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Attorneys for Debtors
UNITED STATES BANKRUPTCY COURT In Re: CENTRAL DISTRICT OF CALIFORNIA Chapter 7 Bankruptcy No. 8:10-
OPPOSITION TO MOTION FOR RELIEF FROM STAY HEARING DATE: April 7, 2011 Time : 9:00 am Dept: Honorable Judge
OPPOSITION TO MOTION FOR RELIEF FROM STAY
Debtors, T) oppose CITIMORTGAGE, INC., SUCCESSOR BY MERGER WITH ABN AMRO MORTGAGE GROUP, INC., (“Citimortgage”) Motion for Relief from the Automatic Stay Under 11 U.S.C. § 362 on the grounds set forth below. 1. That on 2-17-2009, in Case Number: File No 413, 603-, et al Defendants/Respondents: American Home Mortgage Corporation, American Brokers Conduit, Mortgage select, Marina Mortgage, Columbia National, Inc, American Home Mortgage Servicing Inc., American Home Mtg Servicing, First Home Mortgage, MTeam Financial the Dept of Corporations of the State of California ordered that the residential mortgage servicer license issued by the Commissioner to American Home Mortgage Servicing Inc. dba American Home Mtg Servicing was hereby revoked. Attached hereto as Exhibit A and incorporated herein by reference is the Order Revoking Residential Mortgage Servicer License.
1 OPPOSITION TO MOTION FOR RELIEF FROM STAY
BANKR P. 454 U. 17 applicable (“[a]n action must be prosecuted in the name of the real party in interest. incorporates Rule 7017. R.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. 464-472 (1982) 2 OPPOSITION TO MOTION FOR RELIEF FROM STAY . National Trust Co as indenture Trustee for American Home Mortgage Investment Trust 2005. dba American Home Mtg Servicing had no license or authority to do business in the State of California 8-31-2009. which makes FED. A copy of the Trustee’s Deed is attached hereto as Exhibit B and incorporated herein by reference. CITIMORTGAGE’S MOTION FOR RELIEF FROM STAY SHOULD BE DENIED BECAUSE IT IS NOT THE REAL PARTY IN INTEREST. and that it is likely to be redressed by a favorable decision. 9014 is applicable.S. R. The Trustee’s Deed Upon Sale shows that the property was granted to Citimortgage Bank.”) Constitutional standing under Article III requires. Am. P. BANKR. which was illegal . that a party must have suffered some actual or threatened injury as a result of the defendant’s conduct. Valley Forge Christina Coll. Mortgage backed Notes. Stay-relief requests are governed by FED. Re: First Union National Bank v Hufford. R. to which FED. United for Separation of Church and State. 3. in order to be entitled to lift-stay relief. 4001(a). series 2005. at a minimum. American Home Mortgage Servicing Inc. V. P. that the injury be traced to the challenged action. Rule 9014. which shows that the Deed of Trust was securitized. 17. in turn. CIV P. Citimortgage does not have the Note and the Deed of Trust because they have been monetized and securitized as set evidenced by Attached Exhibit D.(1). Attached as Exhibit C and incorporated herein by reference. Citimortgage must have both constitutional and prudential standing and be the real party in interest under FED R. a lender’s inference and bald assertions do not substitute for proper documentation. when they foreclosed on Declarant’s property. See attached article on Securitization being 100% illegal and in violation of the United States Bankruptcy Laws. CIV.
CITIMORTGAGE testified. thus making retention of the property necessary based on DEBTORS exhibits included. It is arguable that this basis for lifting a stay is not applicable to this consumer case at all because Chapter 13 refers to ”rehabilitation” or “adjustment of debts” rather than “reorganization”. GROUNDS FOR RELIEF FROM STAY THAT MOVANT ACQUIRED TITLE TO THE PREMISES BY FORECLOSURE SALE PREPETITION AND RECORDED THE DEED WITHIN THE PERIOD PROVIDED BY STATE LAW FOR “PERFECTION”. (CITIMORTGAGE BANK NATIONAL TRUST COMPANY AS INDENTURE TRUSTEE is now and at all times relevant was an ENTITY QUALIFIED to commence this action. § 362(l) with supporting declarations. CITIMORTGAGE’s declaration stated that an ACCOMODATION ONLY” with no Representation as to its effect upon title recorded. a home located at (“Subject Residence”). See attached DEBTORS Exhibit A showing fraudulent notarized SUBSTITUTION OF TRUSTEE DISPUTING CITIMORTGAGE’S CLAIM OF. creditor CITIMORTGAGE filed a motion and supporting declaration with this Court seeking relief from the automatic stay imposed under 11 U.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (citations and internal quotations omitted). CITIMORTGAGE. on MOTION FOR RELIEF OF STAY FOR ORDER CONFIRMING THAT THE AUTOMATIC STAY DOES NOT APPLY. request unlawful detainer judgment. COMPLAINT IN UNLAWFULD DETAINER). Yet. See attached DEBTORS B showing Violation of Truth in Lending Claim 3 OPPOSITION TO MOTION FOR RELIEF FROM STAY . under penalty of perjury. On or about March 1. that it holds an “ACCOMODATION ONLY” with no Representation as to its effect upon title recorded. Page 20. See attached DEBTORS Exhibit A showing fraudulent notarized SUBSTITUTION OF TRUSTEE evidencing CITIMORTGAGE’S claim of entitlement as stated in Movant Exhibit C page 18 Number 1. TRUSTEE’S DEED UPON SALE was attached to the declaration as Exhibit A. PLAINTIFF. 2011.S. Debtors now testifies that saving the property is the prime motivation for the voluntary petition. Exhibit C.C. TRUSTEE’S DEED UPON SALE on ’s residence. MOVANT states bankruptcy was entered in bad faith to delay. entered prepetition for costs of the suit and for such and further relief as the Court deems appropriate. On Movant. hinder or defraud Movant.
