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NINTH CIRCUIT COURT OF APPEALS ____________________________________________________________________________ TANYA D DENNIS, Debtor and Appellant v. WACHOVIA BANK and WELLS FARGO BANK, Appellee ____________________________________________________________________________
Appeal from Final Judgment of The Honorable Claudia Wilken
APPELLANTS' OPENING BRIEF ______________________________________________________________________________
Tanya Dennis 13763 Campus Drive Oakland, CA 94605 Telephone: (510) 638-2077
Appeal from Final Judgment-1
TABLE OF CONTENTS
TABLE OF AUTHORITIES STATEMENT OF THE BASIS OF APPELLATE JURISDICTION STATEMENT OF THE ISSUES PRESENTED AND APPLICABLE STANDARD OF REVIEW STATEMENT OF THE CASE STATEMENT OF THE FACTS ARGUMENT STATEMENT OF RELATED CASES CASE HISTORY BREACH OF CONTRACT CONCEALMENT UNJUST ENRICHMENT FRAUD QUIET TITLE CONCLUSION 4 7 9 8 9 11 13 18 21 22 28 33 2 3
TABLE OF AUTHORITIES
1. Salve Regina College v Russell", 499 U.S. 225, 238 (1991). 2. Cockerell v. Title Insurance & Trust Co" (1954) 2.Cal.2d 284, 292 3. Adler v. Sargent (1895) 109 Cal. 42, 498. Kelly v. Upshaw (1952) 39 Cal. 2d 179, 192, 4. Las Vegas Ice & Cold Storage Co. v. Far West Bank, 893 F.2d 1182, 1185 (10th Cir. 1990 5. Moothart v Bell, 21 F.3d 1499, 1504 (10th Cir. 1994) 6. California Civil Code 1132(b) and 1133 7. Fifth and Fourteenth Amendment
8. D. H. Overmyer Co., Inc. v. Frick, 405 U.S. 174 (1972) 9. UCC 2-302 10. Ferguson v. Countrywide Credit Industries, Inc., C.A.9 (Cal.) 2002, 298 F.3d 778. 11. Wells Fargo Bank v Mark & Tammy Larace 08-MISC-386755 and U.S. Bank v Antonio Ibanez 08-MISC384283 12. Wilson v. San Francisco Federal Savings & Loan Assn, 62 Cal. App. 3d 1,7,132 Cal. Rptr. 903-1st District 1976; Lomanto v. Bank of America 22 Cal. App. 3d 663, 668, 99 Cal. Rptr. 442-14th District. 13. Shroyer v. New Cingular Wireless Services, Inc., C.A.9 (Cal.) 2007, 498 F. 3d 976. 14. In Re Walker - 10-21656 15. Cal Civ Code Section 2924 16. Fawn Ridge Partners - BAP NO. cc-09-1396-HPDu. Bk. No. 09-15088-TD 17. Isbell v. County of Sonoma (1978), 21 Cal. 3d, 61, 64, 74, 145 Cal. Rptr. 36 18. Koontz v. EverHome Mortgage, Northern District of Indiana 19. Holmberg v. Armbrecht , 327 U.S. 392, 397 (1946) (quoting Bailey v. Glover , 88 U.S. (21 Wall.) 342, 348 (1874); see Maggio v. Gerard Freezer & Ice Co. , 824 F.2d 123, 127 (1st Cir. 1987). 20. Peatros v. of America (2000) 22 Cal.4th 147, 157, 91 Cal.Rptr.2d 659, 990 P.2d 539 21. Fidelity Federal Sav. & Loan Assn. v. de la Cuesta (1982) 458 U.S. 141, 152–153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664. 22. Exxon *1297 Corp. v. Governor of Maryland (1978) 437 U.S. 117, 132, 98 S.Ct. 2207, 2217, 57 L.Ed.2d 91. 23. Louisiana Public Service Com'n v. F.C.C. (1986) 476 U.S. 355, 369, 106 S.Ct. 1890, 1898–1899, 90 L.Ed.2d 369. "The only thing necessary for the triumph of evil is for good men to do nothing" Edmund Burke
CORPORATE DISCLOSURE STATECORPORATE DISCLOSURE STATEMENT This statement is made pursuant to Federal Rule of Appellate Procedure 26.1. Plaintiff is not a
Appeal from Final Judgment-3
cc-09-1396-HPDu. Federal Judge Claudia Wilken ruled in favor of the Appellee’s Wells Fargo Bank and granted Summary Judgment. The Appellant filed an "Opposition to Summary Judgment" and it was denied. the notice of appeal was timely filed because it was filed within fourteen days after entry of the order or judgment being appealed. JPMORGAN CHASE CASE NO. BANK V ANTONIO IBANEZ CASE NO: 08-MISC-386755 . CV10-2168IEG -KHAST V WASHINGTON MUTUAL. the appeal is based upon a final order by Federal Judge Claudia Wilken. LP CASE NO: 08-15337 CH 7 . LP V BAC HOME LOANS SERVICING. The United States District Court has jurisdiction in this case because the Appellant had a Verified Complaint in Federal Court and Appellant raises issues that only can be determined by this court.WELLS FARGO BANK V MARK & TAMMY LARACE BAP NO.DEUTSCHE BANK (Ohio).EDSTROM V NDEX WEST. . JPMORGAN CHASE CASE NO: 8:09-CV-00861-DOC -SERRANO V GMAC MORTGAGE CASE NO: 3:2009-CV-05968 -SHARMA V PROVIDENT FUNDING ASSSOCIATES CASE NO: CV05-554639 . WELLS FARGO BANK CASE NO: CV10-5152GW -CARSWELL V.IN RE: HWANG CASE NO: 08-17036 CHAPTER 7 .IN RE: WALKER 13DAVIES V NDEX WEST CASE NO: 20100314 .corporate entity has no parent corporation.FAWN RIDGE PARTNERS.. 09-15088-TD . As a result of that decision. Bk. the Appellant's rights to property under due process of law guaranteed by Article I of the California Constitution and Fifth and Fourteenth Amendments will be violated. Second. CASE NO: 08-MISC-384283 .U. if allowed to stand.IN RE: VARGAS CASE NO: 10-21656 CHAPTER 11 .S. denying all fourteen points made by the Appellant. subsidiaries or affiliates that has issued shares to the pub STATEMENT OF THE BASIS OF APPELLATE JURISDICTION First. No.
