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Barry S. Fagan, Esq. (SBN 160104) P.O. Box 1213 Malibu, CA 90265-1213 310-717-1790 Fax: 310-456-6447 Attorney for Plaintiffs, W. JEROL CRAWFORD, LINDA PAYNE, JIMMY CANNON, DAVID DAVIS, and EVERETT DAVIS
SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT W. JEROL CRAWFORD, an individual; LINDA PAYNE, an individual; JIMMY CANNON, an individual; DAVID DAVIS, an individual; and EVERETT DAVIS, an individual, vs. Plaintiffs, Case No. BC 470109
Filed;: September 21, 2011 Assigned for all purposes to: Department 16 (Room 306) Hon. Rita Miller, Judge
YVETTE MICHELLE HOWARD, an individual and as trustee of an unnamed family trust; FINANCIAL FREEDOM LOANS, INC., a California corporation; ACTION FORECLOSURE SERVICES, INC., a California corporation; PERFORMANCE STRATEGIES INC., a reputed Nevada corporation; EVELYN L. PENNER, an individual and as trustee of the Evelyn L. Penner Family Revocable Trust; KEVIN CROSWELL an individual; NANCY CROSWELL, an individual; DAPHNE F. CROSWELL, an individual and as trustee of the Daphne Ferron Croswell Trust UDT 10-21-88; FAYE SLOAN, an individual; “329 W 119TH ST, LOS ANGELES CA 90061,” real property, in rem; “412 S. BURRIS AVE, COMPTON, CA 90221,” real property, in rem; and DOES 1 through 10, inclusive, Defendants.
EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, AND FOR AN ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION; DECLARATION OF BARRY S. FAGAN; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION RE TELEPHONIC NOTICE Date: December 8, 2011 Time: 8:30 a.m. Court: Department 16
TO THE ABOVE NAMED HONORABLE COURT, AND TO DEFENDANTS AND THEIR COUNSEL, AND TO ALL PARTIES IN INTEREST: ///
EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION
and each and all of them. or otherwise exert control over the PROPERTY or the RESIDENCE or either of them without the express. taking. and based upon this Notice and Application. and their respective principals. and EVERETT DAVIS. or maintaining any action. Plaintiffs have no remedy in law to prevent the waste likely to result if the instant temporary order is not granted. trustees. representatives. CA 90221 (referred to in the within verified complaint and hereinafter as “RESIDENCE. Defendants ACTION FORECLOSURE SERVICES and FINANCIAL FREEDOM LOANS intend to conduct a non-judicial foreclosure sale of the PROPERTY on December 9. 527. BURRIS AVE. affiliates. officers. the Declaration re telephonic notice. This application is grounded within the provisions of Rule 359 of the California Rules of Court and California Code of Civil Procedure §§ 526. and successors. and are thereby informed and believe.” and named herein as a Defendant in rem). judicial or nonjudicial. agents. the other pleadings and matter on file herein. and (b) 412 S. the Memorandum of Points and Authorities. COMPTON. Plaintiffs seek to enjoin defendants from each and all of them. employees. that notwithstanding having heretofore purported to have foreclosed upon and “taken back” title to the RESIDENCE. Specifically.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 PLEASE TAKE NOTICE that. W. take possession of. Plaintiffs herein. and each of them.” and named herein as a Defendant in rem). by the instant application. further order of this court. matters –2– EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION . in respect to those certain real properties commonly known and described as (a) 329 W 119TH ST. to foreclose upon. and each of them from initiating. JIMMY CANNON. 2011. move this Honorable Court for a Temporary Restraining Order ("TRO") and for an Order to Show Cause ("OSC") as to why a Preliminary Injunction ought not to issue herein to enjoin further actions by Defendants herein. There is an emergency in that Plaintiffs have been given notice. 1005. DAVID DAVIS. the Verified Complaint on file herein. LINDA PAYNE. JEROL CRAWFORD. LOS ANGELES CA 90061 (referred to in the within verified complaint and hereinafter as “PROPERTY.
LINDA PAYNE.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 of which the Court may take judicial notice. DAVID DAVIS. Attorney for Plaintiffs. W. 2011 _____________________________ Barry S. and such additional evidence and argument as the Court may allow at hearing. Dated: December 7. Fagan. JIMMY CANNON. and EVERETT DAVIS –3– EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION . JEROL CRAWFORD.
