPMC, and JPMChas assumed, all mortgage senicing

rigllts and obligatjons of WaMu to the extent provided in the PAA.
40.

The mottgage servichtg rights and obligations of WaMu with respect to the Tnists

arose under the Governing Documa~ts.
4 1.

To assign to JPMC any rights and obligations under the Governing Documents,

the FDIC, as receiver for WMB, was required first to assume, and not repudiate or disaffirm, sucl~ Goveming Documents.

42.

The Govenling Docunients:
a. are all in writing;
b. were all executed by WaMu and DBNTC,a Trustee, at the time the associated s

property interests were transferred;

c. were executed on behalf of WaMu by individuals duly authorized by the
applicable WaMu entity's Board of Directors; d. have been continuously in existence, since the lime of execution, and constitute ofiicial books and records of WaMu; and e. constituted official books and records of WMB at the time ofWMB's closing on September 25,2008.
43.
WaMu's obligations under the Governing Documents include both the

Representations and Warranties as well as continuh~lg obligations that require WaMu to, among other things: (i) give ptompt written notice to the Trustee and other parties of any breach of the Representations and Warranties that has amateria1 and adverse effect on the value of the mortgageloans in the Tmsts or the interests of the Trusts therein; (ii) cure the breach of the
Rep~ese11talions Warranties in all material reqects, repurchase the mortgage loans at a and

Case 1:09-cv-01656-RMC Document 32 Filed 09/08/10 Page 12 of 4 4

specified repurchase price, or substitute for the affectsd mortgage loans; (iii) provide the Trustee and other parties with access to all records maintained by WaMu as Servicer in respect of WaMu's rights and obligahons under the Governing Documents and access to officers of WaMu responsible for such obligations; and (iv) to indemnify the Trustee for any losses or expenses incurred by the Tmstee in, among other things, enforcing the rights of the Trusts and their beneficiaries.
44.

As Seller, Depositor and/or Servicer, WaMu has possession of documents and

other information concerning the mortgage loans in the Trusts that are not i the possession of n the Tmstee or other parties acting on behalf of the Trusts, which documents may wnfirm whether a particular mortgage loau in the Trusta is inbreacli of any of the Representations and Warranties. Such doculnents and other information includcs origination and underwriting files,

servicing records, borrower statements both recorded on tapc and transcribed into servicing
notes, borrower statements made during the or~gination the loan, payment histories, and of borrower correspondence.
(2)
45.

WaMu's Representutions and Warranties h connection with each of the Prima~y Trusts, WaMu, in its various capacities,

made Representationsand Warranties in the Governing Documents for each of the Primary
Trusts. Whilc thc specific Representations and Wananties made by WaMu, as Seller andlor
Depositor or in various other capacities, are not identical for each of the Primaiy Trusts: they

gonerally include Representations and Warranties I y WaMu regarding the undmriting of the morlgage loans, the loan to value ratios for the mortgage loans, and compliance of the loans with local, state and federal laws.

-'?
Case 1:09-cv-01656-RMC

.--

-7

Document 32 Filed 09/08/10 Page 24 of 44

62.

Attached as Exhibit 7 is a chart indicating some of the ~OntracNal provisions in

Ute Governing Documents setting forth the Access Rights and the IndemnificationRights with respect to each Primary Trust.
(6)
63..

WaMu's Servicinrt Obli~ations

T e Governing Documents for each Primary Trust further provide that WaMu h

must m i c e and administer the mortgage loansin ihe TNsts on behalf of ihe Tmstcc, and in the

best interests of, and for the benefit of, the Trusts' beneficiaries, in a particular manner (the
"Servicing Obligations"). These Servicing Obligations are set forth in the Governing Documents for each Primary Trust. By way of example, these Servicing Obligations are set fcath in Section

3.01 of the %A for the Long Beach Morlgage Loan Tmst, Series 2006-4 (Issue ID No. LB0604),
in petinent part, as follows: The Master Sewiccr shall service and administer the Mortgage Lomis on behalf of the Trustee and in the best interests of and for the benefit of the Certificateholders

(as determined by the Master Servicer in its reasonable judgment) in accordance
with the terms of this Agreement and the respective Mortgage Loans and, to the

extent consistentwith such terms, in the satnc manner in which it services and
administers similnr mortgage loans for its own portfolio, giving due consideration
to

custolnary and usual standards of practice o f mortgage lenders and loan

servicem administering similar morlgage loans in the local areas where the related
Mortgaged Property is located but witkotlt regard to: (i] any relationship that the
Master Servicer, any Sub-Servicm or any Affiliate of the Master Servicer or any

Sub-Servicer may have with the related Mortgagor; (ii) the ownership or nonownership ofany Ceaifieah by the M s e SRvicer or any Afifiliate of the atr

mast^

Case 2:09-cv-01656-RMC Document 32

Flled 09/08/10 Page 25 of 44

Servicer; (iii) the Master Servicer's obligation to make Advances or Servicing

Advar~ces; (iv) the Master Servicer's or any SubServicer's right to receive or
compensation for its services hereunder or with respect to any particular transaction.
64.

Under many of the PSAs for the Primary Tmsts, the Servicer is obligated to

rs enforce the Repurchase Obligations on behalf of the T u t to the extent that it is not the Seller.

See, $5 -- u,2.03(a), 3.02(b) of tile PSA for the LBO602 Tmst.

C.

WaMu Breached the Re~resentatlons Warranties and 65. In April 2010,the United States Senate Subcommittee on Investigations (the

"Senate Subcommittee") held hearings about WaMu's originalion and securitization of mortgage
loans. Rased on the Senate Subcommittee's findings, as well as the reports of other governmen agencies, the Trustee has reason to believe that many of the morigage loans in t t c hh
Trusts do not comply with fl~c Representations and Warranties and that WaMu breached the

Representations and Wartanties, which breaches had a material and adverse effect on the value of the loans or the interests of the Trusts therein.
66.

Because WaMu has denied the Trustee access to records maintained by WaMu, as

Servicer, and has repeatedly refused to honor the Trustee's contractual Access Rights, the Trustee is unable to specifically identify particuiar morrgage kmns with respect to which there ]lavebeen such breaches of particular Representations and Warranties. Notwithstanding, there is
a reasonnfile basis to conclude that many of the mortgage loans included in

the Trusts do not

comply with the Representations and Warranties, and thar WaMu brcciched the Representations and Warranties, which breaches had a material and adverae effecton the value of the loans or the interests of the TNSU therein.

Case 1 :09-cv-01656-RMC Document 32

Filed 09108110 Page 26 of 44

67.

The Senate Subcommittee investigation covered both WaMu's Wholesale

Special$ Lending division ("Specialty Lending") and WaMu's Mutual Mortgage Securities division ("Mutual Mortgage"). The Senate Subcommittee found that between 2000 and 2007, WaMu's Specialty Lending, &,subprime lending, sponsored 46 securitizations with a total original collateral balance of approximately $77 billion. These securitizationswere primarily by WaMu's Long Beach Momage Company (Tang Beach") affiliate. The Primary Trusts include
43 of the 46 subprime securitizationsreferenced in the Senate Committee report, with a t t l oa

original collateral balance of approximately $73 billion - or over 95 percent of all of WaMu's subprime securitiTations during the time period.

p g

before the Pemnent Subcomm. On Inves!i~at@, April 13,2010, ('Subcommittee Hearing'?, Hearing Ex. #45.
68.

Exhibit 1-A (Trusts 1-43).

The remaining Pn'mary Trusts, with a total original collateral balance of

apptoximately $92 billion, account for nearly half of the securitizations of WaMu's Mutual Mortgage division between 2000 and 2007 that were analyzed by the Senate Subcomn~ittee.Id., Hearing Ex. #46.

69.

The Senak Subcommittee found that WaMu selected and secmifized loans that

it had identified as likely to go delinquent, withwf disclosing its analysis to investors who
bought the securities. " The Senate Subcommittee also found that WaMu "securitized loans

tainted by fraudulent information, without notifingpurchasers o f thefiaud that wos
di,~eovered."J,Hearing Ex.#la, atp. 6 (emphasis added). k.
70.

The Senate Subcommittee report, associated hearings, and documents released

(collectively, the "Senate Record") provide multiple examples of related tothose l~earings WnMu's breaches of Representations and Warranties. For example, the Senate Record indicates

Case 1:09-cv-01656-RMC Document 32

Filed 09108110 Page 27 of 44

that WaMu lacked effective internal controls, uaed shoddy lending practices, perfomd inadequate underwriting, failed to follow procedures, and committed critical errors. m1ese practices by WaMu breached the Governing Documents, including, but not limited to, Sections 6(vi), (ix);(xvij), (xxii), (xxxii), (xxxvii), (xlviii), and (Iviii) of the MLPA, which, in turn, triggered WaMu's Repurchase and Notice Obligations with respect to the mortgage loans in the
Tmsol.

See.u, Exhibits 47.
(1)
71.

The Senate SubcomitteeFindines

In addition to the extensive evidence that WaMu's securitized loans breached the

Represen@tions and Wmnties, the Senate Subcommittee also found evidence that WnMu discovered and/or had notice of these breaches, which. in turn, triggered its Repurchase and Notice Obligations, and that WaMu failed to notify RMRS investors and others who purchased the loans of these breaches. & Subcommittee Hearing, Hearing Ex. #la, at p. 6; 7 69 w. 72. The Senate Subcommittee made the following "hdings of fact related to

Washington Mutual B

e and its parent holding company, Washington Mutual Inc."

a. 6LShoddy Lending Pmetkes. WaMu and its affiliate Long Beach Mortgage

Company ("Long Beach"), used shoddy lending practices riddled with credit, compliance, and operation deficiencies to make tens of thousands of high risk
home loans that too often contained excessive risk, fraudulent information, or

errors."
b. "Securitizing Delinquency-Prone and Fraudulent h m s . At times, WaMu
selected and securitized loans that it had identified as likely to go delinquent, disclosing its analysis b investors who bought the securities, and also

Case 1:09-cv-01656-RMC Document 32

Flled 09/08/10 Page 28 of 44

securitized loans tainted by hudulent information, without 11oti-g of the fraud that was discovered.''
73.

purchasers

Id.

These practices by WaMu breached the Governing Documents, including, but not

limited to,Sections 6(xxii), (xxxii), (mvii), (xlviii), and (lviii) of the MLPA, which, in m,
triggered WaMu's Repurchase and Notice Obligations withrcspect to the mortgage loans in tl~e

Trusts See, s, Exhibits 6, 7.

74.

Based upon: (a) the pervasiveness of such practices by WaMu, as found by the

Senate Subcommittee; and (b) the high proportion of W a u ' s mcuritid mortgage loans that were sold to, or deposited in, the Trusts during tbe relevant time period, the Trustee has reason to believe that such practices affected mortgage loans sold to, or deposited in, the Trusts by WaMu

rss and that, accordingly, many of the mortgage loans in the T u t do not comply with the
Representations and Warranties. Thus, WaMu breached the Representations and Warranties, which breaches bad a material and adverse effect on the value of the moltgage loans in the Trusts or the interests of the Trusts therein, which, in turn, eiggered WaMu's Repurchase and Notice Obligations with respect to the mortgage loans in the Trusts.

75.

The extent of such pract~ces WaMu and WaMu's discovery andlor notice of by

the breaches of the Representations and Warranties is further evidenced by the following excerpt from the Senate Subcommittee's report: Over the years, both Long Beach and Washington Mutual were the subject of

rcpeated criticisms by the bank's internal auditors and wiewers, as well as its

I

regulators, OTS and the FDIC, for deficient lending and securimation practices. Long Reach loans repeatedly suffered from early payment defaults, poor u n d e ~ i t i n g fraud, and high delinquency rates. Its mortgage hcked securities ,

Federal Depoeit Insurance Corporation as Receiver for:

-

Wmhimgton Mum1 Bank
mama dBenlilFlhanoialbsiM5tlMd to&!~)

PROOF OF CLAIM

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.

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srniieilaref0 IO oomldsnd and o e n l e d a c ~ t

SsN/Taa M # (1)

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The undersigned. (2) Barbam Campbell, Vlce Presldent
says that the
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justly lndabted to (3)
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now in IlquldaUon is In the sum of

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(~~rmndmatelY, AItwhment 41 see

DCAars upon me loilwlng Clalm:

me undersigned further states that helshe makes this Claim on behalf d
that no &of

said debt has been paid. that
~ d i v i d r a l l J o l w C ~ ~ ~ W F m ~ u n ~ ) e or any p r t thereof, and that h r e is no seb-cff or

(8) akutechrB--tC-mY

has given n endorsement w asaignmsnt of the m o

cwntarcklm. or ollrer legal or equitable defame to said Clalm or any part thereof.
N W E (9)

Barb-

Campbelt

. VIce President
(~rppaa*)
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ADORESS (19) 1751 East St WC.W PI

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CITYISTATWFLIP

Sants Ana, CA 92'705-4934
714-247+278

TELEPHONE NUMBER

The panally lor knowingly making o hvBw~wlienw ary hhw, r af Wed, orcountartell sllement, aawmant ormlng lor tne purpose olinfiuendngh eny way the aCIbn o ha Fehc3l klrsl lMumncs&~ratlon is a flne d nol marc l rnm %r,oon.o~M orimpmomnentfixnot nxae than M i pars, ar Po#l (18 U 8 C Section IW7). ...

Case 1:09-cv-01656-RMC Document 56 Filed 01/14/11 Page 1 of 54

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee of the Tmsts listed in Exbihits I-A and I-B.
Plaintiff,
v.
as receiver for Wa,himtonMutual Bank: JPMORGAN

Case No.: 1:09-CV-1656-RMC Hon. Rosemary M. Collyer

FEDERAL DEPOSIT INSURANCE CORPORATION,
CHASE BANK, ~ational Association; and WASHINGTON MUTUAL MORTGAGE SECURITIES CORPORATION,

Defendants.

PLAlNTKFF DEUTSCHE RANK NATIONAL TRUST COMPANY'S MEMOWDUM

OF LAW IN OPPOSITION TO:
(I)
(11)

FDIC RECEIVER'S MOTION TO DISMXSS;

JPMORGAN CEASE BANK, N-A. AND WASEINGTON MUTUAL MORTGAGE SECURITIESCORPORATION'S MOTION TO DWMfSS; A m MORTGAGE SECUWTIES CORPORATION'S MOTION FOR PARTIAL SUMMARY JUDChSA'T

(III) JPMORGAN CHASE BANK, N.A. AND WASHINGTON MUTUAL

DOIES, SCHILLER & FLEXNER LLP

TALCOTT FRANKLM P.C.
208 North Market Street, Suite 200 Dallav, Texas 75202 Phone: (2 14) 736-8730 Fax: (877) 577-1356

333 Mnin Street
Armonk, NY 10504 Phone: (9 14) 749-8200 Fax: (914) 749-8300

Case 1:D9-cv-01656-RMC Document 56

Filed D1/14/11 Page 10 of 54

Plaintiff Deutsche BankNationd Ttust Company, as Trustee for thc Trwts listed i*1. Exhibits 1-A and 1-B of the Amended Complaint ("DRNTC" or the "Twtee") respectfully submits this memorandum of law in opposition to: (i) FDIC Receiver's Motion to Dismiss dated November 22,2010: (ii) Phiorgan Chase Banlc,Nationd Association (".lPMC") and Wsshington Mutual Mortgage Securities Corporation's ("WMMSC"') motion to dismiss dated November 22,2010; and (iii) JPMC and WMMSC's motion fox partial summary judgment dated November 22,2010.
PRELLIMZIYARY STATEMENT'

.

A number of core facts are undisputed:

Thc FDIC became receiver for Washington Mutual Bank on September 25,2008. Pursuant to a Whole Bank Purchase and Assumption Agreement ("PAA" or "P&A") of that same date between J P K and the FDIC,JPMC assumed all of Washington Mutual Bank's "mortgage servicing rights and obligations." PAA 55 2.1,3.1. The Trustee timely filed with the FDIC, as receiver for Washington Mutual Bank, a proof ofclaim, a copy of which is set forth as Exhibit 3 to the Amended Complaint, and the FDIC failed to make any determination to allow or disallow the claims asserted therein within the 180-day period mandated by 12 U.S.C. 1821(d)(5)(A)(i). 8

0

JPMC, as Servicer for the Trusts, is in sole possession of the over half million loan files
owned by the T1I1StS.

For eane of reference, all undefined terms follow the abbreviations in the Amended Complaint ("AC"). Citations to exhibits are to the Declaration of Jason S. Cohen dated November 22,2010, submitted by the FDIC with its Motion ("Cohen Dec. Ex."), the Declaration of Brent J. Mclntosh dated November 22,2010, submitted by JPMC with its Motion ("Mclntosh Dec. Ex.") or to the Declaration of Motty S h u l m dated January 14,2011, submitted by UBN'CC with this Memorandum of Law f'Shulman Dec. E . ) x".

'

Case 1:09-cv-01656-RMC Document 56 Filed 01M4J11 Page 11 of 54

Pursuant to its contractual rights under thc Governing Documents, the Trustee Ims made a writte~i request to JPMC for access to, and review of, all the loan files and JPMC has to date refused that request. Nonc o f WaMu, JPMC, the FDIC has provided DBNTC with contractually required or notice of breaches of the Representations and Warranties set folth in fie Governing Documents.
Against thase facts, the present motlons present three fundrunciital legal issues: (i) do the

breach of contmt claims brought by the Trustee adequately state a claim on which relief could be granted; (ii) arc the claims brought by the Trustee barred by the governing statute of limitations; and (iii) is it the FDIC or JPMC (or some combination of the two) that is responnihle

for any liability on the claims alleged? JPMC alone raises the pleading and statute of Timitations
issues (the FDIC moved against the original compIaint on pleading grounds, but has not renewed
that motion against the Amended Complaint).

Each of the FDJC and JPMCcontend that the

PAA -which governs who is liable on rhe claims alleged- is unambiguous and directs that the
other is liable.
As detailed below, PMC's pleading and statute of litnitations arguments are entirely

baseless. For tbe reasons set f&

below, as well as in tbe Memorandum of Law accompanying

the FDIC's motloll to dis~~liss claims against it, it is apparent that JPMC i~t l ~ c the responsible
par& and that the litigation should proceed against it without delay. In addition, until and unless
this Court determines that JPMC has assumed all of the liabilities under the Governing

Doc~iments, Trustee's claims agaiast the FDIC, as receiver of Washington Mutual Bank, the

shollld not be dismissed because the proof of claim clearly asserts all ~Iainls rorth in set

Case 1:09-cv-01656-RMC Document 55-t

Filed 11/22/10 Page 1 of39

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
DEUTSCHE BANK NATIONAL TRUST COMPANY,as Tmstee for the Trusts listed in Exhibits I-A and I-R,

I

Plaintiff,
v.
FEDERAL DEPOSIT INSURANCE

1

Case No. 1:09-cv-1656 (RMC)

CORPORATION,as receiver for Piashington Mutual Bank; .TPMORGAN CHASE BANK. National Association; and
WASllMGTON MIJ'I.UA12 MORTOI\GD
SECURITIES COIZPOMTION,

i

Defendants.

I

MEMORAM)UM OF POINTS AND AUTHORITIES L SUPPORT N OF JPMORGAN CHASE BANK, N.A. AND WASHINGTON MUTUAL

MORTGAGE SECURITIES CORPORATION'S MOTION TO DISMISS
AND MOTION FOR PARTIAL SUMMARY JUDGMENT

Robert A. Saclts (admitted pro hnc nce) Stacey R. Friedman (admitted pro hac vice) SULLIVAN & CROMWELL LLP 125Broad Street New York, New York 10004
Telephone: (212) 558-4000 Facsimile: (212) 558-3588

Brent J. Mclntosh (D.C. Bar No. 99 1470) Henry C. Quillen (D.C. Bax No. 986686) SULLIVAU & CROMWELL LLP
1701 Pennsylvania Avenue, N.W.

Washington, D.C. 20006 Telephone: (202) 956-7500 F c i i e (2U2) 293-6330 asml:
Counselfor Defe~idonfs JPMo~gan Chase Bank,N.A. and Washington Mutual Mongage
Securities C o ~ o r a t i o n

November 22,20 10

I. r k s

Case 1:09-cv-01656-RMC Document 55-1

Filed 11122110 Page 7 of 39

Defendants JPMorgan Chase Bank, N.A. ("JPMC') and Washington Mutual Mortgage Securities Corporation ('WMMSC") respectfully submit this men~orandum points and authorities in support of their motion to dismiss the Aznended of Complaint of Deutsche Bank Nationel Trust Company C?)eutsche Bank") and motion for

~artial summary judgment.

PRELTMINARY STATEMENT
Det~tsche Bank purports to be bustee for trusts that own or have owned over half a million individual mortgage loans, each with its own history of origination and performance. The loans were. sold into the trusts without recaurse, meaning that the loan sales were final and not to be unwound except in specified circumstances. One circumstance the parties expressly contemplated in the sale agreements was that some of the loans did not fulfill representations and warranties the sellers made regarding each loan. Tne agreements governing the loan sales expressly provide that if a loan breaches a representation or warranty and the breach Imd a material and adverse effect 011 the value of the loan and the breach c m o t be cured, there is a " d e and exclusive" specific performance remedy--the loan itself must be bought out of the trust, or "repurchased,"

by the entity that deposited or sold it into the rn~st.Absent these showings, there is no

iepurchase and the sale stands.

Rather than follow this oontractually agreed-upon process or limit itself to
the sole remedy provided under the Agreements, Deutsche Bank seeks a monetary award

equal to repurchase of countless unspecified loans without regard for these contractual limitations. Deutsche Bank's Amended Complaint purportedly pleads breach of contract

Case 1:09-cv-01656-RMC Document 55-1 Filed 11/22/10 Page 8 of 39

by alluding to 1,031 loan-specific representations and warranties and 394 obligations (for
a total of 1,425provisions) that are contained in 179 different agreements that govern 99 "primary trusts" and 28 "secondary trusts"' that own or have owned over half a million loans originated over the past 15 years that may (or may not) have k e n ''mate~ially and adversely" affected by breaches that may (or may not) have occurred, and therefore concludes that Defendants-the Federal Deposit Insurance Corporation ( F I " , m " D C )J ,

WP&ISC or some combition thereof--are liable to the trusts for damages of $6 to $10
billion. While Deutsche Bank uses very large numbers, the most important number here is actually zwo. zero is the number of contractual provisions that Deubhe Bank actually identifies as having been breached with regard to a specific loan. Zero is the number of breaches Deutsche Bank even tries to show had a material and adverse effect on n specified loan so as to give rise to the contractual right to bring the notice and repurchase claims it seeks to pursue. And 2 x 1 the amount of damages Deutsche Bank is can iu any event seek to recover on the back of such putported claims, given that the
"sole and exclusive" remedy contained in each of the 179 different contracts at issue is

loan-by-loan repurchase. These omissions are not mere pleading defects-though they are certainly

that. These omissions are contractual impediments to Deutsche Bank's claims: 'Ihe

Deutsche Bank agreements all feature prnvisio~~s strictly limiting the remedy available

As explained at footnote 6, the trusts that Deutsche Bank refers to es the "primary are the trusts at i m e here. The number of agreements that govern the trusts is not known f51 certain, but Deutsehe Bank filed with the Coua 179 agreements that purpoa to govern the trusts.
trusts"

I

Case 1:09-cv-01656-RMC Document 55-1

Filed 11122M0 Page 9 of 39

for breaches of representations and warranties about mortgage loans in three critical ways. First, breaches of representations and warranties are not actionable in the aggregate, hut only as to individual loam Second, as to repurchase of individual loans, breaches are not actionable absent a demonstrable material and adverse effect on the value of the particular loaa in question. And hird, even in the event of a breach that has

a material and adverse effect on the value of a particular loan, the breach is not actionable
in a damages action. Deutsche Bank's exclusive remedy is repurchase of any offendrng

loan, a contractnal limitation that courts in New York and Delaware routinely enforcc. Deutsche B n ' impermissible attempt to end-run these and o & e ~ aks contractunl and legal limitations should lead to dismissal of the Amended Complaint for four reasons: (1) Deutsche Bank, by its own admission, has not identified even one mortgage loan as to which any Defendant has breached any provision, let alone a breach that had a material and adverse effect on the value of that loan; (2) the remedy being sought, moiiey damages, is contractually impermissible; (3) the separate claim arising

from the assertion that Deutsche Bank was denied access to 61 loan files does not give
rise to any liability or provide any legal basis for a breach of contrnct claim on the more than half a million loans at issue in this litigation; and (4) Deutsche Bank has pleaded no facts to suggest its claims comply with the applicable statutes of limitations that hat claims by trusts, some ofwhich were establiihed as early as 1992. Moreover, not only are these claim impropmly pleaded, but any liability for failure to repurchase loans remains with the FDIC. In the Purchase and Assumption Agreement between the JPMC and the FDIC (the "P&A Agreement"), by which JPMC -red uninte~pted banking sewice kn the milIions of customers of Washington

Case 1:09-cv-01656-RMC Document 55-1

Filed 11/22/10 Page 10 of 39

Mutual Bank ("WMB"), JPMC assumed only those liabilities that had a "Book Value" on
1

I

WMB's "Books and Records" when WMB was closed. In doing so, IPMC took on billions of dollars in potential liabilities, with no govement assistance. Tl~rougli this action, Deutsche Bank and the FDIC seek to dramatically increase the scope of the liabilities JPMC assumed, in direct contravention of the explicit terms of the P&A Agreement. But under welI-sstabIished law, an unliquidated claim for damages, such as Deutsche Bank's, had no Book Value and was not reflected on WMB's Books and Records. Thus, .PMC never assumed any liability for Deutsche Bank's claims from the

1

FDIC under the P&A Agreement. And if for some reason IPMC were deemed to have
assumed such liability by some means other than express assumption under the P&A Agreement, then under dserent provisions of the same agreement the FDIC must indemnify WMC in full. For these reasons, which are evident from the plain language of
h e p&A Agreement, partial summary judgment should be granted on Deutsche Bank's

declaratory judgment claim, finding that the FDIC bears all liabilily to Deutsche Badeither directly or through an obligation to indemnify IPMC.

BACKGROUND
This case involves a business in which WMB and its subsidiaries and Deutsche Bank a11 participated: securitizing and servicing mortgage loans. Although every mortgage-backed securitization substantively differs from every other, most share the same general structure. The following example shows how WMB, its subsidiaries, and Deutsche Balk worked together to create the mortgage-backed securities at issue here.

Case 7:09-cv-01656-RMC Document 55-1

Rled 11/22/10 Page 11 of 39

The fmt step in the muritization process is the origination of a mortgage loan. In this example, WMJ3issues a mmtgage to a honower. WMB now owns the mortgage loan and thus is entitled to the borrower's future payments of principal and interest. WMB then agrees to sell the loan, and others like it, to its affiliate, WMMSC,

In some msactions, this agreement is known as a Mortgage Loan Purchase Agreement
("MLPA"). Under an MLPA, the company selling the loans is the "Seller," and the company purchasing the loans is the "Pucchaser." And the Seller @ere WMB) makes representations and warranties to the buyer @ere WMMSC) regarding various aspects of the loans being sold. Next, WMMSC and Deutsche Bank enter into a Pooling and Servicing
Agreement ("PSA"). (See, e.g., WAOSAI? PSA (Docket Item 43-14)) Under tbe PSA,

\VMMSC sells the mortgage loans to a trust for which Deutsche Bank is the Trustee. (Id.

g 2.04.) In this capacity, WMMSC is known as the Depositor. As Depositor, WMMSC
similarly makes a variety of representations and warranties specific to each loan it is
selling. For example, "[a]s of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mattgaged Property." (Id. .(j 2.08(v).)~ To protect a variety of accounting and tax benefits in connection with the .sale, the loa11sare sold "without

recourse." (Id, 4 2.04.) Because the sale is non-recourse, the Depositor cannot at its
Abbreviations such as "WAOSAI" refer to individual trusts as listed in Exhibil 1A to the Amended Complaint and in Deutsche Bank's filings of the ~elevant agreements with the Courf. (Docket Items 34-44.)
In some transactions. including the ''Long Beach" bansactions Iisted in Exhibit 1A to the Amended Complaint, these representations and warranties are made in the MLPA by the Seller. For consistency, JPMC will refer to these representations and wananties as the Seller's, although who has the ultimate obligation varies among the agreements.
3

2

.
Case 1:09-cv-01656-RMC Document 55-1

Filed 11/22/10 Page 12 of 39

discretion remove the loans from the trust, even if it would be profitable to do so.

Reciprocally, investors carnot demand that loans be repurchased, except in specified
circumstances. The terms of the PSAs contemplate the possibility that some of the mortgage loans sold to the kust may be found to breach the Seller's representations and warranties, and that some of these breaches may materially md adversely affect the value of a particular mortgage loan or the interests of the trust in that loan. (Id. 3 2.08.) in general, a party that discovers such a breach must notify the otherparties. (Id.) Once such a material and adverse breach is discovered and any necessary notice is given, the

PSA provides for a veIy specific-and

very loan-specific-process

for remedying the

breach. (Id.) As to any particular mortgage loan that breaches a representation or warranty in a manner that has a material and adverse e e c t on the value of the loan, all of
the PSAs provide for t h r u d only three--remedies: The Seller can (1) cure the breach, (2) substitute another mortgage loan into the trust in place of the breaching loan, or (3) repurchase the breaching loan from the trust. (Id.) All of the PSAs are explicit that t b m are the sole and exclusive remedies

fw breaches of representations and warranties. At some point in time-usually two years
after closing of the securitization-Lhe option of substituting a different mortgage is m

longer available, again to abide by certain accounting rules and benefit from certain t x a &=went. (Id. J 2.07.) Thus, in instances in which the Seller is unable to cure the defect in the loan (often by providing missing documentation), it is correct to say that, after the wbstitution period has passed, repurchase is the lone remaining remedy for breaches of representations and warranties. (Id. 5 2.08.)

Case 1:09-cv-01656-RMC Document 55-1

Filed 11/22/10 Page 13 of 39

While this struclure is consistent from PSA to PSA, other terms of the

PSAs differ. For example, in somePSAs, the obligation to repurchase a loan arises when
any party notifies the Seller (or Depositor) of a breach that has a material and adverse effect on the value of the underlying loan. (E.g., id.) In other PSAs, only notice by the Trustee will trigger the repurchase obligation. (E.g., LB0602,PSA 4 2.03(a) (Docket
It& 39-25).)

In 2007 and 2008, a nationwide collapse in the housing market, especially
for subprilne mortgages (which were included in many of the securitization8 at issue

here), led to losses for the trusts as b m w e r s became anable to repay their moItgage loans. On September 25,2008, WMB was closed by federal regulators and placed into receivership with the FDIC. On the same day, the FDIC sold virtually all of WMB's assets and certain of its liabilities to JPMC pursuant to the P&A Agreement. (Amended Complaint Ex. 2 (P&A Agreement) 54 2.1,3.1.) This transaction allowed WhAB's
bry~ches continue serving the public, including its millions of depositon, without any to

interruption from WMB's failure. On December 30,2008, Deutsche Bank filed a proof of claim with the

FDIC as receiver for WMB, claiming that WMB and ils affiliates breached PSAs by,
among other things, failing to notify Deutsche Bank of breaches of the Seller's representations and wananties and to repurchase breaching mortgage loans. (Amended Complaint Ex. 3.) The FDIC implicitly denied Deutsche Bank's proof of claim by declining to act oz it, and Deutsche Bank &xi a Complaint against the FDIC, making argrime~~ts similar to those in its proof of claim. (Docket Item 1.) After the FDIC moved to dismiss the Complaint on the grounds that JPMClud assumed liability for these claim.

Case 1~09-cv-01658-RMC Document 55-1 Filed 11/22/10 Page 16 of 39

must have been a breach of contract-notwithstanding

its Lilure to supports its guess

wit11 factual sllegations-is

not entitled to the presumption of truth. See Ashcrojt v.

Iqbol, 129 S. Ct. 1937, 1950 (2009). Deutschc Bmk is speculating, not pleading-a
tactic that cannot survive a motion to dismiss. See .Twombly,550 U.S. at 555.

Secod, with regard to the repurchase claim, Deutsche Bank seeks money

dafnages of $6 to $10 billion. (Amended Complaint 7 85.) The Agreements, l~owever, all contain a provision stating that repurchase of individual mortgage loans on a loan-byand loan basis is the sole and exclusive remedy for breaches of ~epresentations warranties. Because Deutsche Bank seeks aremedy to which it is not entitled, it has
failed to state a claim upon which relief can be granted.

?%d ' iDeutsche Bank asserts a separate claim for breach of contract ,
arising from the allegation thal it was denied access to loan files for 61 loa~is.(Amended Co~nplaint El -85.) Notably. these 61 loans are contained in only three of the 99 trusts fl Deutsche Bank lists, and so this claim is not even raised as to the tens of thousands of

othm loans in those t h m trusts, or as to mry loan in the 96 other trusis. And while
Deutsche Bank posits that, because of his limited access claim, it should be excused from its failure to plead a valid repurchase claim with regard to any of the m r than half oe a 1niIIion other loans potentially unplicated by its Complaint, there is no legal hasis for
this request. Indeed, the access claim cannot be the basis for separate recovery because

the denial of access does not give rise to independent harm to the trusts.
Fourth, dl claims based on mortgage loans in 74 of the 99 trusts should be

dismjssed as time barred. Most of the repmentations and warranties that Deutsche Bank
claims to have been breached were made as of a date well outside the applicable statute

7
b '

,

i

.

l

-

T
-2

Case 1:09-CV-01 656-RMC Document 32-1 Filed 0910811 0 Page 9 0f 52

PURCHASE AND ASSUMPTION AGREEMENT

AMONG

FEDERAL DEPOSIT INSURANCE CORPORATION, RECEIVER OF WASHINGTON MUTUAL BANI(,

HENDERSON,NEVADA
PEDERAL DEPOSIT INSURANCE COWORATION

JPMORGAN CHASE BANK. NATIONAL ASSOCIATION
DATED AS OF
SEPTEMBER 25,2008

'

Filed 09/08110 Page 48 of 52
SCHEDULE 32 - Purchase Price of Assets .

Case 1:09-cv-01656-RMC Document 32-1

(a)

cash and receivables f o depository rm institutions, including cash items in the pmcess of collation, plus .interest thereon: securities (exelusive ofthe capital stock of Acquired Subsidiaries),plusinWest thereon:

Book Value

(b)

Mre Value akt

(c)

federal funds sold and repurehaae agiwments, if any, includmgintemt rhaeos

Book Value

Loans:
Other Real Estate;
credit curd business, ifany, including all outstanding exlensions of credit:

Book Value
Book Value

B60k Value

Safe Deposit Boxes and related business, safekeepingbusiness and trust business, if any: Rceords and other documenfs:
capital stock of any Acquired Subsidisries:
amounts owed to the Failed Bank by any

Book Value

Bwk Value
Book Value

Book Value
Book Value

Acquired Subsidiary:
ass- sacuring Depwits of public money, to L c extent nor otherwise pllrcbased Imumdcr:

Overdrafts of custom^^:

Baok Value

w

v

Case 1:OS-cv-01656-RMC Document 32-1

Filed 09/08/10 Page 49 of 52

(m) rights, if any,with respect to Qualified Financial Contracts.
(n)

Markel Value

rights of Ule Failed Bank to provide mortgage servicing for ahcrs aod & have I martgaga servicing provided m thc Failed Bank by 0th- and n1& contracts.

Bodr Valuc

(0)

Bank Premises:
Furniture and Equipment:

Book Value Book Value Book Value

(p)
(q)

Fmhlres:

V

' U'

Case I:09-cv-O165&RMC Document 32-1 Filed 09/08/$0 Page 15 of 52

"Book Valae" means,with respect to any Asset and any Liability Assumed, i h e dollar amount thereof stated on the Accounting Records of the Failed Bank. The Book Value of any item shall be determined as of Bank Closing after adjustments made by the Assuming Bank for normal operational and timing differences in accounts, suspense items, unposted debiffiand credils, and other similar adjustments or mections and for setoffs, whether voluntary or involuntary. The Book Value ofa Subsidiaty of the Failed Bpnk acquired by the Assuming Bank shall be d e m i n e d From the investmm in subsidiary and mlatad accounts on the "bank only" (unconsolidated) balance sheet of the Failed B n based on the cquity method of accounting. ak Without limiting the generality of the foregoing, (i) the BOok Value of a Liability Assumed shall include all accrued and unpaid interest thcleon as of Bank Closing, and (ii) the Book Value of a loan shall reflect adjustments for epmed interest, oruntamsd interest {as it relates to the "rule of 78s" or adddn-interest loans, as apvlicable), if any, as of Bank Closing. adjustments for the portion of earned or a n d ban-related credit lifeandlor disability inwrancc premiums, if any, attributable to the Failed Bank as ofBank Closing, and adjustmenw fixFailed Bank Advances, if any, in each case a determined for financial reporting purposes. The Book Value of s an Asset shall not include any adjusnent for loan premiums, discounts or any relatcd deferred incame or fees, or general or spscific resaves on the Accounting Records ofthe Failed Bank.

"Bnsiness Day" means a day other than a Saturday, Sunday, Federal legal holiday or legal holiday under the laws ofthe State where ihe Failed Bank is loc~ted, a day on which or the principal office of the Corporation is closed.