225."Only the holder of the Note can initiate foreclose Appeal from Final Judgment-5 . However.that the trial court erred in granting a summary judgment on an incomplete record. 193 Cal. Therefore. giving no special weight to the Federal court's decision. App.Cal. For the reasons explained below. the record establishes there are triable issues of material fact. Title Insurance & Trust Co" (1954) 2. If one material fact is found to be grounds that a case exists or controversy within the court's jurisdiction.. then summary judgment must be denied. 4th 262 that stated “. in any case.. the judgment must be reversed and the case remanded for trial”. In accordance with the recent ruling in EHP GLENDALE HILTON. 292 . was she correct when other Federal and Bankruptcy Judges in the State of California are demanding Appellee's prove standing? Appellant's case raises matters of discretion and is reviewable for "abuse of discretion': The Honorable Judge refused to consider evidence presented before her before making a ruling against Appellant. the evidence must not only be sufficient to establish the fact of assignment when that fact is in issue. "Salve Regina College v Russell". material facts in dispute remain. is the bank required to have the original wet ink note to foreclose or prove they are the holder in due course when their standing is challenged?" Appellant's case raises questions of fact: When the Honorable Judge Wilken ruled that producing the note was not an issue in the California non-judicial court system. Judge Wilken ruled that because all causes of action alleged by Appellant have been adjudicated in favor of Appellee that the motion for summary judgment was granted. LLC v. County of Los Angeles. but the measure of sufficiency requires that the evidence of assignment be clear and positive to protect an obligor from any further claim by the primary oblige. Judge Wilken neglected to rule on all actions brought before the court. "The burden of proving an assignment falls upon the party asserting rights thereunder. Federal Judges in the State of California are not consistent in their rulings.STATEMENT OF THE ISSUES PRESENTED AND APPLICABLE STAND FOR REVIEW Appellant's case has questions of law and is therefore a de novo issue. 499 U. Appellant is requesting an independent determination of the issues. and.2d 284.""Cockerell v. which raises the question of "When the Debtor challenges the Bank's standing in court.S. Appellant asserts that WELLS FARGO must provide the Note in order to prove standing to foreclose. this court has solid grounds to reverse and remand this case. She failed to rule on six of the material facts presented before her. 238 (1991). In an action by an assignee to enforce an assigned right.
It breaks the "clear chain of title" that requires the note be endorsed over to the buyer of the mortgage at each sale. especially when there has been breaks in the chain in title as the Appellant has discovered. So even if notes can be produced in foreclosure cases. Judge Wilken demonstrated clear prejudice in favor of the banks in this . An attorney representing the Appellee cannot also testify in behalf of their client.” In Re Leisure Time Sports.” The only way of determining real party of interest. that the Appellate Court will rule favorably after reviewing all the evidence and the Court is left with the definite and firm conviction that a mistake has been made. therefore had no standing to foreclose. 49) "A common practice was to assign a note in "blank" ― the bank that purportedly is receiving the note is not named. stating that. Sargent (1895) 109 Cal. they do not have the necessary assignments showing each sale and thus proof of the chain of title…" Further.4.". regardless of to whom the mortgage is owed. Such was the case with Appellant's note. 1185 (10th Cir. Appellant believes. 21 F. 1996) See also. Inc.R." 893 F.3d 1499. Appellant provided new evidence to the Judge in the form of a preliminary forensic audit report that stated WELLS FARGO et al. or in behalf of. 861 (9th Cir.Adler v. “[a]n assignment of the note carries mortgage with it. The Honorable Judge was clearly erroneous in her denial of the Appellant's opposition to Summary Judgment that Appellant had "no good cause".. Therefore producing the note is central to identifying as to who is actually entitled to demand payment. based on the merits of her evidence. "Las Vegas Ice & Cold Storage Co.proceedings. 42. Far West Bank. and public recording of the transfer. Restatement (3d) of Property (Mortgages) § 5. 194 B. 1504 (10th Cir.2d 1182. is to examine the original note. while assignment of the latter alone is a nullity. 1994). “[a] mortgage may be enforced only by. a person who is entitled to enforce the obligation that the mortgage secures. v. Moothart v Bell. had broken the chain of title. The forensic loan audit shows that WORLD SAVINGS BANK failed to assign the note to WACHOVIA BANK and WACHOVIA BANK failed to assign the note to WELLS FARGO. 1990) Judge Wilken made a clear error of judgment and exceeded the bounds of permissible choice in the circumstances when she neglected to use documentation the Appellant submitted to the court in the form of a new forensic audit and instead took the word of Appellee’s Attorney Christopher Carr’s declaration that he was in possession of Appellant’s original promissory note without making the Appellee’s attorney present the note to the court. 859.