Section 1805. See attached DEBTORS Exhibit E. Violation of Rico. As loan officer. 210 B.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (15USC X 1635 (a) & (f) and 12 CFR X226 (b). Fraud by Inducement and Wrongful Foreclosure. The attempted Relief of Stay is based on fraud and is alledgedly “inland piracy”. Under section 1322 (b)(5) EVEN IF THERE HAS ALREADY BEEN A JUDGMENT CAUSING ENTIRE AMOUNT TO BE DUE. 411 detailing TILA Violation right to actual damages costs and attorney fees.5(b). Citimortgage has committed a “collateral attack” by defaulting on Truth in Lending 15 USC X 1601. 6:. Based on Federal Rule of Civil Procedure 9012 Discovery is available concerning motions for relief from stay. guarantee of shifting of risk from lender to borrower allegedly was not suitable for borrower. Notice of Right to Cancel. Only “stated income” was used as approval criteria. 4 OPPOSITION TO MOTION FOR RELIEF FROM STAY . Restitution through discovery is entitled via attachment DEBTORS Exhibit D Right to Cancel. Citimortgage has allegedly committed a Violation of California Rosenthal Act. As stated in qualified written request DEBTORS. “ANY DEFAULT. Violation of Real Estate Settlement Procedures Act. A HOMEOWNER RETAINS RIGHT TO CURE UNTIL FORECLOSURE PROCESS IS COMPLETE UNDER STATE LAW. Breach of Implied Covenant of Good Faith and Fair Dealing. See In re Fidler. FAILURES. as CITIMORTGAGE. 14-145. TILA. See attached DEBTORS Exhibit C media article referencing loan verification alleged impropriety. qualified written request from DEBTORS. Exhibit D. Violation of California Civil Code X 2923. Under Business & Professions Code 17200 lender has fiduciary duty to borrower. 12 USC 2605. Debtors loan officer was not present at signing to fully explain loan and loan questions.(5) on schedule of assets on Case No. No bank statements and other documents were requested at loan approval process. SECURITY INTEREST is not properly perfected. See attached DEBTORS Exhibit D. Breach of Contract. OR NONCOMPLIANCE ON THE LENDER’S PART TO PERFORM AS HEREIN DIRECTED WITHIN TWENTY (20) DAYS OF RECEIPT SHALL CONSTITUTE THIS NOTICE OF RIGHT TO CANCEL AS VALID AND FULLY AGREED/ACCEPTED PURSUANT TO THE TERMS AND CONSITIONS AS SET FORTH HEREIN AND THROUGHOUT”. deposition with a subpoena duces tecum OBTAINING A STAY PENDING APPEAL.R.
These terms are defined at § 1. supra. while other transferees may not. Reg Z § § 226. was named as nominee on original loan. the party holding the note. Official Staff Commentary § 226. DEBTORS has no equity in property. loan officer needed qualification of full payment.C. As shown on Movant Exhibit. such as a trust. If mortgage payment changed in three years. Inc. MERS. Bk 7. If any of those endorsements is missing or not proper. Inc. each consumer must be given a copy of the disclosure statement with all “material” information correctly disclosed. the consumer has the extended recission right.S. DEBTORS was only offered ARM when had stellar credit. 226. Whether the trust acquires those rights can be complicated by the number of note transfers. without notice that the consumer has a defense.S. In a rescindable transaction. there must be proper endorsement from the originating lender to the wholesale lender. DEBTORS has been misled. MERS. a party must take in the instrument in good faith. A party cannot acquire the right of a holder in due course if it engaged in fraud or illegality affecting the instrument.C.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEBTORS disputes Movant’s claim that pursuant to 11. and finally. Motion for Relief 5 OPPOSITION TO MOTION FOR RELIEF FROM STAY .23 (a)(3). § . § 1635 (a). Even if a note is a negotiable instrument. must still qualify as a holder in due course or qualify as having the rights of a holder in due course. then the trust is not a holder in due course. For the trust to be a holder. and then from the wholesale lender to the issuer. 2011.23 n. MERS. Loan officer had fiduciary responsibility to disclose MERS. See DEBTORS Exhibit G. for value. cheated lied to and stolen from resulting in wrongful foreclosure. If a creditor fails to make any of the specified material disclosures. was not registered as corporation to conduct business in state of California. and the fact that some transferees may have notice of defenses. (not showing any detailed exhibit number. 48. Case No. 15 U. The trust must also physically possess the note. then the consumer can raise against the trust all defenses the consumer has against the originating lender.2. 36. Inc. was suspended from conducting business in state of California beginning June 2004 to present date of March 1. Inc. the fact that some transfers may not involve proper endorsements. Loan officer acted in breach of fiduciary duty. U.-2. If no entity is a holder in due course. The Right to Rescind can be extended for up to three years if the creditor fails to give the consumer all “material” disclosures and to provide proper notice of the right to rescind.2.15 n. from the issuer to the trust. 6:).