"Charterinn Authority" means (i) with respdct co a national bank, the Ofice of the Comptroller of the Cunency. (ii) with respm to a Federal swings association or savings bank, the Ofice of Thrift Superv~sion, wt respect to a bank or savings instihttion chartered (iii) ih by a State, the agencyo f such Steta charged with primary responsibility for ~egulating andtor closing banks or savings institutions, as the FW may be, (iv) the Corporation in acc&rdnncewith I2 U.S.C. Section 1821(c), with regard to self appointment, or (v) the appropriate Federal banking agency in accordance with 12 U.S.C. 1821(cX9).
rfCamm&ma~7a s the unfunded m i o n of a line of e d i t or other m n e commjtmcnt reflected on the books mdreeords ofthe Failed Bank to make an extension ofcredit (or additional advances with respect to a Loan) that was legally binding on the Failed Bank as of B a d Closing, other than extensions o f d i t pursuant to the credit card business and overdraft protection plans of the Failed Bank, if any.
"CreditDncumends" mean the agmmenfs, instruments, certificates or other documents at any timc'widacing or otherwise relating to, governing or executed in connection with or as security for, a Loan,includingwithout Sitation notes, bonds, loan agmmenta, letter of credil applications, lcasc financing contracts, banker's acceptances, dm&, interest protection agreements, currency cxchange agteements, repurchase agreements, reverse repulchsae agreements, guarantees, deeds of trust, mortgages, assi&nments, recurity agreements, pledges, subordination or priority agreements, Iien priority ngrcemenls, undertakings, security inslnarnents, catiticatcs, documents, legal opinions. psrticipation agreements and intmcditor agreements, and all amendments, modfications, renewals, exleneions, reanangements, and rubnitutions with reppcct to any of the Foregoing

.

,

Case 1:09cv-01656-RMC Document 32-1 FIled 09/08/10 Page 51 of 52 EXHIBIT 3 2 ~ VALUATION OF CERTAIN .() QUALIFIED FINANCIAL CONTRACTS

V

-

Interest Rate Contracts A l interest rate swap. forward rate agreements, interest rate l futures, caps, collars and floors,whether purchased or written
Option Cantracts All pm and call option mnuaet5, whether purchased w written, on marketable securities, f a c a f u m , f b r e i ~ mnil unrmies, foreign exchange or foreign exchange futures contracts.

-

-

Fareign Exchange Contracts - All contracts for future purchase o sale of foreign r currencies, foreign c w m y or cross cumncyswap cowacts, or foreign exchange futures colm'acts.

All financial contracts used to hedge assas and liabilities that arr acquired by the Assuming Bank but arr aot subject to adjustment from Book Value.
C
Adjustment

The difference between the Book Value and markct value as of Bank Closing.

I.

The price at which the Assuming Bank sells or disposes o f Qualifted binancia1 Contracfs will be deemed to be the fair market value of such or disposition occm a: prevailing market rates within a p e d upon by the Assuming Bank and the Receiver.
I valuing all other Qualified Financial Contracts, the following n apply:

'2.

i)
(ii)

All known cash flows under swps or f5rward exchange cont pment valued t the swap zero mupan interest rate curve. o
All valuations shall employ pri-

and interest rate based on

I-

is shall be

frequency of rate reset o payment. r

(iii)

Each tranche af amortizing u t r shall be separately valued. he t'otal.: mms value of such amoniaingcantract shall be rhe sum of ihe values of i b ' component tranchcs.

UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE
In ~e

Chapter 11
Case No. 08-12229 (MFW)

WASHINGTON MUTUAL,N C . , gd.,
Debton.
-----------+--------------------.---.------

(Jointly Administered)
X

WASHINGTON MUTUAL,INC., and WMI INVESTMMT CORP.,
Plaintiffs,
-against-

ALL CLAIMANTS NAMED IN PROOFS OF : CLAIM NOS.552.1025,1556,2024,Z298,2307, : 2319,2398,2421,2480,2549,3246,3249,3251, : 3252,3254,3256,3257,3258,3710,and 3777, :
Defendants.

Adversary Proceeding No.: 1 0 - (Mmy

---------------------------------.--------*x
CORapLATNT

Washington Mutual, Inc. CWMI'') and WMI Investment Corp. CWMI Investment"), as
debtors md debtors in possession (collectively, the "Debtors"), by and through their undersigned

counsel, hereby bring this Complaint for a declaratoryjudgment that the above-captiol~ed claims,
filed by ecnain holders of debt securities issued by Washington M u d Bank Omust be ,
subordinated pursmnt to section 51 0(b) of title 1 1 of the United Sates Code ("the Bbnlcruptcy
Code").

'

IT k c relief sought by i h Debtms is expressly subjectm and contingent on the terms and coaditions oithe Sirth AmendedJoht Plan ofAflNaled Deb* P w w t lo Chpt8)' 11 of the UniI~dSrate~ Banhupfcy Code, dated October 6,2010,Dl& 5548 (the "Plan"),the DisclosaaeSmren~enr the Serb AmendedJolnr Plnn ofAfliliated for Deblara P~rrsuant Cbpter I I @the U n W Stares Banbwplcy Code, dared October 6.201 0, Dkt. 5549 M ("Disclosure StatcmenP') and tlle C o w s contirmatlon o f the Plan and Disclosure Statwment.

L
1.

PRELIMINARY STATEMENT

In late 2005, WMB, a federally chartered savings association, established a

Globnl Note P~vgrm provided for the issuanceof up ta $22 billion in debt securities that
through Seniar Global Notes and Subordinated GIobd Notes (collectively, the "WMB Notes").

Certain holders of WMB Notes (the "WMB ~oteholders")?the Marathon Credit claimants3 (collectively, the "Bondholders"), and other holders of WMB Senior Notes (the "Other ~oteholders")~, collectively with the WMB Noteholders and Marathon Credit Claimants (the md "Senior Noteholders"), have filed proofs of claims against the Debtors asserting claims arising
from purchases of the WMB Notes (callectively, the "Claims"). The Claims inckde, among

others, requests for damages under state and federal securities laws, rescission of the purchase of
the WMB Notes, and payments allegedly due under the W M B Notes. The Debtors believe that

the Senior Noteholders' Claims are meritless!

Regardless, because the Claims arise from the

purchase or sale of senaitics+mmely, the WMB Notes-the Debtors file this adversary
proceediug for n declaratoryjudgment that the Claims must be subordinated pursuant to section 510(b) of the Banlvuptcy Code.
2,

Section 510@) of the Banhptcy Code mandates subordination of all claims

"arising from rescission of a purchase or sale of a security. . [or] for damages arising from the

.

purchase or sale of such a security." 1I U.S.C.

5 510(b).

The WMB Notes at issue herc are

clearly securities. Under the Bdrmptcy Code, "[t]he term 'security'

- (A) includes - (i) note . .

1

'The

W M B Nohholdn am*Pr~ofofCIaimNO. 2480.

'The Marsfhdn Cmdit Claimants sseettcd Proofof Claim Nos. 3710 and 371 I.
',fie OtherNotohoIdcra ~osettedPrtrofofClaimNos. 552,1025,I556,2024,2298,2307,2319,2398,2421,2480, 2549,3246,3249,3291,3252,3l54,3256,3257,3258,3710.and 3777. '~hc Debton.ptxyiouslytiled an objection to the WMB Noteholdem' and Marathan Credit Clalmanta' claims on p u n d s incluaing laokofstandlngand fail- t sate a claim, while expressly reswing the right to assert o additional obJbctions, including subordination. E B D e b s ' Corrcetfd Twenticth (20th) Omnibus (Substantive) Objection to Claims 122. Dkt. 2326.

"Mtllatbon Credit ~laimnnts."~ Collectively, these Bondholders claim approxinlately$3.7 billion in outstanding SeniorNotes and SubordinatedNotes issued by WMB during the Global

Note Program that was established in 2005.
10.

Defendant Bondholders also incluk all of the claimants asserting Proofs of Claim

Nos. 552,1025,1556,2024,2298,2307,2319,2398,2421,2480,2549,3246,3249,3251,3252,
3254, 3256, 3257, 3258,3710, and 3777. A chartlisting each clajmant alongside its

corresponding claim number, the debtor against whom the claim is asserted, and the mount of

the claim, is anached as Exhibii A.

m
11.

J U R I S D I ~ O NAND VEWUE

The Court has subject manerjurisdiction over this proceeding under 28 U.S.C.
This is a core proccedingunder28 U.S.C. 9 157(b).

$5 157 and 1334.
12.

Venue is proper under 28 U.S.C. $5 157(a), 1408, and 1409.

7 3. . The statutory prerequisites for the reliefrequested herein are 11 U.S.C.8 105(a),
RS amended; 28

U.S.C. $2201, andFederal Rule of Bankruptcy Procedure 7001.

nnnnrl~tnitv ~,. Pund.. L.P.:~ ~ . \'aluc Manter Pund. L.P.: HPR LD Select Pund W Master Tntrt. Msstcr -Tr- ~ ~ ~ ~ Fir'Trec , .... Juggernaut Fund, 1,.P.; LyxorlYork Fund Limited; ~ t r f l t h & ~ r & t&pol~nlly Maslw Rind, Ltd.: P m a l York Ltd: Quintessence Fund L.P.: QVT FundLP; Silver Point Capital Fund, L.P.; Silver Point Capital OFEshoreFund, I,td.; 'The Oovcrnor md Company of the Bank of Ireland: ' h e Vlrde Fund. L.P.; me Vllrde Pund VI-A, L.P.; Ths Vade Rnd VII-B, L.P.; The VfltdeFund Vlll, LP.;The Vnrde Fund I X L.P.;The V&de Fund IX-.b. L.P.; Varde lnvesnent p m e r s (Offshore). Ltd.; Vllrde Investment Pannen. L P ;Windmill Mesle~Fund. .. L.P.: Yo& Caoital MmugemeK LP.; ~ o r credit Opporamitior Fund, L.P.; ?'ark ~redkOpporhmities k W n ~ m it;~ o r k 4 Investment M a s m F u n d L.P.: Ynrk SelW. L.P.;and YorkSeled Master Fund. L.P. ClaicM 7710.371 1 1 n. I. In the Bank Bondholders' Re~minary Response TOThe Lep! lsslres Set Forth 1n.Uebtars' ~wenlieth (20th j'omnlbus (Substantive) Objection To Claim ("Marathon ~asponse") DM.2469,tile claimann assated that therrsbonse was nlso frl-d on behalfof additional, ellened hn!dcrs v i WMB Senior Notw who retained eolmnel subscment l o the filing of Proofs of Claim Nos. 3710 G d 371 1. Marnthon Response at I n1 ..
~ ~~~ ~ ~

111 haofs of Claim Nos.3710 md 371 1, t claiams identified ~ e m s e l w s Altma Fund Sioav P.L.C. In & a Remccf Of Russcll Sub-Pun4 Anohorngc Cnpitol Meater Gffsharc. IM.;Bmk of Scntlmd vlc: CCNSCaoitnl. LLC: ~o&rate Deb1Opporlunitiw Fund. ~ t d ; T e C p t l Opponunity M W Fund, L.P.; f i r 'Tree PU r e a i a

on&& ..--..

5

r. Y
A.
14.

BACKC;ROUM,

Introdaclion
WMJ's predecessor was formed in 1889and eventually becrune a capital stoclc

s~vings bank after decades of growth and diversification. In 1994, WMI was formed as a

savings and loan holding company under the law of the State of Washington. W I was the

rllt~~nate parent of WMB. WMI also indirectly owned ArMB's subsidiaries, including Warhington Mutual Bank fsb ("WMBfsb").
15.

Like allsavings and loan holding companies, WMT was subject to regulation by

the Office of Thrift Supervision ("OTS"). Like all depository institutions with federal thrift
cl~arters. WMB and WMBfsb were subject to regulation and examination by the OTS. Also,
valiouq fede~al state authorities, including the F e d d Deposit Insurance Corporation and
("FDIC"), wcrsaw W ' s banking and non-banking subsidiaries.
16.

On September 25,2008, the Director of the OTS, by order number 2008-36,

appointed the FDIC as receiver for WMB (the "Receivership") m e FDIC ~mmediatcly sold
substmtialiy al) of the assetsof WMB to JPMorgan Chase Bank,N.A. ("JPMC"), pursuant to
that cenain Purchase end Assumption Agreement, Whole Bank, dated September 25,2008 (as

amended, modified, or supplemented, the "P&A Agreement").
17.

On Septernlrer 26.2008 (the "Commencement Date''),each of the Debtors

commenced with this Couft a voluntary case pursuaut to chapter 11 of the BsnkrvptEy Code On
October 3,2008, the Court entaed an order, pursuant to Bankruptcy Rule 1015@), authorizillg

the joint administration ofthe Debtors' chapter 11 cases.
18.

The Debtors are authorized to Operate their businesses and manage their

pmpel&s as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy

B.
19.

The Senior Noteholdem' Purckaae of Debt Sccuritim from WMB

On December 21,2005, WMB established the Global Note Program that provided
or

for tho issuance o f up to $22 billion of Senior Global Notes and Subordinated Global Notes,

both. from time to time. &g Washington Mutual Bank Dm.21,2005 Offeling Circular (the "Offering Circular").
20.

Section 101(49) of the Badmptcy Code provides as follows: "the tam LsecuritY'

- (A) includes - (i) note .. [and] (iv) bond." I 1 U.S.C. 4 1 Ol(49).
2 1.
The Offering Circular stated hat the WMB Notes are "[dlue 270 Days or Morc

.

. h mD t of Issue." Sea Offering Circular, Cover Page. As a result, the WMB Notes were not ae
excluded fiom the definition of s e d t y under the Securities Exchange Act,

8 3(a)(10), I5 U.S.C.

8 78c(a)(lO), which is "virtually identical" to fie definition of security under t l ~ e Saurities Act
of 1933, & Reves v. Emst & Young, 494 U.S. 56,61n.1 (1990) (internal quotation marks e
omitted);

seeJ~arvi,Hr'g Tr. 99: 5-17, 106:2-5 (arguing that '?nore than 270 days out, this

is a security for the prnposes of federal securities laws" and that the time period makes "quite clear that the inlent was thal these bonds are intanded to be securities within the meaning of the
federal securities laws").
22.

Thc WMB Notes were oflered "only to institutional investors that are 'accredited

investors' ('Institutional Accredited Investon') within the meaning of Rule 501(a) under the lJnited states Securities Act of 1933." Offering Circular at 1. Undcr Rule 501(a), an "Accredited investor" includes, among others, the following: backs, savings and loall 3s.sociations, brokers or dealers registered under =tion
1934, insurance companies, and investment companies.

15 of tbe Securities Exchange Act of

21.

The WMB Notes were offered though diambutionagents,inzluding Barclays

Capital, Citigroup, Credit Suisse First Boston, Deutsche Bank Secmrities, JPMC, Goldrnd,

,Sachs & Co., Lebman Br~tfien, Morgan Stanley, Merrill Lyoch & Co., Ad UBS Invwtment

Bank. S

~ a t 1 .

24.

The Senior Noteholders did not all provjde documentation of their allesed

purcl1ascs of the WMB Notes it eppearr;that the U'MB Noteholders and Marathon-Credit
Claimlults, for examplc, claim that they acquired the PiMB Notes upon the isvuauce of thc \VMB

Notes by WMB beginning in the first quarter of 2006 andthe Brst hnlf of 2007, or thereafter on

Ule secondary markel. & Claims 3 10,371 1 7 10; EIr'g Tr. 85: 5-6. 7
C.
' .

T h e WMB Noteholders and Matrcthan Credit Claimants Proofs of Claim

Proceeding

25.

On M r h 31,2009, the Marathon Credit Ctaimants filed two proofs of claim in ac
Claims 371 0,371 1. Claim 3710 was filed

this Cola,which they amended on June 1;2009.

against

Investment; Claim 371 1 w s :led agaimt WMI. Claims 3710 and 371 1 are a

essentially identical and assert claims for (1) orate veil-piercing, alter ego, and similar

principles, (2) substantive consolidation, (7) improper claim to purported deposits, (4)
m~dercapitalization failure to support, and looting of the beck, (5) misrepresentation and of,

omissions under federal and state securities laws, (6) mnditional exchange of RElT trust

peferred securities, (7) tax rcfimdsand losses, (8)mismanagement and breach of fiduciary and
other duties: (9) claim for gaodwiU litigation award, and (10) fraudulent transfer. On March 27,

7009,the WMB Noteholders filed their pmof of claim against WEvlI in this Court.

Claim

2380. Claim 2480 asserts substantially the same claims as the Marathon Credit Cltrimants, but
does not assert clauna for corporate veil-piercing and substant've consolidation.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
WASHINGTON MUTUAL, INC., 1301 Second Avenue Seattle, Washington 981 01,
'

Case No.

and
WMI INVESTMEEJT CORP., 1301Smond Avenue Seattle, Wa5hington 98101,
Plaintiffs.

JURY T R I A L DEMANDED

F E D E W DEPOSIT INSURANCE CORPORATION. 550.17th Sx & te , m Washinaton. DC 20429. .. - - - .... in its capacity as receiver for Washington Mutual Rank, and in its corporate capacity,
~ . - ~ . ~ ~ ?
~

>

Plaintiffs Washington MutuaI, Tnc. (''W') arMI Investment Carp. an4

("m

Investmen$' and together with

the "~iahtiffp."), thejr undersigned cornsel alleges as by

PARTIES
1.

Wash;ngton Mutual Bank, -Henderson,Wevda

rmn) a federal was
m ) is the agency

'

savings

bank charted pursuant to the Home Owners' Loen Act, I2 U.S.C. $4 1461-70.
2.

Defendant Federal Deposit Insurance Corporation p

charged by:law with, among oaet duties, ndministerins the Federal Deposit Insurance Act and
the federal bank deposit ~~~WRIW system Thd EPIC is sued i its corporate capacity n

("m

BACKC;ROIMD
7.

On September 25, 2008 (the 'Receivershiv Date-"), the Director of the

Office of Thrift Supetvision (TB"),by order number 2008-36, appointed FDIGReceiver as receiver for WMB wd advised that FDIC-Receiyx was immediately taking posseasion of WMB.

8.

Immediately after its appointment as receiva, FDIC-Receiver, together

with FDIC-Colporate, sold substantially all the assets of WMB, including the stock of WMBfsb,
to JPMorgan Chase Bank, National Association

("v) pursuant to that certain

Pul-chase and Assumption Agreement, Whole Bank, daEd a of Septemba 25, 2008 (the s .)m "te < n I
9.

011 September 26, 2008 ithe '-otcv

Petition Date"), the Plaintiffs

each commenced a voluntary case {the "WMI Banluavtcv Proceeding")pursuant to chapter 1 1
of title 1 I of the United States Code (the " ~ ~ u t Code'') in fie United States Benkruptcy c v
Court for the Diatrict of Delaware (the "Bankruvtw Court"J

The automatic stay in the

Plai~~tiffs' chapter I I cases prohibits any e t t , including &e FDIC and JPMorgan Chase, from, niy
among othet things, taking any action t obtain possessioii of propaty ofthe Plaintiffs' estates or o
to exercise control over such property.

THE PROOF OF CLAIM
lo.

Pmnmt to section 1l(d) of rhe FDI Act, 12 U.S.C. § I82l(d), FDIC-

Receiver set December 30, 2008, %. the last day to file claims against the Receivership. As

desc~ibed detail below, PlainWs asserted claims against the Recavership (each a in
filing a proof of claim on December 30,2008 (the "Proofof Claiq")

"w) by

11.

Plaintiffs reserved all rights to amend andlor supplement thc Proof of

CIaim at any time and ju any respect imd to assert any and all otl~er clairns of whatever kind or

54R of the Bankruptcy Code in an amount up to $6.5 billion, and fir a1 other claims or c a m of

action, Under any theory, applicable to @eChpital Contributions.

E .

Tmst Preferred SeeorMes Claims

29.

In February 2006,Washington Mutual RFfed Fundiq LU3 ("WMpF'),

a Delaware. limited liability company, w s formed to facilitate capital-raising transactions a
through the issuance of preferred securities to invest4 (such preferred securities me refemed to herein collectively as 'Trust Preferred Securities") by certain special purpose entities (the
'SJ$$').

These securities were offered solely Lo "qualified institutional buyers" or "qualified The Trust preferred Ssurities have an aggreggste liquidation preference of $4

purcllasers.'' billion.

30.

WF's

apseis were

limited to d i q or indirect interests in mortgages or

mortgage-related assets, cash and other p d t r e a assets. l k s e assets were held in certain
Delaware statutory tnrst; (the ''Asset Trusts"). WMPF i e preferred securities (the md

" m K

Preferred Securities"), which were held by and were the sole asset of the SPEs and wbich were senior in priority to W W ' s indirect common equity interem in WMPF. Thus, the Tmsi

preferred Securities issued by the SPEs (wbich had no material creditors) represented

interest

in the WMPF Preferred Secwiries and, in turn, an indirect interest in the assets held by the Asset

Trusts, Immediately before the Receivership Date, WMPF was an indirect subsidiary of WMB
and as s re&, WMB held sn indirect interest in the assets held in the Asset T ,
to the liquidation preference of the Tmt P i e f e d Securities.
3 1.

subordinate

The Trust Preferred Securities were sold to investors subkt
'I

t a o

.'

"conditioni exchange" feature.

f e

provided that if B e OTS so directed, upon (i)

WMJ3 becarnhg uncfacspitalizcd, (ii) WMB being placed into mmivezxhip or wnservato~ship
or (iii) the OTS anticipating, in its sole discretion, Wh.IB becoming undercapitalized in the near
D C I U ~ S ~ I ~ M Z I I I . ~ R D I . ~

10

term or taking a supervisory action that limited the payment of dividends by WMB, then the

Tma Pmfcircd Securities were reqniied to be exchanged into shares of preferred stock of W M
(or depositary shares repteenling an interest i prefmd stock of WMI). The UTS notified n

WMI on &e Receivashii Date that an "exchange went" occumd, as sucb term is defined in the
documentation governing the Trust Prekrrd Securitiw. Accordiag to the tams of the Trust

Preferred Securities, the exchange of the Trust Preferred Securities for preferred stock of WMI
, ,

.

(or depositary shares mrcprescnting an interest in preferred stock of WM) is deemed t occur o automatically following the isuance by WMl of a press ele ease announcing the excbange eveor.
WMI issued such a press release and the conditional exchange became effedve at 800 a.m. ET
on September 26,2008.

32.

I addition, rKMI pqortedly executed an assignment as of September 25, n

2008, in whfch it purpo~M assign to WMB all itn ria\ title, and interest in and t any and all to o
of the T u t Preferred Securities or preferred securitiw issued by WMPF, as the case may be, in rs

its possession or coming into its possession (the "Assimuncnt Ameement").

Assuming

arguendo that the terms of the Trust h f e d Securities (and the documents and adments

related to the issuance of such securitic8) and the A$signment Agreement are legally effective ,.
nncl euforccable, and thatthere are no defnzses to the enforceability o f . w h agreements undw the

Ba&uptcy Code or other applicable law, all of which defenses and claims WMI expressly
reserves and henby asserts, the effect of these trausactions w s t cause the Ttvst Preferred a o
Securities to be owned by WMI md then purportwlly transfer~edto WMB immediately before

ti= Mmmericement of WMI's chapter 1 1 bmkn~ptcy on September 26,2008. ccase
33.
as much ss $4

On info~tltion belief, the T M Preferred Securities have a value of and

billion. WMI may not have received any value for the purported transfer of the

T u t Preferred Securities to WMB bemuse, atthe.&e of such purported transfer, WMB may rs
have been insolvent, may have had urnemonably small capital. andfor may have been unable to
pay its o w n debt obligations as they matured. With respect

t the purported transfer of the o

Trust Preferred Securities, WMI ass-

fraudulent tmnsfix claims gaiwt' % E pursuant to M3 '

sections 544 and 548 of the Bmluuptcy.Code in connation with the traosfer of the Trust Preferred SBcurities.
34.

Furthermore. if WMI was insolvent at the time of &ch purported traosfu

and the T w t Preferred Securities were t r a m f e d to WMB on mount of an antecedent debt

owed to W E , WMI also ass&

a claim lo.recover such secraities as a voidablc preferme

pursuant to sections 544 and 547 of the Banhptcy Code.
35.

In additioa if the TI& ~&kned. Securities were wrongfully transferred to

WMn, WMI asserts a claim for such wrongfUl trrmsfer and the retum of 'such mets. In the

alternative, WMI asserts that the purported transfer of the Trust Preferred Securities was not pmperly executed, and, therefore, ineffectual. Accordingly, WMI assens that it is the owner of the Tmt ~kferred Securities.

ina all^, as a result of the FDIC's actions purporting to wansfer
I to WMB. and then to PMorgan Chase or any other

the Trust Vefened 3ecuriGes &om W

party, W has been deprived of the use of the Trust Prcfmd Shrities and their proceeds w
h m the Receivership Date onward and asserts a c a m wt respect t h e e 0 against WMB. l i ih
WMI reserves all other claims or causes of action, Mder any theory, with respect to the Trust

Prafererred Securities, as set forth in pmgmphs 24-3Qof'the Proof of Claim.

F .

'.. .

.

,. .

Preference Clams
36.

.

.

On or before the Receivership Date, on numerous occasions, WMl

transferred property to, or caused its property (or an interest in its ptopeaty) to be transferred to,
WMB or to eertain third parties for the benefit of WMB (the "Transfers") on account of

I ' -

Case ~:o~-cv-o??~~-GMs Document 23 Filed 01/25/10 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRtCT OF DELAWARE

WASHINGTON MUTUAL, Pic., RL, et
Debtors.

: Chapter 11
,

.

Case NO.08-12229 (MFW)

3PMORGAN C l M E BANK, N.A.,
Appellant,
Y.

: NO.1:09-cv-O73CGMS

. BK Adv. Proc. No. 09-50551
et al..

WASHiNGTON MUTUAL., INC..

.

:

BK AP NO.09-0072

Appellees.
X

p .P L T
Adam G. Landis (I.D. 3407) Matthew B. ~ c G u i r e (ID. 4366) LANDIS RATH & COBB LtP 9 19 Market Street.,Suite 1 800 - .- - . -- --.- - - - - Wilmingion, Delaware 19899

Tel: 13021467-4400
(Additional counsel listed on signature page)

Dated: January 25,2010 Wilmington, Delaware

Counse1,forAppelbntJPMorgan Chcrse Bank N.A.

\
d

'3

Case 1:09-cv-00734-GMS Document 23

Filed 01/25/10 Page 6 of 25

-

- m IS OF
Appellant JPMorgan Chase Bank, N.A. ("w')appeals from the September 14, 2009 order (the "Counterclaims Order") of the United States Bankruptcy Court for the District of Delaware (the "Bankruotcv COU~'? determining that it has subject matter jurisdiction to hear claims by Washington Mutual, lnc. ;md k subsidiary, Washington Mutual Investment Corp., s (collectively, " a r ' o r the "Debtors") notwithstanding the jurisdictional bar contained in Section L821(d)(lf)(D) of the Financial Institutions Reform, Refovery and Enforcement Act of 1989 ("FIRREP) and a pending a p p d before this Court This Coua has jdadiction to hear this appeal pursuant 10 the collateral order doctrine and 28 U.S.C. 5 158(a)(1). @.L 2.)

STATEMeNTOF THE lSSUPS PRESENTED
1. Did the Bankruptcy Court incorrectly hold that FlRREA's jurisdictional bar

does not preclude it from exerching subject matter jurisdiction over claims against a purchaser of failed bunk aqsets from the Federal Deposit Insurance Corporation ("FDX) as receiver for the failed depository institution (TDIC-Receiver"), even where the jurisdictional bar would apply had the same claim been asserted agamst the FDIC?

2. Did the Bankuptcy Court inmnectly hold that FIRREA does not bar Debtors,
who have nvaild themselves of FIRREA's exclusive claims process, whose claims were disallowed by the FDIC-Receiver, and whose appeal of that disallowance is currently pending before the United States District Court for the District of Columbia rD.C. District Court") from using the Bankruptcy Court to d l a t d l y attack the disallowance of their claims by asserting The same claims againqt the purchaser of the failed bank's assets from the FDIC-Receiver? 3. Did rhe Bankruptcy Court lack subject matter jurisdiclion to enter the

h Counterclaims Order because JPMC's and t e FDIC's prior pending appeals fmm the Bankruptcy Court's July 6, 2009 orders divested the Bankruptcy Court of jurisdiction to further consider

L .

Case 1:09-cv-00734-GMS Document 23 Filed 01125110 Page 7 of 25

. d .

(naaers,such as the jurisdictional issum decided in the Counterclaims Order, that are encompassed
by the July 6,2009 orders and, therefore,exclusively withii this Coutt's jurisdiction to decide?

STANDARD OF REVIEW
"When reviewing a case on appeal, the couri reviews the bankruptcy court's legal

determinations de nuvo, its factual findings for clear error,and its exelrise of discretion for abuse
thereof."

rn re Gkrden Ridze Cnrp., 399 B.R. 135,139 @. Del. 2008). "The issue of whether the

[lower] court correctly interpreted 4 1821(d)(3) and (d)(13)(D) of FIRREA concerning subject mRtter ,jurisdiction is n legd question over which we exercise plenary review." Nat'l Union Fire
In.1. Co. v. City Sm., ESB., 28 F.3d 376, 383 (3d Cir. 1994). 'Ihe issue of whether the

Bankruptcy Corn was d v s e of jmisdiction to entertain a mutter that is within the scope of a ietd
pending appeal is similarly a legd question over which the Bankruptcy Court's determinution is

given no deference. Venen v. Swrer, 756 F.2d 117,120 (3d Cir. 1985).

mATEMENT OF TEE CASE
This is an appeal of t e BYlknrptcy Court's most recent determination that it has h?
subject matter jurisdiction over claims asserting rights to the assets of a failed bank-Wachington

Mutual Bank ()tt "-h -a

the FDIC sold to JPMC. The Bankruptcy Court's exercise of

jurisdiction over h s e claims is contrary to law. As explained in the FDIC's and JPMC's pendii appeals from the Bankruptcy Court's J y 6,2009 jurisdictional onlets (the ''July A ~ ~ e d s " ) d and below, the Bnnluuptcy Court's exercise of subject matter jurisdiction violates the plain language
of the jurisdictional bar imposod by FIRREA, by which Congress vested exclusive jurisdiction in

the D.C.District Court over sudi daims relating to the assets of n failed bank or the ncts of the FDIC as receiver for such failed bank. I2 U.S.C. Q L621(d)(1.3)@). The B-ptcp

Court's

determination that FIRRFb4.s jurisdictional bar dues not apply to daims against a purchaser from the FDIC-Receiver, no matter what the nature of those claims, is inconsistent not just with

UNITED STAT'' DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -

FEDERAL HOUSING FJNANCE AGENCY,
AS CONSERVATOR FOR THE FEDERAL NATIONAL MORTGAGE ASSOClATION AND TI% FEDERAL HOME LOAN

-cn7. ( COWLAN

MORTGAGE CORPORATION,

JPMORG,AN CHASE & CO.;JPMORGAN CHASE BANK, N.A.; . . . T PMORGAN MORTGAGE ACQUISITION CORPORATION;J.P. MORGAN SECURITIES LU: (Wa J.P.MORGAN
SECURlllES IPJC.); J.P. MORGAN ACCEPTANCE CORPORATION I; EMC MORTGAGE LLC (Wa EMC MORTGAGE CORPORATTON); BEAR STEARNS & CO., WC.; STRUCTURED ASSET MORTGAGE ROVESTMENTS wc.; n BEAR STEARNS ASSET BACKED SECURITIES I LLC;
WAMU ASSET ACCEPTANCE CORPORATION;WAMU CAPITAL

CORPORATION; WASHINGTON

MUTUAL MORTGAGE SECURITIES
CORPORATION; LONG BEACH

SECURITIES CORPORATION; CITIGROUP GLOBAL MAKKETS, D'C.; CREDIT SUISSE SBCIIRITIES (USA) LLC;
GOLDMAN, SACHS & CO.; RBS SECURITIES, INC.; DAVID M. DUZYK,

LOUIS SCHIOPPO, JR.; CHRISTINE E. COLE; EDWIN E. MCMICHAEL; WlLLlAM A. KING, BRIAN BERNARD, MATTFEW E. P?XUNS; JOSEPH T. JURKOWSW, JR.; SAMUEL L. MOLINARO, . R THOMAS F. l. ; MARANO; KIM LUTTHANS; KATHERINE GARNIEWSKT; JEFFREY MAYER; JEPWI? L. VEXSCXILEISER; MICHAFFTI B. NIERENEIERG; R1CKARD CAREAGA; DAVID BECK; DIANE NOVAK; THOMAS

L&A docs

Plaintiff Federal Housing Finance Agency ("FHFA"), as conservator of The Federal National Mortgage Association ('Tamlie Mae'') and The Federal Home Loa1 Mortgage Corporati011 (Treddie Mac"), by its attorneys, Quinn Emanuel Urqul~art Sullivan, LLp, f~ i$ & Complaint herein against TPMorgan Chase & Co. ("JPMorgan Chase''); JPMorgan Chase Bank, N.A. ("PMorgan Bank"); J.P. Morgan Mortgage Acquisition Corporatio~~ Morgan ("J.P. Acquisition"); J.P. Morgan Securities LLC (UUa J.P. ~Morgan Securities hlc.) ('7.P. Morgm Securities7'); J.P. Morgan ~ c c e p t k c Corporation I ("J.P. Morgan Accepta~~ce") e (collectively, the ".IJ!Morgan Defendants"); Bear Steams & Co.Inc. ('BSC"'); EMC Mortgage LLC ( W a

EMC Mortgage Corporation) ("EMC"); Structured Asset Mortgage Investments 11 [nc.
("SAM"); Bear Stearns Asset Backed Securiiies LLC ("BSABS") (collectively, the "Bear

Stearns Defendants"); WaMu Asset Acceptance Corporation ("WaMu Accepta~~ce"); WaMu Capital Corporation ("WaMu Capital"'); Washington Mutual Mortgage Securities Corporation

("WaMuSecurities") (coUectively, the "WaMu Defendants"); Long Beach Securities
Corporation flong Beach Securities"); Citigroup Global Markets, Inc.("Citigroup"), Credit Suisse Securities (USA) LLC ("Credit Suisse"), Goldman, Sachs & Co. (Woldman Sachs"), and

RBS Securities, Inc. m a Greenwich Capital Markets, Inc. ("RBS Greenwich") (collectively, the
"Other Undmriter Defendants"); David M. Duzyk,Louis Schioppo, Jr., Christine E. Cole,

Ed& F. McMichaet William A. King, Brian Bernard, Matthew E. Perkins, Joseph T. Jurkowski, Jr., Samuel L. Molinaro, Jr., Thomas F. &no,

Kim ~utthans, Katherine

Garniewski,Jefiey Mayer, Jeffrey L. Verschlciser, Michael B. Nierenberg, Richard Careaga, David Beck, Diane N o d , Thomas Green, Rolland Jurgens, Thomas G. Lehmam, Stephen Fortunato, Donald Wilhelm, Michael J. Kula, Craig S. Davis, Marc K. Malone, Michael L. Parker, Megan M, Davidson, David H. Zieke, Thomas W. Casey, John F. Robinson, ~eit11

165.

Further, WaMu Bank employed is wholly-owned subsidiaries, WaMu Securities, t

WaMu Acceptance, and WaMu Capital in key steps of the securitization process. Unlike typical
arms' length securitiwtions, man): of t e WaMu Securitizations involved various WaMu h

at subsidiaries and affilia~s vkhdly eaeh step in the chain. With respect to 20 of the 26 WaMu

Securitizations, the sponsor was WaMu Bank or WaMu Securities, the depositor was WaMu
Securities or WsMu Acceptance, and the lead unde-ter
166.

was WaMu Capital.

As the sole owner of WaMu Securities, WaMu Acceptance, and Wahfu Capital,

WaMu Bink had the practical ability to direct a d control the actions of WaMu Securities, n

WaMu Acceptance, and WaMu Capital related to tbe Securilizations, and in fact exercised such direction and control over the activities of WaMu Securities, Wahfu Acceptance, nnd WaMu
Capital related to the issuance and sale of the Catiiicates.
167.

WaMu Bank expanded its share of the residential mortgage-backed securitization

market tn increase revenue and profits. The push to securitize large volumes of mortgage loans

contributed to the inclusion of untrue statements of material facts and omissions of mahial facts
in the Registr~tion StatmIetIt4.
2.
168.

WaMu Securities

WaMu Securities hasbeen involved in the securitization of a variely of assets

since its iacorponttion. During the 2003,2004,2005 and 2006 fiscal years, WaMu Securities

purcbed approximately $26.1 billion, $10.8 billion, $1 1.3 billion, and $24.9 billion of residenh'almofigage loans, Tespectively, and securitized approximately $8.5 billion, $1.0 billion,
$7.1 billion, and $1 7.1 billion of ~ ~ i d e n l i a l mortgage loans, reqectively.
169.

Defendant U'aMu Securities was the spomor or co-sponsor of 1 of t h e 103 5 .

SWuritizations. In that capacity, WaMu Securities detcmil~ed structure of the the Secutitizahons, kitiated the Secrtritimtions,purchased h e mor$age loans to be securitized,
62

determined distribution ofprincipal and interest, aud p~ovided data to the credit rating agencies to secure investment grade ratings for the GSE Certificates. WaMu Securities also selected the depositor that would be used ed lotransfa the mortgage loans ftom WaMu Securities to the trusts, and selected the underwriter fur h c S~ecuritizations.In its role as spoasor, WaMu Securities

knew and intended that the mortgage loans it purchased would be sold in connection with the
securitization process, and that certificates representing such loans would be issued by the lelevant t$usts. 170. For the 15 Securitizations that it sponsored or co-sponsored, WaMu Securities

also conveyed the mortgage loans to the depositor for each Securitization pursuant to a Mortgage Loan Purchase Agreement or Mortgage Loan Sale Agreement. In these agreements, WaMu Securities made certain representations and waxantics to the depositors regarding the gmups of loans collateralizing tlle Certificates. These representations and wananties were assigned by the depositor to the hustee for the benefit of the Certificateholders. 171. Defendant WaMu Securities also acted as its own depositor &om 1979 until 2005.

In this role, it engaged in purchasing mortgage loans, filing registration statements with the SEC,
forming issuing trusts, assigning mortgage loans and all of its rights and interests in such

mortgage loans to the -tee

for the bencfit of the oertifimteholden, and depositing tlx

undmlying m w g e loans into the issuing t ~ u s t s .
172.