CUSIP number and Affidavit by securitization expert. publicized in the news and admitted by Wells Fargo that they performed 55. and that the Appellant is a Pick-a-Pay loan victim.000 illegal foreclosures in the State of California. Concealment. a school teacher. Judge Wilken disregarded these compelling facts and granted the Appellee Summary Judgment. Violation of California Code 1788. Appellant is a World Saving Bank Pick-A-Pay loan victim. Thus. only a forensic handwriting expert could ascertain the validity of the document in question. and therefore is allowed to bring an action for fraud. and with the illegal foreclosure upon Appellant’s home on April 29. but ruled in favor of the Appellee’s attorney who only presented a declaration without verifiable proof that he was in possession of the Appellant’s note. a special category of borrowers that Wells Fargo has admitted were given the most toxic loan on the market. California Code of Civil Procedure §338(d) In regards to the loan in 2006. Borrowers unknowingly acquired toxic loans as a result of Appeal from Final Judgment-7 . Fraud was committed from the inception of the loan in 2006. To save her home from sale Appellant was forced to file a Chapter 13.instance when Appellant presented written verifiable proof in the form of a forensic audit. Misrepresentation/Fraud/ Breach of Contract.17. The predatory nature of the Pick-a-Pay loans victimized many thousands of Californians. Unjust Enrichment. J. the statute of limitations will run in February 2013. filed a Verified Complaint against WELLS FARGO in April 6. Judge Wilken dismissed the Appellants fraud charges stating that the statute of limitation had run its course. Although it has been proven in court. Appellant was informed of the fraudulent clauses in her Deed of Trust and Promissory Note in February of 2010 while The Citizen's Reform Center as helping her prepare her case against Wells Fargo Bank. 2010. with the Substitution of Trustee on December 16. Respectfully. Accordingly. Attorney Carr is not qualified to state he has the original note. and Quiet Title. have entered into an Assurance Agreement with the State Attorney General in order to compensate Pick-a-Pay borrowers. Despite the submission of a forensic loan audit that revealed fraud in the Substitution of Trustee on December 9. 2010. Wrongful Foreclosure.D Davis. Appellant is not barred and is within the Statute of Limitations. The Judge was clearly in error. 2010. STATEMENT OF THE CASE Appellant. and as a result of deceptive advertising and predatory lending. 2010 charging WELLS FARGO with Breach of Covenant of Good Faith and Fair Dealing.
Appellant receive notification on April 26th that her case was transferred to federal court and on April 29th Appellee sold Appellant’s property back to their company for $27. Appellant asserts that she deserves the opportunity to prove the merits of her case. not allowing Appellant a hearing. and within a few years a higher principal than originally agreed to. and granted Summary Judgment to the Appellee. because these type of loans starts with a low teaser rate that kicks into one with escalating interest rates. Unfortunately. Despite a temporary restraining order in State court with a directive to answer the Appellant by April 15th 2010. D. the opportunity for relief from such prohibit forms of foreclosure is being denied. which despite supporting law. Case History 11 B. no payment towards the principal. liberty and property under due process of law. Denied despite Appellant’s forensic audit that shows breaks in the chain of title and that the Substitute Trustee is not duly assigned and had no authority to foreclose in the first place.deceptive advertising and WORLD SAVINGS BANK agents capitalized by obtaining negative amortization loan agreements which by their very nature are predatory.000. the Appellee transferred Appellant case to federal court without proper notification. STATEMENT OF FACTS A. they foreclosed on the Appellant's property illegally. The results leave borrowers with payments they can no longer afford.00. and fact. More disturbing is that with the dismissal of the Appellants request for Preliminary Injunctive Relief on November 18th by Judge Wilken. Judge Wilken abused her discretion by disregarding this evidence. E. evidence. has yet to occur. C. Appellant is seeking the protection of Article I of the California Constitution and her Fifth and Fourteenth Amendments rights which grants rights to life. Breach of Contact Concealment Wrongful Foreclosure Unjust Enrichment 13 16 16 19 .
cc-09-1396-HPDu. Appellant argues that because of a "standard operating procedure" mentality within the judicial system. No. Fraud Quiet Title 19 20 ARGUMENT The courts must give Appellant relief from the illegal foreclosure of her home by Wells Fargo.. STATEMENT OF RELATED CASES CASE NO: 08-MISC-384283 .. Federal and Bankruptcy judges in her case have not rendered justice and that this is a nationwide trend according to overwhelming fact. G. 09-15088-TD .IN RE: VARGAS Appeal from Final Judgment-9 . and broken chain of title due to securitization. robo-signers. Bk..U. LP V BAC HOME LOANS SERVICING.F. These reports expose so much fraud that presently the Attorney Generals in all fifty states are investigating the use of fraudulent documents.WELLS FARGO BANK V MARK & TAMMY LARACE BAP NO. Appellant argues that the contract into which she was entered was a fraudulent contract constituting fraud in the factum and as a result is void ab initio. Appellant is one of its victims. LP CASE NO: 08-15337 CH 7 .FAWN RIDGE PARTNERS. Appellant argues that it is time to put an end to the foreclosure nightmare that the banks are perpetrating upon the public. Appellant will show WELLS FARGO is guilty of all charges listed in her pleading. which has recently been reported many times in mainstream national news. Appellant argues that the Forensic Audit proves the merits of her charges. lost loan documents. BANK V ANTONIO IBANEZ CASE NO: 08-MISC-386755 .IN RE: HWANG CASE NO: 08-17036 CHAPTER 7 . the State. Appellant will argue that it is time to fight for justice and the rights of people who are expected to disappear quietly into the foreclosure night.S.
