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MR. HOMEOWNER MRS. HOMEOWNER XXXXXXXXXXXXXXXXXX ANY CITY, CALIFORNIA 99999

DEFENDANT IN PRO PER SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO SAN BERNARDINO CENTRAL DISTRICT

) U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF ) ) THE ADJUSTABLE RATE MORTGAGE ) TRUST 2007-1, ADJUSTABLE RATE ) MORTGAGE-BACKED PASS-THROUGH ) CERTIFICATES, SERIES 2007-1, its successors ) and/or assigns, )

) ) ) Plaintiff, ) ) ) v. ) ) MR. HOMEOWNER AND MRS. HOMEOWNER, and DOES 1 through X, inclusive ) ) ) Defendant, )

Case No. DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
Date: Time: Ctrm:

TO THIS HONORABLE COURT AND TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on _____________, ________________________, at 8:30a.m., in Department ______________, at the above entitled court, Defendants MR. HOMEOWNER AND MRS. HOMEOWNER will and hereby does move the court to dismiss Plaintiff, U.S. Bank Association, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE
Page 1 of 9

DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

and based on the facts. Plaintiff’s complaint hereby does not state a claim upon which relief can be granted.S. Dated: Respectfully submitted. there appears to be a misjoinder and a lack of standing on behalf of the Plaintiff.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 ADJUSTABLE RATE MORTGAGE TRUST 2007-1. Plaintiff has the burden to prove all facts set forth in Plaintiff’s Complaint that would allow relief under their allegations. they have failed to do so. ______________________________ MR. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF . The entire complaint should be dismissed in its entirety pursuant to California Code of Civil Procedure section 430. its successors and/or assigns. HOMEOWNER Page 2 of 9 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS. herein referred to as U. The complaint against Defendant is defective. ADJUSTABLE RATE MORTGAGE-BACKED PASS-THROUGH CERTIFICATES. SERIES 2007-1.10(d). complaint with prejudice. HOMEOWNER ______________________________ MRS. Bank.

N. “The exercise of the power of sale is a harsh method of foreclosing the rights of the grantor.4th 496. 503. Deeds of Trust and Mortgages. 1959) 175 Cal. LaJolla Group II. Calhoun (6th District 2003) 105 Cal. accord. Page 3 of 9 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS.App. Hicks v. Miller & Starr.A. 1971) 21 Cal. 440. 28. & Loan Assn.App. 208 Cal. 717 (5th Dist. citing to System Inv. 211 (3d Dist.App.. 15710. Lien (1994) 25 Cal. Corporation v.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 MEMORANDUM OF POINTS AND AUTHORITIES Bank of America. v. 3d 202. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF .).App. 1989). Miller & Starr. 2005)(void foreclosure sale required rescission of trustee’s deed returning title to the status quo prior to the foreclosure sale). Union Bank (2d Dist. Union Bank (1971) 21 Cal.” Anderson v. 153. Heart Federal Savings (1989) 208 Cal. 1989). Corp. The statutory requirements are intended to protect the trustor from a wrongful or unfair loss of his property.App. 152-153.4th 428. 1982) 127 Cal. reh’g denied and opinion modified. App. It has been a cornerstone of foreclosure law that the statutory requirements. Chapter 10 §10. Anderson v.T. THE COURT MUST STRICTLY ENFORCE THE TECHNICAL REQUIREMENTS FOR A FORECLOSURE. California Real Estate (3d ed. (Mar. 2d 714.App. 4th 706. v. Cote (4th Dist. must be complied with strictly.3d 137. intending to protect the Trustor and or Grantor from a wrongful or unfair loss of the property. System Inv. Sax (2d Dist. Deeds of Trust and Mortgages. 830. 129 Cal. and a valid foreclosure by the private power of sale requires strict compliance with the requirements of the statute. App.179. Moeller v. Heart Federal Sav. California Real Estate (3d ed.4th 822. The harshness of non-judicial foreclosure has been recognized. 894. E. 6 215. App.). 3d 137. 3d 888.3d 202. Bisno v. App. Miller v. 720. Lo Nguyen v. Legg & Associates (2001) 89 Cal.