WaMu Securities was the depositor for two of the 103 Securitizations. In its

capacity as depositor, WaMu Securities sold. transferred, or otherwise wnveyed !he mortgage loam fo be securitized to the trusts. WaMu Seourities, together with the other WaMu
Defendants, was also renponsible for preparing and filing the Registration Statements pursuant to

which the.Certifi~ates were offered for sale. The trustF in turn held the mortgage loans for the

benefit of the Certificnteholders,and issued the Certificates in public offerings for sale to investors such as Fannic? Mae and Freddie Mac. 3.
173.
WaMa Acceptance

Defendant WaMu Acceptance has been engaged in the securitization of mortgage

loans as a depodlor since its incorporation. It is a special purpose entity famed solely for the purpose of purchasing mortgage loans, filing registration statements with the SEC, fonning issuing husts, assigning mortgage loans and all of its rights and interests in such mortgage loans to the trustee h r the benefit of the certificatehoIders, and depositing the underlying mortgage loans into the issuing trusts.
174.

Defendant WaMu Acceptance was the depositor for 18 of the 103 Securitizations.

In its capacity as depositor, WaMu Acceptance purchased the moagagc loans from the sponsor

pursuant toa Mortgage L m Purchase Agreement or Mortgage Loan Sale Agreement, as
applicable. WaMu Acceptance then sold, traasferred,or otherwise conveyed the mortgage 1oa11s
to be securitized to the busts. WaMu Acceptance, together with the other WaMu Defendants,

ttmns the was also responxihle for prepacing and filing the Registration S a e e t pursuant to ~ h i c h
Certificates were offered for sale. The tlnsts in turn held the mortgage loans for the benefit of
the Cdficateholdexs, and iswed tlie Certificates in public offerings for sale to investors such as

Fannie Mae and Freddie Mac.
4.

WaMuCapital

5 .

Defendant WaMu Capital was the lead underwriter for 31 of the Securitizations.

In that role, it was responsible for underwriting and managing the offer and sale of Certificates to
Fannie Mae and Freddie Mac and other investors. WaMu Capital was also obligated to conduct meaningfa1 due diligence to ensure that the Registration Statements did not contain any material

237. Documents released in April 2010 by the PSI show that, in April 2006, the

President of WaMu Bank's Home L m s Rivision gave a presenblion to the WaMu ~ o a r d of Directors entitled "Shift to Higher Margin Products." The presentation showed that the [east profitable loans were goveamient-backed and fixed loans; the most profitable were Option

ARM,Home Equity, f~nd Subprime Loens. Subprime loa~ls, 150 basis points, were eight times at
more profitable than a fixed loan at 19 basis points.
238.

In its push to generate more risky loan products, WaMu Rank pressed its sales

agents to pump out a greater volume of loans with loose adherence to its own underwriting guidelines. WaMu Bank gave mortgage brokers bandsome commissions for selling We riskkt loans, which c a m 4 higher fees,holsttxing profits and, ultimately, the compensation of the
bwk's executives. In a New York Times article published December 27,2008, Steven M.

Knobel, the founder of an appraisal company, Mitchell, Maxwell &Jackson, that did businas with WaMu Bank until 2007, stated that "[ill w s thc Wild West . ..If you were alive, they a would give you a loan. Actually, I think if you were dead, they would still give you a loan."
239.

WaMu Bank pushed its Option ARM loam on borrowers regardless of their

sophistication, income level, or financial stability. An Option ARM loan is typically a 30-year Adjustable Rate Mortgage

rAFW') initially offers the borrower four monthly payment that

options: (i) a specifid minimum payment (which was typically lower than the interest payment and therefire caused the lorn to grow, referred to as negative amortization), (ii) an interest-only payment, (iii) a 15-year fony amortizing payment, and (iv) a 30-year fully amortizing payment.
The rate 6f an ARM loan also adjusts monthly and ifthe loan rate was higher than the required

interest in the payment, the balance of the loan would increase (calbd negativc amot?izcltion).

Pay Chapman, WaMu Bank's former Chief Legal Officer, cmdidly admitted to the Seaale Times

in an article published on October 26,2009, that rrn]ortgage broken put people into the product who shouldn't have been." In 2003, WaMu originated $32.3 billion of Option ARM loms. By
2005, that number almost had doubled to $64.1 bidlion
240.

WaMu Bank's emplow compensation structure favored these types of high-risk

home loans In a document entitled '2007 Product Strategy," WaMu Bank noted Ulat it must ''maintain a compensation shwture that supports the high margin product stratqy." A compensation grid from 2007 shows the company paid the highest commissians on Option

ARMS, subprime bans and home-equity loans: A $300,000 Option ARM, for example, would
earn a $1,~00 commission, v e m $960 for a k d - r a t e loan of the same amount. The rates
increased as a consultant made more loans; some regularly pulled down six-figure incomes.

Likewise,a WaMu Bank "Retail Loan Consultant 2007 Incentive Plan" explained that "[ilncentive tiers reward high margin products . . . such as the Option ARM, Non-prime referrals

and Home Equity Loans ...WaMu also provides a 15 bps 'kicker' for selling 3 year prepayment
penalties."
241.

WaMu Bank could originate so many high-risk loans because its tulderwriting

guidelines had become so loose that they were rendcred meaningless. In a recently-surfaced

were told they needed to "shift (their) internal newsletter dated October 31,2005, riskma~iagers
ways of thinking" away from acting as a "regulatoryburden" on the company's lending
operations and toward beinga "customer service" that supported WaMu's five-year growth plan.
242.

On Septernbet28,2007, WaMu Bank's Carporale Credit Review C'CCR") Team

circulaid an infernal report on first payment defaults in Wholesale Specialty Lending. The report determined that "[clredit weakness and underwriting deficiencies is a repeat finding with

CCR." ItadditionsI~conclodedthat fraud detection tools "are not being utilized effectively by

where line managers particularly in tbc mortgage area not only authdzed but encouraged policy exceptions." Similarly, Fay Chapman, WaMu's Chief Legal Officer fbm 1997 to 2007, relayed that, on one occasion, "[s]omeone in Florida made a second-mortgage loan to O.J. Simpson, and

I just about blew my top, because there was this huge judgment against hiin h m his wife's
parents." When she asked how they could possibly close it, "they said there was a letter in fie file f o O.J. Simpson saying 'the judgment is no good, because I didn't do it" rm 247. WaMu Bank's appetite for volume kept it from diligently investigating the

rampant disregard of undemiting guidelines that infected its origination business. Perhaps the must com@elling evidence involves two top loan prod~icers two different WaMu Bank at origination offices, called Montebe110 and Downey, in Southern California. Each of those loan officersmade hundreds of millions of dollars in home loans each year and col~sistently won recognition for their efforts. Recently disclosed docutnmts revealed that a 2005 internal WaMu
Bank review found that loam from those two oftices had "an extremely high incidence of

confmned fraud (58% for [Downey], 83%for [Montebello])." The review found that "an extensivelevel of loan fraud exists in the Mmerging Markets CFCs [Customer Fulfillment Centers], vimally ail of ii steinming from employees in these areas circumventing bank policy surrounding loan verification and review." Thereview went on: "Based on the consistent and pervasive pattern of activity among these employees, we are recommending fmn action be taken to address these particular willful behaviors on the part of the employees named." But virtually none of the proposed recommendations were implemened.
248.

Recently published WaMu internal documents sllow that, toward the end of 2006

and the beginning of 2007, WaMu Bank started to see rising delinquency and default rates in its

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5 1-103

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I

UNIFORM COMMERCIAL CODE

Article 1

IUnirorm C 0 m m e I d i i its P U W S ~& Policies: APPlicabiliW of S u ~ ~ l e m e n tPrincloles of L S al
must tmllberaly mnsWuetIand appliedta pmmote ib unddying purposss a m polidns, which are: the law governing mmmercial transactions: through custom. usage, and aqreement of the partles; and of commerdai Pt~ctlm-3 veriousjurisdictlons

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Relation i Electronic Signatures in Global and National Commerce A d f
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othw d~finluons applylng b mls Amcle and W sectbns a M I'hey appear are: "Acceplance" Seclion "kcanrnaiatd party" Section "Acmmrnulation oarK -- Semen 33%
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"Blank indmsemmt" -- Section 37;nS csshers check' -- Section 3 i @ - ~ 'uernl~cate depos;tS-- Scclior 3-r34 of 'CcrUfea check' ..Seclion -- 2 34 -0 "Conslderailon* - Scetion & g !
"Drafl" Secum 3 E -

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'Holder in due MUlae* Sadlon *lncornplelelnswumenr -- Sectlon 9 % 3 "lndorsemenl" Secllm 3 2 4 -4 "Indoner" Section "instrument"-- Secllan 3524 "Issue" -- Sffitlon &5 & "lssuef -section 2795 "Nego#abteinsbument" -- Sectlon 33% "NcgMiet1on'-- %&on %&%I "Mote" -Section 3104"Payebleat a ddnite:time"-Section 3 ! 8 "Payable on demand" S e m n X I O "Payable to bearer" Section 3 ? 9 "Pavableto ordeP -Section & C L9 - -~ "~Gmenl" --Sebticm . "Person enUUnd lo e n M m -Section 32Q.l "Presenhenf - SecUon 3&C! ! "ReacquhlUm'- SectiM13-207 "Speclal inoorsemsnc -- SecUon 31.06 "Teller's chedt"-- Section 'Transfer of instrumenr Sactlon L22 .!2 "Traveiefs check sedlon X,kl "Value" Section 3-303

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5 3-1 04. NEGOTIABLE INSTRUMENT
~ l orwithout Interest arother charges described in Ule promise Ororder. i f i t m
(a) kcept as prodded In sub~ccmns and (d). "negotiablelnstrumenr means an uncondfional rmni?~?l (c) Or g& to pay a fixed amount of money, (1) fi payable lo bearer or L@ o ) at the #me fi is iss@ or first comes into posaesslon of a holder: 121 is navable on demand or at a definlte Hme: and ,,-, r n ,ions- slate anv other undertaklm or insbudon bv the oermn oranmaor orderlna oavment to do anv act In addilioo to the oavrnent of - . . not ~~~~,-. . ~ , . money, bot the 2 ~ i 3 p& may &nlrlln (ij an undertaking m p&r b g h , m a ~ ~ l l a ~ i m p3or r r 'orbrobcl callole&l to snwm payment. ilii'an aumorlraUon or pover to the hd&v to rnnlfss ludgment or realize o l or dispC8C d Callateral, or (ii) a waiver ofthe bencfllof any law lnlenaed for the advantaae or ~mt&'ion d a n oMiaor. (b) 'l&mmenf 8n&&blemm. (c)~ rgdsr that meets a d the requirementsof srbsec(ioh(a), W p l par;rgaph (1), aM onelwise LLls wihin the aehndon d'eheck" o s ~ b s e c b n \ 0 n ifils a G Q b b l e instiumnt and a @&%. Is not an~strumeqt at the time it i s m orfhst comes into possessIan of a holder, it contalns a if dher than a (d) A g(rm;g or C ~ S ~ I Cslalement, however expressed. to the etfactthatthe pmmise o r d e r IS not negoRableor Is not an instrument governed by this Artde. UOUS (e! An imtrutnant k a "note"ifit Is a ~ O g $ zand is a -draft* I it is an -. Ifan i~Sl#7Iment within lhe definition of both "note" and "drafl," a 1 falls g e m &e&@ e n b tho lnetrumenlmay tmatit w ellher. other UMn a docxlmentary draft payable on demand and drarm on a b& w ( 1 a (;~Shi0?5 1) check or telief3 =her&. An {F)'Cheokq' means (I) a s even thou@ it is desdbed M its tace by awlher lem, s u b asmmmey order." instrument may be a (9) "Carhim's cheeJCrmeans a & withI @respecttowhtch t h e w ard g@!@ are Ule same bank or brandtes of the same bank. Lh "Teller's check? Feana a & @ d m by a bank ( ) anather bank,or C) payable at or Mraugh a bank. Im , 1) (i) "Traveler's Check"means an instrument that (il Is payable a demand, (1 is dfmn on or payable at or through s bank, (Ill) is designated by the tern "lravekf's check" w by a subslantlally sirnllarterm.and (iv) W l r e s , as a condition to payment, a cwntetsignature by a person whose specimen slanature aooears on.the inslrurnent. '.~ortiGle &depostr Aano an instrumnt containing an ackndedgrnent by a b a ~ that a sum of money has been rewt,eo by w oanr ana a k ppnX9 by (he bmk ib repay thesum ofmney. A certiAea~ol deposit 6 a g & e l h e banu.

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5 3-105. ISSUE OF INSTRUMENT

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( a ) ,'issue" means the flrst deliver/ of a n a i u m by i h e m w o r @=I. whether to a holdel or nonholder. for the purpose of giving rights on the instrument to any person. (h) An unlsrled QI anudsslled ilcOn19lete s l r n : that IS cmpleted. is binding on the ~ m k ~@&. r but nonizs~ance s defense ?o[ a is Ah instrument thet is undlIbnally Issueda is Issuedfa e S~ecia) s e 1 btndlnu on the maker or drawer, but bilure of ths condit on or specla1 W s nurnme tn be blllled is a rMense. ... . . (c) I S apdles U,issuedandunissuedinslnments and means a e r n U ~ . I of an bfmfrumem.
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5 3-109. PAYABLE TO BEARER OR TO ORDER
m ) A ~!zix ordis

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payable to bearer if I: (1) stales bat It Is payable t bearer or to the order of bearer or otherwise lndlcates that the person In possesion of the o or order is enbliled lo payment: i (2) does not state a payel: or (3) sbtes @atI k p a m e to o r b m e a d oash or otherwise indicates that It is not payable to an i d e n l i person. t (b) A m m @ orlhat Is not payable to bearer i payable to oder if it i9 payable (i) the Onferdfan identified person or (li) to an identified s 10 s person or order. A promise or order Mat i payable to order b payable to the idendfied person. (c) An hpt,ru_rnypayable D bearer mqy become payable to an Mentifled persun If it 1 specially indwsed pursuant to Section 3-20:jial.An instrument I s payable to an IdenUfied person may become payable EO bearer if it Is fndorsed in blank pursuant to Senion

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5 3-1 10. IDENTIFICATION
I

OF PERSON TO WHOM

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(a) m e persm n &an h mIs ini6ailyva~aWe , kdetennined9 the intsnt of the person, wheftler or nM aumorlzed, signing as, or in the Is name or behalf of, Me issuerof the insbument. The inrt~ment payable to the person intendedby the signer even if lhat penon k ldenlkied in the tnstrurnenl by a narneor other IdentiflcaUon that b notthat oithe intended Person. If more than one person signs in the name or beheif d the issuer of an instrumentand all the slgners do not ln@ndthe same Person as payee, h e insbument is payable (o any pemn intPndedby one or more of the
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(gIf signalue of h e sign of an InSlIUmenl is made by aulornatcd means, such 8s a check4ling machille ths payoe o the lhstrument b (he ( determined by he inlent d ihn peaon who supplied Ke name orldentificaUm of ole payee, wheher a no1authorlredto doso (T.JA pemn towhom an hsf-~mg payable may be idenbed m any vav, fnduding by nane. wen^ number. offlce, o acm~lnt k r numher For II I E purpase ofdcbnnlnlng the holoer of an butnmsnl, tne folwdw rules m y :

9 3-1 13. DATE OF INSTRUMENT
(a)AD & . Im y oe anled-d lcd p€&aed. T)le date S i t dd ~ r nlhc h ~e 0' payment if insmmm is pamble ala fie3 p rd afiw d d c l,E i l me at r;xrml-an nrovlocd in Setdon 4JOl(c). an!nsWJmWlt payablcon h a n d is no1p y a b e h d a e Vle datc of!ha i n & m n t . r. .7 -~ (9) ~fan ~ ~ 3 t ~ 1 undated, its dote is me dale of;& &=or, in h case of an rmi~sued s ~ n t m instument h e date it 6nt m e s in6 possessionof a holder.
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§ 3-1 14. CONTRADICTORY TERMS OF INSTRUMENT
If an i n s t n r r n e ~ c n n f a i n s , ~ ~ typewriftffl terms prenll O W primed I w ~ ~ S , buns, handwritlen terms v

a n m r both. and words prevail over nwnbers

(1) (fan&s&~m_ent k p a y b l e to an accounl and the acml nt isldentifed o 1 by number. the instr~nnenl payable to the persan to whom the n4 is account is payabe if an insfnment is payable to an account idenUfieo by nvnber anc by the name of a persoil, the Insnmenx e payzt!o to 1r.e naned perscn, wether or not lhat penon IS lhe owner cf :he x m l n l KlenU'wl hy ilunbar.

( ) a bust. an estate, o a person described as bustee or repmscn~vc r ofa or estate, me I b payable b lhe astee, tk rcpresenlative, or a sucwsm ofeilher, wheMer or not iiw benefldary or esste is also naned; (li) pe.son describer)as a p t w sirn;)ir reolrsentehvc of a n m c d or icemiled person, the mtrwnent b payable to me - ---- - oprson. the a rer,resetited --.., representative, cr a successor of the r~preSnta*% ( a fuld or cqnnlzaton that is n>t a lopal enrtv, the ingtlc& 1s payatle to a repremiawe 3f 6 e membws of the hind ac organ~zallon, I ) or ( w ) an off CE?Or to a rerson descibec as holding an olfim. me &tr~~mCtl!iS payable tothe named person. the lnctrmbent of h e off,ce,or a succes.wr to lhe hambent. (dl Ifan I . I payable to h o r more p m o n s alkma2vely, it is payable to any dlhem and may be mgolbted, discharged. or enforced by S any or all of Ulemh possesdm afthe l~strument an I n s l r m t is payabb to Nn M more perxlns not alternatively. It Is payable to al ot mem and If m2y be n~otlated, dbcharged, or mwced Only by all d them. {fan hstrumentpayable b (wo or more penoh- is ambiBuous a lo wheUler 11 is s payable to me p alkmetlveiy, the instrumenlis payable to lhe persons ailerna~jvely.

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(a) "Ncgab'atlon" meins a t r a n s ~ opossession, whe~er f Wunlawor involuntav. d an ~nstrurnenf a person olher lhan tm i q : a person by _M to who lhereby becomes I$ holder. (I)) Except for neqotia'tbn by a mle,if n M-WgQis payable loan IdenMIed Person, neOdlationrequires lransfet of pmession of the il l a Instrumentand its imjnmernq! by the holder. Ifan instmment b payable t bearer, it may be negotiated by lransferof possesim alone. o
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§ 3-203. TRANSFER OF INSTRUMENT; RIGHTS ACQUIRED BY TRANSFER
(a) An -s 1
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transfermd & e n its d i -

by a person other than l*i&2U tor h e plrpose of giving to h e person receiving &lively the r!ght

In enforre the Insth~mmnL
(91 Tmnsfer of an w h e m or not the ~ o s t e is a p w .$ ? 2aQ Ifhe ~ ~ A Q W ~ i h _ e enforce thc ~ r %3 lo . e a nsndrnent. lnclucina any rbnt as a holdel.l~ds~co9L3.%, the tans& e cannot acqulre nghta ofa hdder in due course by a transfer. airecitv a irulrerriv. h3m but a hoidenn due cause if the lrans+xee engaped +n fraud a ~ilega(ihl affectingme b w m e n t . (2)Unless oiherwlse Greed. if an instiwnent is tansferred lorialieand (hett~nsferee does not bemrne a holder becauseof lack of by the transferor. the bansiereehas a spedrixlly enforceable flght tolhe unqualified indanement of b e bansfemr. but nk?g-,of ihe inshurnent does not owur unHl the lndnsementis made. (a) n a tmstemr p u w t s ta hansfer W thav the emin:inskurent. neaotlabollO Ule instrmnidoes not occur.The trsnsferee obtains no Gghts f under this ArUcle andhe3 only the rime of a padial assignee.

-204. INDORSEMENT
(a) "IndorsemenP means a signahre, olher Wan m t of a signer as %.&e~, &E%K. O ? @ & . alone or acwmpanled by other m d s Is made r ! Z that X on an fistrumant for ihe purpose of (I) negoihtinQlhe lnsbument, (ii) restricting paYment of the in5trumen1, or fit!) imumng ~ @ $ the I liability o @ L n instrum-egard!ess of L e htent ofthe signet, a s i g m r e and ib acampanylngwrds is an indorsement unless (he accanpanylng words. terms of the lnsbumenf place of the signature. or o h a clrcumslanw unambiguously intflcate that the signatWe W made for a purpose other than IndorsemenL For Me purpose oidemrmining whether a s l w b r e )s made on an hshumenl a paper affined t the lnsmment is a part d the o inshmenL (h) "IndorsBr" meawa person who makes an $dormepl. (c) For the purpose of determlning whether che transferee ofan in$hment is a hofder, an indorsement that transfers a security interestin the inskumcnl is effective as an uIIquallfiW indorsement of the inslnaoent (dl If inz&rreat is.payableto a holder under a name mat is not the name of the holder, indowment may be made by the holder in the rime an stated In me instnnnenl ar in the mldefs name or both, but signature in both names may be requtredby a person paying cr taking the hshnent for value or coliedon. I

-205 SPECIAL INDORSEMENT; BLANK INDORSEMENT; ANOMALOUS INDORSEMENT
11 ~ o ~ p z m made by me holder of an ino:ruma, *ether payable to an idenlified persor or payable to bearer, aqd the inoorsernent an is ; iden:,np-% person LO whom It makes the iwbument payaole. ilis a "special indorsemen1:When speualy lndoned. an lnshurnent mas payaD.e a to VIB ldenllfid person and may be negoueted e d y by the indxsemwt of that Wrsm The prlntiples staled in SecOon 3-11.0 apply tospecial
(RI

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(b) I an l d r m lsmade by the Maer of an ~ mand it is not a special indmsernml~ is a - yn L : n gm g ~t +$ r ; ' n W e n indorsed in 'Jiank an instment becomes payable fo bearer and may be nego6ated by transfer of ps€srron alone un spea y t wse ic' Tne node?may convert a blank indorsement tha! ca7SiSfS only o f a signature into a special hdonement b y, above !he siana~ure the or indorser, wrds identiMna me persm to whom me ~StrUmBXt made payable. is . - . ,(I) 'Anorn~~sl!1.d6~ernenV means an i_n&zamnj made by a penon who IS nor the holder of thc n ~ ~ s w r r , An ~ ~ O J S ~ndorserrsnt e~- . doe5 the insmment may be negoralad. nol%%i%e manner lr

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[a)An & & ~ m t limiting payment to a particular person o oUlerwise prnhibiflngfurther transfer or r o the i IS not effecfive to prevent further lransfer or negallallon of Lhe instrument. (b) &!spq& An slallng a condlllon to the right of the indorsee to remive P'dMnenl does not affect the right of Me indorsee to enforce the irrstri!m.nt. A person paylng ihe instrument Or bklng n for value or coilec6on may disreoard the Mndition. and the rights and ibbllities of that person ... are not affected by whether Me condition has been fulMW. (c)If an invtrument bears anhdorsament (I) desatbed in Section92ULQ. or Oi) In Msnk o to aparuudar bank ~ m the words "for deposit." "for r g wllectlan,'~ oVRr A r d s indl!Sing a purpose of havm the insburnent collectedby a bank for b e m E r or for a paIUcular account, the Mlowfng rulss aodv: -,, , (1) A pmon, other man a bank, vho pmchaw Me mlement "en so indorsed w n w the Instrumen! ttwess the amount pad lor the inshmenl 15 recelved by rhe @Ar.wor applied wnsistenUywith the @Qr.sAEe_nl. (2)A &oosilam bank that purchases the W m m t or takas it for COUectiOnwhen 30 indorsed converls the lhstrument unless the amwnt ~.~ pa~d h a bank v ~ t h 2y respect b the msaument is received by tne ~ d - 3 or applled consistenly ,vith the ,yorsem>(3) A rayorbank ma1Is also the ae>oSltaW bank or that takes Le IlsmCnt for lmmedl* payment wer h e M u n c frma perSon other @ena wilecting bank wnverk me instnnwn! un~ess proceeb d the instn~mmt received bv h e moner or aooled wrsistentl\ the are . ,, wth lhe indorsement. 141 Ek~ent omeriise urov&d in naraoraGh (31. a . ~ bankor intermadlarv bank mav disrward h e ~ as .~ D W ~, .- indorsement and is not 1i.h~ if the proceeds d the imhument are not r&ei&l'~y Be !J & o applied ~miSh?jlIIy the ln&e?t. r Wh cd) Except for ar &daefn-mes covered by J u b d o n (c), if & % abears an Indorsemen1using words to t?e dfect that payment $10 w maos an + m t lo the ,odorsee as awn1 trustee, or other Ldgclay for lhe benett of the i139ls.e~ another prsnn. the lollowlng rules apply. of (1) ~nles'there is n o t i i of Breach duty as provided in section a person who purchases the a from the indorsec or takas ihe instrument from the lndorsee far collection or payment m y Pay the proceeds of paymentorthe value given for the Instrument to me Indo&wl reaardto Mhether Lba indcwsee vlubles a Rduoisw duty lo the indomsr. ..~ .~~ . . . (2) A subsepucnl transfereed the W n c n t or person who pays the insbunent is Wlthet given notic8 nor o l h e w e affected by the restncnm n me ~ d m W n b the transferee or payor k n m m t the luLla~ i 1 w~th a tnsmvnent or itn pmoends in breach of . _. u n m h L fdueinv d~tv. (e) The presenceon an inSnument O an indorsemenlto Which this seEIlDn applies does n Prevent a p u r h a s r of the Instrument horn booming a f a tm dm in due m e of me insrmment Unless the purd7aSer ISa m under s u b s e c t i o ~ ohas nolice or knowledge of breach of m a % duty r &'slated in s~%actich la). --~ .~ ------ ,-,(I) In an aclton rn enurce the obl1g0llOn a 19ny lo pay (he ~ n s l r ~ r n ~ ~ n l . of h e obmf has a defense if payment would viola:e en mdwsemeQ 13 W.ch this secbon ap~ilcq and the payment is not penlfled by We secnon
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C 3-301. PERSON ENTITLED TO ENFORCE INSTRUMENT j
"Person entitled to cnlorce. an ~ L R I ~ J ~ (I) the hdder of the inshvmen(, (ii) a nonhdder in pwsession d lhe instrument who has the righls of a means holdcr. or ( 1 )a person not in possession of thc Instrunml who !s~.&~..tp e W . . * e Instrument pursuant to .&dim~ . & & U & e r s o n 11 may be a person en'n!ed toenforce tnc instrument oven though the prson i not the m e r O the instrumenlor Is in wmngful possession of the inslnrmant. s f

§ 3-302. HOLDER IN DUE COURSE
Ial Subiectto subsecllon fc) and Seth HQL61dl."holderin due coume"means the holder of an instrumentIt ~. ,~ ( I ) the imqgmtt when <&&or neJoaated t the hdder does nol bear such apparent evidenca of bgery or @r&on or is rot olhnuvisc so o incgulnr or Wunpiete as to call Into queslim iis auVlenHdty; and ji) the holder w the jnstrumwt (I) for value, (11)in soad (iii) without notice that the instrumen1is overdue or has been dishonored or mat there is an uncured default wlh respec! to payment of another iffitmen1 & ! as part of the same serks. (lv) wlthwt notice that the instrument E contains an unauthorizedsignature or has been altered, (v) wiihout nonce of any clalm to the instrument described in Section and (vi) without has a defense or claim In remupment desfflbed In SeCtlffl notice that any (b) Notice of discharge ofa other Ulan dischame in an insolvency proceeding, is notnotfceof a defense under subsection (a), but discharge is effec&e against a personwho became a holder in due course &th noUce of lhe heiarge. Public fillng or remrdlng of a document does not of itself mnstiMe noUce of a defense, clalm in remupment O clam to the imtrumeni r (c) Except to the extent a bans(eror or predecessor $0Interest has rights as a h m i a w o n does not acquire rights of a holder in due course of an imUnmJ taken (I) by legal process or by purchase in an execulion, bankruptcy, or creditoh sale or slmliar proceedlng, (n) by purchase as part of a bulk transactbn not in mlinary murse of buslness of the transferor, or (lii) as the successor In Interest to an aptate or other organization. (d) !f, under Section 5303(a)(1), the emnls~ performance that is the consideration fw an instlument has been paritally performed, the holder may of assert righis as a holder in due murse of the instrument Only tothe fractfon af the amount payab(a under the instrument equal tothe value of the parilai perkrmance divided by the value of the pmmised performance. (e) If the Parson entiladto e n f m an inslrumen! has only a security interest in the tnsbument and (1) the person obllged to pay the instrument has (I) a defense. claim in r e m u m n t o dalm to the instrument that may be asserted against the person m o granted the secuiitv interest h e oerson r entitled loenforce the inshment may assert rlghh as a holdewwe Only to an amount payable under the rnstrumentu+?ich.'althb time of e n f o m e n t d the inslnment does r d excaed the amcunl of the unpaid W a l i o n SeoJred. (0 To be effnrive, ndice must oe received a1 a time end in a manner that gives a reasonable opportunity to act on 't. (g) This secuon is sublect to any law itmilin9Status as a .h_rIer in due course In particular dasses of transaclions
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§ 3-305. DEFENSES AND CLAIMS IN RECOUPMENT
(a) Except as stated In subsecnon (b),the dght to enforoe the obligafion of a pay.to pay an i&me@ is subject to the following: 1 \ a defense bf the oblioor based on 0)infsnni of the c b l i i r t o theeXtenlBiS a defense to a s i m ~ l e 1 contract, III)duress. lack of boa1 'capad& or illegality i f thetransactjon nhicli. under othir law. nullthes the obligation of the obligor, (iii) baJd tkat induced the obigor lo s,gn Ule &grne_n! Mlh nmiiher knowledge nor reasonawe oppatonilyto lcam of its character or I& essenua' tenns, or (iv) dlscharge of h e nhllmr In lnullvenm omcsminas: - - - - .."~. (2) a defense bfthe obllgor stated in another section of thls Arncle or a defense of ihe obligor that would be available if the person entitled io enforcethe.were enforcing a right to payment mder a slmple contract; and (3) a d a b In remupment of ifw obiigw against the wlginal w e e dthe kl &m!3 if e claim a r e fmm the transactbn that gave r!se lo the % h InsIrumenSjbutt'm claim d the obligor may be asserted against a trensferee ofthe lnsbument only to reduce U? amarnt w i n g on the x Instrument at the time the action is bmught. (b) The rQhtof a -Un due course to enforce the obligation of a to pay the instrument is sublect to defenses of the obilgor stated in subsection (aJ(1),but:ls not subject to defenses of tha obligor stated in subsection (a)(2) or claims in recoupment stated in subsection (a)(3)against a aerson other ihan the holdsr. - ~(c)Except as stated in subsectton (d), m an aclim to erfon;s Iha oblQaSon O a @ Yto Pay Ule b s h h ~ n ! the obligor may not assen against the f B , persogs~~le~o-.&_r~ the instrument a defense, clam m emupmen4 a chlm to (he lnsfnrnent(SecUon 3%) of anotherpenm. bul the other oes0n.s daim to the lnsbumenl mny be asserted by the obllgor i Iha other pemn k ioined in the action and oersonallv asserls he daim aoainst the f person enbUed lo enforce the Instrument. An 0MiQOr k not obibed to Pay ihe imbumenl #the person seeking enforcement of ihe instrume~does not have rlohis of a iiolder in. - .- - .. and the obllaw proves that the inshument Is a lost or stolen instrument. due course - -(dl .n fiction 1 enlwce the obllgalon of an accommodation p a y lo pay an mum%!. Vle accommodaSon party may a s w t ags,nst the p g - ~ 0 gg!,l@.d.!p&nka !he instrument ary defense or clalrn In recoupment under subsection (a) thzt the acmmmcdaled party could assert aga:nst the person erUded to enforce the instrument, except the defenses of dlscharge in insolvency proceedings, infancy, and lack of lcgat capacity.
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- . --" .-------.----------5 3-306. CLAIMS TO AN INSTRUMENT
A person taklng an inslnlment, &r

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ihan a person havlng righis of a holder in due course, IS s U W toa clalm of a pmperiy o pcssessory rignt in ttle r inshumenl or Its p m e d s , Including a dalm ID resdnd a neuotietion and m recover me Instrument or its pmceeds. A person having righis of a holder in due course takes free of the claim to the Inslrument.

5 3-307. NOTICE OF BREACH Ob ilDUClARY DUW
(a) In thls section:
(1) "Fiduciary^ means an agent bustee, parher, mmorateolficeror director, or other representative owing a flduciary duty wth respect to an instrum8u. (2) "Represenled person" m y the prlmipal, b-Wary, ParblershiP, Wrparaiim, or other person to whom ihe duty stated in paragraph

m t is iaken fmm a fiduciary for payment or cdlection or for value. (li) the taker has howledge of the fiduciary status of the fiduclary, and (ill) the represented person makes a claim to the Insbumenlorlls proceedsonthe basis that the transadon of the fidudaly is a bream of nduclary duty, the following rules apply: (1) Notice of breach of flduciary duty by the fiduciary is notice ofthe dalm of the representedperson. (21 in the case of an instrument payable b the represented personor the fiduciary as sum, the taker has noticeof the breach of fiduciary taken In payment of or as seGurltyf0ra debt known by the taker to be the personal debt of the fiduciary. (ii) taken in a duty If the instrument is (i) transaflbn hnown by the taker to be for the personill b e M t of the fldudary, a (3) depositad lo an amount other than an account of the Rdudary, as such, a an account of ftm representedperm. by the represented person or the flduciary as such, and made payable tothe flduciary persanaify, the aker (3) If an lnxtri~ment is does not have notice of the breach of fiduclaw duty unless the taker k m ofthe breach of fid~lclarv - ~ ~ , ~ ,dub. (4) If an Is . z z e e by the represented p~rson-or ikiuclary as sLch, to the taker as payee, the taker has notm of Vie Dreach of fio~clary ~ the auly if the lnsrnment Is (I) !anen ln payment d or as security for a deb: k n m by Lhe taker to be the personal debt of the fddclary. (ii) $ken ina rransacYon Known by the taker m be for the persoral benefit of the fldudaw, or (Ill) deposited to an account other than an acmunt of the Rduoiarv as . . such, or an acmunt of the represented p e m .
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(b) i f [I) an m

I f ,la owed. \ .\

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5 3-308

PROOF OF SIGNATURES AND STATUS AS HOLDER IN DClE COURSE

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spedlicaiiy denied in the pleadlnas. Bthe valMityof a signature is denied in the pleadings, the b~rrlen~Of~d?MAh~p--~_atig~+ ,O~epemdaimlng.-. a t y , b u m g n a b r e is presumed to be autheniic and auih&!atniess the acllon is to enUle liabilityof the purportedsigneiand Me signer IS dead or inwmpetentat the Ume of trial of the issue of valldity of the SiQWature. If an actlon to enforce the imminent is brought against a person as the undisdosed prlndpalof a person M o signed the insbument as a W tothe instrument the plaintiff has the burden of eslablishing that the defendant is liable on:W inbument as a ~uresented mnon under Secllm&Bk'k3l. (h) If the validity of slgnatures Is admlited or omvsL[and there is compliance wlth subsectlon (a), a plalntlffproducing the -is entitled to payment If ihe plalntlfl proves entitlement to enforce the iffilrumentunder Section %unless the defendant proves a defense or clalm in right to payment ofthe plaintiff Is subject to the defense or claim, except to the extent remupmenl. If a defense or claim in recoupment i proved. s the plalntlffproves that the plalnttff has rlghls ofa holder In due course which are not sllblect to the defense or mim.
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(a) In an adlan 4 t h @spectto an inspment, the authenticity of, and authorlk to make, each signature on the Instrument Is admitted unless

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5 3-309. ENFORCEMENT OF LOST, DESTROYED, OR STOLEN INSTRUMENT
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.nj A person not in possessionol an &5m!3 Is entled lo enforce the IIIslrIlmentIf (i) the person was In possession of the insirdment and enUUed to enforce ir when loss of msvlsslon ocmrred. (illthe loss of Possession was not :he result O a trannfef bv Ule person or a l a h l semre. and Ii I tne f . , oi(Son ~. ~-~ the lnsbument was destroved. Its whereabouts cannot be determfnedl dr i is r.,.-,..- cannot reasonabl; obtain oossession uf the instrument bsca~se In the anssessiin of _ . _"nknown oerson 0r.a oarson hat cannot be found or is not amenable to s e ~ ~c e l oforocess ..,-,--7-.z-urrnnoff~l - . an i fb) A person seeklng enlorcement or an @s&m.& under subsedon (a) must prove the ferms d the lnshufrenl a n d 7 G e j n s ri&t.N enlace h. Instrument. If that prmf $ made, Sectlon 3-3008.applles b tho case as If the person swking entorcament had produced the inshumen1 i T c e m a y - e1 mn In favor of the p r m seaking enforcement unless i t Ands that he penon required b pay the lnslrument is adequately protected es c . / agatnstrms tx ow h@c r it i by reasan ofa-claim by anornerpersan t enfnoe me instrument Adequaie piotectlon maybe provid&l byany a ,\i~Y%. . ..~ . reasonable m.m . , . . ~

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Cj 3-310. EFFECT OF INSTRUMENT ON OBLIGATION FOR WHICH TAKEN
(a] Unless medse agreed. If a e t J d & . Whiefs check, or telleh check k takol for an obligation, me obrmation is discharged to tho same extent dlschawo -Id esull If en amount of money equal to the amount of the ikc4rument ware taken In payment of lhe obllga6on. Olschar6e of tte obllaatlon does no1affect anv l a W U a tthe obrww may have as anjm@rSss the Instrument. Il of (bj'Gnless otherw!se agmedand ex+ as provided in s u b s e a (a), if a @oran u n m e d & is taken for an ObliQatlOn,the oblQatian Is & suspended to the same exlent the obligation would be dmmarged if an amcunt of money equal to t amount of the M were taken, and the fol hang rules apply: f (1) In the case of an unoerllfled-heck, suspension of the obligabon mnUnues until dlshonor o the check or until '1Is pala or cemfisd Pamen, or cetlfication of the chgk resulk in discharge of 'he obllgatlon to the oxtent of tho amount of the chock. untli dishonor of Ule note or unCl it i paid. Payment of the note results in s suspension of the obligation con~nues (2) In the case ofa discharge of the obligatlon to the extent of the payment 4 dishonored and the obligee of the obllgatlon for whlch the instnimenlwas s (3) Except 6s provided In paragraph (4). ifme $ & &a taken Is the nolr enfitled to enfarce UM insfnnnent the obligee may enform ellher the insbumentor Me obligalion. in the case of an instrument of a thlrd whim is n e g o W d to the obligee by I cblklor. discharge ofUm obligor on Ule instrument also discharges the obligation. b (4) ~fthe eerson entitled to enforce me i&maeet taken for an obligation is a person other lhan the obligee, the obligee may not enforce the obligation to tho extent the obllgatimn is suspended. If the obligee Is me person entitled to enforce h e instrument but rw longer has possession of it because It was lost, stolen, or destroyed, the obligation may not be enforced to the extent of the amount payable on the Instrument, and to that extent the obligee's,righh against the obligor are llmited lo e n f o m e n t of the i n ~ i ~ m e n t . (c) if an instrlrment other Vlan one descmed in subsection (a) or (b) is taken for an &ligation, the effect is (i) lhat stated in subsection (a) if the instrumentIs aon which a bank is liable as &ora fii) that sfatad in subsection (b) in any olher me.