CV10-2168IEG -KHAST V WASHINGTON MUTUAL. WELLS FARGO BANK CASE NO: CV10-5152GW -CARSWELL V. Appellant is a direct victim of the fraudulent practices of the mortgage banking industry which left her no other alternative than being forced to file bankruptcy to save her home. Appellant is a retired school teacher. and where Appellant currently resides. However. which has been made abundantly clear by the Attorney General's office throughout the United States that Pick-a-Pay is predatory lending. JPMORGAN CHASE CASE NO. 3-201(b). JPMORGAN CHASE CASE NO: 8:09-CV-00861-DOC -SERRANO V GMAC MORTGAGE CASE NO: 3:2009-CV-05968 -SHARMA V PROVIDENT FUNDING ASSSOCIATES CASE NO: CV05-554639 . she disregarded Cal. was guilty of RICO citing their singular entity status.DEUTSCHE BANK (Ohio) STATEMENT OF FACT Appellant has owned 2027 Woolsey Street for 28 years where she raised her children and grandchildren. Commercial Codes 1-201. . This is why Appellant is now in the appeal stage.IN RE: WALKER 13DAVIES V NDEX WEST CASE NO: 20100314 . Federal Judge Wilken challenged Appellant/Appellant’s assertion that WELLS FARGO. a fact that was featured in a February 2009 60 Minute expose regarding WORLD SAVINGS BANK funding loans to "anyone who could fog a mirror. who through prudent savings and investments was able to buy property and prosper. et al. Judge Wilken ruled that it was not necessary for the Appellees' to have the note in order to foreclose because California is a non-judicial state." The Appellant has found that the courts are not amenable to litigants challenging the banks standing. Appellant filed a complaint in Superior Court that was transferred by Appellee into Federal Court as a result of the RICO charge in her complaint. She is a WELLS FARGO Pick-aPay Victim.EDSTROM V NDEX WEST.CASE NO: 10-21656 CHAPTER 11 .
to the following effect: It must authorize the entry of judgment for a specified sum. Judge Wilken denied the Appellant's motion in Opposition to Summary Judgment pending the outcome of her Verified Complaint. and show that the sum confessed therefore is justly due."(Isbell v. thus nullifying the contract between the Appellant and Appellee. Rptr. 1132(b) so that the confessed judgment is shown clearly on its face to been given voluntarily. in addition the contract was fraught with illegal cognovit clauses and would be proven if Appellant was allowed to have her complaint heard in Federal Court..3-203(a). and had benefited by the securitization of Appellant's note even with current news stories regarding WELLS FARGO's fraudulent activities and the Appellant's forensic loan audit that showed multiple incidents of fraud at the inception and during the foreclosure process of Appellant's loan. 21 Cal. had enticed the Appellant into a confession of judgment with the signing of an illegal cognovit contract.A statement in writing must be made. 1 "A confession of judgment is not valid when it is not accompanied by an independent attorney's certificate or declaration such as that required under Ca. 64. Code of Proc. it must state concisely the facts out of which it arose. If it before money due. 3-301. County of Sonoma (1978). and intelligently after receiving independent legal advice. Appeal from Final Judgment-11 . which ultimately requires proving possession of the note. and 3-309 which govern requirements for a party to prove they are the holder in due course.. 368 Despite submitting fifteen verifiable charges against the Appellee. knowingly. 74. Judge Wilken failed to acknowledge or consider that Appellee was guilty of deceptive practices. The certificate shall be filed with the filing of the statement required by section 1133. Appellant responded that the contract she had entered into was fraudulent. 145 Cal. Federal Court and Bankruptcy Court charges that WELLS FARGO _1132(b) A judgment by confession shall be entered only if an attorney independently 1 representing the Appellee signs a certificate that the attorney has examined the proposed judgment and has advised the Appellee with respect to the waiver of rights and defenses under the confession of judgment procedure and has advised the Appellee to utilize the confession of judgment procedure. 3-603. In a hearing before Judge Wilken. Appellant recited California Civil Code 1132(b) and 1133 to substantiate her charges. Appellant's filings in State Court. or to become due. Civ. 61. 3d. and verified by his oath. or to become due. signed by the Appellee.
rendering the loan not affordable after a short period of time. In addition. In Bankruptcy and Federal court. the Appellee was granted an unlawful detainer against Appellant and she was forced to immediately filed a Chapter 13 to avoid being evicted from her home. Appellant also states that there was no "meeting of the minds" as a result of the inequitable advantage the agents had over the Appellant who was not versed in mortgage transactions.October 6. on . All charges Appellant has made against the Appellee WELLS FARGO have been totally ignored and discounted by the court thus far. 2006. Pick-a-Pay is predatory because these negative amortization loans had teaser rates with interest rates that increased rapidly. CASE HISTORY Appellant obtained a mortgage from WORLD SAVINGS BANK. Dena Walls. failed to explain anything to Appellant. exhibits and presentation which are all on the record. These issues were never allowed to be address by the judges in State. Not one judge in any hearing has ever asked WELLS FARGO to prove they are the holder of the Appellant's note. Appellant raised the issue of the illegality of WORLD SAVINGS BANKS Pick-a-Pay loans which is prima facie proof that these loans were predatory. the rampant non-disclosure of many aspects of this contract made the contract void ab initio. As a result. and a confession of judgment which is . Appellant has become informed and now realizes that the Loan Documents Appellant signed were full of cognovit clauses.lacks standing to foreclose as they are not the holder in due course. and the notary. These material facts still apply and render the summary judgment void. Judge Wilken neglected in her order to address six of the Appellant's material facts in her Opposition to Summary Judgment. World Saving induced Appellant to sign a contract of adhesion. Appellant’s right to argue the merits of her case were trampled upon. The closing was a rushed process with no lawyer present. Appellant has a forensic loan audit that substantiates this charge. Federal or Bankruptcy court even though Appellant presented these facts in motions.