Bank of America Nat. 3d 312. (1985 – 6th District) 166 Cal. “Close” compliance does not count. v. Door & Mill Co. Courts will set aside a foreclosure sale when there has been fraud. 2d 243.182. 3d 202. 1228. 28. Page 4 of 9 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS. 1931) 118 Cal. Union Bank (1971) 21 Cal..App. reh’g denied and opinion modified. 211. Transtate Title Co.App. Glick Bros. App. Corp. 3d 888. Sash. Trust & Savings Ass’n v. 1971) 21 Cal. unfairly.2d 1224. 1987) 811 F.3d 888. 322-323. (Mar. Deeds of Trust and Mortgages. any trustee’s sale based on a statutorily deficient Notice of Default is invalid (emphasis added). The same reasoning applies even to a Notice of Trustee’s Sale.). App. 152-153. Inc. citing to Miller v. Miller & Starr. The California Sixth District Court of Appeal observed. reh’g denied and opinion modified. any Trustee’s Sale based on a statutorily deficient Notice of Trustee Sale is invalid. 152-153. Cote (1982) 127 Cal.(4th Dist. & Loan Assn.(3d Dist. Union Bank (2d Dist. Whitman v. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF . 1989). one of them being that the notice of default will be strictly construed and must correctly set forth the amounts required to cure the default. v. 894 and SystemInv. Anderson v. Anderson v. or unlawfully conducted. 1985) 165 Cal. 1989). See also Smith v. Reidy (1940) 15 Cal. 621. App.App. the courts have fashioned rules to protect the debtor.3d 273 at 278. Saterstrom v. In re Worcester (9th Cir. Williams (1961) 55 Cal. 894.App.3d 137. Miller v. 3d 202. Corp. or when there has been such a mistake that it would be inequitable to let it stand. (3d Dist. Chapter 10 §10. 28. 1989) 11 208 Cal. 1989) 208 Cal.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 Chapter 10 §10. 1982) 127 Cal. App. 211.” Sweatt v. (3dDist. App. The Foreclosure Co. 379. California Real Estate (3d ed.182. when the sale has been improperly. As a result. 3d 137. System Inv. (Mar. 248. 2d 617. Cote (4th Dist. “Pursuing that policy [of judicial interpretation]. Heart Federal Sav. Additionally. & Loan Assn. Heart Federal Sav.

that there was no actual default (Hauger v. 4th Dist. 2 Cal. the Deed of Trust does NOT have an Assessor’s Parcel Number on it. Since the Deed of Trust does not describe the right property Page 5 of 9 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS. Quitclaim Deeds. Grant Deed. 211 Cal. the description of the property must be identical. 1957) 152 Cal. Busch (3d Dist. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF . or Deeds of Trust must contain the Assessor’s Parcel Number. Section 2924f(b). 4th Dist. in your Note. Rptr 582). Notice of Default. Please see Exhibit A for the Deed of Trust and Exhibit B for the Grant Deed. 1960) 177 Cal. In the case at bar. the loan number referenced on the Deed of Trust does NOT match the loan number on the Notice of Default. 2d 200. Gates (1954) 42 Cal 2d 752.1 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 Stirton v. 234. Stirton v.App. Deed of Trust. Pastor (4th Dist.) 165 Cal App. and Notice of Default in order to obtain a non judicial foreclosure. (1985. 3d 312. App. According to California Law. perfectly correct. a trustee’s sale may be set aside on the ground that the security instrument under the sale was conducted was itself invalid. or that the sale proceedings themselves failed to comply with requirements set forth in the statutes or the security instrument (Whitman v. Pursuant to C. Brown v. all Deeds. Rptr 135. 2d 232. 203-204. the description of the property must be identical in your Promissory Note. Pursuant to California Code of Civil Procedure section 2924f(b). In the case at bar. Furthermore.C. 269 P2d 609). Pastor (1960. and Notice of Trustee’s Sale. Deed of Trust. the legal description are Not identical in the Grant Deed and the Deed of Trust.P. 2d 232. DEED OF TRUST IS DEFECTIVE Pursuant to local ordinance. Transtate Title Co.) 177 Cal App.

3d 137. et seq. The statutory requirements must be strictly complied with.P §2934(1)(A).2d 714. in calling the notice of default fatally defective stated: “The procedure for foreclosing on security by a trustee’s sale pursuant to a deed of trust is set forth in Civil Code section 2924. 753. v. The Substitution of Trustee was not recorded until more than a year after the Notice of Default was filed. 2 1982). 98 Cal.Rptr. all beneficiaries and/or the proper legal beneficiary did NOT execute the Substitution of Trustee violating C.2d. and such document must be recorded: In the case at bar.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 lack of Assessor’s Parcel Number and an imperfect legal description. Sax (1959) 175 Cal. 735. (a) Only the beneficiary can substitute a Trustee under California Civil Code Section 2934a(a)(1). 152-153. Matthew Allan Banaszewski appear to Page 6 of 9 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS.App.40. see California Mortgage and Deed of Trust Practice (Cont.C. p.Rptr. (Ct of App. Cote. 346 P. INVALID SUBSTITUTION OF TRUSTEE In Miller v. (System Inv. (ii) 2934a(1)(A) says “all beneficiaries” must execute the Substitution of Trustee (the applicable California law when a lender seeks to substitute the trustee and pursue a foreclosure sale). and a trustee’s sale based on a statutorily deficient notice of default is invalid. the Court. Div. 295.Ed. The Substitution of Trustee is also invalid because it was signed by “Robo-signers”. Union Bank (1971) 21 Cal. Fourth Dist. it is void against the Defendant’s property. and the substitution of trustee document must be RECORDED to be effective. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF . Bar 1979) s 6. Topako Love is NOT an authorized signer for Select Portfolio nor does the signature of Notary Public. the resulting sale is VOID. 720. 179 Cal. if not. Corp.App. see also Bisno v.