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California Civil Code $2872
A llen is a charge imposed In some mode olher than by a transfer in trrstupon spedtic pmperty

by whlch It is made securitytor the performanceof an act

California Civll Code .§ 2909
A lien is to be deemed acocssory a the act b r the performance of M i c h i~ a s c w M e r any person b bwnd b& performance w not, and is is e u .

extinguishable in like manner with any olfieracmssory obligation.

California Civil Code 3 2922
A mortgage can be created, renewed, or exbnded, only by uniting. Wecuted with me formalltiesrequired b the m e of a grant of real pmperiy,

California Civil Code § 3440
ia: Except ns oihnruAw pmvldod in hls chapter, e v w trader of Personal ;Impwry lllrde by a person having a Re time me pogsosslor of the propew, and t not acmnpanieo by an immediate dellvery f n l l o t d o an actual an0 mnlinued change of pussession of the property, b vo.d as against the transferors Y cmol!ors (secured or ~nsecured) tne U e M L e transfer aml thme who bccmne nwfilors Wle the banstemr mmans in possessIan and the s~cessors at m in interest of those m m r s , arrl as sgatnsl buyers (rcm the tramforor hr d u e h good faih sunsequent lo M banster. (bl As used in lhls chapter 'crediw mans a p m n who has a clam, as defined In Section 3439.01, and ilcludes an asslonee of a genera ~ssignrnent for the benem of credltars, as ddned in Secikm493.010 of h e Code d C M P d u r e , ofa deMnr. Creditor" also inclUdes any p e r m to d m m h e bsnsferor3 estate devolves I bust b h e benefit of persons otnerman the tmnsferor. Any such assignee or n truslee may exercise any and an the rlghts and remedies specified in lhis chapter, I1t h q are mailable to any one or r m mditors of the asslgna mnsfemr n who are bsneficlaries 01the assignment or trust, and, in that event (1) Only to the extent the rights or rernedles are so available and (2) only for me beneft of those creditors whose rlghb a r i asserted by the assignee or trustee. Lad modlied: January 75,2071

CALIFORNIA COMMERCIAL CODE
(a) Excepl as otherwise &d

19313

in subdlvls(on PI, a secured party may w f e c l a securily Interest htangble negotiable dmments. g m h . insbumenb. of me mllahral. A secured party may perfecta socurlv interest in cerlifcated securltles oy Wing delivery of Ihc CarKcatw secxltles u7der SectJon 8301. (b) ~ ~respect to goods covered by a certificate of U H Issued by this s ~ t ea secured party may perfect a security interest In the goods by $king p-ssion t h ~ , of the goods only in the clrcums?ancss described In suWIviSilan (d) of SBction 9316. (0)With respect to mllateral other than cerwicated securities and goods covered by a dmumenl, a secured party takes possessionofcollateral In fie pomssbm cb a pesyan o~herman d e W , the secured party, or a lessee of the &lateral fmm the debtff in the ordinav course of the debtof* business. the when ellher of tt;e following mntilllons is satbiid: (1)The person In possesdm au(henUeak5 a r e a d admmledgiW that It holds possessionof the cdlateral for the secured paw's beneflt. (2) The person takes possession of the mllateral alter hsvlng auUm6cated a record acknnowledh 'hat it w 1 hold possessm ofrxlltateralfar.the seured S patty's benefft. (d) Ifperiwtlon of a sewrltylnterest depends upon pOSseSdOn Of the ColiaW by a secured Party, perfection occurs no earlier than the time the secured parly takes pposesslon and continues only whlle the secured party retains possession. (e) A securlly interest In a certlftcated security in registered form is perfected by delivery when dellvely of h e cerfiflcated security o m r s under Section 8301 and remains perfected by del@ryunUl the debtorobtains p m s e ~ s i ofn security oertlffcaie. ~ the (f) A person in possession d mllabml Is no1requiredto acknowledge bat it holds possessionfor a secured p a w s benei7t (g) If a ~ r s a aclmoluledges bat A holds pc~esslon thesecured paws beneflt, both of L a b W n g apby: n for (I) ackn&dgment Is e The m under wbdivislon (cj nundersubdiision (a) of Secgon 8301, even If me acklw&dgmenl violales the rights of a debtor. (2) Llnless be person othenvlse agrees mlaw Other man lhiS divlSbn otherwise ~WJkks. lhe Persondoes nol owe any duly to the secured pady and Is not requlred to conflrrn the Bcknowladgment to another person. (h) A secured party having po&ession of colateral does not relinquish pcssessbn by dellverlng the collateral to a pervon olher than the debtor ar a lessee of me collateral from the debtor in 'p ordinary course of the debtor's business if h e person was hstmcted before lhe delivery or Is instructed mntemporamusly with the dellvev to doelther d the following: (11To hold possessionof the Wlateral for the secured paws benefit (2) To redeliver Re oallatem lo the secured party. d&s not&lnquish pmsesslon. even if di3ke1~ a under subdivision (h) violates lhe ilghts of a debtor. A person to which collateral is (I) A sea^ delivered undersubdlv)sion (h) does not o v l any duly to &e secured party and is not reprlred to amfirinthe delivery to another person unless the person othelwlse agrees or 1hW other ~ than thls dlvlslon otheiwlse pmvldes. L a s t m d k d : January 15, 2011
money, or tang'ble ehaW paam by taking p. z&n o co %

California Commercial Code 5 9314
(a\ A securitv interest in lnvesbrientprweriy, deposit acmunts, letter-ofuedit rlghk, electmnlc c h a w paper, or eleelronic documents may be perlectedby control o f t h i colbteral under Section 7106: 9104,9105,9108, or91078 (b] A securlly interest h deposit aoxunls, elecbonic chaUal paper, leller-ofuedlt rlghts. a elecbonic documens is perfected by conlrol under SecUon 7106. 9104,9105, or 9107 *en the searled party obca'ms mntrol and remains perfectedby mnml manly while the searred party retains conlrol. f.,.c ) A securllv lntcreat in inun&nt woasm, B ~orfected mnbol under S ~ c I i m by 9106 W m me time ihe sewed party obtalns control and remains pmected o > ~, , ~. by mnlrol untll boUl of the foftowingmnd/tlc& a& satisfied: (1) The secured paitfdoes not have control.

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.=

(A) If Me colbleral Is a certllkaled securlly. me debtor has rn acquires p-m of (he scwdty cRmtcak. (R) IfIhe iollateral is an unc€rWmled ~ u r l l ythe issJer has registered or registers gr dobbr as tno rcglsteredower. , (C) I f (he colLqRral lr, a secudly onmlemom the debm 1 M becomes the emitlemont holder. Lesl modified: January 7 % 201 7 s

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15 USC 5 7001
(a) In sensral

GENERAL RULE OFVALlDlN

Nolwilhslandinganysalute. regulation, or other rule Oflaw (other than thissubchapter and subchapter I olthis chapler), wlM respect toany trarwction in or 1 afiecllng InlersMeor forelonmrnmerce-() a nbnature, m b d ,or other remid relahg I

m wdh bansaction may not be denled legal erect vafidii, or enforcoabllitysolely because It is In electronic
sigrature or electronic record

form: and
(2) a mnmct relating to such transaction may not be denied legal effect, valldlty, orenfwceablBl~ sdely because an el&onlc

was used in its formation. (b) Presewatlon of righls andobligations This ylbchapte- dDes no&
(1) Ilmlt. alter, a o l h e ~ s affect my requiremenlimposed by a stam, rsgulaHon. o m!e e r

oflaw relating to ihe righa and obllgation6 of persons under such

statute, regufatbn, or rule af law oWr th;n a rwlrement hat oontraets w omer reoords bewMtcn, signed, or in nonelectronic form; or
(2) require any person to agree lo use or accept elecmlc remds or elemonlc signatures, M w r lhan a gsvernrnental agency vvifh respsct t a record other o

than a contract lo which it is a pary.

Ic) Consumer dlsd~sures (1)Conaent to etuctronlc r e w r d s Moldthstandlrgsub5ecflon (a) of th~s sectlan. if s w t e , regulation, or other mle of law requires that lnmnnathm relating to a trensach ar transadbns in or a
abciing interstate or forelgn oommerce be provlded or made wailable la a mmurner in writing, ihc use dart dectroeic r e m d to provide or m a e available (wtlichever is required) such infmaHon saUsfles the requirement mat such informam be in writing If-

(A) the consumer has affhmatl~lynnsentea msuch use and ha3 not withdrawn such cowanr,
(8) the consumer, p r i n lo amsenting. I provided Mth a dmr and ampicuous statements

(1) iniormlng the mourner c d (I) any dght or optlan dtha conSumwto have the record providedor made available on pa$mar in nonekctronk nmn,arm ( 1 the right of the mnsumer t Wlthdraw the consent b3 have the record Provided or made available In anelecbunicform and o any condimns, consequences 1) a r (whlch may indude termination bf me parlies' relatimshlp). or lees In me went of such wllhdrawal; (ti) intormlng !he mnsurner ofnbther the consent appRes

( ) to the particular transaclh whkh gave rs to h e obllgatim to pmvlde i ?herd, n Ionly ie h

(11) lo idenUfied categwtes ofreCwds lhat may be provided w made available during the course of the parties' relationship: %I) describing the procedures Lhe mwmw must use to withdraw m s n as pmvided In dausetl)and lo update infmmabm needed to c o n t e me consumer nst
alectrcmically, and (lv) informin$the consumer
(I) how, afterlhe mnsent, the mnsumer may, upon requW, obtain a papcr copy of an elactronlc record, and

01) k h e r any fee WM be chaged for such copy: w
(C) the consumer() I prlor to wnscnting. is pmvlddmith a statement of ihe hard-

and sOffWare requirementsfor access b a n d retenlion of the elecuonb recows: and

( 1 consentseleclronically,or wntirms his or hercOnsentelectonicafly.ina rnannerfhatreasonably demonstrates mat um consumer can acDsss ilfomation 1) in the electronlcform IhatMil be used lo provide the ihforrnation that is (he subject of lne mwenl; and

(D) alter the consent of a mnsdner in accordance With subparagraph (A), if a change in Re hardware cu software wulremenb needed lo access or retain
electronic records creates a material risw Vlat the consumer will not be able i a w w or retain a 9ubsequent elactranlc remrd Aat was the subjectof the o mnsenl. Hre person pmvldlng Re clecbwtk recMb
(f)

pmvldes the ~msumer 6 statement of w.lth

((1 the revlsed hardware and solhvare reqolrernenls tor access t and retention of Ae electronic remrds, and o (Ill the rlght b Mthdraw consent wlthout the imposllonofany rees for such withdrawal and without the irnpwitlon of any mndifion w mnsequence that wag not dlsciased unaer subparagraph@)(i); and
(B) again cwnplles wllh subparagraph (c).

(21 Other rlghts

(n) Preservation of cansumer pmecuons NoUllng in thlssuhchap(eraRecb me mntent a Ihning of any d'sClosUre or O m u recordrequired to be pmvided or mdeavailabk t any nnrswer under any o slatute, regulaUm, or other rule of k-nv.

(8)Veriflcatian or acknowledgmem if a law that was enacted prlor to mls &ap:er expressJy requires a record to be pmvided or made available by a specified method lnal requires verification or acknowledgmenta recefpt. the record may be provided or made availableele~lcaly i only iffhe method used provides VeriREaUon or acknowledgmenlof
receipt (whichever is required).
(3) Effect of failure to ablqln ekmonlc carsent or C o n n d 0 n of COUsent

The Isga! effectiveness, valldty, a enforceabifityof any mIract erecutW by a wnsumershall n O l Se denied solely because of the hilure to obtaln electranlo conwnl or ~nfirmailrm cmsent by thsl consumer in accorchnce wlm paragraph ('l){C)(Il). d

(4) Prospeclive eflect
Withdrawal of m e n t by a cmsumer shall not aReCtthe legal effeclivenes, validity, a ' e n f o m a b ~ electronic records provided or made available lo h a t of consumer h~accordance wilh paragraph (1) prior to ImplementaIiGnof the mnsumr's wimdrawl of consent A consumer's d t h d r a a l of consentshall be effective withln a reasonable perlw of U r n *receipt O! the H d r a w a l by Me Providerof the recnd. Failure to comply WUI pgragraph (I)(D) may, st ihe eledlon of the consumer, be treated as swithdnwal of mnssnt for PlvpDseS of this paragraph.

(5) Prior consent Thls sukectlon does not apply fa any records that are pmvMee or madeavailable t a consumerwho has cornentea prior to iheeffedve dele of this o
subchapter lo receivesuch reoti*

In elecmlc fonn as uemltted by any stable, regulation,or oQmr rule of law. ofan oral ~CmmunlcdUon shell notqualm as an eleclmnlc rscord fw purposes of mls sunsecton except os othernise

{Bt Oral c o m m u n l d o m
An oral comrnunicalionor a -dig provlded under applicable Iw. (d) Retention of contracts and records
(1) Accuracy and acce9siblllty

If a stawte, regulatkn. o Mher rule of lanr requires that a CUn!mGtorOther remrd relatingto a transaclion in or afbcUng interstate or foreign commerce he r retained, that requlremant16 met by rel2lnjng an efectmnic re& of Me informalon A1 the contract or omw r ~ m mald Informationset falh in the cantract or other I C ; and E& (A) armraaly rdects

(B) remalrs aeFessible b 311 peisons w'la are entined to acmss by staute, reguiaum, or rule of law. f r me period required by such Gtatute, r&gylatim, or rule o
of law, ln 2 fm~ Iscapable d being accuralely reproduced for later reference, Melher by lransmisslon, prlntlng, or otherwise. ma1

(2) Exceptlon
A requirement to reMn a contract o athm record in accordance wim F Q r a p h (1) does not apph, I0 any InfonnaNmwhose mle purpose is b enable the r

contract or omer rocord to be rent, mmrnunic;rIed, or rmxbd

(3) Orlglnals

l f a statute, regulation, or aher rule of law rsqulres a ambact or Olher record relating to E bansactlon In o alfeGting interstam or foreign commerce to be l r
provided, available, or refalned in lb orlginal form, or p ~ v l d e COnSeqU5nCeSif me WnbaCt or dtlerrecDrd is n d pmvided, available, or retalned in I$ origlnal s
iorm, that staluta, regulalbn, or rub of law is satisfied by an electronic recnd that COmplies with paragraph (1).
(4) Cheeks

( f a s t m , mguhhn. or other ~ l of lawrequkesthe refentlmda check. mat requirement is sa~sflal retentton of an electronic w a r d of the information on e by Me hunt and back of me && I In amdanee v l h paragraph ( ) vt 1.

(el Accuracy and ability to relbln contract6 and other records No~thalandlng sr~bsection of thlS SeCflOn,if a Statute, regulation, orothar rule of law requlres lhal a contract or other recordrelating ta a transaction in or (a) affoctlng interstale o r f o m n mmrnem be in wrlUng, gle legal &ct, validity, or enforceability dan elenronic record of euch contract or other recmd may be denlad ifsuch eleclronic record is not in a form Mat is cspaMe of being retained and a&tely repmduced forlleter reference by all parlies or Oersans MMare
ontlhd to retah Le con!ractor@her remrd.

M Pmxhnlhl Nathhg in this subchapte~a~ects pmximify required by any statute, reoutatlon, or ather rule of lawwith respectto any warning, notice, dlselosure, or other the
record required to be pmfed, dl?,piayed,

or publicly affxed.

12 USC 5 2605

QUALIFIED WRITTEN REQUEST (QWR)

(el Duty of loan senrlcer to respond to borrower inqulris

[I) Notlce of recelpt of lnqulry
(A) In general

If any sorvioer of a fsderallyrelafed morlgage loan receives a qu&& Written nquesllmm halldays, Saturdays, and Sundays) unless the action requested is taken wlthin such period.
(B) Qualifkd wrltten request

bMnrwer (oran agent of ihe fKumw!r)

for informasonretalng to

the sewlclng of such loan, the selvlcsr shall provide a writian response acknowledging receipt OoltheEorrespondence Mthln 20 days (exdudlng legal publlc

For purposes of this subsemon, aglaMed ledluen requestshall be a duen mrrespondanm, other than notice on a payment coupon or olher payment medium
supp4led by h e senrlcer, that-

r (I) includes,o otherwise enables the sewicer to identify, the name and accounl of the bonanrec and
( 1 ~ncludes statement of 7le reasons for be bellef of the borrwder, to Ihe extent applicable, that the account is in ermr or provldes sumcient delall to the 1) a servlcer regardlng other inforrnatlonsought by the borrower.
(2) Actlan wlth respect toinquiry

No1later than 60 days (emding legal pubUc holidays. SahiVhYS, and Sundays)afler the m l p t from any bomrwer of any quailfled mitten request under h! l paragraph (1) and, if appllcable, More Wring any action wlth respect m the Inquiry of the bwmwer, the sewleer sa (A) make appmprlate cortectiom in the account of the borrower, includtng the crediting of any late charges or penaltl~, transmit to the bornower a ~ r ~ t k n and noUAcaUon of such correction (which shal Include the name and t e l ~ ~ h w number of a represenmFve of me servicw who can proviUe assistance m the re borrower): explanation or clarilication that Indud* (8)after conduchng an invcstlgaIhm, pmvlde the borrourer~'4th a (Q rn me extent applicable, a statement dthe reasons for whfch me s e n m r beUevas Me m n t of the D C H m e r IS mmcl as determined ~y Ule semcer; and (il) the name and telephone number of an hdividual employed by, or the office or aepament of, lfle semicer who can pmvide assisiance t me borrower; or n
(C) after conducUng an lnvestigatlan, provlde the borrowerwith a written explanatlm or ctanticatlon that lndudes-

(I) informallon requesled by the C m O W e r or an eXplanation O Why the infOrrnatl0n requested is unavailableor cannot be oMained by the servicer, and f ( 1 the name and telephone number of an individual employed by, or Me Officeor aepamnent of, Me SeMCer wile can provide asslslance lo the bcrmer. 1)
(3) Protecllon of credlt raHng

During the GO-day perlod beginning on Ule date of S d i r ' 5 receipt from any borrower 01a quallRedmlften request relaling to a dispute regarding the the bormwefs paymenfs, a m i c e i may not pmvlde infamation regardingany overdue payment m m by such h ~ wltten request, to any consumer reportingagency (as such term Is defmea under section 1681s of ntle 15).

w e r and relating to such perlod or qualified

(9 Damages and c a t s
Whoever falls to comply !Mt? any pmvtston of fils sectian Shall be liable to the bonower fw each wch iallure in the fdiowing amounk

(1) lndlvlduals
In rno cwe d any act~an an individual, an amount equal m the sum ofby

(A) any a w l damages to the burrower as a rasul ofthefailure; and (6)any addlNonai damages, as:the counmay allOW. in the caw Ma Pattern o practice of noncomplisnce with the raqulremenh; ofthis section, in an amount not r
to exceed $1,000.

Civil Code 9 1185
(a) The ackndedgnentof an lnshnnn?shannot be taken unless he ofhcer B k h g i l has SaWctoryevldence that Ihe person m a w ths acknowledgment is
tlie nalv dual who 1s described in and who erecukd the Instrument. (b) For lhe pwposes of t h l ~ section "sahsfactory evidence' means the absence of any infomation, evidence, or Mher circu~~~sbnutlsWUIO lead a t~at reasonabln person to selieve lnat tys perJon mahlng lhe acknawledgmenlis n01 h e individual he or she clahns lo beand any one of the folbwicg.
( I(A) The oah or al?hnatlcn d a credlbk wlhess peiXrnaW known to the officar,whme I d m W b prcven to the officer upon presentanon o any I c dncdmnl sausfvlrm the rermlremenfs o paragraph (3) or (4). h a t the person making the ackmedgment L persanally lodown :o the witne~s mar each of f S and

(i) personmaklng the ackndedgment is ihe pecson nameu In Ule dacument 'The
(il)The personmaking the acknowledgment is personally lorown tu lhe wimess.

(lli)That it Is the masonable belief of Ule wlQtess ths4 the drwmlanoes oftbe person maklng the acknowledgmentaie such that It would be very diiRcull o lmposslble for that person to obWn anoiher fam o IdenUFicaHon. r f flv) The person maldng the acknowkdgment does n 4 FuSsess any o ihe MenMlcalimdaxrments named in pwagraphs (3) end (4). c f (v) The Lwtness does not have a financial interest in the dcCument Lleing acknowledged and is not named In the document

(0)A notary publk whovlolales this sectlon By failimg todtaln the satishctory e ~ l d e n requlred by subparagaph (A) shall be subject to a dvll ~e penalty not exceeding $n mausand dollars ($IO.W(I). An a d o n K imp= thi5 cfvil penally m y be bmught by me Secretary of Stale in an adminktrativs ! proceedingor any public prosedue i n supeflw ccurt. and shall be enforced as a civil Judgment A public prosecutor shaU inform the secretary of any civil panally Imposed under Ulls subparagraph.
(2) The oam or affirmaflontjnder penally af perjury oFtm credlhb witnesses, whnse Identities are proven to h e oficer upon the presentation of any document saUsfying the requirements of paragraw (3) (41, that each statement in paragraph (1)of this SuMivision is kue. or

(3) Reasonable reliance cn the presenhtion to the officer Many one of lhe loll ow in^, if (he document (3 mrrenl or has been issuedwithin v ie f
(A) An (denUAcaUmcanl o ddver's BC?nSeissued by the C a l i i i a Deparbnent of Mobn Vetddes. r
(B) A passport Issued by the DepBrbnent ofState of the UniIed Slates

yeas:

(4) Reasonable relianc&n the pmsenlaUon ofany one ofthe following, pmvlded that a dacumenl spebfled insubpafagraphs @)to (F), inclusive, shall elmer be current or have been l w e d ntthln five Yearsand shall Contain a photograph and description of ttm person named on It. ?hall be signed, by the person, s shall bear a serial or ofher Identitylng numbor, and, In the event hat the document I a pawort, shan lrave been stamped by the United States tmmiwaflon and Naturalization Sarvlce: (A)A passport laued by a foreign government
(B) A drler's licenseksued by a state other than Callfornlao by a Canadian or Mexican publlc agency authorized to issue drivers' licenses, r

(C) An identificallon a r d issued by a state ~ t h e r h a n Calilornia

(D) idenUWon card issued by any branch nf me Armed F o r m of the Unlted Sbtes An
(E) An inmate identiflation card issued on or after January 1,1988, by the D e p a h n t of C w r e c t i ~ and RetlabllMan. A the Inmate is in t w b d y . s
(F) An employee identification cam issued by an agency w office of the State ofCallfania, or by an agenoy or M c e of a city, county, or city and county In this state.

( G )An inmate identification card issued prior to January 1.1988,by the Department of Corredlonsand RehabllltaUon, ifh e inmate is In custody
(c) A" officer who

rn taken an acbwuledgmenf &want to Vlis secfion s a R be presumed f have operam4 in aomrdance wah fhe pmvlsions of law ha a
o f f l a lo establtshthe pope, identity of the perscn maldng thsacknowledgment shall

(d) Any party m o Rtes an aotio" b r damages based on the (ailwe of

have the butrlen of prmi h establishing the negligence or misconduct of the omcer.

( e ) Any person convicted of pejury u n e r this Ssction shall hifeit any financial Interest in me document.

~,al(

Penal Code 5 115
'a1 Everyperson who mowing& procum or offers any Mse or forged Inmment lo be tiled. regstwed, of recorded tn any public officeMmln fins stale,with nslrlment. If gen~lne, might be filed, registered, or remrded under any ikw of thk stab or ol the United SlirEs, Is wil(y of a fclony.

(b)~ a dirrslrumentwhlch Is pmcurea or offered to be filed, mgistered,ar recordedin violation of suhdivlsbn (a) shall consmte a separate violation of this l section.

(c)Except h unusual cases where the 8Ieresb OflustlGe would best be sawed I f pmbalion is granted. pmbalion shalt not be granted to, nor shall the exacution or impasition of sentence be suspended for. any of the following p e m .
(1) Any person wlth a prlor conviclbm undor W sedlon who Is again comrCcted of a violation o thb Section in a separate pwceedlng. f
(2) Any person who is oonvl~ledd more I M one viaanon of mk s e c h a angk proc&ng. ~ resui'ed n a c~m~lailva finaqelai lass exceeding one hundred thousand dollars (L100.W).

wm intent to dchaud anomer, and where the violations

(d) For purposes of pmsecubn under (hls sedion. each aot of pmcurement orof offering a Yse a brged insbument to be filed, registered, or recorded snail he considered a separately punishaMedense.

Penal Code 5 132
Even! person wna hpon any tda proceeding. hqu~ry, invesUgahM whatever, atfhorlled Of permilled by law, offers hev~dence, genuine or uue, any mot, of as paper. document, record. o dher inslrunent in HliUng. knovdlng the same to have been forged M fraudulent y atbred or ante-datcd. I grllly of felony. r s

Penal Code § 133
Ever! person M o pracllcosany mud or decelt, or knowingly makes or exhlbits any false statement, representation, token, w wifing. to any wlmess or penon about to bo called s a witness upan any trial, pmeedin8, inquiry. or lnvesiiwuonwhatever. aulMrized by law, with Intent b affect tim knlhnony of such wilness. Is gullly of a misdemeanor.

Penal Code 5 134
Every person guilty of prepadng any false or antedated edbook,paper. remrd, insbument in writing. or &er matter or thing, w~ih intent to produce it or allow it to be produced lor any fraudulent ordeceltkli purpose, as genuine or b e , upon any bid. pmceedii,or nquiry matever, authorized by iw.is gullly of felmy.

Penal Code 5 135
Everv oerson who knowlno that any book, paper. record instriAent h~ ~ ~ or lot&r~ ma& or thing, is about to be t n , produed In evldence upon anylrlal. inquiry, or l n ~ ~ t l g a f o n whatever, au'holized by law, vrlllhr~~y deshoys or conceals the same, with intent thereby to prevent it from being produced, is auiily of

Company Complaints

' \

Page 1 of l

LSI TITLE COMPANY
5 PETERS CANON ROAD, SUITE 200

IRVINE, CA 92606

Company Performance
In compliancew i t h i ~ o r n i hurance Code $12921.1, the California Department of Insurance conducted a a Consumer CompIa&t Study o f d admitted insarauce carriers. The company performance table provides the - -complaints det&ned by the department t require that corrective action be taken against the i&urer, or o leading to insurer compromise, or other remedy for the complainant, those that are found to be without merit, those with other ouEames, and justified complaints. Justified complaints often require additional review, as violations o f California insurance laws may exist.

Violation Study
The foIlowing tabl~represents number and type of violations found, by reference to the line of insurance and

law allegedly violated.
Year
2010 1 201 0
*

LineofC+erage
Misc Lmes Misc Lines '

Law

Sectian

Summnri~ed Description of Law

CCR 2694a5
CIC 880

FaUed m respond or did notprovide a complele rcspouse
Failwe ofh u mt use own name o

# of Alleged Vialations 1
1

If compiaipt data does not amear forthis comDanv. tfiis l n will mvide yon with an explanation, ik
To view the California Insurance Code (CIC), Click here To view the California Code of Regulations (CCR), Click here
-

-----

--

Comparison Data
The information below is for complaints closed during the study period for this insurance company. The table provides the Justified Comnlaint Ratio, Market Share, C o m ~ k nShare, and Indexfor this company, grouped t by the line of coverage the company was authorized to sell in this study period.

1f complaint:,&ta does not a p m for this compmv, this l n will provide you w t an explanation. ik ih
For calendar year 2006;the D c p M Comumd Senices Division badreceived 276,419 consumer telephone cdls, handled 33,054 mitten casa,'aud r m v e d $31,526,079 for consumersand policyholdus.

-

-I_I__C____
Last &vised -June 12,2009 0221 PM CopyrightO California Deparnnent of Insurance

1

Roberts, State Bar No. 156180 LAW OFFICE OF J. ARTHUR ROBERTS 3345 Newport Blvd., Suite 213 Newport Beach, CA 92663

Joseph.-

Telephone: (949) 675-9900 Facsimile: (888) 989-9309 Email: ~o&arL.eeal.com
Attorney for Plaintiffs, ERNEST MICHAEL BAKENIE, individually, and all o&en

similarly situated
.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALTFORNIA

ERNEST MICHAEL; BAKENIE,
on behalf of bmeIf and all others simiIadYsituw,

ASE NO. SACVl2 - OggO JVS m x )

signed to the Honorable:

1vs. I

Plaintiffs,
:

JPMORGANCHASEBANK, N.A.; and DOES 1 through 10, inclusive, Defendants.

S ACTION COMPLAINT 1. UnlawfuyCrnfair Acts § I7200

1
ERNEST MICHAEL BAKENIE (referred to as "Bakenie "), by and
of record, brings this action against defendants JPMORGAN

1
CLASSACnO

BAHGWE'v

P
I

COMPLAINT M O B G A N ~ ~ ~ S E B A N.A., K

J

their authority as agents, servants, representatives,fiunily members andlor employees,

and with the permission and consent of their co-defendants.
9.

Additionally, plaintiffs are informed and believe, and allege tbaeon, that

each defendant assisted, aided and abetted, adopted, ratified, approved, or condoned
the actions of every other def&t

and that each corporate defendant, if any, was

acting as the a b ego of the other in the acts alleged herein.

m.
10.

E

Plaintiff is informed and believes and alleges thereont a defendant ht

CHASE is engaged in the business practice of deceiving bankruptcyjudges, Chapter 7

trustees, Chapter 11 trustees, Chapter 13 Trustees, the Oflice of the United States

I'mstee,creditors, creditor attorneys, debtors in possession, debtors and debtors
attorneys ( ' % t c y

players") as to CHASE'S status a secured creditor in tens of

h o d s of bankruptcy cases filed nationwide
1I Through the use of fabricated assignments, endorsements and affidavits .

that putport to transfa Deeds of Trust, notes and the ri&ts to all monies due under

t e t m of tens of thomaads of non-negotiabIe promissory notes (the "MLNsn); h
CHASE has demonstrated a pattern and practjce of playing "hide-and-seek"with
debtors, judges and other b players.

'LASSACTION C0MPLAm"r

UKENIE v JPMORGANC&ISEBLAN&

NA

12. CHASE intentionally conceals the identity of the me parties in interest
entitled to enforce the terms of tens of thousands of residential non-negotiable promissory notes (the "MLNs") for its own ikancial benefit, at the expense of the class and to the detniment of the integrity of the bankruptcy system.
13.
That CHASE is in t e business of owning mdbr servicing tens of h

thousands of residential home loans. Many of which have been pledged to Mortgage backed security trusts.
14.

That CHASE acquired the assets of WASHINGTON MUTUAL BANK,

N.A. ("Hereinafter, "WAMU") from the FDIC after WAMU failed and was placed

into &ivership.
5 .
These assets included portfolio loans owned by WAMU and servicing

rights of loans that were originated by WAMU and its subsidiaries but pledged or
transferred to mortgage backed security trusts before WAMU's failure.
16.
17.

That these MLNs are each non-negotiable instruments.
That after a defaulted borrower files for relief under a chapter of the U S .. Code; CHASE retains 104 attorneys ("network attorneys*) and appears

y B

in thousands of bankruptcy matters as a creditor. 18.
Within each case, the network attorneys are charged with various

n functions depmbg on the chapter filed and the facts of eacb case-That i each

33.

That said practice is utiIized for al mortgage loans originated by CHASE, l

and other loan originators, including insolvent WASHIGTON MUTUAL BANK,

whose &sets were p u r c W by CHASE.
34.

That said manufactured documents are fabrications intended to create the

illusion of a valid transfers MLNs and support the assertion of standing in tens of thousands of bankruptcy cases

35. That CHASE does not transfer MLNs &om a given MBST to itself for
administrative convenience as contemplated in 15 USC 8 1641.
36.
That the aforementioned fabricated evidence is "'photo-shopped" and i s

HZGHLY PERSUASIVE and authentic in appearance so as to ensure legal victory in

the bankruptcy courts.

37.

That said manufactured evidence is systemicalIy utilized to deceive

bankruptcy players and increase the profits of CHASE, its agents and its principals
thmugh massive cost savings and the imposition of attorney fees upon class

borrontets.
38.
As a direct result of this practice, over 95% of CHASE'S Motions for

Relief of Stay and Proofs of Claim are granted without objection.

39.

That the use of the hbricated evidence has a chilling effect on class

debtors and their attorneys. Said business practice discourages bankruptcy players

&om offering objections or from questioning t evalidity of CHASE'Sfalse claims h

basedonstand@.

40. In addition to cost savings of its practice, CHASE unjustifiably receives
trustee payouts f'rom wnthned plans based on submitted Proof% Claim supported of

by fabricated evidence. Said payouts are at the expense of unsecured creditors and
debtors alike.
4:l.

That said practice creates the illusion that MLNs were properly

transfebd to MBSTs, thereby "dumping" the loss of a defitulted loan into a trust years after the loan was originally pledged to a tmst.

4. ' % 2 I said practice allows CHASE to dump defaulted loans that were &
never properly securitized by WAMU and other originators acquired by CHASE into
private mortgage backed security trusts by creating the illusion of a valid transfer.
43.

Said practice shifts the liability of defaulted loans not properly securitized

by W W , f o CHASE to private mortgage backed security trusts. The practice rm a l l o w s ; ? to etlktively mitigate the millions of dollars in liability of the ~~~~~

WAMU acquisition, where WAMU failed to transkr MLNs of its portfolio before its
denis;.
Said practice shifts losses from WAMU to MBST bond investors.

9. That a h anon-judicial foreclosure sale, class members remain indebted
to the pjtue benefi~iary the unsecured note but without credit for the loss of the for
collateral to CHASE'S designated assignee.
10
WSS ACTION WMPLAINT

IWEW16 v JPMORGAN QUSB BANg, MA.

Has not

been coaared orith

original
SANTA BARBARA CIXJMTY

RECORDER

SUPERIOR COU Tot A IFORNlA couw ot SA%~ ~ A ~ B A R A

FILED
FEB 0 2 2012

Nancy D M c C m n , C8N 164780 m Law Ofice of Nancy D u e McCarron 950 Roble Lane nancyduf@sb@yahoo.wm Santa Barbara, CA 93103
805-450-0450 fax 805-965-3492

SUPERIOR COURT OF THE STATE O CALLFORNIA F FOR THE COUNTY OF SANTA BARBARA (ANACAPA DIVISION)

I I
II
II

DAVID W.GATES, b s t e e for the DAVID W. GATES ) T u t dated August 5,1996 rs Plaintiff, )
YS.

-NO:

1384851

MGC Mot$age, Inc., Texas Coqnmtk LPP Morteaee L . LP. Toras Comoration M. Loan ~cq&'aion dorpbation, ~ e &Corpoiation Csl-Westem Rec011vwanee Camomtian. Texas Cn o DB ~ c w e ~rod~ucir, &laware &pami& d he., Deutsche Bank National Tmt Company, as lmstee ~ u t u a~ a n l g l ad& br;nidngassociation wamn Asset Acceptrusce Corporation,SPV vehicle bank Washiagtm ~ u t u a~ o r t ~ a Securities Corpa'ation, bank l ge J Morgan Chase Bn. National Association, a bmk P ak, DOES 1 through 50, inclusive, Defendants.

j
)

>
j
j
)

NOTICE OF LIS PGNDENS ON
1200 Palomino Road, Santa Barbara, CA

1

j

) )

.

) DEPT: 5

Honorable Colleen Steme

Notice is hereby given that an action concerning d prop*

o afbcting the title or right to possession of r

real property was filed on F e r n 1,2012 between the above named parties. The property affected in the above

case is wmmonly known as 1200 Palomino Road, Santa Barbara.,CA. APN N . 023-290-01 o

CERTIFICATION: The undemigned d

~ e sunder penalty of pexjury, that this Notice was served on the ,
a

owners of record far this parcel by certified mail, return receipt requested,on February 2,2012 at this address:

David W. Gates, trustee of the David~W. Gates Tut dated August 5,1996 is 1200 Palomino Road pants Barbara, CA 93 103

- 1NOTICE OF LIS PENDENS

1
4

5

Nancy Duffy McCarron, CBN 164780 Law Oftice of Nancy Duffy McCarron 950 Roble Lane Santa Barbara, CA 93 103 805-4iO-0450 fax 805-965-3492 nancy uffysb@yahoo.com eal Estate Broker Lic. 853086 otary Public Lic. 1791117 Certified Arbitrator for EBB 30329

k

Attorney for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA (ANACAPA DIVISION)

PTI P.I 1
s 1

-

a-

-

I

DAVID W. GATES, Trustee for the DAVID W. GATES Trust dated August 5,1996 Plaintiff,

)

)

case N

~ :

1384851

VS. i NOTICE of Plaintitfs MGC Mortgage, Inc., Texas Corporation ) VERIFIED EX PARTE APPLICATION LPP Mortgage Ltd., LP, Texas Corporation ) FOR ORDER TO SHOW CAUSE AND Loan Acquisition Corporation, Texas Corporation ) TEMPORARY RESTRAINING ORDER Cal-Western Reconvevance Cornoration. Texas Cornoration Inc., To Restrain a Foreclosure and Trustee Sale DB Structured P ~ o ~ u & , ela aware ~orporatioi j Deutsche Bank National Trust Company, as trustee set for Feb. 6,2012 at 1:00 p.m. 1 Washington Mutual Bank, a national banking association ) a t Santa Barbara Superior Court Warnu Asset Acceptance Corporation, SPV vehicle bank ) Washington Mutual Mortgage Securities Corporation, bank ) ~ ~ ~ N~~~ ~ , , f f y re: service t of l ~ ~ ~ JP Morgan Chase Bank., National Association, a bank ) DOES^ through 50, inclusive, Defendants' ) DATE: February 3,2012 TIME: 9:00 a.m.

i

II
I11 I

DEPT: TO: All DEFENDANTS

5

Honorable Colleen Sterue

PLEASE TAKE NOTICE THAT on February 3,2012 at 9:00 a.m. in Santa Barbara Superior Court. at 1100 Anacapa Street, Santa Barbara, CA the court will hear plaintiff's verified ex parte application for a Temporary Restraining Order to restrain the foreclosure set for monday, Feb. 6,2012 of 1200 Palomino Rd., Santa Barbara, the trust property owned by plaintiff which is the subject of this action.