Appellant filed a Verified Complaint on April 6.completely unconscionable. Appellant now knows the whereabouts of her note as a result of a forensic loan audit that Appellant’s note is in a securitized Fidelity Select Biotechnology Quote CUSIP # 316390772 (Major) FBIOX. When WELLS FARGO BANK N. and WORLD SAVINGS BANK deceived Appellant into waiving her rights to ownership by what amounted to confession of judgment. acquired WACHOVIA MORTGAGE. Appellant had no idea of the whereabouts of her Loan Documents. Appellant is a victim of one of the largest loan scandals in United States history. WELLS FARGO BANK N.A. that Appellant was the victim of unlawful actions from the beginning through the Pick-a-Pay loan and that the Note was void ab initio. Additionally. who has attempted to evict Appellant. 2010 with the intention of obtaining an evidentiary hearing and discovery enabling Appellant to prove without a doubt. When WACHOVIA BANK FSB assigned Appellant’s property to Appellee. Inc. none of the named parties in the Complaint had authority Appeal from Final Judgment-13 . Appellant had no idea of the whereabouts of her Loan Documents. Movant never verified Appellant’s income. The Pick-a-Pay scheme was sanctioned by the California Attorney General on December 20th and WELLS FARGO agreed to pay 2 Billion to pick-a-pay loan modifications and $31 million to the 12.A. WELLS FARGO BANK AND CAL-WESTERN RECONVEYANCE. The contract was designed to deceive Appellant by concealing the true risks. FBS who acquired WORLD SAVINGS BANK. WORLD SAVINGS BANK concealed how Appellant’s Loan Documents would be used by the Lender and other parties to profit through securitization. Appellant has become informed and realizes that the Lender. according to the forensic audit. the notorious pick-apay loan..000 whose homes have been foreclosed upon. Appellant was deprived of her rights to not be victimized by gross misrepresentation in the making of a contract.. To receive justice for WELLS FARGO egregious behavior and actions. and WORLD SAVINGS BANK has been widely exposed for misleading the greater public into risky home loans that resulted in foreclosures en masse. engaged in predatory lending against her.
This alone should was grounds to deny the summary judgment. Appellant submitted the second forensic audit when she discovered the first audit firm was not credible and had not done complete research regarding her file. Appellant was forced to file a Chapter 13 Bankruptcy for protection to allow time for her case to be heard. failed to answer as required by the Rules of Civil Procedure. The judge also acknowledges that the Appellee transferred the Appellant’s case from state court to . Although Judge Wilken acknowledged the Substitution of Trustee in her Background statement. Appellant's complaint was and still is supported with both law and facts. Evidence of fraud was submitted to her in the form of two forensic loan audits. Motion for Reconsideration. yet for the last six months they have been attempting to do so. With the denial of the Temporary Restraining Order. any foreclosure action is void and fraudulent. WELLS FARGO BANK. they relied on the Federal Judge to deny the Temporary Restraining Order and Preliminary Injunction in order to foreclose. However both firms confirmed the fraudulent transference of the substitution of trustee. Therefore. Appellant can and will prove the merits of the claims within Appellant’s Appeal which Appellant put in detail in her Verified Complaint. On July 12. she failed to acknowledge that the substitution was a fraudulent conveyance.to enforce the note or had standing to foreclose. To this day WELLS FARGO has not answered. Appellee. one by Certified Forensic Loan Auditors and the other by AMR Management. who is named in Appellant's Verified Complaint. BREACH OF CONTRACT WELLS FARGO BANK is guilty of breach of contract from invalid substitution of trustee as well as securitization as explained below. Motion for Injunctive Relief and Opposition to Summary Judgment. 2010. WELLS FARGO has no standing to take possession of the Appellant's property. the Honorable Judge Claudia Wilken denied the Appellant motion for a Temporary Restraining Order and Preliminary Injunction. According to the break in chain of title and the securitization of the Appellant's note. Instead.
Frick. For a cognovit contract to be legal there must be extra consideration for agreeing to waive one's rights such as reduction in installment payments or reduction in interest rates. Civ. To this day Appellant still does not understand what these terms mean and asserts that the majority of the population who lacks training in real estate agreements also do not understand and the banks fail to adequately explain and disclose these critical terms. She completely disregarded the fact that breaks in the chain of title automatically invalidate the contract by virtue of the fact that the breaks destroy the integrity of the title and obscure who is the holder in due course with the right to collect payment and to enforce the note. a fact that allowed Appellee to blindside Appellant and illegally sell the property back to themselves two days after Appellant received notice of the transfer to federal court. proper endorsement of the note is necessary for proper conveyance procedures to occur in accordance with the long-standing policies of land recording which go back to the inception of this country. Judge Wilken in her decision ruled that Appellant failed to identify a provision of her contract where breaks in the chain of title and securitization of the note would violate the contract. code 1132(b) and 1133 and Overmeyer vs. "the property is lawfully seized. but failed to acknowledge the evidence that the Appellant was not properly noticed. Appeal from Final Judgment-15 . If there is not a "meeting of the minds" the contract is void. There was no extra consideration given by WORLD SAVINGS BANK to Appellant. irrevocably waived" were in the Appellant's contract.federal court.". Appellant's loan had cognovit clauses. Terms such as "seized. Failure to disclose the cognovit/confession of judgment phrases in the Deed of Trust and failure to provide Appellant extra consideration for the waiving of her rights renders the entire agreement illegal. and in order for a cognovit note to be legal there must be clear and unambiguous warning that one is waiving her rights and the confession of judgment clauses be disclosed and explained by a competent attorney then provide a certificate pursuant to Cal. and is a breach of contract. Since WORLD SAVINGS BANK went out of business and Appellants Loan Documents were acquired by other parties. therefore a "meeting of the minds" was impossible." "notice of presentment". void. Appellant informed Judge Wilken that she did not understand the above reference terms.