INC. Linda Payne. 4.250. W. 6.(b) and 872.. I am an attorney at law duly admitted to practice before this court and all courts within the State of California. KEVIN CROSWELL. 2011. Defendant FINANCIAL FREEDOM LOANS. 2. declare: 1. PENNER. If called I could competently so testify. and Everett Davis. I am the attorney of record for the Plaintiffs herein. David Davis. Jimmy Cannon. and caused said notices to be recorded against title to the subject real properties in the Office of the County Recorder of Los Angeles County.(a) in respect to actions in partiton. 2011. Said Defendant has requested an extension of time in which to respond to the within complaint. or FAYE SLOAN. I am informed and believe that said defendant does not and will not oppose the instant application. 5. I caused the summons and complaint in this action to be served on Defendants ACTION FORECLOSURE SERVICES and FINANCIAL FREEDOM LOANS on October 26. I have as yet been unable to obtain personal addresses for individual Defendants EVELYN L. My intention is to obtain addresses for those –4– EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION . CROSWELL. I caused the summons and complaint in this action to be served on Defendant YVETTE HOWARD on October 24. which I have granted through the end of the year. FAGAN I. NANCY CROSWELL.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 DECLARATION OF BARRY S. DAPHNE F. Immediately following the filing of the within complaint I caused notices of pending action to be served by certified mail upon each person asserting an interest of record with respect to the subject real properties. Proofs of service thereof have been filed with the court.010. at its address of record. 3. Barry Fagan. as to which I believe the same to be true. wherefore all notices to those individuals have been sent in care of their ostensible agent and affiliate. as mandated by California Code of Civil Procedure §§ 761. Jerol Crawford. The matters stated herein are true of my personal knowledge unless stated upon information and belief.
I was subsequently contacted by a person who identified himself as the principal of Defendant FINANCIAL FREEDOM who stated to me that he was in possession of the summons and complaint but that he did not consider the method of service to have been adequate and did not intend to respond. 7. INC. I have received notice by mail that Defendants ACTION FORECLOSURE SERVICES and FINANCIAL FREEDOM LOANS intend to proceed with a nonjudicial foreclosure sale of the PROPERTY on December 9. Said Defendants are the assignees of deeds of trust recorded against real property which is subject of this action. unless they voluntarily appear. Notwithstanding those entries of default. Efforts to obtain a voluntary delay thereof have been unavailing. EXECUTED UNDER PENALTY OF PERJURY under the laws of the State of California at Los Angeles County. by assignments from Defendant FINANCIAL FREEDOM LOANS. 2011. ___________________________________ Barry S. 2011. 2011. California. 11. 9.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 individuals through discovery. I caused the defaults of those Defendants to be entered on the record herein on December 6. 8. this 7th day of December. I am informed and believe that Defendants ACTION FORECLOSURE SERVICES and FINANCIAL FREEDOM LOANS thereafter conducted a non-judicial foreclosure sale of the RESIDENCE and that Defendant FINANCIAL FREEDOM LOANS purports to have “taken back” title to the RESIDENCE under a trustee’s deed from Defendant ACTION FORECLOSURE SERVICES. Having received no responsive pleadings or requests for extension from Defendants ACTION FORECLOSURE SERVICES or FINANCIAL FREEDOM LOANS. Fagan –5– EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION . 10. I have caused telephonic notice of the instant ex parte application to be given to those defaulted defendants as well as to all other persons entitled to notice hereof for whom contact information is available.
promissory notes and deeds of trust initially entered into as between Defendant YVETTE HOWARD1 (as sole obligor and trustor) and Defendant FINANCIAL FREEDOM LOANS. NANCY CROSWELL. specifically including each and all of the defendants named herein. PENNER. Defendant FINANCIAL FREEDOM LOANS. by trustee’s deed. KEVIN CROSWELL. at its address of record. Plaintiffs are informed and believe that Defendant ACTION FORECLOSURE SERVICES thereafter purported to conduct a nonjudicial foreclosure sale of the RESIDENCE. and service of the summons and complaint upon them. Notices of Pending Action (Lis Pendens) in respect to the within partition action were served upon each and every person asserting an interest in either the PROPERTY or the RESIDENCE. which defendant now holds itself out to be the owner of the RESIDENCE property. INC. and thereafter purported to grant title therein. The instant application is more specifically related to. 2011 Served October 26. –6– EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION . with Defendant ACTION FORECLOSURE SERVICES. by certified mail. INC. 2011. to Defendant FINANCIAL FREEDOM LOANS..3 named as the original trustee therein. or FAYE SLOAN. Default entered December 6. Notwithstanding actual notice of the within action. Extension of time to answer granted. the within action is essentially an action for partition of real and personal property as between Plaintiffs and Defendant YVETTE HOWARD. Default entered December 6. CROSWELL. wherefore all notices to those individuals have been sent in care of their ostensible agent and affiliate.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 1 2 3 4 MEMORANDUM OF POINTS AND AUTHORITIES A. DAPHNE F.4 and said notices were duly recorded in the Office of the County Recorder of Los Angeles County. INC. OVERVIEW As set forth in the verified complaint on file herein. 2011 Plaintiffs have been as yet unable to obtain personal addresses for individual Defendants EVELYN L.2 (as obligee and beneficiary). 2011. recordation of Lis Pendens. and arises from. There having been no bona fide Served October 24. Served October 26. 2011.