- 1 NOTICE OF Application for 'orderto Show Cau e and Temporary Restraining Order

----------------------------------------------------

2 33.4

DECLARATION OF NANCY DUFFY MCCARRON IN SUPPORT OF APPLICATION FOR TERMPORARY RESTRAINING ORDER

, Nancy Duffy McCmon ,declare based on personal knowledge:
.

The defendant trustee who recorded the NODS and the NOS (Cal-Westem Reconveyance Corporation) has

nown about our intent to bring this application for TRO since January 12,2012. (see Exhibit A1 to the NDM eclaration filed with the verified application) at which time copies of the verified complaint+exhibits were sent.
. On 1-12-2012 I sent notice by fax, by email and by US mail of my intent to bring this action unless the

ustee would cancel the sale and work on a resolution and the issue of standing. I called to speak to the trustee c ttomey. Desiree would not give me an email address or phone for either one. Neither ever called me back.
. Despite the warning in Exh. A1 to my declaration in support of the application, and personal notice through

)esiree in their office, the trustee= recorded aNotice of Sale setting the date for 2-6-2012. 1sent another laming, including a second copy of the first warning, about failure to record substitution of trustee before NOD 'hey continued to ignore me and no one would call me. They will not take my calls nor return my messages.
. This past Monday (1- 30 -2012 I emailed copies of the verified complaint with all exhibits to CWRC, DB,

tamulChase, MGCfLLP. A third time, I notified them I would apply for a TRO and would send email and :lephone notice of hearing and OSC if issued. I am sending a THIRD copy by email of all pleadings today, wit mail notice of hearing at 10:OO am. The Notice of Hearing and called (800-546-153 1 #6) (CWRC) and talke:' rst to Christine and thenNicole in Legal Dept. before 10:00 a.m. to give time, date, of hearing & address.
I

xed to 619-590-9299 (trustee's fax no.) notice of hearing and papers, and emailed them to info @CWRC.com

he only email I have as they would not give me an email for anyone else) declare these statements to be true under penalty of pejury and CA law. xecuted in Santa Barbara on 2-2-2012.
r

NOTICE 01 Appllcatlon for Order t

and Temporary Restralnlng Order

a.,

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i

TRANSMISSION VERIFICATION REPORT

(

riancy Duffy McCarron, CBN 164780 ,aw O f i c e of Nancy Duffy McCarron 150 Rohle Lane ianta Barbara, CA 93 103 105-450-0450 fax 805-965-3492 ~ancyduffysh@yahoo.com Real Estate Broker Lic. 853086 Notary Public Lic. 1791117 Certified Arbitrator for BBB 30329 ittorney for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA (ANACAPA DIVISION)

)AVID W. GATES, Trustee for the DAVID W. GATES 'rust dated August 5, I996 Plaintiff,

VS . VERIFIED EX PARTE APPLICATION ilGC Mortgage, Inc., Texas Corporation FOR ORDER TO SHOW CAUSE AND .PP Mortgage Ltd., LP, Texas Corporation TEMPORARY RESTRAINING ORDER .oan Acquisition Corporation, Texas Corporation To Restrain a Foreclosure and Trustee Sale :al-Western Reconveyance Corporation, Texas Corporation set for Feb. 6,2012 a t 1:00 p.m. )B Structured Products, Inc., Delaware Corporation a t Santa Barbara Superior Court Ieutsche BankNational Trust Company, as hustee with Declarations of David Gates & Nancy Duffy Vashington Mutual Bank, a national banking association Vamu Asset Acceptance Corporation, SPV iehicle bank ) Vashington Mutual Mortgage Securities Corporation, bank ) DATE: February 3,2012 TIME: 9:00 a.m. P Morgan Chase Bank., National Association, a bank ) )OES 1 through 50, inclusive, Defendants. ) DEPT: 5 Honorable Colleen Sterne

) )

case N

~ :

1384851

INTRODUCTION Plaintiff GATES applies for an emergency order to restrain a foreclosure sale on February 6,2012,l p.m. 'laintiff is disabled and a senior as defined in Civil Code §1761(f)(g). CRC 1.100 requires acco~nmodations ihich may include making reasonable modifications in policies, practices, and procedures. CRC 1.100 (a)3.

;ATE$ is facing eviction and loss of a home he has owned since 1977. His wife died of anorexia on 11-19-08.
'hen his home of 30 years burned down in the Jesusita fire in Santa Barbara on 5-6-09. The stress of losing his fife and then his home took its toll on his health resulting in the need for heart surgery. Friends and volunteers elped GATES to rebuild his home in the past 3 years which is 80% finished and ongoing. GATES is currently :placing palm trees which burned in the Jesusita fire as part of the overall landscape restoration.

Application for Order to Show C

3, $27

s*

nd

emporary Restraining Order

POINTS & AUTHOIUTIES
L.

Plaintiff has no adequate remedy; hardship will occur if a sale is not enjoined; balance tips in his favor The court may grant a restraining order under CCP $527. Plaintiff must show there is an inadequate

cmedy at law, meaning that compensation would be insufficient; a serious risk of irreparable harm absent junctive relief; a likelihood that plaintiff will prevail on the merits of the underlying controversy; and a omparison of the harm to defendant in issuing an injunction versus the harm to plaintiff in withholding it, rhich on balance favors the plaintiff in this case. It is conclusively presumed the loss of real property which is a single family residence can not be ompensated with pecuniary damages. Civil Code $3387. Demarist v. Quickloan Funding, Inc. 2009 WL 40377 at 9 (C.C.Ca1.2009). Plaintiff will lose his home if defendant trustee conducts the sale on Monday. iATES would be homeless creating a hardship on a 69 year old disabled man withno family in town. 'he stress of losing his home and having to move his personal belongings could cause him to have a heart attack.

In contrast, defendants will suffer no hardship if the application is granted. They will retain whatever
ccurity interest is recorded and will be able to liquidate the asset if they prevail. Secondly, the property is not ven marketable at this time as it is only 80% finished and can not be sold without an occupancy permit issued. 'he market being down coupled with the construction unfinished, and no permit issued, makes it hard to sell. jefendants would not want a vacant property as it would be subjected to vandalism. Defendants can only gain y delaying the foreclosure until the market picks back up, the construction is finished and landscape conlpleted. The haidship tips heavily in plaintiffs favor; thus plaintiff need only establish a serious question going
3

the merits upon which plaintiff has a better than fair chance of prevailing. Miller v. Ca Pad. Med. Ctr., Inc.

9 F.3d. 449,456 (9th.Cir. 1994). The plaintiff does not need to prove he will win. Here, plaintiff has alleged nd can establish prima facie violations of law and at the very least have a fair chance of prevailing on the merits. Plaintiff will prevail on the merits; he raises serious questions going to the merit. Defendants failed to comply with Civ. Code $2923.5 & $2924. $2923.5 absolutely precludes a mortgagee, ustee, beneficiary, or authorized agent from filing a notice of default pursuant to Civil Code 82924 until 30 days fter contactkg the borrower which satisfies the detailed requirements of $2923.5(a)(2) or until 30 days after atisfylng due diligence fquirements of $2923,6(g). $2923.5(2) requires the mortgagee, beneficiary, or uthorized agent to cont ptions for the borrower in person or by telephone to assess his fmancial situation and explore avoid foreclosure, to advise the borrower of his right to request a subsequent meeting, days of the borrowers request, and to provide the toll-free number made available by

L.

IUD to find a ~ ~ ~ - c e d i fhousing codseling agency. ied

The Notice of Trustee's Sale (NOS) must contain "A description of the security instrument and an identification of the parties to the instrument. (Civll S2924f (b)(l). The notice must also include an accurate statement of thc total ainounl o l unpaid balance of the obligation secured by the real property to be sold as well a!
I

statement of the costs, expenses, and advances incurred at the time of thc initial publication of the notice of sale

Ziv. Code 82924f(b)(I); Miller & Star California Real Estate (3rd. Ed.);. Deeds of Trust and Mortgages, Ehapter 10 8198 Under Civ. Code $2924 a lender must properly senre and record a notice of default setting for the borrower ,reach in order to affect a foreclosure. After 90 days, tluec months, have elapsed. The lender must therefore xoperly serve and record a Notice of Trustee Sale at least 20 days prior to the actual sale date. California non-judicial foreclosure law was intended to reflect the fair balance of the respective parties, i.e :he trusters, trustee and beneficiaries. While beneficiaries want an inexpensive and speedy remedy for defaults, mstor needs prntection against the loss of his property rights, The harshness of non-judicial foreclosure has been -ecognized. The exercise of the power of sale is a particularly harsh method of terminating and foreclosing the ~ g h t of the trustor. s The statutory requirements are intended to protect the trustor from a wrongful or unfair loss of property and
i

valid foreclosure by the private power of sale rcquires strict compliance with the requirements of the statute.

Miller & Starr, CA RealEstate (3"'. Ed.) Deeds of Trust & Nort. Ch. 10, $10.1 79 Miller v. Cote, 127 C.C.3d.
388, 894 (1982). It has been the cornerstone of foreclosure law that the statutory requirements, intending to xotect the trustor kom a wrongful or unfair loss of property must be complied with strictly. Id, 810.18. "Pursuing that policv (of judicial iilterpretationl. the courts have fashioned rules to orotect the debtor-

,f them beinp that the noticeof default will be

strict^

.equired to cure the default." Sweatt v. The Foreclosure Co., Inc., 166 C.A.3d 273, 278 (1985). These statutes create an absolute duty on behalf of the Defendants which must be satisfied before a notice )f default is issue. Howcver, as established by the declaration of Plaintiff and the complaint herein, Defendants ~ndeniably failed to perform any of the steps required by $2923.5 before they recorded the Notice of Default and ssued aNotice of Trustee's Sale. Defendants also failed to comply with Section 2924, in that they recorded a Votice of Default without complying with the pre-NOD requirements of 82923.5 Defendants' failure constitutes ~e~ligcnce se. Thus, Defendants should not be allowed to proceed with any foreclosure-much per rmstee's sale presently set for February 6, 2012. Plaintiffs application for TRO should be The same reasoning applies to a notice of trustee sale. In Anderson v. Heart Federal Savings, 208 C.A.3d.
!02 (1989) Heart initiated foreclosure against Anderson. Heart noticed the amount due plus interest. Heart later

less the

-aised it to $40,000. Heart tried to tender $25,000 which Heart refused to accept. The appellate court set it aside. rhe court was deeply disturbed about the gross improprieties of the beneficiary.

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Application for order to show Cause and Temporary Restraining Order

3.211'

The Anderson court held: The statutory requirements must be strictly complied with, and a trustee's sale based on statutorily deficient notice of default is invalid. Anderson at 21 1. The provisions of section 2924 of the Civil Code.. .must be strictly followed. [citations]. The person relying upon the notice is bound by its provisions, and cannot insist upon any grounds of default other than those stated in that notice. Id. A trustor is entitled to an accurate determination of the amounts actually and legally owed. Here, in addition to failing to abide by the mandates of $2923.5, defendant CWRC also failed to abide by le mandate of $2924, thus rendering the NOD fatally defective. Because the NOD is defective, the Notice of 'mstee's Sale which relies upon it is also defective. Thus both are legally unenforceable and the Trustee Sale lust be restrained and enjoined.

WHY THE FORECLOSURE IS WRONGFUL AND INVALID IN THIS CASE
[OTE: A References are to the Exhibits filed with the verified complaint U Foreclosures are governed by CCP $2924 et seq. which requires that a non-judicial foreclosure sale shall ot take place unless it is done on behalf of the berzeficialy of the note secured by the trust deed. Therefore, only
beneficiary has standing to foreclose. The Notice of Default fails to identify any beneficiary. (Exh. B-5)

merely lists "LPP Mortgage LTD" as the contact to find out how much must be paid to avoid foreclosure. .t no time has LPP Mortgage LTD ever held any beneficial interest in the NOTE, nor could LPP have acquired
ny beneficial interest in the NOTE because the NOTE was assigned to DB Structured Products Inc. on

eptember 25,2005. (Exh. A-10) There is a stamp under GATES signature which reads, "Pay to the order of DB Structured Products, Inc Without Recourse Washineton Mutual Bank, FA By Cynthia Riley Vice President." DB was the trustee on the P&S agreement which securitized GATES note. (Exh. D2). The offering on the pool of loans including GATES loan closed on October 1,2005. (Exh. D2). Once the note was assigned to DB on 9-25-05 the note became an m e t of the trust. Pursuant to the governing documents of the P&S and IRS code, all loans had to be added 90 iays after closing. Therefore, GATES loan became a tmst asset : .: no later than December 29,2005 (90 days ?ost closing). Accordinglv. there could be no further assignment to anyone. It would defeat the trust.

Application for Order to Show Cause and Temporary Restraining Order

3.232

Once in the trust, the trustee could not split the trust deed from the NOTE. The trustee was required to hol, the original note and tmst deed. (Exh. D7) Additionally the trustee must hold originals of all assignments on the note as part of the mortgage file @-7). The P&S defines the "beneficial holder" as a person holding a

beneficial interest in a certificate. @-7)

The trust deed is a voluntary encumbrance executed by the propep

owner trustor. The power of sale is voluntarily given by the homeowner; thus the trustee may only foreclosure as set forth in the power granted by the trustor (GATES) to the trustee, and cannot act beyond its scope. The GATES note states in paragraph 7 (Exh. A-7) "If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of Principal that has not been paid and all the interdst that I owe on that amount." The Note Holder is defined in the P&S as any person holding a certificate. LPP is not a note holder. Only the trustee (DB)could foreclose on behalf of the certificate holders who have a fractional

interest in GATES note.
Exhibit K contains an appendix of relevant UCC codes governing negotiable instruments for court review A loan servicer is not a Note Holder or a lender and lacks the power or authority to foreclose a note. Even if a kervicer could foreclose on the property it would not be LLP because it is not the loan servicer. The GATES mst deed, at paragraph 24 authorizes only a lender to substitute a trustee. (Exh.A-26) The Substitution of rrustee recorded against GATES' property on 11-15-1 1 is executed by LPP. (Exh. B10) LPP is not, and never las been a lender. A lender is the person(s) who funded GATES loan; i.e. certificate holders who purchased the WBS's in the WAMUDeutsche AR-13 offering. IBP is not one of them. LPP is nothing more than a

wetend lender. LPP will not be able to produce the original note with proper endorsements per UCC mandates.
Defendants are trying to confiscate his property without a lawful claim. Plaintiff seeks to clear his title and .ecover damages for the malicious and intentional acts of fraud against plaintiff. Defendant LPP Mortgage Ltd.,
:LPP) does not have standing to foreclose because LPP is not the owner of plaintiffs Note, LPP is not a holder of

:he Note, and LPP is not a beneficiary under the Nbte. LPP does not claim, nor has it ever claimed to be the owne ~r holder of the Note, nor can LPP claim to be a b eficiary. LPP is merely named as a contact in the Notice of

1,

Default. Even if LPP could prove that it is a loan emcer, LPP still could not foreclose on plaintiffs property
without authorization from the Lender under ParaLaph 22 of plaintiffs Deed of Trust.(see Exh. A-25) LPP has
1 standing to 0

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foreclose and had no power to-substitute a trustee.

................................... ........................................
Application for Order to Sh Restraining Order

I.-:

5 -

Paragraph 24 of the deed of trust recites that only the lender may substitute. CWRC has no power to foreclosl as its agency power is derived and thus limited by it's principal's power. Furthermore defendant CWRC failed tc comply with the provisions of CCP $2924 governing foreclosure. Plaintiffs loan was originated on Sept 25,200:

1 No foreclosure could be prosecuted without first contacting the borrower to try to work out a loan modification.

1 CCP 52923.5

No defendant ever complied. Secondly, the trustee was required to wait until the substitution of

trustee was recorded before recording a notice of default. The mstee failed to follow the strict requirements of th' code; accordingly the court must restrain this illegal foreclosure. Defendants failed to identify the beneficiary

as mandated by 15 USC 51641g. The notice recites the trustee is "either the original trustee, the duly appointed
substituted trustee, or acting as agent for the trustee or beneficiary under a deed of trust." This nebulous

recitation woefully fails to comply. Since the trustee failed to comply with basic requirements under CCP
$2924 et seq. and substantive mandate of 15 USC $1641 the foreclosure is void ab initio. Thesestate and federal statutes were enacted as protections to the trustor debtor. They can not be dispensed with as trivia. They are important constitutional rights and the debtor's only defense to the harshness of the power of sale. Since the power of sale was a voluntary grant defendants cannot ignore its limitations. Notwithstanding the procedural deficiencies of the trustee and substantive deficiencies in that LPP has no standing to foreclose because it has no legal or beneficial interest in the Note obligation, the foreclosure is void ab initib as it is based on fraudulently manufactured instruments which were likely forged. (see Exh. M). The questioned instruments must be examined for validitv and should not be automaticallv acceuted as valid. LPP (the pretend lender) med to convert GATES' fire insurance

heeds

which forms the basis for the

fraud claim and the financial elder abuse claim. Now , after stealing the proceeds from his fire insurance ~ o l i c y they are trying to steal his home.

C. Equity Supports Issuance of An Injunction

The principles of equity apply to foreclosure sales. Equity does not allow one to take adbantage of his own wrong nor will it assist in perpetration of fraud on another or the public. Courts can set aside ? foreclosure sale when there has been fraud, when the sale has been improperly, unfairly, or unlawfully conductkd, or when there has been such a mistake that it would be inequitable to let it stand. Bank ofAmerica Nut. Trust & Savings h s n v.
Reidy, 15 Cal.2d. 243,248 (1940). Whitman 11. Transtate Title Co. (1985) 165 C. A.3d. 312, 322-323.

- 6 A p p l i c a t i o n f o r O r d e r t o Show Restraining Order

...............................................................

With these equitable concepts in mind, it is cldar from the verified complaint, declarations and other iocumentaty evidence that Defendants failed to codply with the strict requirements of Civil Code $8 2923.5 and 2924. These defendants should not be allowed to benefit from the harsh and severe consequences that power of sale allows-- given this fatal failure to comply. Defghdants should not benefit from their own negligence. Defendants should not be able to benefit from their fraudulent creation of assignments of trust deeds. Plaintiff should be given the opportunity to conduct discovery and prove to the court that the recorded assignmen~ftrust deed if fraudulent, invalid, and void ab initid. The questioned instruments must be tested for validity These violations of the law and failures to coniply mandate a declaration that the foreclosure process does lot meet the requirements of California's non-judicial foreclosure law. These violations justify the granting of his exparte order restraining the sale. Exhibit M tothe verified complaint shows a class action was just filed igainst WaMuIChase alleging fabrication of thousands of assignments of trust deeds. This is one of them. f i e controller found so many fabricated assignments that Chase (as successor to WaMu) is now bound by a :onsent order.# AA-EC-11-15 issued by the US Treasury (Controller) . The assignment herein is fabricated.
D. The relative Hardships Favor Plaintiff

In this matter, the relative hardship to plaintiff-losing

his home-represents

irreparable injury and harm,

liminishing plaintiffs requirement of showing probability of success on the merits. The loss of one's property lue to foreclosure constitutes an irreparable injury. Demurest v. Quick Loan Fund, In. (2009) West Law 940377 CD. Cal. Wrobel v. S1. Pope & Assoc., 2007 WL 2345036 at 1 (S.C. Cal. 2007). Numerous courts have found this injury enough by itself to mandate preliminary injunctive relief.

Vichols v. Deutsche Bank Natl. Trust 2007 WL 4181 11, at 2 (S.D. Cal. 2007). United Church of Med. Ctr. v.
vled Ct. Com. 689 F.2d. 693,701 (71h.Cir. 1982. If defendants are allowed to foreclose, plaintiff will lose his lome of 30 years, while disabled at 69. A harsher outcome could scarecely be imagined. The balance of harm :learly weighs in favor of plaintiff, both as a matter of law and common decency.

In contrast, defendants suffer nothing by preserving the status quo and allowing plaintiff to remain in his
lome until this matter is determined on the merits. The home will be occupied instead of vacant-subjecting it to ~andalism.Plaintiff can c ntinue with his project of driving to Point Mugu to pick up the palm trees in his truck md installing them onto t , e property with his backhoe. Plaintiff is buying palm trees (from $1 1 to $100) from Nest Flower Growers in oint Mugu. They have been growing palm trees for years to sell to commercial and .esidential contractors for andscape remodels and new construction. The trees have not been selling in the past hree years due to the market drymg up because of the recession. Accordingly, they are selling the expensive rees at a very low price, A d GATES is taking advantage of the opporhmity to complete his landscape renovation Accordingly, defen ants suffer no harm in the delay as their security interest remains. GATES cannot sell
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"r
d
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he property because the assignment of trust deed is a cloud on the title and they can only benefit by the delay.

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Application f o r O r d e r t o Show

Restraining Order

E. No Bond Should be Required
2

Courts have broad discretion in determining the amount of bond, or can waive the bond where it is equitable.

I
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Connecticut Gen. Life Ins. Co. v. New Images ofBeverly Hills, 321 F.3d. 878, 882 (9". Cir. 2003).
The court may dispense with the filing of a bond when it concludes there is no realistic likelihood of harm to the defendant fkom enjoining his or h a conduct. Jorgemen v. Casrridy 320 F.2d 906,919 (9" Cir. 2003)

)

Here, there is no realistic harm to defendants from a restraint of the foreclosure proceedings and trustee's sale. If the Defendants position that the loans were valid is correct, then the loans are adequately secured by the very property In question, which is worth more than a mill~on.Add~tional security is nelther appropriate nor //warranted Phleger u Countrywide HomeLoam, Inc. 2007 WL 405672 at 6. (ND. Cal.2007.

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12 13 14

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In thls case the court should accommodate GATES not only because it is the equitable thing to do but also
because the court has a duty to make special accommodations for an elderly, disabled person. RC 1:100. (a) (3). CONCLUSION For the foregoing reasons, as well as those set forth in the papers and supporting documents submitted herewith and1inplaintiffs complaint, plaintiff prays this court grant the requested temporary restraining order,

1

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and order to show cause, and set the matter for a hearing for a preliminary injunction pending tnal in this case. By: VERlFICATION
,

Nancy Duffy McCarron

20
21 22

11

I, DAVID GATES, as trustee for the David W. Gates Trust dated August 5, 1996 declare:
I am plaintiff in the within action. I have read the
its entirety and declare, under penalty of

I

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24 25
26
27

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1i

perjury and the laws of this state, the allegations set forth therein are based on personal knowledge, except as to those allegations made on information and belief and as to those allegations I believe them to be true. Executed on February 1, 2012.
IL/ E S ~ trustee for the David W. Gates Tmst S dated August 5, 1996

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Application f o r Order t o Show Cause

4

nd Temp rary Restraining Order
1

238

DECLARATION OF DAVID W. GATES IN SUPPORT OF APPLICATION FOR TRO
I, DAVLD W. GATES, trustee make the following statements based on personal knowledge.

1. I completely read the entire contents and every page of the vetified complaint filed in this action. 2. Although I do not understand the complexities of securitization and legalese I understood the facts.
3. I hereby authenticate the documents at Exh. F of the complaint. On 11-19-08 my wife died and less

than 6 months later our home which I have owned since 1977 burned in the Jesusita fire on 5-6-09. Within months my health deteriorated from the stress resulting in the need for heart surgery. I am 69. 4. I submitted a claim to Farmers Firs Exchange who approved my claim, but said I had to rebuild before they would issue a pay-out. I lost all rental income from tny tenants because there were no rooms to rent 5. I was forced to use high interest crelt cards to buy materials to rebuild so I would have a place to live.

I stayed with fricnds. Some friends helped me rebuild. Materials were very expensive so I ran up over
$100,000 in credit card debts. I spent appi-oxirnalely $50,000 in cash on materials where vendors would not take credit cards because my credit was destroyed after I was unable to make mortgage payments.

I was stuck between a rock and a hard place because Farmers would not pay out my fire claim benefit
until I rebuilt and I had very little cash as my tenants had to relocate to other places until I could rcbuild. 6. Farmers said I had to complete 80%. When I did Farmers sent an agent to certify it was 80% finished. 7. Farmers sent 3 checks for a total of $202,548.64. (Exh. Fl) I was shocked when I saw the checks were made payable to MGC Mortgage, Inc. and myself. I never asked for that. I never told Farmers about it. However, I had called MGC to tell them about the fire and that I would not be able to make payments. What I believed happened is that MGC called Farmers and convinced them to put its name on the check. This was not fair because I paid the premiums and was the beneficiary under that policy of fire insurance
8. I called MGC. Their staff told me to mail them the checks, they would sign off and return them to me.

I relied on that representation and mailed them to MGC. They did not keep their promise. I kept callmg. I wrote to them several times pleamng to release my funds. My letters and numerous calls were ignored.

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. ^ . . _ _ . . . . . . . . . . . . . . . . . ~ ~ . . . - . ~ ~ . ~ . . . . . . . . - - . . . . . - . . . . . . . . . . - . . . . - . . - . .

Application f o r O r d e r t o Show Cause and Tern orarv R e s t r a i n i n g Order
.

%37

9. I continued to go further into debt having to use all of my social security funds to buy materials and eat. Eventually my credit cards were cancelled by the vendors for non-payment and filed claims, lawsuits. 10. I was at the point of a nervous breakdown in April when five months had passed and MGC was still ignoring my phone calls, letters and threats. I went to my friend Nancy Quffy McC

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

P

on for help, iyhorr

I was at times suicidal. Nancy Duffy McCarron saved my life. She immediately contact MGC and
threatened to sue them for a racketeering enterprise. In 2 weeks she got half of my money from MGC. They released $1 13,622.96 (about half the money) to my attorney and I could continue to rebuild and eat 11. I used a large amount of those funds to settle the $100,000 in claims against me by the creditors. The remainder was used to continue buying materials to rebuild the home. MGC kept $88,925.68 as they insist I must finish the home 100% before they will release the rest of Farmers proceeds they hold (F2,F: 12. I was again caught between a rock and a hard place because I had no funds to buy materials and I am required to replace the landscaping by Farmers before they will release funds for those improvements. Fortunately I discovered that West Flower Growers in Point Magu was suffering from the recession and had a surplus of palm trees they can not sell. Due to my hardship they agreed to sell them to me at various prices between $1 1 - $100). These trees are worth thousands as they are full grown. I am using ; backhoe to install them. 13. Now MGC is trying to foreclose and take my home while keeping $88,925.68. I came to my attorney when I returned from Idaho and discovered the notices posted on my door. My attorney researched my entire case and discovered the assignment to MGC and the prior assignment were void and invalid She said she had a lot of experience with fraudulent real estate documents and "knows it when she sees it."

14. At the end of the 2010 year I received the 1099 form shown at Exhibit F4 of my verified complaint.
Because I do not know tax law I brought it to my attorney. She said this' meant the purported "lender" had charged-off the loan as a vehicle to get a tax break against significant income during the tax year. Although I do not understand tax law I could see the form recited that my debt was cancelled. 15. I now suspect that MGC may have put in a claim to their own ALTA insurer and collected in full.

Application f o r Order t o Show Cause and Temporcry Restraining Order

3 '13%

16. If MGC collected in full from an insurer who had issued an insurance policy they have been paid already Taking my home worth a million + would be unjust enrichment and a fraud upon me and the insurer. MGC would be unjustly enriched if they now confiscate my home, as they kept my insurance proceeds while I accrued $100,000 in credit card debt, and used more than $50,000 of my cash on materials. MGC would get at least $300,000 in improvements Ipaid for plus all the funds they wrongfully converted.
17. We decided to file the within action to seek justice for all of the frauds and torts committed against me.

I

The last three years of my life have been devastating and have caused me severe stress and anxiety. Had it not been for my attorney who saved my life I would probably not be here today. 18. My attorney intends to do vlgorous discovery in this case and bring to justice the persons who fabricated the assignments of hust deed and who have defrauded me throughout the past 3 years. 19. Defendants never contacted my attorney to effect a workout agreement whereby the payments could be suspended, or at least reduced until I can finish my home, get an occupancy permit by issued, and collect the final pay-off from Farmers Insurance. I was not aware that I had the right to meet with MGC and my attorney to explore options to avoid foreclosure, and that they had to meet w t h me if we requested it. I was never given the toll-free number for HUD or told that I could seek HUD intervention & counseling.

(

I just discovered today that Civil Code 62923.5 requ~red MGC to contact us before filing a Notice of
Default. I never received any counseling as required. My attorney told me MGC never contacted her. 20. If it is determined that MGC's claim is valid I can tender payments when Farmers pays off the final 20% which should be happening in the very near future. 21. I declare the above statements to he hue under penalty of pejwy. Executed on February 1, 2012.

I

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

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- 11 Application for Order to Show Cause and

1 2

DECLARATION OF NANCY DUFFY MCCARRON IN SUPPORT OF APPLICATION FOR TERMPORARY RESTRAINING ORDER I, NANCY DUFFY MCCARRON, make these statements based on personal knowledge.
1.

3

During the last week of April, 2010 David Gates arrived at my home nearly hysterical. He was crying.

5

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I had known David Gates and his wife for 15 years and never seen him is such a state of anxiety. David explained that he had received I checks from Farmers Insurance the last week OI Ianualy 2010 for $201,14864 (Exh F l )

after hc completed 80& of the rebuilding of his home after it burned in the Jesusita fire. David said Farmers made
8

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the checks payable jointly to MGC and himself. David was desperate for money as he had been living on credit s cards for the past and run up $100,000 buying materials to rebuild as ~ a r m e i would not pay his claim unless he

9
10

rebuilt David said MGC told him to sign the checks, mail them to him and MGC would sign them and mail them
1 1

12

hack. David said he had been trylng for 5 months to get them to release his insurance proceeds. David said he had made hundreds of phone calls, and scnt varlous demands. I Immediately contacted MGC and threatened to sue them for racketeering if they did not send the proceeds. They agreed only to send about half ofthe proceeds, claiming that David owed hack payments, interest, and various "late fees, penalties, and assessments." Rather than sue we agreed to take half the proceeds. MGC still retains the remainder of David's proceeds.

I

2.

The UPS label shows the shipping information to my office. (Exh. F2) The return address shows it was

shipped from "Dovenmuehle Mortgage Inc., 1 Corporate Drive, Lake Zurich, IL. 60047 which is noteworthy since the maker of the check was MGC Mortgage, although both corporations shared the same address. (Exh. F3) Thls evidence proves these two corporations are related. The check was made on 5-12-2010 which is noteworthy.
21 22

The next year (201 1) David returned to me office to bnng me a copy of a 1099 form he received. (Exh. F4)

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This was quite interesting since as it shows Dovenmuele Mortgage Inc., recites the same form was sent to JTR. Amazingly it recites that David's loan (same loan no. as on all Lhe correspondcncc from MGC) was cancelled.
A colporation is requircd to notify the IRS, with a copy to the debtor, if it cancels the debt. This could only

happened in one of two ways; either the debt was paid off, or the debt was "charged-off' by the lender. (see F4). If a lender submits a claim for the amount of its loan (which was insured) and a house burns down, it can submit claim to its insurer for the full amount due on the home. I believe this is what happened in this case. (see F4).

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~pplicatian for order to show cause and Temporary Restraining Order
A

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3.

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

Low and behold a document popped up showing that ID number belonging to Dovenmuele Mortgage,lnc. (Ex.F! Savings and Retirement Plan, with the beneficiaries being the employees of Dovenmuehle. This was interesting. Why would this retirement fund be sending David Gates an IRS 1099 form? David had not paid the debt. Yet, the implications of this formbeing filed with the IRS is that such "foregiveness" or "cancellation" of a debt is a taxable event for the taxpayer. David would then owe TAX as if he had received $1.2 milhon as income---the outstanding amount of the debt when cancelled. Since we know that David did not pay the debt (or MGC

kom someone? would not be foreclosing). The only feasible explanation is Dovenmuele received $1.2 m~llion
f i e only conce~vable somcone would be an insurer who paid out on the cla~m. MGC could not make a deposit

Jn its books because if they were audited they would have to explain where they got that money. Accordingly ,hey laundered the $1.2 over into their own employee retirerncnt h d . These banksters are very creative! [had a hunch that although the Dovenmuehle entity was in Zurich Illinois they were probably registered in Texaz The reason I had this hunch is I had traced all 3 companies listed on the fabricated assignment of trust deed :MGC Mortgage, Loan Acquisition Corporation, andLPP Mortgage Ltd.) to Plano Texas to the same address.
[

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

s registered in California at El Cajon, CA, that it would somehow be tied to this same incestuous trio. I was righ %gain!Sure enough Cal-Western was traced back to Plano Texas. The "Cal-Western'' was given to that entity to xick the courts into thinking it is a California entity. NOT TRUE!! It is a Texas entity traced right back to the tri~
3. I h e w there must be a common thread to this incestuous group all tracing back to the same address in Texas.

Sure enough I discovered the l n . They are all controlled by Andrew Beal, a BILLIONAIRE from Plano, TX. ik 3ne must wonder if this is how BEAL became a BILLIONAIRE, by cutting secret deals with the other banksters >n\Wall Street who securitized thousands of risky loans into "pools of loans" and sold them to investors as bond: Some investor whose bond didn't pay off would get paid by government insurance on those bonds so he got paid. lo the trustee DB just split the hust deeds from the notes which was illegal and breach of duty to the certificate on the notes as it rendered their minutely fractional beneficial interest on the notes unsecured and defeatel
he tax-free status of the REMIC tlust in which the investors invested, on reliance that it would be kept tax-free.
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Application far Order to Show Cause and Temporary Restraining Order

3,%4 1

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

illegal splitting of "options to purchase" from the stock itself. I believe that Andrew Beal, the billionaire, cut a secret deal with DB Structured Products. Inc. (the Wall Street banksters running that entity) to buy hundreds, or even thousands of these illegal, fabricated "assignments of trust deed." Keep in mind they were worthless to DB as trustee because they knew the original notes had to be kept with them as the "custodian of the notes'' pursuant to the Pooling & Servicing Agreements" to they could grab millions by selling them to other banksters, who would then simply foreclose on all the loans in default and confiscate the properties. If MGC acquired any anything legally it would only have been the right to service the loan, not foreclose on it. Only the lender can foreclose who in this case is the thousands of "certificate holders" who hold a minutely fractional share of the

beneficial interest in the note. It is the NOTE which is the negotiable instrument and the obligation. (Exh. C)
(See UCC sections at Exh. K which clearly explain the rules on notes as negotiable instruments and note holders. I believe MGC already received insurance proceeds which fully paid the outstanding balance on the loan. They also converted $88,925.68 owes $73,351.90 to cure. (Exh. B5) 6. It is interesting to note that the first Notice of Default recites that Dva~d and a few weeks later a new Not~ce Default was recorded showing he owed 91,754.18 -- $18,000 more. (B6) of This significant discrepancy is suspect at best. How could he owe $18,000 more from one month to the next? 7. Under 52924 et seq. the trustee was required to record a substitution of trustee BEFORE filing the Notice of Default. In this case the trustee filed the NOD and then filed the substitution of trustee. Accordingly, the first NOD was invalid because the trustee had no authorization to issue an NOD until the beneficiary granted it to him Because the NOD was fatally defective, the subsequent power of sale was defective. No one from MGC or CWRC ever called me to discuss David's account, even though they had a signed authorization from Gates and they knew I represented him. I was as sulprised as David when they filed NOD. This was a blatant failure to comply with 52923.5 which mandates that the trustee absolutely may not foreclose without first contacting the debtor (or the debtor's attorney if there is one) to try to work out a repayment plan to them o f t hat in 2010. The fallure to comply wa: avoid foreclosure. MGC knew I represented Davld as I adv~sed intentional. MGC did not want to work out a repayment plan. They just want to steal this $1,000,000 home.
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. _ . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application for Order to Show

Restraining Order

8. I mvest~gated Cynth~a Riley, the purported VP of Wamu bank. whose stamp appeared on the assignment from WaMu to DB Structured Producsts, Inc. purportedly on 813012006 "assigned" the trust deed to DB. There are several websites on the internet which arose after milhons of Americans were made homeless since 2008 to help other who are trying to discover if their assignments were fabricated or forged.

11

The website has a list of h o w "robosigners" and sure enough Cynthia Riley's name appeared on the list. It was reported that she bas been hiding out andno lawyer has been able to find her for a deposition. The wehsite also posted a notice that if the questioned document was executed in certain counties it was highly likely the document was fabricated with "cut and paste" rohosigner signature stamps" as well as "cut and paste" notary "stamped signatures." There are only about 10 counties nationwide on the list. Duval County Florida was on the list. This is where the fabricated assignment of trust deed was purportedly executed and notarized. I am 100% sure the assignment o trust deed which is being used a f the purported authority to foreclose is a fabricated instrument. I am 100% sure that defendants will not be able to v r o d u ~ o r i g i n a note, hut will file yet another periured document claiming it was "lost." l Theyhave been put on warning in the complaint that offering any false document into a proceeding

II

NOTICE OF THIS HEARING.
The defendant trustee who recorded the NODS and the NOS (Cal-Western Reconveyance Corporation) has h o w n about our intent to bring this application for TRO since January 12,2012. (see Exhibit A1 to my decl.) On 1-12-2012 I I sent the notice by fax, by email and by 1 s mail. I called to speak to the trustee or attorney. 7 Desiree would not give me an email address or phone for either one. Neither ever called. They ignored me. Despite the warning in Exh. A1 to my declaration, they recorded a Notice of Sale setting the date for 2-6-2012.