EFFECT OF AN ASSIGNMENT OF THE NOTE The Notice of Default must include the name. the whole foreclosure sale is void. the information identifying the beneficiary is no longer accurate. a Corporate Assignment of Deed of Trust was recorded on May 1. as trustee. in violation of C. Bank National Association.C. the foreclosure sale is invalid and thus Plaintiff’s title is NOT “duly perfected”. 313 [1873]): “The note and mortgage are inseparable. In the case at bar. as servicing agent for U. the former as essential. Longan. An assignment of the note carries the mortgage with it. F/K/A Fairbanks Capital Corp. Adjustable Rate MortgageBacked Pass-Through Certificates.P §2924-2924i. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF . If the Substitution of Trustee was not properly signed and/or notarized.d. pursuant to Code of Civil Procedure §2924c(b)(1). please see Exhibit C.S. 2009. The Notice of Default was filed and recorded on April 11.. 2008 whereas the Corporate Assignment of Deed of Trust was not executed until June 12. U. Supreme Court decision. mailing address.S. not the servicer. if the Notice of Default was not recorded or improperly recorded. 83 U. 271. 2008. No Assignment of Note was ever perfected or recorded. granting all beneficial interest under the Deed of Trust to Select Portfolio Servicing. and telephone number of the beneficiary. When the beneficiary assigns the note after the Notice of Default has been recorded. Case law in virtually every state follows Carpenter. Longan (Carpenter v. Carpenter v.S.P §2936.” Page 7 of 9 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS. 21 L. Pursuant to C.E. Series 2007-1..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 match legal documentation obtained from the Minnesota Secretary of State. NAME OF BENEFICIARY. please see attached Exhibit D. on behalf of the holders of the Adjustable Rate Mortgage Trust 2007-1.C. while an assignment of the latter alone is a nullity. Inc. the latter as an incident.

Bank. any Assignment of Mortgage without an Assignment of Note is a nullity.C.C. As previously mentioned. 2924. 20 Bankr. when the beneficiary changes (or is stated in error) after the Notice of Default is filed. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF . Cas. Rep. someone else comes up with the Note and says that they are the Holder in Due Course of the Note. and the bearer is entitled to payment. but it must be recorded within a reasonable time prior to the sale. §2936) Pursuant to C. Dec. Ct. 2d (MB) 1587. CONCLUSION For the foregoing reasons. the court found that a 21day period was reasonable. mailed out. not U. Notes are negotiable instruments pursuant to Uniform Commercial Code. it must bring them in this action. 626. Bank. Only the person or entity entitled to payment can enforce a foreclosure.D.C. The amended Notice of Default was never completed.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 The parties that must be joined are those that are named in the Deed of Trust. (CRR) 684. C.P.P. section §389 provides that if the Plaintiff knows the name of the other persons with an interest. (CCH) 73343 (Bankr. Bankr. then they would have to pay that person on the Note. 113 B. 636. No Assignment of Note has been provided by the Plaintiff to evidence they were ever entitled to payment. The harm to the Defendant is that if they pay U.P. in violation of C. Page 8 of 9 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS.P. C. (C.C. and later. L. The recorded amended notice does not start a new period. an amended Notice of Default must be filed and recorded. The Deed of Trust names BrooksAmerica Mortgage. Those names are known in the Deed of Trust and they were not named in this action.S. §389. 23 Collier Bankr. 1990). In re Tome. or recorded.R. or their successors in interest pursuant to validly executed and recorded assignments. Defendant respectfully request that the complaint be dismissed without prejudice in its entirety.S. Cal.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF . HOMEOWNER _____________________________________ MRS.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 Respectfully submitted. HOMEOWNER Page 9 of 9 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS. Dated: _____________________________________ MR.