. INC. Puccetti v. The issue of standing is so fundamental it cannot be waived. and FINANCIAL FREEDOM LOANS. 577.g. citing Horn v. and may be raised at any time. If. and each of them. 2d 574. 619 and Parker v. County of Ventura (1979) 24 Cal. 351.) –7– EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION . et al. As further appears from the verified complaint and exhibits thereto. Notwithstanding their defaults having been entered herein. e. McKinny. It is well settled that a deed of trust has no validity or legal effect if ownership thereof is severed from ownership of the obligation which it purports to secure.2d 344. but made no contemporaneous assignment of the promissory note underlying those deeds of trust to those third parties. et al. or to “take back” title thereto under a purported trustee’s deed.. Defendant FINANCIAL FREEDOM sold and assigned the deeds of trust but not the underlying contractual obligations to third parties. As appears from the verified complaint on file herein. 3d 79. v. Assignment of the Deeds of Trust to third parties further raises a question as to the standing of Defendant FINANCIAL FREEDOM to initiate or maintain foreclosure upon the RESIDENCE or PROPERTY under those assigned deeds of trust. Board of Trustees of the Oxnard Union High School District. Girola (1942) 20 Cal. then the deeds of trust become nugatory and said Defendant’s remedy is limited to an action in contract as against Defendant YVETTE HOWARD.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 purchaser.3d 605. Eg. Defendants ACTION FORECLOSURE SERVICES. remain within the in personam jurisdiction of this Court in this action. Plaintiffs have at all relevant times held an ownership interest in the PROPERTY and RESIDENCE wherefore Defendant YVETTE HOWARD was without sufficient right or title to encumber the subject PROPERTY and RESIDENCE without the knowledge or consent of Plaintiffs... Bowron (1953) 40 Cal. as a matter of law. (1982) 31 Cal. as appears from the public records. (See. INC. Defendant FINANCIAL FREEDOM LOANS assigned the Deeds of Trust recorded against the PROPERTY and RESIDENCE to third parties. 90. the RESIDENCE remains within the jurisdiction of this Court and the purported trustee’s sale may be invalidated by this Court.
or threatens. (3) When it appears. "preliminary injunction may be granted at any time before judgment upon a verified complaint. California Code of Civil Procedure §526 provides. California Code of Civil Procedure § 527 provides in pertinent part that. consists in restraining the commission or continuance of the act complained of. THIS COURT IS AUTHORIZED TO ISSUE A TEMPORARY RESTRAINING ORDER AND AN ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT BE ISSUED. some act in violation of the rights of another party to the action respecting the subject of the action. and the relief. in relevant part. that a party to the action is doing. (4) (5) When pecuniary compensation would not afford adequate relief.. that: (a) An injunction may be granted in the following cases: (1) When it appears by the complaint that the plaintiff is entitled to the relief demanded. Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief. (2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 B. to a party to the action. or the affidavits in the other." –8– EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION . show satisfactorily that sufficient grounds exist therefor. or great or irreparable injury. or is about to do. Additionally. or upon affidavits if the complaint in the one case. either for a limited period or perpetually.. and tending to render the judgment ineffectual. during the litigation. or is procuring or suffering to be done. or any part thereof. (6) Where the restraint is necessary to prevent a multiplicity of judicial proceedings.
title. Plaintiffs are informed and believe that Defendant FINANCIAL FREEDOM or it predecessor or agent were at all relevant times prior to entering into the underlying transactions with Defendant YVETTE HOWARD on actual notice that Plaintiffs held an ownership interest in the subject real property. WHEREAS DEFENDANTS WILL SUFFER NO PARTICULAR PREJUDICE IF INJUNCTIVE RELIEF IS GRANTED. or other characteristic.. AND DEFENDANTS WILL SUFFER IRREPARABLE INJURY.] D. their economic interest therein. inter alia.. Plaintiffs. WAS UNLAWFUL. Conversely. EXPANDED LITIGATION. The conduct of Defendants FINANCIAL FREEDOM and ACTION FORECLOSURE SERVICES appears to violate. in relevant part: "It is unlawful for any person . In analyzing the within case and determining the equities.. if proven. Christensen v.. unjustified and unlawful loss of title to residential property deprives Plaintiffs not only of their interest in presumptively unique.g. –9– EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION . Business and Professions Code § 17530. ownership.. quality. DEFENDANTS' CONDUCT. AS COMPLAINED OF IN THE VERIFIED COMPLAINT. IF INJUNCTIVE RELIEF IS DENIED. the Court is urged to balance the relative hardship to the parties. have stated a prima facie case which. (E. Tucker (1952) 114 Cal. will restore and quiet Plaintiffs’ property title and secure Plaintiffs’ interest in real and personal property pending an accounting and validation of any provable setoff or debt.. non-fungible residential real property.App. or attribute of any real estate located in this state or elsewhere. which states.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 C. by their verified complaint. THERE WILL BE NEEDLESS WASTE." [B&P § 17530. The "relative hardship" test therefore favors the granting of a TRO and the preliminary injunction prayed by the Verified Complaint. Defendants will suffer no particular hardship or unjustified loss thereby. to make or disseminate any statement or assertion of fact . As set forth in the verified complaint. which is known to be untrue and which is made or disseminated with the intention of misleading..2d 554) Here. concerning the .