I sent another warning, including another copy of the first warning, about failure to record substitution of trustee
before the NOD. They continued to ignore me. They will not tale my calls nor return any of my messages. On Monday I emailed copies of the complaint with all exhibits to CWRC, DB, WamuIChase, MGC/LLP. Again, I notified them I would move for a TRO and would send email and telephone notice if OSC is issued. Intend to email these pleadings today. I declare these statements to be true under penalty of perjury and CA law.

I

Executed in Santa Barbara on 21-1-2012.

/Vancy V u $ $ y /tlcCa#mn
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. . . _ . . _ _ . _ . . _ _ . _ _ . _ ~ ~ . . . . ~ . . . - . . . . . . . . . . . . . . - . . . . . . . . . . . . . - . - . . . Applicatio f o r Order t o Show C a n e and Tern orary Restraining O r d e r

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;5.3

44-

NANCY DUFFY MCCARRON, CBN 164780 950 ROBLEJANE SANTA BARBARA, CA 93103
January 12,2012

telephone: 805-450-0450 facsimile: 805-965-3492 nancvduffvsb@vahoo.com

NOTICE OF POTENTIAL LIABILITY PARTY TO FRAUDULENT FORECLOSURE DEMAND TO CEASE ALL ACTIONS TO FORECLOSE 1200 PALOMINO DRIVE
transrnltled vla emall to InfotBProm~sso cm
and

-

vla fax to 619-590-9299 and

vla US mall to the address below

TO: Legal Dept. of Cal Western Conveyance Corporation Tel. 800-546-1531 Coast Operations) Subsidiary of Promiss ~olutions'(West 525 East Main Street El Cajon, GA 92020 ~ef:1336895-02 Client ID: CWR CE 1200 Palomino Dr. Santa Barbara CA 93105

(David Gates)

I represent David Gates in the above-captioned matter. You will receive a fax today directly from David Gates authorizing me to represent him. I have practiced real estate since 1983 (Broker #853086) and as an attorney since 1993. I have extensive experience in real estate law, foreclosures, fraud, etc. I researched this matter extensively.

As you know, our legislature enacted consumer protection statutes after discovering lenders engaged in predatory practices in real estate securities. Our District Attorney created a new wing to prosecute fraudulent foreclosure practices. WamulChase engaged in predatory lender practices resulting in nationwide and statewide class actions. My research disclosed predatory practices not only by WamulChase but also by debt collection agents hired to foreclose properties. Allied International closed their collection file and convinced Chase to close its file, admitting there was no standing. (Exh 1) Before and during the transmutation from Wamu to Chase various "securities" were sold, resold, assigned and reassigned. When your company commenced foreclosure on 1200 Palomino via Notice of Default on 10-18-2011 David Gates sewed various demands bv certified mail to all agents involved in the history of his alleged $1,142,302 loan and related trust deed. Gates demanded to review the alleged ORIGINAL NOTE purportedly secured by an alleged recorded TRUST DEED. As you know, since the note is a negotiable instrument any person or entity has standing (assuming the note is valid) to collect the alleged debt by way of court proceedings or foreclosure (assuming they have standing). NO OTHER PERSON OR ENTITY HAS LEGAL STANDING TO FORECLOSE. No person or entity Gates Sewed with Gates' demand produced even a scintilla of evidence to show standing entitling such person or entity to foreclose on 1200 Palomino. PLEASE CONSIDER THIS A FORMAL DEMAND TO IMMEIDATELY CEASE AND DESIST FROM PROCESSING A NOTICE OF SALE! You must cancel any pending foreclosure proceedings until the clients you represent respond to Gates' demand with evidence that they have standing to foreclose. If you ignore this WARNING, NOTICE OF POTENTIAL LIABILITY, and DEMAND TO CEASE 8 DESIST, you will be liable as a party to the fraudulent foreclosure without standing. If you proceed I will immediately file a cause of action in Santa Barbara Superior Court to obtain a restraining order against further foreclosure proceedings. YOUR COMPANY AND AGENTS INVOLVED IN THE FRAUDULENT FORECLOSURE WILL BE NAMED AS DEFENDANTS. My client will avail himself of all legal remedies (civil and criminal) to protect himself. My client's wife died of anorexia a few years ago. Within months of her death their home on 1200 Palomino burned down in the Santa Barbara Jesusita fire. The stress of her death and the immediate loss of their home in a fire resulted in severe health issues including heart problems and bypass surgery. This is a genuine hardship case. Please advise your clients to produce evidence that they have standing to foreclose, i.e. an ORIGINAL NOTE and ORIGINAL TRUST DEED. As soon as you have the evidence I will arrange a mutually convenient time to review the evidence. A judge will restrain foreclosure and will not lift the restraining order until the foreclosing party proves they have legal standing to foreclose. Please advise your clients of potential litigation costs. I trust you will prudently decide to cancel this foreclosure until standing is resolved. Please notify me immediately of what you intend to do. Sincerely yours,

Nancy Durn McCarron. Attorney for David Gates

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Page 1 of 1

Subject: Fw. Dav~d Gates Author~zation 1200 Palom~no Santa Barbara CA 93105 W re Rd From: To: Date: nancy duffy (nancyduffysb@yahoo corn) nancyduffysb@yahoo.com. Thursday, January 26.2012 4:17 PM

Fowarded Message ----From: nancy duffy <nancyduffysb@yahoo.cornz To: Cal Western Corporation <info@cwrc.com> Sent: Monday, January 16,2012 2:21 PM Subject: David W. Gates Authorization re. 1200 Palomino Rd Santa Barbara CA 93105 Attached is David W. Gates' authorization for me to represent him and waiver of confidentiality on his records. Attached is another copy of the Demand to Cease and Desist from foreclosure on 1200 Palomino with notice of liability. Please be advised that you did not record a NOTICE of SUBSTITUTION of TRUSTEE BEFORE you recorded NOD. As you know, you MUST record a substitution of trustee BEFORE NOD (not after!) I trust you will rescind the invalid NOD. The NOD you recorded is VOID AB INITIO because you failed to FIRST record the substitution of trustee. Recording it after the NOD does not cure the deficiency! Please advise IMMEDIATELY what you intend to do. If I have to file an action in superior court for a TRO I will seek attorney fees as a sanction for your failure to cure the defect upon NOTICE of it. Secondly, even if you had properly filed the substitution before the NOD you provided no evidence of STANDING to pursue foreclosure. We hereby DEMAND to see the ORIGINAL NOTE and ALL ASSIGNMENT DOCUMENTS upon which you allege STANDING to foreclose. I await your IMMEDIATE response by email. Thank you. 805-450-0450

DECLARATION OF NANCY DUFFY MCCARRON IN SUPPORT OF APPLICATION FOR TERMPORARY RF,Sl'RADVMG OI<DPK

, Nancy Duffy McCarron ,declare based on personal knowledge:

. The defendant trustee who recorded the NODS and the NOS (Cal-Western Reconveyance Corporation) has
n o w about our intent to bring this application for TRO since January 12,2012. (see Exhibit A1 to the NDM leclaration filed with the verified application) at which time copies of the verified complaint+exhibits were sent

. On 1-12-2012 I sent notice by fax, by email and by US mail of my intent to bring this action unless the
rustee would cancel the sale and work on a resolution and the issue of standing. I called to sp ak to the trustee or ttorney Desiree would not give me an email address or phone.for either one. Neither ever called me back.

4

. Despite the warning in Exh. A1 to my declaration in support of the application, and personal notice through
)esiree in their office, the trustee= recorded aNotice of Sale setting the date for 2-6-2012. I sent another ,aming, including a second copy of the first warning, about failure to record substitution of trustee before NOD. 'hey continued to ignore me and no one would call me. They will not take my calls nor return my messages.

. This past Monday (1- 30 -2012 I emailed copies of the verified complaint with all exhibits to CWRC, DB,
VamuIChase, MGCLLP. A third time, I notified them I would apply for a TRO and would send email and :lephone notice of hearing and OSC if issued. I am sending a THIRD copy by email of all pleadings today, wit! mail notice of hearing at 10:OO am. The Notice of Fbaring and called (800-546-153 1 #6) (CWRC) and talke:' rst to Christine and then Nicole in L e ~ aDept, before . :0 l l0 O a.m. to give time, date, of hearing & address.
I

:he only email I have as they would not give me an email for anyone else) declare these statements to be true under penalty of perjury and CA law. xecuted in Santa Barbara on 2-2-2012.
flancy au$dy /tiECanwn

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---------------------------------------------

NOTICE O F Application for Order t 0 , S h o w Cause and Temporary Rastraininq Order

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~-

TRANSMISSION VERIFICATION REPORT
I
I

TIME NAME FAX TEL

: 8059667548 : 8059667548 SER.# : BROA8J771098

: MERENBACH AND YOUNG

: 02/02/2012 12: 38

DATE, TIME FAX NO. /NAME DURATION PAGE(S) RESULT MODE

Nancy Duffy McCarron, CBN 164780 Law Office of Nancy Duffy McCarron 950 Roble Lane nancyduffysb@yahoo.com Santa Barbara, CA 93 103 805-450-0450 fax 805-965-3492 Real Estate Broker Lic. 853086 Notary Public Lic. 1791117 Certified Arbitrator for BBB 30329
Attorney for David W. Gates

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA (ANACAPA DIVISION)

DAVID W. GATES, Trustee for the DAVID W. GATES ) Trust dated August 5, 1996 Plaintiff, )
VS.

CaseNo:

1384851

MGC Mortgage, Inc., Texas Corpor ion 1 LPP Mortgage Ltd., LP, Texas Corporation ) Notice of Entry of Restraining Order on 2-3-2012 Loan Acquisition Corporation, Texas Corporation Cal-Western Reconveyance Corporation, Texas Corporation ) DB Structured Products, Inc., Delaware Corporation ) Deutsche Bank National Trust Company, astrustee Washington Mutual Bank,a national banking association ) Honorable Colleen K. Steme Wamu Asset Acceptance Corporation, SPV vehicle bank ) DEPT: l Washington ~ u t u a Mortgage Securities Corporation, bank ) JP Morgan Chase Bank., National Association, a bank ) DOES 1 through 50, inclusive, Defendants. )

1

NOTICE is given that on 2-3-2012 plaintiffs application for a restraining order was heard at 9:OOam in Dept. f Plaintiffwas present and represented by Nancy Duffy McCarron. Defendants did not make an appearance. The court granted plaintiffs motion for a temporary restraining order against foreclosure of 1200 Palomino Road Santa Barbara.,CA. APN No. 023-290-01. Attached is a copy of the order entered after the hearing. Exh A.

CERTIFICATION: The undersigned certifies, under penalty of perjury, that the ORDER, with copies of the summons, verified complaint, ADR pk, Lis Pendens and TRO papers was sewed by personal delivery to:
Cal-Western Reconveyance Corporation at its registered agent for process: National Registered Agents. Inc 2875 Michelle Dr, St. 100, Irvine, CA 92696 at 2:OOpm on 2-3-2012. Proof of Service will be filed Monday. Undersigned certifies that a copy ofthe TRO ORDER was served by email to: info@CWRC.com and was faxed to 619-590-9299 at 5 pm on 2-3-2012. Executed in Santa Barbara, CA 2-3-2012.

M a n c y Durn Mc&arron, Attorney for plaintiff

- 1 NOTICE OF PERSONAL SERVICE OF RESTRAINING ORDER ON CWRC ON 2-3-2012

I

Nancy Duffy McCarmn, CBN 164780 Law Office of Nancy Duffy McCarron 950 Roble Lane Santa Barbara, C A 93 103 805-450-0450 fax 805-965-3492 nancyduf@sb@yahoo.com Real Estate Broker Lic. 853086 Notary Public Lie. 1791117 Certified Arbitrator for BBB 30329

1
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BY

Attorney for Plaintiff

@ARyijBL+&~&wtc,~
-TERRI CHAVEZ, Oap tv cle,t

SUPERIOR COURT OF THE STATE OF CALIFORNIA

9:OO am

FOR THE COUNTY O F SANTA BARBARA (ANACAPA DTVISION)

/

MGC Mortgage, Inc., Texas Corporation ) l 3 LPP Mortgage Lid., LP, Texas Corporation - Loan Acq~~isition Corporation, Texas Corpomtion j l4 Cal-Western Reconveyance Corporation, Texas Corporation ) ) DB Structured Products, Inc., Delaware Corporation l5 Deutsche Bank National Trust Company, as trustee ) Washington M u l a l Bank, a national banking association ) Wamu Asset Acceptance Corporation, SPV vehicle bank ) Washington Mutual Mortgage Securities Corporation, bank ) l7 JP Morgan Chase Bank., Nationa! Association, a bank DOES 1 through 50, inclusive, Dcfcndants. )
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1

DAVID W. GATES, Trustee for the DAVID W. GATES Trust dated August 5,1996 Plaintiff.
VS.

)
)

case NO:

1384851

)

( q & ORDER TO SHOW CAUSE &@ j
A N D TEMPORARY RESTRAINING ORDER

To Restrain a Foreclosure and Trustee Sale seb for Feb. 6,201 2 at 1:00 p.m. a t Santa Barbara Superior C o u n
DATE:

February 3, 2012

TME:

DEPT: 5

Honorable Colleen Sterne

Good cause appearing in the verified complaint, plaintiffs application, supporting declarations, and memorandum; and it appearing that this is a proper case for the issuance of an order to show cause and a temporary restraining order; and that, unless a temporary restraining order issucs, plaintiff will suffer irreparable injury before the matter can be heard on notice;
17

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111)

IT IS HEREBY ORDERED that, defendants appear on

3-12-1 3 at

9:&a@in

~epartment

5of the

above-titled court, located at I100 Anacapa Street, Santn Barbara to show cause why a preliminilly injunction should not be issued enjoining defendants fiom selling or attempting to sell: or causing to be sold, the trust property in the within action

1200 Palomino Road, Santa Barbara, California either under a Power of Sale in the Deed of Trust or by a foreclosure action.

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IT IS FURTHER pending the hearing on the ordcr ddendants, and I1officers, employees, partners,ORDERED that,representatives; all persons actingto show cause,participating withtheir agents, successors. and in concert or them; and
each of them are hereby restrained and enjoined fiom selling, attempting to sell, or causing to be sold the trust property in thiq action, 1200 Palomino Road, Santa Barbara eitl~er under the Power of Sale ~nthe deed of trust or by a foreclosure action

- 1 O r d e r to Show Cause and TnrLpordiy

Restraining Order

IT IS FURTHER ORDERED THAT a bond is not necessary in this case because defendants are adequately ,ecuredby the value of the real property itself. Honover v. Hall (1974) 11 Cal.3d. 842, 114 CR642; CRC 1: 100 (a) 3. 1974) 490 F2d. 1334 ntemational Controls Corporation v. Vesco (2"*.~ir.

IT IS FURTHER ORDERED THAT ANY VIOLATION OF THIS ORDER SHALL BE SUBJECT TO AN IRDER TO SHOW CAUSE FOR CONTMEMPT OF COURT WITH THE POSSIBILITY OF COURT SANCTIONS.

IT IS FURTHER ORDERED THAT Plaintiff shall serve copies of this order, the verified complaint, the ad supporting declarations of David W. Gates and Nancy Duffy McCarron

1

~fany pleadings, exhibits or supporting documents may be requested by sending such request to ~iancvduffvsb~vahoo.com

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Judge of the Superior Court, Santa Barbara County
-"

K. STERNE

Order t o Show Cause and Temporary Restraining O r d e r

s, aJ-0

TRANSMISSION VERIFICATION REPORT

FAX

TIME NAME

TEL

01/13/2012 23: 24 NANCV B WFFY ESQ : 8859653492

: 8059653592

FW

D&TE ,!TIME ?ai. / t .!&ME rL!aTf hu

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91/i'5 23:91 $1 ?59e;.?aq(3 co:.81r 9 . :

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Nancy Duffy McCarron, CBN 164780
Law Office of Nancy D u e McCarron 950 Roble Lane Santa Barbara, CA 93 103 805-450-0450 fax 805-965-3492 nancyduffysb@yahoo.com Real Estate Broker Lie. 853086

F I L E&AD R A ~BA WoRNlA SUP RI R C&~STYY#AANT~
FEB 0 6 2012

Notary Public Lie. 1791117 Certified Arbitrator for BBB 30329
Attorney for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA (ANACAPA DIVISION) DAVID W. GATES, T ~ s t e e the DAVID W. GATES ) for Rust dated August 5, 1996 Plaintiff, ) vs. ) LIGC Mortgage, Inc., Texas Corporation ) >PP Mortgage Ltd., LP, Texas Corporation ) >oan Acquisition Corporation, Texas Corporation ) Jal-Western Reconveyance Corporation, Texas Corporation ) JB Structured Products, Inc., Delaware Corporation ) 3eutsche Bank National T ~ sCompany, astrustee t gashington Mutual Bank, a national banking association Wamu Asset Acceptance Corporation, SPV vehicle bank ) Washington Mutual Mortgage Securities Corporation, bank ) rP Morgan Chase Bank., National Association, a bank Defendants. ) 30ES 1 through 50, inclusive,
-

I

cast N ~ :

1384851

NOTICE ofland OWEK T O SHOW CAUSE why PRELIMINARY INJUNCTION should not issue

and application for Preliminary Injunction
Declarations of David Gates &Nancy D. McCarron Filed concurrently with Request for Judicial Notice
case tiled: 2-1-2012

CMC: nd

yet set

MSC: not set Trial : not set

DATE: March i2, 2012
DEPT: 5 CCP $5 527,187

TIME: 9:30 a.m.

Honorable Colleen K. Sterne

r0:

DEFENDANTS AND ATTORNEY(S) OF RECORU PLEASE NOTE that on March 12,2012 at 9:30 a.m. ia Dept. 5 of the Santa Barbara Superior Court, at 110

4nacapa St., Santa Barbara plaintiff will move the court on his verified application for preliminary injunction. The motion is based on CCP $5527, 187, P&A, affidavits, file, Judicial Notice request, any evidence presented. The court ordered moving papers filed 2-6-2012; responsive papers filed 2-21-2012; reply, if any filed 3-5-2012. 'laintiff has served this notice on defendants as shown on the attached proof of service, although no defendant hi nade an appearance. All named defendants have been served with snmmons, verified complaint, ADR packel rotice of lis pendens, and Notice of E n t q of TRO with setting oTPreliminary Injunction Hearing by personal lelivery (process server) as of 2-6-2012. (wefendants on 2-3-2012) and (9 defendants on 2-6-2012).

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

54 3 5

I

POINTS & AUTHORITIES I SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION N

11 SUMMARY OF ARGUMENTS:
3

The theme of the case which the court should apply is:
4

NO TICKEE

...NO LAUNDRY!!!

I

No ORIGINAL note & TD--no relief! This rule must be applied under UCC Art. 3
All Exhibits cited below are to the verified complaint on file, unless identified as being attached herein.
7

(see Reauest for Judicial Notice filed concurrently. --- Exh. K to verified complaint). Plaintiff asks the court to re-read his 8-page application for TRO which contains arguments on balancing the hardships and equities.

~

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9 10
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II

I. UCC Article 3 GOVERNS BECAUSE A NOTE IS A NEGOTIABLE INSTRUMENT
The beneficiaq of a note must be an oblige of the secured obligation (usually the payee on the note) because otherwise the deed of trust in its favor has no purpose. UCC 3-104 (e) (Exh. K -page 2) see also Watkins v. Biyant (1 891) 91 C 492; Nagle r M a q (1818) 9 C 426 [on the need for an underlying obligation]. A deed of trust is merely an incident ofthe debt, Id. The COPY OF A NOTE produced by defendants in its response to plaintiif s QWR indicates that Gates'

14
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debt is payable to "DB Structured Products, Inc." (Exh. A-10). The NOTE wasn't endorsed by any human signor. It is stamped with the name Cynthia Riley, purported VP of Washinaon Mutual Bank. NA (&eadv defunct bank) purportedly notarized by CF Carney. Riley has already been identified as a known "robosigner" as noted in Obama's Task Force on Fraud (see Exh. E-12) and a class action filed this month on robosigners. (see Exh. M)

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1 I Attached to this motion is Exh.1 - a few samples from other loans with Riley's name (cut & pasted thereon)
Cynthia Riley's name is on every published list on the internet (re: fraudulent foreclosures) of known robosigners Plaintiffs note and recorded trust deed recited that Washington Mutual Bank. FA is the lender and

I

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24

Title is the "Trustee."

on 9-25-05 (see Exh A-valid chain of title - A6 et seq). The promissory note was made

25
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payable to DB Structured Products, Inc. (DBSPI) . There is no recorded document (nor has one been produced) which suggests the note was ever endorsed to MGC or any other bankster. The Deed of Trust (DOT) recites that Washinaon Mutual Bank. FA is the beneficiary. No valid instrument was ever recorded or produced which indicates that DB Structured Products. Inc. ever transferred the beneficial interest on the NOTE to MGC.

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NOtCe and Order ta Show C u s

3. 2-f4

P ellminary I n j u n c t i o n

11 a
11 11

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

a physical transfer, a sale ofthe NOTE could be invalidated as a fraudulent conveyance under Civil Code 93440. A transfer in pledge could be invalidated as an unperfected transfer under Com Code 5 93 13-93 14. Calfornza

I
I

Mortgages and Deeds o Trust, andForeclosure Litigation, by Roger Bernhardt, Fourth Edition, section 1.26. f
One without a pecuniary interest in the Mortgage Loan (NOTE) is not an oblige under the debt and, thus, has no legal standing to foreclose ub initio. Watkinr r B W ( 1 9 8 1 ) 91 C 492. 27 P 77 this is hornbook law) Gates' note is not a bearer instrument, but is an instnunent made payable to a specifically identified person; to wit: DB Structured Products, Inc.UCC 83-109. A promissory note which is payable to a specifically identified person is not transferred merely by possession; instead, transfer requires a transferor to endorse it UCC $3-201,

I

II 11
II

"'Negotiation' means a transfer of possession ... if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its endorsement by the holder. It an mst~ument payable to is

bearer, it may be negotiated by transfer of possession alone." An endorsement is not made by merely purchasing a note or a debt, or by an assignment; instead an endorsement is made by the signature of the specifically identified person to whom the NOTE is owed. The relevant section of UCC 53-204 recites as follows: "Endorsement" means the signature, other than that of a signer as maker, drawer, or acceptor, that alone or accompanied by other words is made on an instrument for purpose of (I) negotiating the instrumen4 (2) restricting payment of the instrument, or (3) incurring endorser's liability on the instrument. .. UCC 53-204 [emphasis added]

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

I11/

that pcrson's remedy is to bring an action in court to compel the transferor to endorse the note to the transferee. Once that is done, thc transferee creditor can enforce the NOTE against its maker (debtor/trustor). 53-203 states:

24

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"(a) An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforcc the instrument. (b) Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right ofthe transferor to enforce the instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course bv a transfer, directlv o r indirectlv. from holder% due course if the transferee engaged in fraud o r illegalitv affecting the instrument.

n

..........................................
Notce and O ~ d e rt o S h m

3 L..............................................

liminary I l j u n c t i o n

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(c) Unless otherwise agreed, if an instrument is transferred for value and the transferee does not become a holder because of lack of endorsement by the transferor, the transferee has a ~pecifically enforceable right to the unqualified endorsement of the transferor,

negotiation of the instrument does not occur until the endorsement is made.
(d) If a transferor purports to transfer less than the entire instrument, negotiation of tlie instrument does not occur. The transferee obtains no rights under this Article and has only the rights of a partial assignee. UCC 53-203 [emphasis added]

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1)

An action must be prosecuted by the real party in interest. This standing doctrine involves constitutional and prudential limitations. Kowabki r Tenner 143 US 121, 128-129, (2004) (quoting Warth v. Seldin, 422 US 490, 498. Constitutional standing under Article 111 requires, at a minimum, that a party must have suffered some actual or threatened injury as a result of the other party's conduct, that thc injury be traced L the challenged o

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

Ifor Separatiov ofChurch andState, 454 U S 464,472.

Beyond the Article 111 requirements of injury in fact,

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

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principles that places limits on the class of persons who may invoke the court's powers. Warth, Id. @ 499. As a prudential matter, a party must assert, "bis own legal interest as the real party in interest?

Dunmore v

358 F.3d 1107, 1112 (9" Cir. 2004.) Neither CWRC or LPP bas standing to foreclose.

In the bankruptcy of In re MitcheN, BK-S-07- 16226-LBR (Bankr.Nev. 3-3 1-09, p. 10) the Court found
MERS did not have standing merely because it allegedthat it was the beneficiary under a deed of trust. It was

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

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I "Where the mortgagee has 'transferred' only the mortgage, and not the underlying note, the transaction is a nullity I and his "assignee" having received no interest in the underlying debt or obligation, has a worthless piece of paper.
(4 Richard R Powell, on Real Property §37.27[2] (2000)." In re Mitchell, supra @ page 12. In re Foreclosure

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Cases, 521 F . Supp. 2D 650, (S.D. Oh. 2007). No documents were recorded in Santa Barbara County Recorder's
Office relating to the promissoty note, which debtor has not seen since it was executed. A review of the recorded documents (Exh.A-valid chain of title; A6) recites that Washinaon Mutual Bank FN is the beneficiary of Gates' NOTE. A second recorded document (Exb B-fraudulent recorded documents, B1) recites that DB Structured Products. Inc. is the beneficiary. A third recorded document recites that LLP Mortmae Limited. LP is the

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heneticiary (R2). A fourth document recites that Loan Acauisition Corporation (B3) is the beneficiary, and then recites LLP Mortgage Limited. LP is the beneficiary (84).

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Additionally, some other person or entity who actually HOLDS the original note could claim it is the beneficiary. If the court were to order any one of the above banksters to be a holder in due course, entitled to payment on the underlying obligation, based upon only a COPY of a purported assignment of trust deed, the actual HOLDER could produce the NOTE and then sue Gates' on the underlying obligation and prevail under governing UCC. THIS HAS HAF'PENED IN OTHER CASES. IN AN EASTERN COURT A JUDGE REPORTED THAT THREE DIFFERENT ENTITIES FILED CASES CLAIMING TO BE LENDER ON THE SAME PARCEL!

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A court may not speculate under A~ticle of the UCC as to which one of the four bananbters could be a 3 holder in due course. The only way to identify the true bcncficia~y (HOLDER in dua course of NOTE) is to make the foreclosing trustee produce the ORIGINAL NOTE to ascertain who the beneficiary actually is. This is what a court is required to do in California under UCC, Art.3. Absent applying UCC the court would have

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to speculate as to who the holder might be and could possibly guess wmng This would be completely inequitable, 1 to Gates as it exposes him to subsequent liability if the actual beneficiary sued him to collect on the original note. The court must apply UCC here and order that defendants must produce ORIGINAL NOTE and TRUST DEED.

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/ / NO TICKEE ...NO LAUNDRY!!!
II

NO ORIGINAL NOTElTD - no relief!!!

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That is the bottom line!!! That is what is required to be applied under UCC Art. 3
The court can expect defendants to produce a conveniently drafted "affidavit of lost note and trust deed" because this is exactly what the banbters are doing across the nation. This is why the class action was filed. (Exh. M) Defendants can not risk prosecution under Penal Codes $8 115,132-135 by offering the original note. Even if they did there would be no endorsements in the chain of title. An original ''assignrne~~t" impossible as is the recorded one is a cut &paste fabrication using a rohosigner and photoshop software. In 50 states, district and bankruptcy courts the banksters are filing in most cases are perjured affidavits reciting that the "original note and trust deed has been lost." Defendants across the nation are ingenious in creating an array of reasons why they can

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not produce the original note or trust deed, usually blaming it on some one else in the purported chain of title, and gambling that the court will be nabe enough to believe these concoctions just because they are signed under oath.

N O t C e and

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t o Shcw Cause

5 acS7 1

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P r e l ~ m l n a r yI n l u n c t m n

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

NO TICKEE

...NO LAUNDRY!!!

If trustee can't produce an endorsed original note he can't foreclose.

That is the bottom line! That is required under UCC Art. 3, Negotiable Instruments In Carpenter v. Longan, 16 Wall. 271, 83 US 271,274 (1872) the USSC held "the note and mortgage are inseparable; the former as essential, the latter as an incidental. An assignment of the note carries the mortgag with it, while and assignment ofthe latter alone is a nullity. An obligation can exist with or without security. With no security, the obligation is unsecured but still valid. A security interest, however, cannot exist without an underlying existing obligation. Hensley v. Hotaling (1871) 41 C 22. Turner v. Gosden (1932) 121CA 20, 8 P.2d 505. Lee v. Joseph (1968) 267 CA2d 30, 72 CR 471. (no note, no standing) Civil Codes $2872,2909,2920.

California Mortages and Deeds of Trust, and Foreclosure Litigation, by Roger Bernhardt, Fourth Edition, 5 1.1 1
The obligation and the security are commonly drafted as separate documents - typically a promissory note and a deed of trust. If the creditor transfers the note but not the deed of trust, the transferee receives a secured note; the security follows the note, legally if not physically. Civ. $2936. ScideN v. Ttnedo Land Co. (1932) 216 C 165, 13 P2d 686. Lewis v. Booth (1935) 3 C.2d.345 If the transferee is given the deed of trust it. without the note accom~anving the transferee has no meaningful rights except the possibilitv of leg l action to c o m ~ ethe transferor to transfer the note as weU, f such was the agreement. Kelley v. Upshaw (1952) 39 Cal. 2d. 179. Polhemus v. Trainer (1866) 30 C. 685. The holdings are codified at UCC, Art. 3. Consequently, when one transferee receives the note and another receives the deed of trust, the one holdin1 the note prevails, regardless of who first received a transfer. Adler v. Sargent (1895) 109 C. 42,41. CA

Mortgages and Deeds of Trust, andForeclosure Litigation, by Roger Bernhardt, Fourth Ed.,

$5 1.25.

Where the

mortgagee has 'transferred' only the mortgage, and not the underlying note, the transaction is a nullity and his "assignee" having received no interest in the underlying debt or obligation, has a worthless piece of paper. (4

Richard R. Powell, on Real Property $37.27[2] (2000).; In re Mitchell, supra @ p. 12. In re Foreclosure Cases,
521 F. Supp. 2D 650. see Landmark National Bank v Kesler, 216 P.3d.158 O(S, 2009). The Kansas Supreme ;ourt held the foreclosing entity had no standing to bring the foreclosure action a debtor. MERSv. Southwest

Homes ofArkansas, 08-1299 (Ark. 3- 19-2009). Gates can tender amount due---but to the lender--not banksters!
- 6 NOtce and Order t o Show Cause - P eliminary I n j u n c t i o n

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1. PRELIMINARY INJUNCTION ANALYSIS (Civil Code $527) 1
Plaintiff is disabled and a senior as defined in Civil Code 5 1761(f)(g). CRC 1.100 requires accommodation which may include making reasonable modifications in policies, practices, and procedures. CRC 1.100 (a)3. ?ate& a widower faces losing his home of 30 years Exh. $is a chart showing the incestuous relationships of tbt ~anksters who created the oretext o f m .'arms length sale." The train is driven by Six-Billionaire Andrew Beal z who owns and controls all 3 entities recited in the purportedly "arms length" "assignment" at Exh. B-3. indrew Beal is worth over $6 billion dollars. Perhaps converting homes nationwide is how he got so rich!

i. Plaintiff has no adequate remedy: hardship will occur if a sale is not enioined: balance tips in his favor
The court may grant a preliminaly injunction under CCP $527. Plaintiff must show 1) inadequate remedy r law, i.e. compensation would be insufficient; 2) a serious risk of irreparable harm absent injunctive relief; 3) t

. likelihood plaintiff will prevail on the merits of the underlying controversy, 4) comparison of harm to defendan
n issuing an injunction versus the harm to plaintiff in withholding it. The balance tips in plaintiffs favor herein.
t is conclusively presumed the loss of real property which is a single family residence can not be compensated

vith pecuniary damages. Civ. $3387. Demarist v. Quickloan Funding, Inc. 2009 WI, 940377 at 9 (Ca1.2009). 'laintiff will lose his home if trustee conducts the sale. GATES would be homeless after 30 years in his home. 'he stress of losing his home and having to move his personal belongings could cause him to have a heart attack. In contrast, defendants will suffer no hardship if granted. They will retain a security interest as recorded an liquidate the asset if they prevail. The property is not marketable as it is only 80% finished and can not be old without an occupancy permit. A down market, coupled with unfinished construction makes it hard to sell.
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vacant property would be subject to vandalism. Defendants can only gain by delaying the foreclosure until the

~arket picks back up, the construction is finished and the ongoing landscape repairs are completed. Since hardship tips heavily to plaintiff he need only establish a serious question going to the merits upon ~hich has a better than fair chance of prevailing. Miller v. Ca Pad. Med. 19 F.3d. 449, 456 (9". Cir. 1994). he 'laintiff does not need to prove he will win. GATES alleged, and can establish primafacie violations of the law, nd at the very least has a fair chance of prevailing on the merits.
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Notce and order t o Show Cause - Prrllminary I n l u n c t i o n

B. Plaintiff will prevail on the merits; he raises serious questions going to the merit.
Foreclosures are governed by CCP $2924 et seq. which requires that non-judicial foreclosure sale shall not take place unless it is done on behalf of the beneficiavy of the note secured by the trust deed. Therefore, only a beneficiary has standing to foreclose. The Notice of Default fails to identify any beneficiary. (Exh. R5) [t merely lists "LPP Mortgage LTD, LP" as the contact to find out how much must be paid to avoid foreclosure. At no time has LPP ever held any beneficial interest in the note, nor could LPP have acquired any beneficial nterest in the NOTE because the NOTE was assigned to DB Structured Products Inc. on September 25,2005. :Exh. A-10) Defendants failed to identify the beneficiary as mandated by 15USC 51641g.

The statutory requirements are intended to protect the trustor from a wrongful or unfair loss of properly ~ n d valid foreclosure by the private power of salr: requires strict compliance with the requirements of the statute a
Miller & Starr, CA Real Estate (3'4 Ed) Deeds of Trust & Nort. Ch. 10. $10.179. Miller v. Cote, 127 C.C.3d.

188, 894 (1982). It has been the cornerstone of foreclosure law that the statutory requiremenls, intending to ~rotect trustor from a wrongful or unfair loss of property must be complied with strictly. Id, 510.18. the "Pursuing that policv [of iudicial interpretationL the courts have fashioned rules to protect the debtor. onc )f them being that the notice of default will be stricth conshued and must correctlv set forth the amounts s i r e d to cure the default." h e a t t v. The Foreclosure Co., Inc., 166 C.A.3d 273, 278 (1985). The Notice of mrustee's Sale (NOS) must contain "A description of the security instrument and an identification of the parties to he instrument. Civil $2924f (b)(l) The notice must also include an accurate statement of the total amount of ~npaid balance oftbe obligation secured by the real property to be sold as well as a statement of the costs, :xpenses, and advances incurred at the time of the initial publication of the notice of sale. Civ. Code §2924f(b)(I)
Wller & Stm California Real Estate (3rd. Ed.);. Deeds of Trust and Mortgages, Chapter 10 $198

4s shown by the declaration of Plaintiff and his verified complaint Defendants undeniably failed to perform any

)f the steps required by $2923.5 before they recorded the Notice of Default and issued a Notice of Trustee's Sale.
There is a stamp under Gates signature which recites, "Pay to the order of DB Structured Products. Inc Without Rccourse Washington Mutual Bank. FA By Cynthia Kiley Vice President." DB was the trustee on the

NOLCe and O r d e r t o Show Cause - P e l i r n i n a r y Injunction

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P&S agreement which securitized the note. (Exh. D2). The offering including Gates' loan closed Oct. 1,2005. (Exh. D2). Once the note was assigned to DB on 9-25-05 it became an assct of the DB/WaMu sponsored trust. Pursuant to governing documents of the P&S and IRS code, all loans had to be added 90 days after closing. Thus, Gates' loan became a trust asset no later than Dec. 29,2005 (90 days after the securities offering closed). Accordingly, there could be no further assignment to anvone. It would defeat the REMIC trust Oncc in the trust, the trustee could not split the trust deed from the NOTE. The trustee was required to hol the original note and trust deed. (Exh. D-7) Additionally the trustee must hold originals of all assignments on the note as part of the mortgage file (D-7). The P&S defines the "beneficial holder" as a person holding a beneficial interest in a certificate. (D-7) Power of Sale is voluntarily granted by the trusstor; a trustee may

only foreclose as set forth in the power granted. The trustee may not exceed its limited scope of the grant. The GATES note recites in par. 7 (Exh. A-7) "If I am in dcfault, the Note Holder may send me a written otice telling me that if1 do not pay the overdue amount by a certain date, the Note Holder may require me to ay immediately the full amount of Principal that has not been paid and all the interest that I owe on that amount. 'he Note Holder is defined in the P&S as any person holding a certificate. LPP is notlwas not a note holder.
L

loan sewicer is not a Note Holder or a ler~der lacks the power or authority to foreclose. Even if a servicer and

ould foreclose on the property it would not be LPP because LPP it is not the loan sewicer. MGC is the servicer. h e Gates' trust deed, at par. 24 authorizes only a lender to substitute the trustee. (Exh. A-26) The Substitution f Trustee recorded against Gates' property on I 1-15-11 was executed by LPP. (Exh. B-10) LPP is notlwas not ;
:rider. A lender is the person($ who funded Gates' escrowlloan; i.e. certificate holders who purchased RMBS'
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the WaMuIDB AR-13 offering. LPP is not one of them. LPP is nothing more than a fraudulentpretendlendev

:.