F/K/A/ AHMSI DEFAULT SERVICES. Series 2005 (“Citimortgage”). 422 U. the named lender on the Deed. THERE IS NO INDICATION OF WHO THEY ARE TRUSTEE FOR.. INC. On May 7. AMERICAN BROKER’S CONDUIT.. 2008. per the MOTION FOR RELIEF FROM THE AUTOMATIC STAY. a New York Corporation. sold or transferred the right to collect payments to POWER DEFAULT SERVICES INC. (herein called Trustee). CITIMORTGAGE failed to include any exhibits with its declaration evidencing that there had been a Substitution of Trustee or Assignment of Trustee or Beneficiary to POWER DEFAULT SERVICES INC. CITIMORTGAGE failed to include any exhibits with its declaration evidencing that there had been a transfer of the beneficial interest in the Note and Deed of Trust from the Lender. Selding. successor in interest to Option One Mortgage Corporation as attorney in fact. CITIMORTGAGE failed to include any exhibits with its declaration evidencing that there had been a transfer of the beneficial interest in the Deed of Trust from MERS.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 from Automatic Stay filed December 29. the named MOVANT. Inc. A company by the name of Power Default Services. Inc. See DEBTORS Exhibit H. 2007 appears nowhere in the Deed of Trust or in the Promissory Note.S. as nominee for American Broker’s Conduit. F/K/A/ AHMSI DEFAULT SERVICES. INC. its assignees and/or successors and servicing agent American Home Mortgage Servicing. 498 (1975). INC. The trustee in the Deed of Trust is POWER DEFAULT SERVICES. Tesmer. INC. “Kowalski v. 543 U. The beneficiary of the Deed of Trust is Citimortgage Bank National Trust Company. Where did 6 OPPOSITION TO MOTION FOR RELIEF FROM STAY .. INC as trustee started a foreclosure on or about May 8. 490. F/K/A AHMSI DEFAULT SERVICES. 2009 ALLIANCE TITLE.S. Inc. a California Corporation. in original agreement dated June 22.. 128-29 (2004) (quoting Warth v. assigned. 2009 was granted to Mortgage Electronic Registration Systems. The standing doctrine “involves both constitutional limitations on federal court jurisdiction and prudential limitations on its exercise. F/K/A/ AHMSI DEFAULT SERVICES. The entity of Citimortgage Bank National Trust Company as Indentured Trustee for American Mortgage Investment Trust 2005 Mortgage Backed Notes. 125. Inc.
transfer or sell anything when have been under suspension in the state of California since November 2004? As such. In re Hwang and In re Le. get any right to assign. in the interests of justice. CITIMORTGAGE is NOT the real party in interest entitled to seek relief from stay. that the Court deny the Motion for Relief of Stay Dated: March 22. In both. CITIMORTGAGE’s Motion for Relief from Automatic Stay should be denied and this Court should issue an Order to Show Cause as to why CITIMORTGAGE and its attorneys should not be sanctioned for falsely stating that CITIMORTGAGE is the holder of the Deed of Trust and Note for the Subject Residence. Only the real party in interest is entitled to seek relief from stay. as this Court’s precedent has clearly established in In re Hwang and In re Lee. Debtors just need time and respectfully request.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MERS. is to ascertain certain facts pertaining to the above referenced alleged loan and to determine the validity of current proceedings being attempted against the referenced property as purported collateral for such claim. Debtors intends to file a motion for sanctions should the court elect not to take action on its’ own. Inc. Whoever the Beneficiary is in this case HAS NO RISK! The intent of this denial of motion for relief of stay. this Court sua sponte denied motions for relief from stay because the moving party was not the real party in interest. Any and all evidence obtained through this notice and responses thereto may and will be used as evidence in any adversary actions by Plaintiff. along with the accompanying RESPA QWR and Notice and Demand for Proof of Claim. Following that precedent. 2011 By: Attorney for Debtors 7 OPPOSITION TO MOTION FOR RELIEF FROM STAY .
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