[CCP § 872. thereafter. partition of other real property is sought in the same action. for the purpose of: (a) Preventing waste..010. This policy is manifest in California Code of Civil Procedure §§ 872.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 E. (b) Protecting the property or title thereto.130] The policy with respect to preserving real property interests in a partition action is particularly apparent in regard to the mandatory lis pendens requirements of a partition action. JUDICIAL AND LEGISLATIVE POLICY SUPPORTS THE INSTANT APPLICATION.250. et seq. There is an express policy in California to maintain the status quo of all property which it the subject of an action in partition. the court. which provides. to record the notice and shall stay the action until the notice is recorded. (b) If. The expense of – 10 – EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION . the plaintiff or other person seeking such relief shall immediately record a supplemental notice. or another party on behalf of the plaintiff or other person. (c) Restraining unlawful interference with a partition of the property ordered by the court. upon its own motion or upon the motion of any party at any time. with or without bond. as set forth in CCP § 872. the court may issue temporary restraining orders and injunctions. shall order the plaintiff or person seeking partition of the property. in relevant part: In the conduct of the action. the plaintiff shall record a notice of the pendency of the action in the office of the county recorder of each county in which any real property described in the complaint is located. (c) If the notice is not recorded. which states: (a) Immediately upon filing the complaint.
] F. from initiating or maintaining any action to foreclose upon or take possession of the subject real property without an express order from this Court. and EVERETT DAVIS – 11 – EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION . Fagan. and each of them. the Court should issue a Temporary Restraining Order and an Order to Show Cause why a Preliminary Injunction should not issue as specifically requested by the Verified Complaint. CONCLUSION It is unclear whether the relevant deeds of trust have any remaining validity vis a vis the obligations which they purport to secure. Moreover. Based upon the foregoing arguments. all persons shall be deemed to have notice of the pendency of the action as to the property described in the notice. Emphasis added. enjoining Defendants and their assigns. and balance of hardships. Attorney for Plaintiffs. Respectfully submitted.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 recordation shall be allowed to the party incurring it. and agents. JIMMY CANNON. LINDA PAYNE. DAVID DAVIS. 2011 ____________________________________ Barry S. analysis. apportioning interests therein and quieting title therein. affiliates. pending final disposition of the issues presented in this action. employees. representatives. the conduct of Defendant FINANCIAL FREEDOM was procedurally unconscionable given actual notice that Defendant YVETTE HOWARD held title therein only as a trustee on behalf of Plaintiffs and could not encumber said real property to secure an obligation personal to herself alone. [CCP § 872. at least. (d) From the time of filing the notice for record. according to proof. successors. It is just and in conformity with the laws and policies of this State that all actions with respect to the subject real properties be stayed immediately and pending disposition of the within action. Dated: December 7. trustees. W. JEROL CRAWFORD. it appears that with respect to the PROPERTY.250.
California. Yvette Howard 2. Los Angeles. The matters herein averred are true of my personal knowledge and if called upon I could competently so testify. upon this _______ day of May. vs. California 90012 to apply ex parte for a Temporary Restraining Order and Order to Show Cause re Preliminary Injunction enjoining defendants from foreclosing upon or taking any action in respect to the real property which is a subject of this action.m. at _____________ County. in each instance. 2010 ________________________________ – 12 – EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION . declare: I am over the age of 18 years and not party to this action.m. 2011. On December 7.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 DECLARATION RE TELEPHONIC NOTICE I. prior to the hour of 10:00 a. I contacted each or the parties entitled to notice of the foregoing ex parte application by telephoning them at the numbers indicated below and in each instance informing them that Plaintiffs' counsel in the case entitled Crawford et al. the undersigned ________________________________. in Department 16 of the Los Angeles Superior Court located at 111 North Hill Street. Financial Freedom Loans 3. Howard et al. would appear at 8:30 a. The Defendants were contacted for purposes of said notice as follows: 1. Action Foreclosure Services EXECUTED UNDER PENALTY OF PERJURY under the laws of the State of California.
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