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

irong nor will it assist in perpetration of fraud on another or the public. Courts can set aside a foreclosure sale {hen there has been fraud, when the sale has been improperly, unfairly, or unlawfully conducted, or when there as been such a mistake that it would be inequitable to let it stand. Bank ofAmerica Nat. Trust & Savings A.wn v leidy, 15 Cal.2d. 243,248 (1940). Whitman v. Transtate Title Co. (1985) 165 C. A.3d. 3 12, 322-323.
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D. The Relative Hardships Favor Plaintiff
In this matter, the relative hardship to plaintiff-losing his home-represents irreparable injury and harm,

diminishing plaintiffs requirement of showing probability of success on the merits. The loss of one's property due to foreclosure constitutes an irreparable injury. Demarest v. QuickLoan Fund In. (2009) West Law 940375 [CD. Cal. Wrobel v. S1. Pope & Assoc., 2007 WL 2345036 at 1 (S.C. Cal. 2007). Numerous couds have found this injury enough by itself to mandate preliminary injunctive relief. Vichols v. Deutsche Bank Natl. Trust 2007 U'L 4181 11, at 2 (S.D. Cal. 2007). United Church of Med. Ctr. v. \.led Ct. Com. 689 F.2d. 693,701 (7". Cir. 1982. If defendants are allowed to foreclose, plaintiff will lose his lome of 30 years, while disabled at 69. A harsher outcome could scarcely be imagined. The balance of harm :learly weighs in favor of plaintiff, both as a matter of law and common decency.

E. No Bond Should be Required
Courts have broad discretion in determining the amount of bond, or can waive the bond where it is equitable. 7onnecticut Gvn LLifpIns. CO.V. New Images of Beverly IIills, 321 F.3d. 878, 882 (9'". Cir. 2003). CRC 1: 100 rhe court may dispense with the filing of a bond when it coiicludes there is no realistic likelihood of harm to the lefendant from enjoining his or her conduct. Jorgensen v. Cassidy, 320 F.2d. 906,919 (9" Cir. 2003) Here, there is no realistic harm to drfendants from a restraint of the foreclosure proceedings and trustee's sale f the Defendants position that the loans were valid is correct, then the loans are adequately secured by the very roperty in question, which is worth more than a million. Additional security is neither appropriate nor ~arranted.Phleger v. Countrywide Home Loans, Inc. 2007 WL 4105672 at 6. (N.D. Cal. 2007. Moreover, MG( ;till holds $88,925 of GATES insurance proceeds which exceeds the $71,000 default listed on the NOD. Exh. B In this case the court should accommodate GATES not only because it is the equitable thing to do but also Iecause the court has a duty to make special accommodations for an elderly, disabled person. CRC 1:100. (a) (3). CONCLUSION Defendants should not benefit from fabricating assignments and recording them in violation of Pen. 51 15. 'laintiff should permitted to conduct discovery and prove to recorded "assignments of trust deed" are fraudulent, nvalid, and void ab inilio. The court should require production of the OKIGlNAL NOTE and TRUST DEED.

NUtCe and order to Show Cause

s, 2-b 2-

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P r e l i m i n a r y Injunction

late: February 6,2012

By:

VERIFICATION
I, DAVID GAI'ES, as trustee for the David W. Gates Trust dated August 5, 1996 declare:

I am plaintiff. I have read this application for preliminary injunction in its entirety and declare, under
malty of perjury and the laws of California, the allegations set forth herein are based on personal knowledge, xcept as to allegations made on <xecotedFeb 6, 2012 in S.B. . and as to those allegations I believe them to be hue.

W. Gates Trust dated August 5, 1996

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

I, DAVD W. GATES, trustee make the following statements based on personal knowledge.
1. I completely read the entire contents and every page of the verified complaint filed in this action.
2. Although I do not understand the complexities of securitization and legalese I understoodthe facts. 3. 1 herehy authenticate the documents at Exh. F of the complaint. On 11-19-08 my wife died and less than 6 months later our home which I have owned since 1977 burned in the Jesusita fme on 5-6-09. Within months my health deteriorated from the stress resulting in the need for heart surgery. I am 69.
4. I submitted n claim to Farmers Fire Exchange who approved my claim, but said I had to rebuild before

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

5. 1 was forced to use high interest credit cards to buy materials to rebuild so I would have a place to live.
I stayed with friends. Some friends helped me rebuild. Materials were very expensive so I ran up over

$100,000 in credit card debts. I spent approximately $50,000 in cash on materials where vendors would not take credit cards because my credit was destroyed afier I was unable to make mortgage payments.
I was stuck between a rock and a hard place because Farmers would not pay out my fr claim benefit ie

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

Notce and ordsr to Show Cause

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Pceliminary I n j u n c t i o n

6. Farmers said I had to complete 80%. When I did Fanners sent an agent to certify it was 80% finished. 7. Farmers sent 3 checks for a total of $202,548.64. (Exh. F1) 1 was shocked when I saw the checks were made payable to MGC Mortgage, IIIC.and myself. I never asked for that. I never told Farmers about it. However, I had called MGC to tell them about the fire and that I would not be able to make payments. What I believed happened is that MGC called Farmers and convinced them to put its name on the check. This was not fair because I paid the premiums and was the beneficiary under that policy of fire insurance 8

I called MGC. Their staff told me to mail them the checks, they would sign off and rehim them to me. I relied on that representation and mailed them to MGC. They did not keep their promise. I kept calling I wrote to them several times pleading to release my funds. My letters and numerous calls were ignored.

9. I continued to go further into debt having to use all of my social security funds to buy materials and eat. Eventually my credit cards were cancelled by the vendors for non-payment and filed claims and lawsuits 10. 1was at the point of a nervous breakdown in April when five months had passed and MGC was still ignoring my phone calls, letters and threats. I went to my friend Nancy Duffy McCarron for help, whom my wife and I had known for 15 years as she used to attend our annual Christmas parties. I was broken.

I was at times suicidal. Nancy Duffy McCarron saved my life. She immediately contacted MGC and
threatened to sue them for a racketeering enterprise. In 2 weeks she got half of my money from MGC. They released $1 13,622.96 (about half the money) to my attorney and I could continue to rebuild and ea 1 I . I used a large amount of those funds to settle the $100,000 in claims against me by the creditors. The remainder was used to continue buying materials to rebuild the home. MGC kept $88,925.68 as they insist I must finish the home 100% before they will release the rest of Farmers proceeds they hold (F2,F3
12. I was again caught between a rock and a hard place because I had no funds to buy materials and I am

required to replace the landscaping by Fanners before they will release funds for those improvements. Fortunately I discovered that West Flower Growers in Point Magu was suffering from the recession and had a surplus of palm trees they can not sell. Due to my hardship they agreed to sell them to me at various prices between $1 1 - $100. These trees are worth thousands as they are full grown. I am using a backhoe to install them.
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13. Now MGC is trying to foreclose and take my home while keeping $88,925.68. I came to my attorney when I returned from Idaho and discovered the notices posted on my door. My attorney researched my entire case and discovered the assignment to MGC and the prior assignment were void and invalid. She said she had a lot of experience with fraudulent real estate documents and "knows it when she sees it." 14. At the end of the 2010 year I received the 1099 form shown at Exhibit F4 of my verified complaint. Because I do not know tax law I brought it to my attorney. She said this meant the purported "lender" had charged-off the loan as a vehicle to get a tax break against significant income during the tax year. Although I do not understand tax law I could see the form recited that my debt was cancelled. 15. I now suspect that MGC may have put in a claim to their own ALTA insurer and collected in full. 16. If MGC collected in full from an insurer who had issued an insurance policy they have been paid alread) Taking my home worth a million + would be unjust enrichment and a fraud upon me and the insurer. MGC would be unjustly enriched if they now confiscate my home, as they kept my insurance proceeds while I accrued $100,000 in credit card debt, and used more than $50,000 of my cash on materials. MGC would get at least $300,000 in improvements I paid for plus all the funds they wrongfully converted. 17. We decided to file the within action to seek justice for all of the frauds and torts committed against me. The last three years of my life have been devastating and have caused me severe stress and anxiety. Had it not been for my attorney who saved my life I would probably not he here today.

18. My attorney intends to do vigorous discovery in this case and bring to justice the persons who fabricated
the assignments of trust deed and who have defrauded me throughout the past 3 years. 19. Defendants never contacted my attorney to effect a workout agreement whereby the payments could be suspended, or at least reduced until I can finish my home, get an occupancy permit issued, and collect the final pay-off from Farmers Insurance. 1 was not aware that I had the right to meet with MGC and mq attorney to explore options to avoid foreclosure, and that they had to meet with me if we requested it.
I was never given the toll-free number for HUD or told that I could seek HUD intervention & counseling.

I just discovered today that Civil Code 52923.5 required MGC to contact us before filing aNotice of Default. I never received any counseling as required. My attorney told me MGC never contacted her.
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Preli 'nary Injunction

3 "

20. If it is determined that MGC's claim is valid I can tender payments when Farmers pays off the final 20% which should be happening in the very near future.
21. I declare the above statements to be true under penalty of perjury. Executed on February 6,2012.

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

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

.

During the 1mt week of April, 2010 David Gates arrived at my home nearly hysterical. He was crying.

had known David Gates and his wife for 15 years and had never seen him with such anxiety. David explained hat he had received 3 checks from Farmers Insurance the last week of January 2010 for $202,548.64 (Exh. F1) rfter he completed 80& of the rebuilding of his home after it burned in the Jesusita fue. David said Farmers mad he checks payable jointly to MGC and himself. David was desperate for money a3 he had been living on credit ards in the past and ran up $100,000 buying materials to rebuild as Farmers would not pay his claim until he ebuilt. David said MGC told him to siga the checks, mail them to him and MGC would sign them and mail them lack. David said he had been W.ng for 5 months to get them to release his insurance proceeds. David said he ad made hundreds of phone calls, and sent various demands. I immediately contacted MGC and threatened to ue them for racketeering if they did not send the proceeds. They agreed only to send about haIf of the proceeds, laiming that David owed back payments, interest, and various "late fees, penalties, and assessments." Lather than sue we agreed to take halfthe proceeds. MGC still retains the remainder of David's proceeds.

.

The UPS label shows the shipping information to my office. (Exh. F2) The return address shows it was

hipped 6om 'Tlovenmuehle Mortgage Inc., 1 Corporate Drive, Lake Zurich, IL. 60047 which is noteworthy ince the maker of the check was MGC Mortgage, although both corporations shared the same address. (Exh. F3)

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

.........................................................................................
NOtce

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to show cause - Preliminary I n j u n c t l a n

The next year (201 1) David returned to my office to bring me a copy of a 1099 form he received. (Exh. F4) rhis was quite interesting since as it shows Dovenmuele Mortgage Inc., recites the same form was sent to ITR. 4mazingly it recites that David's loan (same loan no. as on all the correspondence from MGC) was cancelled.
9 corporation is required to notify the IRS, with a copy to the debtor, if it cancels the debt. This could only

iappened in one of two ways; either the debt was paid off, or the debt was "charged-off' by the lender. (see F4). f a lender submits a claim for the amount of its loan (which was insured) and a house bums down, it can submit
I claim

to its insurer for the full amount due on the home. 1believe this is what happened in this case. (see F4).

I.

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

,ow and behold a document popped up showing that ID number belonging to Dovenmuele MortgageJnc. (Ex.F! savings and Retirement Plan, with the beneficiaries being the employees of Dovenmuehle. This was interesting. Why would this retirement fund be sending David Gates an IRS 1099 form? David had not paid the debt. let, the implications of this form being filed with the IRS is that such "foregiveness" or "cancellation" of a debt s a taxable event for the taxpayer. David would then owe TAX as if be had received $1.2 million as income---he outstanding amount of the debt when cancelled. Since we know that David did not pay the debt (or MGC vould not be foreclosing). the only feasible explanation is Dovenmuele received $1.2 million from someone? 'he only conceivable someone would be an insurer who paid out on the claim. MGC could not make a deposit )n its books because if they were audited they would have to explain where they got that money. Accordingly hey laundered the $1.2 million over into their own employee retirement fund. These banksters are very creative had a hunch that although the Dovenmuehle entity was in Zurich Illinois they were probably registered in Texa! The reason 1 had this hunch is I had traced all 3 companies listed on the fabricated assignment of trust deed MGC Mortgage, Loan Acquisition Corporation, and LPP Mortgage Ltd.) to Plano Texas to the same address. was right! 1 also suspected that Cal-Westem Reconveyance Corporation (the foreclosing "trustee") although it
s registered in California at El Cajon, CA, that it would somehow be tied to this same incestuous trio. I was righ

gain! Sure enough Cal-Western was traced back to Plano Texas. The "Cal-Western" was given to that entity to rick the courts into thinking it is a California entity. NOT TRUE!! It is a Texas entity traced right back to the tri

Notce and Order t o Show Cause - Prelimina

5,

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Injunction

I.

Ih~ew there must be a common thread to this incestuous group all tracing back to the same address in Texar

Sure enough I discovered the link. They are all controlled by Andrew Beal, a BILLIONAIRE from Plano, TX. 3ne must wonder if this is how BEAL became a BILLIONAIRE, by cutting secret deals with the other batzkster:
2 1 Wall 1

Street who securitized thousands of risky loans into "pools of loans" and sold them to investors as bond:

Some investor whose bond didn't pay off would get paid by government insurance on those bonds so he got paid So the trustee DB just split the trust deeds from the notes which was illegal and breach of duty to the certificate

lolders on the notes as it rendered their minutely fractional beneficial interest on the notes unsecured and defeat€
:he tax-free status of the REMIC trust in which the investors invested, on reliance that it would be kept tax-free.

5. This splitting of the trust deeds from the notes was as illegal violation of securities regulations, just like the
illegal splitting of "options to purchase" from the stock itself. I believe that Andrew Beal, the billionaire, cut a secret deal with DB Structured Products, Inc. (the Wall Street banksters running that entity) to buy hundreds, or wen thousands of these illegal, fabricated "assignments of trust deed." Keep in mind they were worthless to

3B as trustee because they knew the original notes had to be kept with them as the "custodian of the notes" ~ursuant the Pooling & Servicing Agreements" to they could grab millions by selling them to other banksters, to ~ h would then simply foreclose on all the loans in default and confiscate the properties. If MGC acquired o inything legally it would only have been the right to service the loan, not foreclose on it. Only the lender can 'oreclose who in this case is the thousands of "certificate holders" who hold a minutely fractional share of the 3eneficial interest in the note. It is the NOTE which is the negotiable instrument and the obligation. (Exh. C) :See UCC sections at Exh. K which clearly explain the rules on notes as negotiable instruments and note holders. believe MGC already received insurance proceeds which fully paid the outstanding balance on the loan. rhey also converted $88,925.68
i. It is interesting to note that the first Notice of Default recites that Dvaid owes $73, 351.90 to cure. (Exh. B5)

md a few weeks later a new Notice of Default was recorded showing be owed 91,754.18 -- $18, 000 more. (B6) rhis significant discrepa~icy suspect at best. How could he owe $18,000 more from one month to the next? is

NOtce a n d o r d e r t o Show Cause

-

$,

&.$

Preli inary I n j u n c t i o n

7. Under 52924 et seq. the trustee was required to record a substitution of trustee BEFORE filing the Notice of
Default. In this case the trustee filed the NOD and then filed the substitution oftru*. Accordingly, the first

VOD was invalid because the trustee had no authorization to issue an NOD until the beneficiary granted it to hirr 3ecause the NOD was fatally defective, the subsequent power of sale was defective.

3.

No one from MGC or CVvRC ever called me to discuss David's account, even though they had a signed

iuthorization from Gates and they knew I represented him. I was as surprised as David when they filed NOD. rhis was a blatant failure to comply with $2923.5 which mandates that the trustee absolutely may not foreclose without first contacting the debtor (or the debtor's attorney if there is one) to t to work out a repayment plan to r y lvoid foreclosure. MGC knew 1represented David as I advised them of that in 2010. The failure to comply was ntentional. MGC did not want to work out a repayment plan. They just wanted to steal the $1,000,000 home.

.

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

tom WaMu to DB Structured Products, Inc. purportedly on 813012006 "assigned" the hust deed to DB. There ar ;everal wehsites on the internet which arose after millions of Americans were made homeless since 2008 to help )ther who are trying to discover if their assignments were fabricated or forged. The website has a list of knov

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

riding out and no lawyer has been able to find her for a deposition. The website also posted a notice that if the luestioned document was executed in certain counties it was highly likely the document was fabricated with "cut
md paste" robosigner signature stamps" as well as "cut and paste" notary "stamped signatures." There are on11

lbout 10 counties nationwide on the list. Duval County Florida was on the list. This is where the fabricated .ssignnent ortrust deed was purportedly executed and notarized. I am 100% sure the assignrnenr o f
hwt

deed

vhich is being used as the purported authority to foreclose is a fabricated instrument. I am 100% sure that lefeudants will not be able to produce an oriqinal note. but will file ymer veriured document claiming it

vas "lost." They wcre warned in the complaint that offering any false document into a proceeding if a felony. declare the above statements to be true under penalty of perjury. Executed on February 6,2012.

Notce and Order tc Show Cause - Preliminary Injunczion
s 1

u q

to the Note Holder a Loan Document Identical in form and content which will have the effect of the original for all purposes.

'13. DOCUMENTARY TAX
The state documentary tax due on this Note has been paid on the mortgage securing this indebtedness.

WITNESS THE HANDIS) AND SEAL(S) OF THE UNDERSIGNED.

x

- - = - -

MICHAEL L MASLAX

Pay to the orde~,$
Wittrout Recoura WASHINGTON MUTUAL RP dK, FA . .

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Page 6

of 6

13. DOCUMENTARY TAX 3010649196 Tne state documentaly tax due on this Note has been paid an the mottgaoe securing this indebtedness.

WITNESS THE HAND (S)AND SEAL (S) OF THE UNDERSIGNED.

/

-.---

MICHAEL MASLAK

Page 6 of 6

LNTGOFLF (VERSION 1.D)

to the Note Holder a Loan Document identical in form and content which will have the effect of the original for all purposes.

13. DOCUMENTARY TAX The state documentary tax due on this Note has been paid on the mortgage securing this indebtedness.

WITNESS THE HAND(S) AND SEAL(S) OF

THE UNDERSIGNED.'

X

. -

MICHAEL MASLAX

Page 6 of 6

David W. Gates v. MGC Mortaaqe Inc. et at SBSC 1384851
DEFENDANT OR ENTITY
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YOTICE OF THIS HEARING:
The defendant trustee who recorded the NODS and the NOS (Cal-Westcrn Reconveyance Corporation) has mown about our intent to bring an application for TRO with OSC for Preliminary Injunction since Jan 12,2012.

In 11-2-2012 I sent the notice by fax, by email and by US mail. I called to speak to thc trustee or attorney.
3esiree (CWRC) would not give me an email address or phone for them. Neither ever called. They ignored me. lespite the warnings and demand to cease foreclosure, they recorded a Notice of Sale to occur on 2-6-2012. sent another warning including a second copy of the first demand, about procedural and substantive deficiencie: rhey will not take my calls nor return any voicemails left there. On Jan. 30; 2012 I eniailed copies of verified :omplaint with all exhibits to CWRC, DB, Wamu/Chase, MGCLLP defendants For a third time, I notified them would move for a TRO and preliminary injunction and would send email and telephone notice if OSC is issued.

1 process server has now served all 11 named defendants with: Summons, Verified Complaint, ADR packet, Lis
'endens Notice, Notice of Entry of TRO Order, TRO Order, TRO papers. Proofs of service will bc filcd today. declare these statements to be true under penalty of perjury and CA law. Executed in Santa Barbara on 2-6-12.
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PROOF OF SERVICE
I am over 18 and not a party to tlie action. My address is 950 Roble Lane, Santa Barbara, CA 93 103.
In February 6,2012 I served a copy of this Notice of and Application for a Preliminary Iniunction as follows: :mail: C W R C : m C W R C . c o m (Desiree) DB defendants:&ansueda@,db.com and alexpaezk2.db.com

WaMuIChase defendants: private.investors.relations@IDmchase.corn (Shelle) 'mud to: CWRC: 619-590-9299 I deposited a copy in the US mail, with postage thereon, addressed as follows: Cal-Western Reconveyance Corporation, Trustee PO Box 22004,525 Main St. El Cajon, CA 92022-9004 declare these statements to he true under penalty of perjury and CA law. Executed in Santa Barbara on 2-6-12.
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Du$& p c C u r ~ n

- 18

--------------------------------------------.-

-

N o t c y d Order to Show Cause - P r e l i m i n a r y I n v n c t i o n

Nancy Duffy McCarron, CBN 164780 Law Office of Nancy Dufi McCanon 950 Roble Lane Santa Barbara, CA 93 103 805-450-0450 fax 805-965-3492 nancyduffysh@yahoo.com Real Estate Broker Lie. 853086 Notary Public Lic. 1791117 Certified Arbitrator for BBB 30329 Attorney for Plaintiff

!

FEB 0 6 2012

I

II

SUPERIOR COURT OF

STATE OF CALIFORNIA

FOR THE COUNTY OF SANTA ARBARA (ANACAPA DIVISION)
DAVID W. GATES, Trustee for the DAVID W. GATES Plaintiff, Trust dated August 5, 1996
VS.

Case No:

1384851

MGC Mortgage, Inc., Texas Corporation LPP Mortgage Ltd., LP, Texas Corporation Loan Acquisition Corporation, Texas Corporation Cal-Western Reconveyance Corporation, Texas Corporation DB Structured Products, Inc., Delaware Corporation Deutsche Bank National Trust Company, as trustee Washington Mutual Bank, a national banking association Wamu Asset Acceptance Corporation, SPV vehicle bank Washington Mutual Mortgage Securities Corporation, bank JP Morgan Chase Bank., National Association, a bank Defendants. DOES 1 thmugh 50, inclusive,

REQUEST FOR JUDICIAL NOTICE Filed coucurre~~tly Notice and Application for with Preliminary Injunction
case filed: 2-1-2012

CMC: not yet set MSC: notset Trial : not set

DATE: March 12,2012 DEPT: 5

TIME: 9:30 a.m.

Honorable Colleen K. Sterne

Evidence Code 55450,451 and other evidence codes

Plaintiff asks the court to plaintiffs verified complaint. Exh. the current application before the Codes $412 (inference re: party's

of Exhibit K to These apply to

I

Service: On February 6,2012 I served this Notice of an Application for a Preliminaw Iniunction as follows: email: and alexpaez@,dh.com faxed: CWRC: 619-590-9299

I deposited a copy in the US mail, with postage thereon, addressed as follows:
Cal-Western Reconveyance Corporation, Trustee PO Box 22004,525 Main St. El Cajon, CA 92022-9004 I declare this true under penalty of perjury. Executed in Santa Barbara 2-6-12.

flarcy

V&y /tr&r.o,

Request for Judicial Notice filed with Notce and Order to Show Cause - Preliminary Injunction

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legina J. McClendon (SBN: 184669) mcclendon@,lockelord.com >aniel A. Solitro (SBN: 243908) Isolitro@,lockelord.com ,OCKE LORD LLP 100 South Grand Avenue, Suite 2600 ,os Angeles, California 90071 ielephone: 213.485.1500 :acsimile: 213.485.1200 ittomeys for Defendants dGC MORTGAGE, INC.; LPP MORTGAGE LTD. md LOAN ACQUISITION CORPORATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA

ANACAPA D~VISION
)AVID W. GATES, Trustee for the DAVID W. 3ATES Trust dated August 5,1996, Plaintiff,
VS.
I

) CASE NO. 1384851 ) ) Honorable Colleen K. Steme ) ) DEFENDANTS MGC MORTGAGE,

j

viGC Mortgage, Inc., Texas Corporation ,PP Mortgage Ltd., LP, Texas Corporation

) INC., LPP MORTGAGE LTD. AND ) LOAN ACQUISITION ) CORPORATION'S OPPOSITION TO

MOTION FOR INJUNCTION
March 12,2012 9:30 am. Dept. 5 concurrently with: (1) Request for Notice, (2) Declaration of Bret Maloney]

)
Defendants.
I

) ) ) Complaint Filed: February 1,2012

1 ; OPPOS~TION PLAINTIFF'S MOTlON OR PRELIMINARY INTUNCTION TO David K Gatds, Truxtee v. MGC M ~ r r ~ & ~ e ,et ai., Case No. 1384851 Inc,
!

7 2'77
I

TABLE OF CONTENTS
Pag 4EMORANDUM OF POINTS AND AUTHORITIES.......................................................................

I.

INTRODUCTION .........................................................................................................

ELEVANT FACTUAL BACKGROUND ......................................................................................... I. PLAINTIFF'S LOAN, DEFAULT ON LOAN AND SUBSEQUENT FORECLOSURE PROCEEDINGS. .............................................................................

IRGUMENT.........................................................................................................................................

I.
11.

STANDARD FOR ISSUANCE OF A PRELIMINARY INJUNCTION. .................... PLAINTIFF IS NOT ENTITLED TO INJUNCTIVE RELIEF BECAUSE HE HAS NOT TENDERED THE LOAN PROCEEDS ADMITTEDLY BORROWED. ............................................................................................................... PLAINTIFF FAILS TO ESTABLISH A LIKELIHOOD OF SUCCESS ON THE MERITS OF ANY OF HIS "CLAIMS." ............................................................. A. B. C. D. Under California Law, Production of the Original Promissory Note is Not Required Prior to Foreclosure..................................................................... Plaintiffs Challenge To The "Chain of Title" Also Fails. .............................. Plaintiffs "Securitization Voids the Security Interest" Theory Also Fails. ......................... .... ................................................................................ Plaintiff Fails To Allege Any Violation Of Any CalifomiaNonJudicial Foreclosure Statute............................................................................. 1
1.

111.

The flotice of Default Is Not Invalid. .................................................. 1
I

2.
3. 1V.

he dotice of ~rustee'sSale Js Not Invalid ........................................1
-

c a l i f h a civil Code 6 2923.5 Does Not Apply ..............................
I

1

PLAMTIP12'S VARIOIJS OTHER AI.LliGA'TIONS OF WRONGDOING DO NOT SUPPORT GRAUTING A PRELIMNARY INJLNCTION .................... 1 THE OTHER F A C ~ O R S ALSO WEIGH; AGAINST GRANTING A PRELIMINARY I N ~ C T I O N............................................................................... 1 . P m F r M u s T ' P o s T SUBSTANTIAL BOND T o COVER DEFENDANTS' E TIMATED LOSSES................................................................... 1

V:
vI.

4
i

:ONCLUSION ............................2..................................................................................................... 1

i OPPOSITION TO PLATNTIFF'S MOTION FOR PRELIMINARY INJUNCTION David W. Gales, Trustee v. MGC Mortgage, Inc., et aL, Case No. 1384851

7.378

TABLE OF AUTHORITIES
Page(s)

tascos v. Federal Home Loan Mortg. Corp. (C.D. Cal. 2011) 2011 WL 3157063 ............................................................................................... 9 tenham v. Aurora Loan Services LLC, 2009 WL 2880232 (N.D. Cal. 2009) .......................................................................................... 9

:have2 v. Recontrust Co. (E.D. Cal. Dec. 11, 2008) No. 08-1864, 2008 WL 5210893 ........................................................... 5 :hilton v. Federal Nut, Mortgage Assn. (E.D. Cal. 2009) .................. . ......................................................................................................... 7 :lark v. Counhywide Home Loans, Inc. (E.D. Cal. 2010) ............................................................................................................................... 6 loyotzi v. Countrywide Fin'[ Corp., 2009 WL 2985497 (E.D. Cal. 2009) ........................................................................................... 9 Gnuliar v. BAC Home Loans Servicing, L.P. (N.D. Cal. Sept. 21, 2011) No. C-11-02629, 2011 WL 4405659..................................................13 ?amboa v. Trustee Corps (N.D. Cal. 2009) 2009 WL 656285 ................................................................................................. 7
;m e

-

v. Wachovia Mortg. Corp. (N.D. Cal. May 12, 2010)No. CV10-01073 JF, 2010 WL 1924777 ............................................ 12

Tajz v. Greenpoint Mortg. Funding, Inc.,

652 F.Supp.2d 1039 (N.D. Cal. 2009) ............................................................................................. S Camp v. Aurora Loan Serv. (C.D. Cal. Oct. 1, 2009) No. SACV09-00844-CJC, 2009 WL 3177636 ........................................ 5 CimbaN v. BAC Home Loans Servicing, LP (N.D. Cal. Feb. 9, 2011) No. 10-CV-05670-LHK, 2011 WL 577418 ................................... .1C

;ane v. Vitek Real Estate Industries Group (E.D. Cal. 2010)713 F. Supp. 2d 1092 ............................................................................................S ;ehner v. United States (9th Cir. 1982) 685 F.2d 1187 ...................................................................................................... 12 .ogvinov v. Wells Fargo Bank (N.D. Cal. 201 1) 2011 WL 6140995 ............................................................................................... 9
I1

PRELIMINARY INJUNCTION lnc , el a1 , Case No. 138485 1

TABLE OF AUTHORITIES
(cant.)

Mulato v. WMC Mortgage Corp., 2010 WL 1532276(N.D. Cal. 2010) .........................................................................................9, 10 Pantoja v. Counhywide Home Loans, Inc. (N.D. Cal. 2009) 640 F.Supp.2d 1177....................................................................................... 7, 12 Parcay v. Shea Mortg Inc. (E.D. Cal. April 23, 2010) 2010 WL 1659369 ....................... . ..................................................... 8 power &Irrigation Co. v. Capay Dirch Co. (9th Cir. 1915) 226 F. 634 ............................................................................................................... 5 Putkkuri v. ReconTrust Co. (S.D. Cal. 2009) 2009 WL 32567 .................................................................................................... 7 Reynoso v. Paul Financial, LLC (N.D. Cal. Nov. 16, 2009) No. 09-3225 SC, 2009 WL 3833298 .......................... . . ................12 Rodriguez v. Litton Loan Servicing LP 2009 WL 1326339 (E.D. Cal., May 12, 2009, No. 09-00029) ......................................................7

.

Rogue v. Suntrust Mortg., Inc. (N.D. Cal. Feb. 9, 2010)No. C-09-00040 RMW, 2010U.S. Dist. LEXIS 11546.......................... 8 Selby v. Bank ofAmerica, Inc. (S.D. Cal. Oct. 27, 2010) No. 09-cv-2079, 2010 WL 4347629 ....................................................... 8 Sitanggang v. Indymac Bank F. S.B. (E.D. Cal. May 6, 2009) ................................................................................................................... < Solid Host, NL v. Namecheap, Inc. (C.D. Cal. 2009) 652 F.Supp.2d 1092 ........................................................................................... 1C Tanner Motor Livery. Ltd. v. Avis, Inc. (9th Cir. 1963) 3 16 F.2d 804 ........................................................................................................... f Winter v. Natural Res. Def Council, Inc. (2008) 129 S.Ct ........................................................................................................................... 15

dbdalla v. United Sav. Bank (1996) 43 Cal.App.4th 1101

A

4ncora-Citronelle Corp, v. Green (1974) 41 Cal. App. 3d 146 ............................................................................................................. 4
-

iii

OPPOSITION TO PLAINTTFF'S MOTION FOR PRELIMINARY TNRMCTION David K Gates. Trustee 11. MGC Mortgage, Inc., et aL, Case No. 138485 1

r7~XQ

TABLE OF AUTHORITIES
(cont.)

Arnolds Management Corp. v. Eischen (1984)158 Cal.App.3d 575 .............................................................................................................. 6 Calvo v. HSBC Bank USA, MA. (Cal.App. 2nd Dist. 201 1) 199 Cal.App.4th 118 ............................................................................. 7 Dawson v. East Side Union High School Dist. (1994) 28 Cal. App. 4th 998 ............................................................................................................ 4 Fleishman v. Superior Court (2002) 102 Cal. App. 4th 350 .......................................................................................................... 4 Games v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149 ........................................................................................................10
12

Gray v. Superior Court (2005) 125 Cal. App. 4th 629 .......................................................................................................... 4 Homestead Sav. v. Darmiento (1991) 230 CaI. App. 3d 424 ......................................................................................................... 11 Jones v. Aema Casualty & Sur. Co. (1994) 26 Cal.App.4th 1717.......................................................................................................... 10 Karlsen v. Am. Savings & Loan Assoc. (1971) 15 Cal. App. 3d 112 ............................................................................................................. 5 King v. Meese (1987) 43 Ca1. 3d 1217 .................................................................................................................... 4 Knapp v. Doherty (2004) 123 Cal.App.4th 76 ............................................................................................................ 12 Korean Philadelphia Presbyterian Church v. Cal$ornia Presbyter)! (2000) 77 Cal. App. 1069 ................................................................................................................
4

8
&

5;:

,3 F-

13 14

0 4 6 Am-

"% % w < $ 16 0
L;ld$
VI

2 -1 17

Langford \,. Superior Court (1987) 43 Cal. 3d 21 ................... . . ................................... ................................................. . 4

. .

Mabry v. Superior Court (2010) 185 Cal.App.4th 208 .......................................................................................................... 13

I Moeller v. Lien,

25 Cal. App. 4th 822 .................. . . .......................................................................................... 1 1

Nguyen v. Calhoun (2003) 105 Cal. App. 4th 428 ..........................,v............................................................................. 5
OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION Inc,, et al., Case No. 1384851 David K Gates, Trustee v. MGC

TABLE OF AUTHORITIES
(cont.)

Page(s)

Pesidential Capital v. Cal-Western Reconveyance Corp. (2003) 108 Cal. App. 4th 807 ..................................................................................... ............... 11 7'hayer Plymouth Center, Inc. v. Chrysler Motors Corp. (1967) 255 Cal. App. 2d 300 Nlley v.Arnpro Mortgage (Jan. 6 , 2012) 2012 WL 33033 rop Cat Prod., Inc. v. MichaelS Los Feliz (2002) 102 Cal.App.4th 474 ................................. .,.... .. ... ... ... . . ......... ....... . . . Vnited States Code Storage v. Great W. Sav. d; Loan Ass'n (1985) 165 Cal.App.3d 1214 .....................................................................................
STATE STATUTES
Cal. Civ. Code 8 2923.5 ............................................................................................................ 1 3, 11, 2 Zal. Civ. Code § 2923,5(a)(2).............................................................................................. 1:

4, 5

5

. .. 1 5

................. C

Gal. Civ. Code 5 2923.5(b).............................................................................................................. 1:
Eal. Civ. Code 8 2923.5(i)...................................................................................................
Cal. Civ. Code 5 2924(a) ....................................
.. ,

1:

.................................................................. ........ ......

Cal. Civ. Code 5 2924(a)(1) ......................................................................................................... 7, 1 I
4 Cal. Civ. Code 5 2934a .................... . . ........................................................................................ . .......

Cal. Code Civ. Proc.

5 526(a) ........................................................................................................... .....
5 995.710 ........................................................................................................

1

Cal. Code Civ. Proc. 9 529 ............................................................................................................. 1!

Cal. Code Civ. proc.

1:

--.

OPPOSITION TO ~ . A I N T I F F ' MOTION FOR S David HI Gores. Tvzislee v.

-"

PKELIMGAKY INJUNC'I'ION
rr 0 1 , Casc 1\10 138485 1

MEMORANDUM OF POINTS AND AUTHORITIES
Defendants MGC Mortgage, Inc. ("MGC"), LPP Mortgage Ltd. ("LPP"), and Loan lcquisition Corporation (collectively, "Defendants"), submit this response to the Court's Order to ;how Cause and Temporary Restraining Order entered on February 3,2012 and in opposition to 'laintiff David W. Gates' ("Plaintiff') Motion for Preliminary Injunction. ("Motion").

INTRODUCTION
This lawsuit relates to real property located at 1200 Palomino Drive, Santa Barbara,

Xifornia 93105 (the "Subject Property") and the $1,142,302.00 loan Plaintiff admits he received elating to the Subject Property. Plaintiff acknowledges in his declaration that he failed to make the equisite payments under the loan. Defendants, therefore, properly proceeded with foreclosure jroceedings. Plaintiffs Complaint and Motion, therefore, does not challenge that Plaintiff failed to meet his obligationsrelating to his loan. Instead, Plaintiff merely raises legal theories that have been epeatedly and consistently raised by delinquent borrowers and rejected by California Courts. 'laintiff's primary contention in support of a preliminary injunction is that Defendants cannot oreclose on the Subject Property because they do not possess the original promissory note executed )y Plaintiff. This so called "produce the note" theory has been rejected by countless courts in hlifomia explaining that the theory is a "wholly discredited legal theory serially advanced in nortgage cases." Even if there were such a requirement-there is not-Defendants ~riginal note. Plaintiff's othm legal theories in his motion are also meritless and are similarly raised by jther delinquent borrowers. do possess the

'securitization" of Plaintiff loan. As with PlaintifPs "produce the note" theory, the improper iecuritization theory has bee uniformly rejected by courts in Califomia. Plaintiffs a1legations;relatingto the notice of default, notice of bustee's sale and general tllegations of violation of Cyfornia non-judicial foreclosure statutes also fail to raise a viable cause ,faction, let alone a likclihodd of success on the merits. I fact, Plainties motion simply misstates n he requirements under the stbutes. All statutory non-judicial foreclosure requirements were
1

J

here is no viable cause of action based on challenges to the alleged

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OPPOSITION TO PLAINTIFFS MOTION FOK PRELIMINARY INJUNCTION David W. Gates, Trustee v. MGCMortgage, Inc., er al., Case No. 1384851

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complied with, which is clear from the face of the recorded documents relating to the foreclosure. Finally, Plaintiffs various wild and baseless accusations ranging from tax fraud, insurance fraud, personal attacks to Plaintiffs counsel's personal opinions on the banking industry are irrelevant to the issues of the foreclosure of the Subject Property and certainly do not provide proper grounds to grant a preliminary injunction. For the foregoing reasons, and those discussed in detail below, the Court should deny the Motion for Preliminary Injunction. RELEVANT FACTUAL BACKGROUND

I.