Obviously presumption is not enough for the Federal and State investigators. resulted in being deprived of her rights to protect her property under due process of law for violations of law such as fraud. which willfully put the Appellant in a position of disparity and disadvantage due to the overwhelming advantage and bargaining power held by them as Lender. If Judge Wilken had read the Deed of Trust. concealment. Fifty-five thousand illegal foreclosures by WELLS FARGO have already been identified in the State of California alone. she would have seen the statements were not cited out of context. Judge Wilken ruled in favor of the Appellee stating that the cognovits clauses were not cognovits clauses or unconscionable. Appellant submission of AMR’s forensic loan audit substantiated the Appellant’s Verified Complaint that stated there had been breaks in the chain of title between WORLD SAVINGS BANK to WACHOVIA to WELLS FARGO BANK." Judge Wilken ruled on “presumption” rather than fact. As for the provisions appearing to be typical for loan documents. Appellant submitted as evidence the Deed of Trust in which the cognovits clauses were found. "Under California law. . misrepresentation. obviously that is not the case as the Attorney Generals in all fifty states as well as several federal agencies would not be currently investigating Wells Fargo for fraudulent documents if the Deed of Trust were typical. and suppression or omission of material facts. The fact that Appellant was unknowingly misled and rushed into signing an illegal cognovit note forfeiting ownership of her property to her grave detriment. where a party in a position of unequal bargaining power is presented with an offending clause without the opportunity for meaningful negotiation. thereby making a "meeting of the minds" and an acceptance of terms and conditions impossible.Appellant went into detail as stated above in her Verified Complaint regarding breaks in the chain of title and securitization. and "the provisions in the Deed of Trust “appear” to be typical for loan documents. The citations were not out of context. She ruled that the Appellant cited them out of context. which it is apparent she did not. The contract presented by WORLD SAVINGS BANK was one of adhesion. Judge Wilken obviously did not read the forensic loan audit nor the verified complaint Appellant was unconscionably disadvantaged by being deceived into waiving her rights to an equitable agreement and fair treatment. oppression and therefore.
327 US 392. 1178 (9th Cir. Armbrecht. The doctrine of fraudulent concealment operates to toll the statute of limitations when a Appellant has been injured by fraud and remains in ignorance of it without any fault or want of diligence or care on his part. would have learned of the existence of a claim. 90 L. 327 U.’ ” Ibid. The Doctrine Of Fraudulent Concealment . . 824 F. the equitable doctrine of discovery ‘is read into every federal statute of limitations. 66 S. “unless Congress has expressly legislated otherwise. C. 743 (1946) as follows: This Court long ago adopted as its own the old chancery rule that where a homeowner has been injured by fraud and remains in ignorance of it without any fault or want of diligence or care on his part..3d 1170. “despite all due diligence." See Ferguson v.3d 778. 392.S. Judge Wilken dismisses the Appellants charge of fraud stating that the statute of limitation of three years has passed. Glover . 392.A. The Supreme Court went on to state: This equitable doctrine is read into every federal statute of limitation.If a lender conceals wrongdoing. 1987). Armbrecht . The doctrine of equitable tolling was defined by the Supreme Court in Holmberg v. 348 (1874). the bar of the statute does not begin to run until the fraud is discovered. Armbrecht. are present.” Santa Maria v. Gerard Freezer & Ice Co. 582.9 (Cal. The doctrine of equitable tolling extends the statutory period only where. 327 U. 327 U. Ed. Equitable tolling “focuses on whether there was excusable delay by the Appellant. (quoting Holmberg v. at 397. through due diligence.S. Inc. 397 (1946) (quoting Bailey v.procedural unconscionability. 127 (1st Cir. 88 U. 298 F. 397 (1946)).” and “does not depend on any wrongful conduct by the Appellee to prevent the Appellant from suing. see Maggio v. Ct. thereby preventing a borrower from discovering a cause of action. Holmberg v. 202 F. the statute of limitation will be tolled until the date the Appellant. Bell. Pac.” Another area of case law that applies here is on the court being "equitable" and "doing justice" which Appeal from Final Judgment-17 .) 2002. Countrywide Credit Industries. a Appellant is unable to obtain vital information bearing on the existence of his claim.2000). Appellant argues that the statute of limitations starts tolling when the fraud is discovered.2d 123.S.) 342. (21 Wall.S. though there be no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party.
cannot be made the foundation of a good title. Inc. In regards to privity of contract. . 2007. was not a duly appointed officer. These are fatal issues that rendered Pretender Lender Wells Fargo's foreclosure invalid. This sentiment was clearly echoed in 6 Angels. The note was securitized to Fidelity Select Biotechnology Quote on January 5. (2001) 85 Cal. such as an undelivered deed. the fact that Appellee Archer acted in good faith in dealing with persons who apparently held legal title. The forensic loan audit also reveals that there was a break in the chain of title. Stuart-Wright Mortgage. is not in itself sufficient basis for relief.App. The Court in Trout v. at no time prior to or during the execution of the Deed of Trust and Note was Appellant made aware by WORLD SAVINGS BANK or its agents that she may be subject to subsequent assignment that would result in securitization of her documents for further profit. a forged instrument. recorded on February 3. Consequently. 652 at 656 made as much plain: “Numerous authorities have established the rule that an instrument wholly void. All occurred within the three year period of time. Assistant Vice President The forensic loan audit provides evidence that CAL-WESTERN RECONVEYANCE was not duly assigned and Jennifer Victa. internal citations omitted).4th 1279 at 1286 where the Court stated: “It is the general rule that courts have power to vacate a foreclosure sale where there has been fraud in the procurement of the foreclosure decree or where the sale has been improperly. In the case of a fraudulent transaction California law is settled. Trout. or is tainted by fraud.” (Emphasis added). WELLS FARGO fraudulently relied on the Substitution of Trustee dated January 14. fraudulent and illegal.Appellant discovered the fraud when she obtained a forensic loan audit in 2010. (1934). or a deed in blank. In addition new fraud was committed in 2009 with the Substitution of Trustee was assigned. 220 Cal.” (Emphasis added. 2010 and signed by Jennifer Victa. v. or where there has been such a mistake that to allow it to stand would be inequitable to purchaser and parties.takes precedence over everything else. unfairly or unlawfully conducted. 2010. Inc. even under the equitable doctrine of bona fide purchase.
There is no provision in the Deed of Trust allowing for securitization. By these breaks in the chain title WELLS FARGO cannot plausibly make the argument that it is the authorized holder of the Note or Deed of Trust to foreclose because it did not hold the instruments together. Code 2924. WELLS FARGO failed to follow proper procedure for the Substitution of Trustee as presented in Paragraph 24 of the Deed of Trust where it is very specific in the Substitution of Trustee. WACHOVIA committed fraud by misrepresenting itself as a beneficiary. WACHOVIA and WELLS FARGO failed to execute and record valid assignments resulting in break in chain of title as evidence by the forensic loan audit and this constitutes a fatal breach of contract by all parties. WORLD SAVINGS BANK. upon research discovered that WACHOVIA is responsible for undisclosed and unauthorized securitization resulting in unjust enrichment. CONCEALMENT WORLD SAVINGS BANK concealed the fact that they would illegally convert the unregulated use of Appellant's credit to secretly and unjustly enrich themselves for compounded profits without consideration which defrauded her. Bank v Antonio Ibanez 08-MISC-384283.S.The forensic loan audit proved that WORLD SAVINGS BANK failed to assign to WACHOVIA the security instruments and the provisions of assignment were not followed. All parties. This is a breach of contract because according to the Deed of Trust the Deed must be evidenced by the Note. Therefore WELLS FARGO could not legally function as a beneficiary with authority to assign or substitute. WELLS FARGO failed to follow this procedure since they had no beneficial interest and capability to duly acknowledge and record such a substitution. See WELLS FARGO BANK v Mark & Tammy Larace 08MISC-386755 and U. Judge Wilken made no reference to the concealment material fact in Appellant Opposition to Summary Judgment. WELLS FARGO concealed the fact that there are breaks in the chain of title and that WELLS FARGO has no right or standing to initiate foreclosure under Cal Civ. Appeal from Final Judgment-19 . Appellant. WACHOVIA committed misrepresentation and fraud because they never delivered the original Note and the Deed of Trust together to WELLS FARGO.
" Therefore the Deed without the Note is inconsequential. only the creditor can require tender. CALWESTERN didn't record the Substitution of Trustee until February 3. Only the actual holder of the genuine security instruments who can verify and validate a default has the authority to enforce the security instrument and initiate the "trigger" to foreclose under Cal Civ. Furthermore.WRONGFUL FORECLOSURE When the Deed of Trust is separated from the Note the Deed is rendered a nullity. However. On December 12. With abundant proof of void conditions of the contract and fraudulent actions by WORLD SAVINGS BANK. Cal Western recorded the Notice of Default. Appellant is not bound by the tender rule in this action and cannot be subjected to such fraudulent actions by the Appellee. thereby damaging Appellant and depriving her of beneficial use of her property. Code 2924. "This Security Instrument secures to Lender (a) the repayment of the debt evidenced by the Note. WELLS FARGO never possessed the note again falsely representing beneficial interest. the Substitute Trustee was not "duly assigned" according to the forensic loan audit and paperwork submitted by CAL-WESTERN RECONVEYANCE themselves. Appellee's contract with Appellee's is totally void. rendering any requirement for tender invalid. and the wrongful foreclosure by CAL-WESTERN RECONVEYANCE. The Deed of Trust states. 2010 which means that CALWESTERN RECONVEYANCE had no authority on December 12. Appellee's actions give Appellant substantial grounds to deny any amount WELLS FARGO claims is owed to them under the rule that tender cannot be required under a void condition. With such extreme irregularities regarding the Trustee's Sale. 2009. CAL-WESTERN RECONVEYANCE was obviously not the creditor. CAL-WESTERN RECONVEYANCE. and WELLS FARGO was a servicer. By transferring or assigning the Note and separating it from the Deed. When the Notice of Default is recorded the beneficiary must be in physical possession of the Note and Deed of Trust. WELLS FARGO took part in a chain of actions which led to wrongful foreclosure. . 2009 because they were not assigned as beneficiary until almost two months later on February 3. 2010. In addition CAL-WESTERN RECONVEYANCE had no authority according to the forensic loan audit that shows their assignment was fraudulent because they assigned themselves as Trustee.