PLAINTIFF'S LOAN, DEFAULT ON LOAN AND SUBSEQUENT FORECLOSURE PROCEEDINGS. This lawsuit arises &om a mortgage loan on certain real property purportedly owned by

Plaintiff located at 1200 Palomino Drive, Santa Barbara, California 93 105 (the "Subject Property"). On or about September 20,2005, Plaintiff refinanced the Subject Property with a $1,142,302.00 mortgage loan (the ''Note") originated by Washington Mutual Bank, FA ("Washington Mutual"). (Declaration of Bret Maloney ("Maloney Decl."), Ex. 1). Plaintiff does not dispute that he executed the Note or that he received the $1,142,302.00 loan. The Note provided: "The Lender is Washington Mutual Bank, FA. [Plaintiff] will make all payments under this Note in the form of cash, check or money order. [Plaintiq understand[s] that the Lender mav transfer this Note."

(Id. 7 1) (emphasis added) The Note also provided that the note holder would be protected by a
Deed of Trust executed on the same date as the Note that protected the note holder from "possible losses that might result if [Plaintiff does] not keep the promises which [Plaintiff makes] in this Note." (Id. 7 11) As stated in the Note, a Deed of Trust was also executed on or about September 20,2005 relating to the Subject Property and the Note. (Request for Judicial Notice (WJIT), Ex. A) The Deed of Tmst was properly recorded with the Official Records of Santa Barbara County on September 29,2005. (Id. at p. 1). 171e Deed of Trust identified Plaintiff as the borrower and Washington Mutual as the Lender. (Id.) It provided that it secured to the Lender the repayment of the Loan and performance under the Note by Plaintiff (id. at p. 2) and that Plaintiff granted to the
2 OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMNARY NJ!JNCTION David W. Cafes, Trustee v. MGC Mortgage, Inc., et a[., Case No. 1384851

q.2 4 8

named trustee the power of sale of the Subject Property if such conditions were not satisfied. (Id. at pp. 2-3) The Deed of Trust also expressly stated that "the Note or a partial interest in the Note (together with the [Deed of Trust]) can be sold one or more times without prior notice to

rPlainliffl." (Id. 7 20) (emphasis added) The Deed of Trust also expressly states that
PlaintiffJ hereby absolutely and irrevocably assigns to Lender all of Borrower's right, title and interest in and to all proceeds from any insurance policy.. .that are due, paid or payable with respect to any damage to such property, regardless of whether the insurance policy is established before, on or after the date of this Security Instrument. By absolutely and irrevocably assigning to Lender all of Borrower's right to receive any and all proceeds from any insurance policy, Borrower hereby waives, to the full extent allowed by law, all of Borrower's right to receive any and all of such insurance proceeds.

(Id. 7 5). The Deed of Trust also included a "Second Home Rider" stating that the Subject Property
was not Plaintiffs primary residence but instead a second home. (Id. at p. 19)

-

An Assignment of Deed of Trust, as permitted by the loan documents, was recorded in the

Official Records of Santa Barbara County whereby Washington Mutual transferred the beneficial interest in the Deed of Trust to DB Structured Products, Inc. ("DB Structured") as of August 30,

2006. (Id. Ex. B) Another Assignment of Deed of Trust was also recorded in the Official Records of
Santa Barbara County whereby DB Structured transferred its beneficial interest in the Deed of Trust to defendant LPP Mortgage Ltd. (Id., Ex. C) After Plaintiff defaulted on his mortgage payments, a fact which he does not dispute in-his declaration, a Notice of Default and Election to Sell Under Deed of Trust was recorded in the Official Records of Santa Barbara on August 9,201 1 ('.'First Notice of Default"). (RJN, Ex. D). This First Notice of Default was rescinded by a Notice of Rescission. (Id., Ex. E) On October 13,
2011, another Notice of Default and Election to Sell Under Deed of Trust ("Second Notice of

Default") was recorded in the Official Records of Santa Barbara County by Cal-Western Reconveyance Corporation ("Cal-Westernn), the foreclosure trustee retained by LPP Mortgage Ltd., the beneficiary under the Deed of Trust, noting that Plaintiff was in default on his loan in the amount of $91,754.18. (Id., Ex. F) The Second Notice of Default expressly declared that the obligations under California Civil Code 3 2923.5 were complied with. (Id. at p. 2) On November 15,201 1, a Substitution of Trustee was recorded whereby LPP Mortgage Ltd.
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OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION David W. Gates, Trustee v. MGC el al., Case No. 138485 1

directed the substitution of Cal-Westem as the new trustee under the Deed of Trust, as expressly permitted by the terms of the Deed of Trust. (Id. Ex. G). The Substitution of Trustee included an Affidavit of Mailing pursuant to California Civil Code 4 2934a since it was recorded after the Notic~ of Default. (Id. at p. 2) A Notice of Trustee's Sale w s recorded on January 17,2012 in the Official a Records of Santa Barbara County by Cal-Western setting the trustee sale date of the Subject Property for February 6,2012. (Id., Ex. H). The Subject Property was not sold on this date as a result of the Court's issuance of a Temporary Restraining Order in the pending case. As of the date of this filing, the Subject Property has not yet been sold.

ARGUMENT

I.

STANDARD FOR ISSUANCE OF A PRELIMINARY INJUNCTION.
The power to grant a preliminary injunction is "extraordinary" and should be "exercised

always with great caution." Dawson v. East Side Union High School Dist. (1994) 28 Cal. App. 4th 998, 1040. "[Rlarely, if ever, should [it] be exercised in a doubtm case." Ancora-Ciponelle Corp.
v. Green (1974) 41 Cal. App. 3d 146, 148. "An injunction properly issues only where the right to bt

protected is clear, injury is impending and so immediately likely as only to be avoided by issuance c the injunction." Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal. App. 1069,1084. To obtain a temporary restraining order or preliminary injunction, a plaintiff must demonstrate that (1) he is likely to prevail on the merits of his claims and (2) the interim harm to the plaintiff in the absence of injunctive relief outweighs the harm the defendants is likely to suffer if thl court issues an injunction. C.C.P. $526(a); Landord v. Superior Court (1987) 43 Cal. 3d 21,28;

King v. Meese (1987) 43 Cal. 3d 1217, 1226. To satisfy these requirements, the plaintiff has the
burden of presenting sufficient evidence of both elements. Gray v. Superior Court (2005) 125 Cal. App. 4th 629, 640; Fleishman v. Superior Courr (2002) 102 Cal. App. 4th 350, 356. A preliminary injunction is not appropriate, as Plaintiff claim in his papers, simply by making a prima facie case oi by a showing of "a fair chance of prevailing on the me~its" Indeed, a preliminary injunction will no issue if it is doubiful that the party seeking the injunction will ultimately prevail in the lawsuit, or if monetary damages afford adequate relief. See Thayer Plymouth Center, Inc. v. Chrysler Motors
-

4 OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION David W.Gates. Trustee v. MGC Mortgage, Inc., et al., Case No. 1384851

7, L a-g

d

Corp. (1967) 255 Cal. App. 2d 300,305.
As discussed below, Plaintiff fails to show that the foregoing requirements are satisfied. Plaintiff's request for a preliminary injunction must, therefore, be denied.
1. 1

PLAINTIFF IS NOT ENTITLED TO INJUNCTIVE RELIEF BECAUSE HE HAS
NOT TENDERED THE LOAN PROCEEDS ADMITTEDLY BORROWED.
Plaintiff seeks a preliminary injunction from the Court based on Defendants' purported

"wrongful foreclosure" of the Subject Property. Plaintiff does not dispute that he borrowed over a million dollars and that he is in severe default on his loan. Nor does Plaintiff make an unconditional offer to tender the loan proceeds. (Maloney Decl. 7 10) This alone defeats his motion for injunctive relief. An injunction is a form of equitable relief. Tanner Motor Livery, Ltd. v. Avis, Znc. (9th Cir. 1963) 316 F.2d 804,8f9. It is well settled that one who seeks equity must do equity. Power &
I

Irrigalion Co. v. Capay Ditch Co. (9th Cir. 1915) 226 F. 634, 640. In the context of a loan
transaction, to obtain equitable relief, the borrower must first act equitably himself by tendering the principal loan balance to the lender. See Chavez v. Reconhusl Co. (E.D. Cal. Dec. 11,2008) No. 081864,2008 WL 5210893, at *6 ("The law is long established that a lparty] must tender the obligation in full as a prerequisite to challenge a foreclosure sale."); Karlsen v. Am. Savings & Loan

Assoc. (1971) 15 Cal. App. 3d 112, 117 ("[Aln action to set aside [a] sale, unaccompanied by an
offer to redeem, [does] not state a cause of action."). Furthermore, a tender offer must be made in good faith, the party making the offer must have the ability to perform, and the offer must be

uncondirional. Sitanggang v. Indymac Bank F.S.B. (E.D. Cal. May 6,2009) No. 09-0367 LJO SMS,
2009 WL 1286484, *2 (dismissing claims challenging nonjudicial foreclosure sale because "Plaintiffs inability to make monthly promissory note payments reflects inability to tender amounts owed to bar her claims and requested relief [for wrongful foreclosure]"). The tender rule is strictly applied in California. See Nguyen v. Calhoun (2003) 105 Cal. App. 4th 428,439; Kamp v. Aurora

Loan Serv. (C.D. Cal. Oct. 1,2009) No. SACV09-00844-CJC (RNBx),2009 WL 3 177636, *5
(cause of action for rescission in equity fails because plaintiffs do not allege that they will tender). California courts have made clear that the tender rule applies to "any cause of action" that is based
5 OPPOSlTION TO PLAINTIFF'S MOTION FOR PRELIMMARY INJLJNCTION David W. Gates. Trustee v. MGCMorlgage, Inc., et al., CaseNo. 1384851

3i n h

upon allegations of wrongful foreclosure or claims that seek redress fiom foreclosure, as Plaintiff does here. Abdalla v. United Sav. Bank (1996) 43 Cal.App.4th 1101, 1109; United States Code

Storage v. Great W.Sav. & Loan Ass 'n (1985) 165 Cal.App.3d 1214,1225; Arnolds Management Corp. v, Eischen (1984)158 Cal.App.3d 575,578 ("It is settled that an action to set aside a trustee's
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."). To date, however, Plaintiff has neither tendered nor offered to tender the loan proceeds admittedly borrowed. As such, Plaintiff is not entitled to any form of equitable relief, including an injunction. Plaintiffs request for a preliminary injunction should, therefore, be denied.

III.

PLAINTIFF FAILS T O ESTABLISH A LIKELIHOOD O F SUCCESS ON THE

MERITS OF ANY OF HIS "CLAIMS."
Even if Plaintiff had properly tendered the loan amount owed, his motion still fails because he cannot demonstrate the likelihood of success on the merits of any of his causes of action. In fact, Plaintiffs Complaint fails to even assert a single viable cause of action. Instead, Plaintiff asserts various legal theories all of which have been repeatedly and consistently rejected by courts throughout California based on nearly identical allegations brought by other delinquent borrowers.' This Court should join the countless other Courts that have rejected Plaintiffs meritless theories of liability. A. Under California Law, Production of the Original Promissory Note is Not Required Prior to Foreclosure. Plaintiffs primary argument in support of his Motion for P r e l i i a r y Injunction is that Defendants cannot properly foreclose on the Subject Property because they do not hold the original copy of the Note. This so-called "produce the note" theory has long since been rejected by Courts i~ California. As one court explained, the "produce-the-note" theory "is a wholly discredited legal theory serially advanced in mortgage h u d cases." Clark v. Countrywide Home Loans, Inc. (E.D.

' Plaintiffs motion, for some unknown reason, relies on purported violations of the Uniform Commercial Code ("UCC"). Of course, the UCC 1s not itself the law in California, or anywhere else. Instead it is one of a number of uniform acts promulgated in ao attempt to hasmonize the law in various states relating to sales aod commercial transactions @ut not real properly). 6 OPPOSlTlON TO PLAINTIFF'S MOTION FOR PRELIMINARY WJUNCTION David W Gates, Trustee v. MGC aL, Case No 1384851

Cal. 2010) 732 F.Supp.2d 1038, 1043. The court explained that "[ilt is well established that there is no requirement under California law that the party initiating foreclosure be in possession of the original note." Id.; see also Chilroi~v 5197869, *I (describing the "produc
Countrywide Home Loans, Inc. (N.

.D. Cal. 2009) 2009 WL
y rejected."); Pantoja v, 1186 ("'No requirement exists n-judicial foreclosure.");

under the statutory framework to

Gamboa v. Trustee Corps (N.D.
governing non-judicial foreclos to initiate the foreclosure proce *2 ("Pursuant to section 2924( the right to initiate the foreclo note is not required to procee duce the original note
9) 2009 WL 32567,

Deed of Trust has

ton Loan Sewicing

L , 2009 WL 1326339, at * P
under the statutory framewo To the extent Plainti have long since rejected thi loans in California. Regardless, LPP Decl. 7 6 )

,so the issue is moot. (Maloney

B .

Plaintiff's Challenge To The "Chain o b ~ i t l e Also Fails. '~

Plaintiff's next theory of liability challenging th authority of Defendants to foreclose bascd on the "chain of title" of their interest in the Deed of T st also fails. This theory of liability has also been consistently rejected by courts in California.

+
4

Initially, the California Court of Appeal has ma e clear that when a loan is secured by a deed of trust, and not a mortgage, there is no requirement before exercising a power to sell real property under
.MA. (Cal.App. 2nd Dist. 201 1) 199 Cal.App.4th 11

!I

assignment of an interest be recorded of t u t CaIvo v. HSBC Bank rs. any claim based on Defendants'

purported failure to record such assignments fails as a

In addition, Plaintiffs "produce the chain of title" argument and iterations of this argument
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OPPOSITION TO PLAINTIFF'S MOTION FO 1PRELIMINARY INJUNCTION David K Gates, Trustee v. MGC Mortgage. Inc., er al., Case No. 1384851

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atter

of law.

a. a - f l

1 have been repeatedly rejected by California courts. "Uniformly among courts, production of the
2 3 4 5 note is not required to proceed in foreclosure and similarly no production of any chain of ownership is required." Roque v. Suntrust Mortg., Inc. (N.D. Cal. Feb. 9,2010) No. C-09-00040 RMW, 2010 U.S. Dist. LEXIS 11546, at **8-9 (emphasis added) (citing Putkkuri, 2009 U.S. Dist. LEXlS 32 at *2 (California's nonjudicial foreclosure statutes do not require written proof of the foreclosing party's right to proceed with the foreclosure)). In Selby v. Bank ofAmerica, Inc. the plaintiff argued that "because no assignment of the note was ever recorded," the entity identifying itself as the f present beneficiary under the deed of h w t "had no power of sale to exercise." Selby v. Bank o America, Inc. (S.D. Cal. Oct. 27,2010) No. 09-cv-2079,2010 WL 4347629, at *3. The Court stated that "courts have rejected claims that defendants lack the right to foreclose where there is no recorded assignment evidencing the transfer of the underlying loan." Id (citing Roque, 2010 WL 546896, at *3 (rejecting argument that power of sale in the deed of trust was no longer valid because

6
7
8 9
10

11

8 '0

12

&%C

; 13 the chain of ownership was unrecorded)) and Parcay v. Shea Mortg. Inc. (E.D. Cal. April 23, 2010)
14 2010 WL 1659369, at * 11 (finding no merit to plaintifs argument that the foreclosure sale was void because it was not initiated by originally lender and there was no recorded assignment evidencing
c,+

: : a

> 2;su 15 ru ,ct

$ 6 2 16 the transfer of the loan from original lender).
4 5 P $a m

17
18

Finally, even if there was a requirement to record assignment-there

is not-Plaintiff

s

%

D

argument still fails because the judicially noticeable documents make clear that there were proper

19 20 21 22 23 24 25 26 27 28

II II III 1

assignmentr. The Deed of Trust identified the Lender, Washington Mutual, as the "beneficiary

under this Security Instrument." (RJN, Ex. A) An Assignment of Deed of Trust was later recorded in the Official Records of Santa Barbara County whereby Washington Mutual transferred its beneficial interest in the Deed of Trust to DB Structured. (Id. Ex. B) Another Assignment of Deed of Trust was later recorded whereby DB Structured transferred its beneficial interest in the Deed of

I111
I
II I1 I(

Trust to LPP Mortgage Ltd. (Id., Ex. 6 ) LPP Mortgage Ltd. is the party that directed the substitution of Cal-Western as the new trustee, as permitted under the Deed of Trust. (Id., Ex. A and

Ex. G ) Cal-Western in its role as trustee then proceeded to record the Notice of Trustee's Sale. (Id., Ex. H) This is the exact process outlined by the California non-judicial foreclosure statutes and any challenges by Plaintiff are utterly meritless and are refuted on the face of the judicially noticeable
8 OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION David W. Gates, Trustee v. A4GC Mortgage. lnc , et al., Case N o 138485 1

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ecorded documents.
C.

Plaintiffs "Securitization Voids the Security Interest" Theory Also Fails.

It is equally untenable for Plaintiff to contend that the securitization of Plaintiffs loan voided he security interest in the Subject Property. California courts have expressly rejected "[t]he rgument that parties lose their interest in a loan when it is assigned to a trust pool." Lane v. Virek

:ealEstate Industries Group (E.D. Cal. 2010)713 F. Supp. 2d 1092, 1099 (dismissing claims based
in plaintiffs allegation "that none of the defendants have the authority to foreclose because their
g an was

... securitized") (collecting authority); see also Logvinov v. Wells Fargo Bank (N.D. Cal.

:011) 201 1 WL 6140995, at *3; Hafiz v. Greenpoint Mortg. Funding, Znc., 652 F.Supp.2d 1039, 043 (N.D. Cal. 2009); Benhm v. Aurora Loan Services LLC, 2009 WL 2880232 * 3 (N.D. Cal. :009); Mularo v. W C Mortgage Corp., 2010 WL 1532276, at *2 (N.D. Cal. 2010); Coyotzi v. M

:ounttywide Fin7 Corp., 2009 W L 2985497, at ** 19-20 (E.D. Cal.2009). In fact, they have found
hat any such claim is "frivolous, has no supporl in the law and should be dismissed with prejudice."

darfy, 201 1 W L 1103405 at *7 (dismissing claim "that thc 'securitization' of the note was an
rnproper conversion and alteration of the note and deed of trust, undertaken without [the plaintiffs] :onsent and rendering the mortgage and Deed of Trust unenforceable against him."). Moreover, 'laintiff's Deed of Trust expressly states that the Note and Deed of Trust may be sold one or more imes without notice to Plaintiff. (RJN, Ex. A). That the loan was securitized is irrelevant. It does lot excuse Plaintiffs default or otherwise affect Defendants' ability to foreclose upon that admitted lefault. Nor can Plaintiff assert challenges to the timing of his loan's deposit into the securitized rust, specifically claims premised on a supposed violation of "Defendants' own securitization equirements," because Plaintiffwas not aparty to any such agreement(s). He alleges that because
hc assignment of the deed of trust was executed and recorded after the cut-off date to be included in

he securitized trust, the securitization violates the terms of the Pooling and Servicing Agreement "PSA") and foreclosure may not proceed. This claim fails too, because "[tlo the extent Plaintiff ihallenges the securitization of Fis] loan because [Defendants] failed to comply with the terms of heir securitization agreement, Plaintiff has no standing.. . as b e is] not ... investor of the loan trust.:
9 OPPOSITION TO PLAINTIF= MOTION FOR PRELIMINARY INJUNCTION David X Gates, Trustee v MGC Inc., el a1 ,Case No. 138485 1

Bascos v. ~ e d e r nHome Loan Mortg. Corp. (C.D. Cal. 201 1) 201 1 WL 3157063, *6; accord: Tilley l
v. Ampro Modtgage (Jan. 6,2012) 2012 WL 33033, *3. Under California law, a non-party to a

:ontract cannot bring suit on a contract unless the contract terms expressly evidence an intent to benefit the nokparty. SolidHosr, NL v. Namecheap, Znc. (C.D. Cal. 2009) 652 F.Supp.2d 1092, l 117; see also Jones v. Aetna Casualry & Sur. Co. (1994) 26 Cal.App.4th 1717, 1724 (stating that "someone who is not a party to the contract has no standing to enforce it or to recover extra~ontractual damages for the wrongful withholding of benefits to the contracting party"). Here, Plaintiff has not pled and cannot plead that he was a party to the PSA. Nor does Plaintiff allege that my party to the assignment contested its validity.

Ln all, Plaintiff's "securitization" theory is just an equally baseless iteration of the "produce
the note" theory. Kimball v. BAC Home Loans Servicing, LP (N.D. Cal. Feb. 9,201 1) No. 10-CV35670-LHK, 201 1 WL 577418, *2 (where a plaintiff's "causes of action are all premised on vague dlegations that Plaintiffs loan was pooled with other loans in a 'securitization scheme,"' "[tlhe Court gathers that Plaintiff challenges the foreclosure sale because the trustee noticing the sale does not have possession of the Note," but "under California law, there is no requirement [of] ... possession of the physical note before initiating foreclosure"). Thus any claim based on that theory does not demonstrate the necessary likelihood of success on the merits necessary to grant a preliminary injunction. See Mulato v. WMC Mortg. Corp. (N.D. Cal. Apr. 16,2010) No. C 0903443 CW, 2010 WZ, 1532276, *2 (dismissing with prejudice claim that "[defendants] lacked standing to foreclose because of the alleged securitization of [the] mortgage note" as there is no requirement to produce the note)). At bottom, Plaintiff seeks to do exactly what California law forbids. His lawsuit seeks to compel Defendants to prove that they havc the right to foreclose (i.e., that the securitization was proper) before they can do so. That is exactly what Gomes v.

Counhywide Home Loans, Inc. (201 1) 192 Cal.App.4th 1149 prohibits. "Nowhere does the statute
provide for a judicial action to determine whether the person initiating the foreclosure process is indeed authorized, and we see no ground for implying such an action." Gomes, 192 Cal.App.4th at 1155. A borrower may not "bring a court action to determine whether the owner of the Note has authorized its nomince to initiate the foreclosure process." Id. at 1154.
10 OPPOSITION ' ' 10 PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION David l Gates, Trustee v. MGC Morfgage, Inc., et a!.,Case No. 138485 1 K

T -a!!&

D .

Plaintiff Fails To Allege Any Violation Of Any California Nou-Judicial Foreclosure Statute.

Plaintiffs Motion for Preliminary Injunction next alleges in conclusory fashion various iolations of California's non-judicial foreclosure statutes. Specifically, Plaintiff challenges the nopriety of the Notice of Default, Notice of Trustee's Sale and alleges a violation of California 3vil Code 5 2923.5. Each of these allegations is meritless and fails to demonstrate a likelihood of uccess on the merits of any such claim. Indeed, the Motion is fraught with misstatements about the oreclosure requirements under California law.
1.

The Notice of Default Is Not Invalid.

Plaintiff contends that the Notice of Default is "void" because it was recorded by CalWestern. The Motion badly misstates the requirements for foreclosure under California law, ncluding who may properly record a Notice of Default. The recording was proper, as is the oreclosure proceeding as a whole. Sections 2924 to 29241 of the California Civil Code set forth a "comprehensive statutory iamework established to govern nonjudicial foreclosure sales," which is "intended to be :xhaustive." Moeller v. Lien, 25 Cal. App. 4th 822, 834; see also Residential Capital v. Cal- Western

?econveyunce Corp. (2003) 108 Cal. App. 4th 807, 826 (recognizing that "the Supreme Court has
aid that the Legislature intended to cover the entire subject area of nonjudicial foreclosures by tatute and leave nothing for the courts."). This statutory framework includes a multitude of rules elating to standing, notice, and the right to cure. See ipp. 3d 424,432-33. The statutory scheme regulating mstee sales ncorporation of other, unrelated provisions into the foreclosure Ith at 834. The California statutory scheme allows the
1,

(1 991) 230 Cal. inconsistent with the judicial

Moeller, 25 Cal. App.
be conducted by the

'mstee, mortgagee or beneficiary or anv of their authorized aqentd,." Cal. Civ. Code 5 2924(a)(1) emphasis added). Nothing in Sections 2924 to 29241 requires a foreo(losingparty to provide

I

:onfirmation to a borrower regarding the validity of any assignments before proceeding with

I

lonjudicial foreclosure or any other written proof of its authority to cdnduct the foreclosure. The Notice of Default relating to the Subject Propcrty was exdcuted and recorded by Cal11

OPPOSITION PLAINTIFFS MOTIONFOR PREL~MINA~Y TO MJLTNCTIOK David W Gores. Trustee v. inc., et al., casd No. 1384851

II

Western "acting as agent for the trustee or beneficiary under deed of trust." (RJN, Ex. F) There are no allegations and no evidence to demonstrate that the Notice of Default was recorded without the permission of the beneficiary, LPP Mortgage Ltd. In fact, the Notice of Default was recorded at LPP Mortgage Ltd's direction. (Maloney Decl. 7 8) Therefore, Plaintiffs allegations are frivolous and do not provide grounds for a viable cause of action, let alone demonstrate a Likelihood of succesr on the merits. Moreover, even if there were irregularities in the Notice of Default-there were not-it does

not void the Notice of Default or otherwise affect the foreclosure proceedings. Courts have "rejectec claims of deficient notice where no prejudice was suffered as the result of a procedural irregularity."
Reynoso v. Paul Financial, LLC (N.D. Cal. Nov. 16,2009) No. 09-3225 SC, 2009 WL 3833298, at
*4 (quoting Pantoja v. Countrywide Home Loans, Inc. (N.D. Cal. 2009) 640 F.Supp.2d 1177); see

also Lehner v. Unitedstates (9th Cir. 1982) 685 F.2d 1187, 1190-91 (rejecting due proccss claim

based on failure to provide written notice of foreclosure sale where plaintiff had actual notice); Gens
v. Wachovia Mortg. C o p (N.D. Cal. May 12,2010) No. CV10-01073 JF, 2010 WL 1924777, at *6.

The California Court of Appeals has rejected claims based on deviation fkom foreclosure notice requirements where "[tlhere was no prejudicial procedural irregularity" Knapp v. Doherty (2004) 123 Cal.App.4th 76,93-94). Plaintiff does not, nor could he, allege prejudice based on his allegations that Cal-Western recorded the Notice of Default. Clearly he was aware of the foreclosure proceedings as demonstrated by bringing his motion and there is no claim that any irregularity with the Notice of Default in any way caused him to not reinstate his loan.
2.

The Notice of Trustee's Sale Is Not Invalid.

Plaintiff similarly challenges the Notice of Trustee's Sale and states in conclusory fashion that it is invalid. (Motion at p. 8) The Motion, however, does nothing more than recite the general requirements of the information that must be included in the Notice of Trustee's Sale, including a description of the security instrument and the parties to the instrument, as well as the amount of the unpaid balance. (Id.) On the face of the document, it is clear that the Notice of Trustee's Sale meets all statutory requirements. (RJN, Ex. H) There is no basis to invahdate the notice and none is identified in Plaintiffs Motion.
1 2 OPPOSITION T O PLAINTIFF'S MOTION FOR PRELIMINARY MJLNCTION David K Gates, Trustee v. lnc, el a!., Case No. 1384851

3.

California Civil Code 4 2923.5 Does Not Apply.

Plaintiff also alleges the foreclosure of the Subject Property is improper because Defendants riolated California Civil Code $ 2923.5. These allegations are meritless since the statute is napplicahle to Plaintiffs loan. California Civil Code $2923.5 only requires a lender, prior to filing a notice of default, :ontact the borrower to "assess the borrower's financial situation and explore options for the )orrowerto avoid foreclosure." Cal. Civ. Code. fj 2923,5(a)(2). The statute requires a statement in he notice of default declaring that the mortgagee, beneficiary, or authorized agent has contacted the ,orrower or has tried to contract the borrower. I d , $2923.5(b). Ln sum, the only obligation under kction 2923.5 is limited to telling the borrower the traditional ways that foreclosure can be avoided

md not a requirement that a lender rewrite or modify the loan. Mabry v. Superior Court (2010) 185
:al.App.4th 208,204,218. Section 2923.5(i), however, expressly provides that: (i) This section shall apply only to mortgages or deeds of trust recorded from January 1, 2003, to December 3 1,2007, inclusive, that are secured by owner-occupied residential real property containing no more than four dwelling units. For purposes of this subdivision, "owner-occupied" means that the residence is the principal residence of the borrower as indicated to the lender in loan documents. :al. Civ. Code. $ 2923.5(i) (emphasis added). The Deed of Trust relating to the Subject Property includes a "Second Home Rider" that mambiguously states that the Subject Property is not Plaintiffs primary residence but his second iome. (RJN, Ex. A) The statute clearly states that the information in the loan documents as to ~hether property is owner-occupied is controlling as to the applicability of Section 2923.5. the herefore, Plaintiff cannot assert a viable cause of action under Section 2923.5, let alone lemonstrate the likelihood of success on the merits of such a claim. See Finuliar v. BAC Home

5oans Servicing, L.P.(N.D. Cal. Sept. 21,201 1) No. C-11-02629,2011 WL 4405659, at * 12
dismissing Section 2923.5 claim where property at issue was not borrower's principal residence).

W. PLAINTIFF'S VARIOUS OTHER ALLEGATIONS OF WRONGDOING DO NOT
SUPPORT GRANTING A PRELIMINARY INJUNCTION. Plaintiffs Motion for Preliminary Injunction is replete with wild, baseless accusations ,anging fiom tax fraud, insurance fraud, improper conduct by Farmers Fire Exchange, personal
13

OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION David W1 Gates, Trustee v. et al., Case No. 1384851

lttacks on Andrew Beal, Plaintiffs counsel's personal feelings on all of these claims and the )anking industry in general, and countless other accusations. The allegations arc all frivolous and :ompletely irrelevant to the issue of whether foreclosure of the Subject Property is proper. None of he baseless allegations provide the Court grounds to grant the pending Motion. Indeed, Plaintiffs motion spends numerous paragraphs alleging impropriety by Defendants n the handling of Plaintiffs insurance payments. Plaintiff, however, acknowledged that he did not nake his mortgage payments. (Declaration of David W. Gates 7 5) Moreover, the Motion simply gnores the unambiguous language in the Deed of Trust which provides: [Plaintiff] hereby absolutely and irrevocably assigns to Lender all of Borrower's right, title
and interest in and to all proceeds Gom any insurance policy.. .that are due, paid or payable

with respect to any damage to such property, regardless of whether the insurance policy is established before, on or after the date of this Security Instrument. By absolutely and inevocably assigning to Lender dl of Borrower's right to receive any and all proceeds from any insurance policy, Borrower hereby waives, to the full extent allowed by law, all of Borrower's right to receive any and all of such insurance proceeds"

:Id.ld, 5). This provision in Plaintiff's Deed of Trust explains in detail how the beneficiary under the
3eed of Trust is to handle such insurance proceeds. (Id.) Plaintiff's motion does not, nor could it, dentify any improper conduct under this provision of the Deed of Trust by Defendants. Therefore, ?laintiff simply relies on making wild and serious accusations of criminal conduct with no basis for ;uch iiivolous claims. Plaintiffs allegations relating to securitization, as discussed above, do not provide Plaintiff a riable cause of action. Plaintiffs counsel's personal views regarding the banking system and her :onspiracy theories relating thereto does not change this fact and provide a cause of action.2 Nor ioes Plaintiff's self-professed expertise in any area of law provide a viable claim for Plaintiff.

V.

THE OTHER FACTORS ALSO WEIGH AGAINST GRANTING A PRELIMINARY

While Plaintiffs failure to tender and to demonstrate a likelihood of success on the merits of my of his claims is alone sufficient grounds to deny aprelimiiary injunction, the other factors also

counsel i s unawarc of the term "bdnkslers", which appears to have been created by Plaintiffs counsel, and io not believe they are under any obligation to determine what is meant by such term.
! Defendants'
1-

OPPOSITION TO PLANTIFF'S MOTION FOR INJUNCTION Inc., et ul., Case No. 1384851 David W. Gates, Trustee u.

PRELIMINARY

veigh against granting such relief. The harm alleged by PlaintiffAe foreclosure and sale of the iubject Property-is not legally cognizable because Plaintiff has no legal or equitable right to

ndefinitely possess and occupy a house without paying for it. Plaintiff concedes that he has failed tc nake the payments required by the mortgage loan for several years now. (Gates Decl. 7 5) Even if E egitimate hardship prompted his inability to pay his debt, Plaintiff has no legal right to a free house. Injunclions are issued to protect legal rights, not to give a party a mechanism to gain :omethingthe party is not entitled to. To allow an abuse of this judicial mechanism is not in the jublic interest. See Winter v. Nat. Res. DeJ Council, Inc. (2008) 129 S.Ct. 365,376-77 (courts "pay )articular regard for the public consequences in employing the extraordinary remedy of injunction.")

I .

PLAINTIFF MUST POST A SUBSTANTIALBOND TO COVER DEFENDANTS' ESTIMATED LOSSES.
If the Court takes the extraordinary measure and grants the preliminary injunction it must

.equire an undertaking or allow a cash deposit in lieu thereof. See C.C.P. $5 529,995.710. The ~ond must be sufficient to cover any damages to Defendants caused by issuance of the injunction.

'd.; see also Top Cat Prod, Inc. v Michael's Los Feliz (2002) 102 Cal.App.4th 474,478. Here, the
:our1 should order Plaintiff to pay back all of his acknowledged past due arrears (over $12 1,977.56) md pay on a going forward basis until this lawsuit is completed the monthly payments owed under h e Note of $7,746.37. (Maloney Decl. 7 9) Again, nowhere in the Complaint does Plaintiff contest h e validity of the loan or that the loan is in default.

CONCLUSION
In sum, this is a straight forward case of a borrower receiving over a million dollar loan to

?$inance real property. There is no dispute that he failed to make the requisite payments under the loan, and therefore foreclosure proceedings were initiated against the Subject Property, which acted

s collateral for the loan. While Plaintiff may not be personally at fault for his inability to make the
loan payments and may suffer from anxiety and inconvenience from the foreclosur+assertions which are disputed by Defendants-this does not make the foreclosure improper and does not

provide the Court grounds to grant a preliminary injunction. The Motion should be denied.
ill
15

OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION David W. Gates, Trustee v. MGC ~Vort age, Inc, et al., Case No. 138485I

9:$97

ted: February 21,2012

Respectfully submitted, LOCKE LORD LLP
T

,: ,

.:

By: Regina J. McClendon Daniel A. Solitro Attorneys for Defendants MGC MORTGAGE, INC.; LPP MORTGAGE LTD.; and, LOAN ACQUISITION CORPORATMlN

16 OPPOSITION TOPLAINTIFF'S MOTION FOR PRELIMINARY MJUNCTION Dmrd W.Gates, Trustee v. MGC Morrgage, Inc., era/.,Case No. 138485 1

4.7 7 2 5f

STATE O F CALIFORNIA COUNTY O F LOS ANGELES

1
)

PROOF OF SERVlCE
ss.

1 am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is: 300 South Grand Avenue, Suite 2600, Los Angeles, CA 90071. On February 21,2012, I served the foregoing document described as:

DEFENDANTS MGC MORTGAGE, INC., LPP MORTGAGE LTD. AND LOAN ACQUISITION CORPORATION'S OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
on the panies or anorneys for parties in this action who are identified on the attached service list, using the following means of service. (If more than one means of service is checked, the means of service used for each patty is indicated on the attached service list). BY PERSONAL SERVICE. I placed -the original or -a m e copy of the foregoing document in sealed envelopes individually addressed to each of the parties on the attached service list, and caused such envelope to be delivered by hand to the offices of each addressee. 17 BY FACSIMnE TRANSMISSION. I caused -the original or -a m e copy of the foregoing document to be transmitted to each ofthe parties on the attached service list at the facsimile machine telephone number as last given by that person on any document which he or she has filed in this action and sewed upon this office. 0 BY MAIL. 1placed -the original or -a true copy of the foregoing document in a sealed enveloped individually addressed to each of the parties on the attached service list, and caused each such envelope to be deposited in the mail at 300 South Grand Avenue, Suite 2600, Los Angeles, CA 90071. Each envelope was mailed with postage thereon fully prepaid. I am readily familiar with this fm's practice of collection and processing of correspondeocefor mailig. Under that practice, mail is deposited with the United States Postal Service the same day that it is collected in the ordinary course of business. BY E-MAIL. 1caused the foregoing document(s) to be transmitted by e-mail electronic transmission to the e-mail address on the attached service list as last given by that person on any document which he or she has filed in this action and served upon this ofticc. BY EXPRESS MAIL. I placed the original or a true copy of the foregoing document in a sealed enveloped individually addressed to each of the parties on the attached service list, and caused each such envelope to be deposited in the mail at 300 South Grand Avenue, Suite 2600, Los Angeles, CA 90071 Each envelope was mailed with Express Mail postage thereon fully prepaid. I am readily familiar with this firm's practice of collection and processing of correspondence for mailing. Under that practice, mail is deposited with the United States Postal Service the same day that it is collected in the ordinary course of business. BY FEDERAL EXPRESS. 1placed -the original or -a true iopy of the foregoing document in a sealed enveloped or package designated by Federal Express with delivery fees paid or provided for, individually addressed to each of the panics on the attached senrice list, and caused such envelope or package to be delivered at 300 South Grand Avenue, Suite 2600, Los Angeles CA 90071, to an authorized courier or driver authorized by Federal Express to receive doclrments. (State) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. (Federal) I declare that I am employed in the office of a member of the bar of this court, at whose direction the service was made. Executed on February 21,2012, at Los Angeles, California.

-

-

rn

SERVICE LIST

David Gates, Trusteefor the David W: Gates Trust datedAugwt 5, 1996 v MGC Mortgage. Inc., et al..
Santa Barbara Superior Court Case No. 1384851

Nancy Duffy McCarron, Esq. LAW OFFICE OF NANCY DUFFY McCARRON 950 Roble Lane Santa Barbara, California 93103 Telephone: 805.965.3492 Facsimile: 760.345.0019 Email: nancyduffysb@yahoo.com

Attorney for Plaintiff: DAVID W. GATES, TRUSTEE FOR THE DAVID W. GATES TRUST DATED AUGUST 5,1996

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