22 Cal. . when interpreting the trust deed any ambiguities are interpreted against the beneficiary who prepared the form.For the foregoing reasons. BAC Home Loans Servicing. However. p." Fawn Ridge Partners. San Francisco Federal Savings & Loan Assn.) "A contract may be procedurally unconscionable under California law when the party with substantially greater bargaining power presents a take-it-or-leave it contract to a customer. we need not reach the prudential standing issues raised by the Debtor in this appeal since BAC failed to demonstrate it had constitutional standing to seek relief from the automatic stay. 3/29/10. App. Lomanto v. Rptr. therefore. App. we REVERSE the bankruptcy court's order granting stay relief to BAC. 668. 442-14th District.7. WELLS FARGO which was the servicer could not be deemed to be a "holder in due course" or owner with power to enforce the Note in the foreclosure of Appellant's property absent ownership of both Security Instruments or authority to enforce the Note. 3d 663.132 Cal. LP United States Bankruptcy Appellate Panel of the Ninth Circuit. New Cingular Wireless Services. According to In Re Walker.A. 903-1st District 1976. Appeal from Final Judgment-21 . WELLS FARGO knew or should have known. . deprives them and any representatives including any agents or John Does. Bank of America. 9(Cal.) 2007.3d 9786" The foreclosure on Appellant's property is wrong because at all material times antecedent to their actions. BAC is free to file a new motion for relief from stay if it can properly demonstrate its standing. 62 Cal... 99 Cal. also lacking possession of said security instruments of legitimate standing by which to effectuate sale of Appellant's property. Absent Wells Fargo's actual possession of the genuine security instruments or authority of ownership. "The deed of trust is a typical contract of adhesion. at all material times relevant to their actions. 3d 1. Shroyer v. even if the customer has a meaningful choice as to service providers." (Wilson v. Inc. WELLS FARGO nor CAL-WESTERN RECONVEYANCE had possession of all the genuine security instruments originally executed by the Appellant. 498 F."The bankruptcy court determined that the Debtor's challenge to BAC as the real party in interest was waived.12 According to the Forensic Loan audit. Rptr. as the servicer they were never in actual possession of the requisite legally valid instruments or had the authority of a party with such authority. LP v. C.
Boston MA 02109. Selling Appellant's Note to a securitized trust to be traded on Wall St. If the wrongful foreclosure is upheld for any reason. master servicer. WORLD SAVINGS BANK never provided disclosure to Appellant through the Deed of Trust or any other documentation that her Security Instruments would be securitized for extended profits. UNJUST ENRICHMENT Appellant re-alleges points made under the section under concealment. depositor. Only by inspecting the original Note can Appellant determine who the actual creditor is and who is authorized to collect payment. in violation of Appellant's rights. securities administrator. and certificate holders constitutes unjust enrichment. Appellant has been clearly harmed by such deceptive and improper actions related to real party in interest status. The Forensic audit shows the chain of conversion when the Security Instruments were securitized in January 2007 with the Fidelity Select Bio-Technology Quote. Converting Real Property by WORLD SAVINGS BANK or any other entity from its true owner without true owner's knowledge and consent is an act of "conversion through fraudulent means" and "Direct . vulnerable to further harm in the future by another debt collection action by unknown parties for a debt that has already been paid for and received by Wells Fargo. Hedge Fund Manager's Name is victor Y Thay at 82 Devonshire Street . located at 82 Devonshire Street. with profits collected by multiple entities such as the originator. Otherwise.There is no GAAP-Compliant Ledger showing assets and liabilities which provide evidence that WELLS FARGO is a Creditor of Appellants' Security Instruments. CDO manager. Boston MA 02109 and in a Fidelity Advisor Global Capital Appreciation CL A. underwriter.CUSIP Number 315920629. CUSIP Number 316390772 hedge fund manager's name is Rajiv Kaul. thereby subjecting Appellant to double jeopardy. which has resulted in wrongful foreclosure and the loss of her property. WELLS FARGO or any Does must return Appellant's certified original Security Instruments for her possession with Note marked satisfied or discharged. trustee. they will wantonly leave the Security Instruments at issue in the open stream of commerce. document custodian.
committed fraud by misrepresenting that they had standing to foreclose when they didn't." Appeal from Final Judgment-23 . duties. This can be when the maker or drawer of a negotiable instrument such as a promissory note or checks." Judge Wilken failed to address in her order whether Appellee was guilty of unjust enrichment. misrepresented and committed fraud by failing in her legal obligation to comply with Cal. Jonathan Castillo and Dena Walls committed fraud by failing to comply with Cal. Code 1132(b) requiring full disclosure by an attorney in a confession of judgment. WELLS FARGO. WACHOVIA committed misrepresentation and fraud because they never delivered the Note and the Deed of Trust together to WELLS FARGO because they did not hold the instruments together. Mr. 2 WACHOVIA committed fraud by misrepresenting itself as a beneficiary. FRAUD Jonathan Castillo. 2 _Fraud in the Factum is a type of fraud where misrepresentation causes one to enter a transaction without accurately realizing the risks. Castillo knew the Pick-a-Pay loan was a set up for failure. agent for WORLD SAVINGS BANK had superior knowledge of the law and home loan contracts and possessed an unconscionable advantage over Appellant who lacked legal experience. Civ. the notary. 2009 when Cal Western Reconveyance served a Notice of Default upon the Appellant and then served her with the Substitution of Trustee notice on February 3rd 2010.Conversion. Civ. Fraud was committed on December 10. is induced to sign the instrument without a reasonable opportunity to learn of its fraudulent character or essential terms Fraud in the Factum usually voids the instruments under state law and is a real defense against even a holder in due course. accompanied by a certification. Dena Walls. Fraud was committed clearly within the three year statute of limitations in the Substitution of Trustee yet Judge Wilken dismisses all fraud charges based upon state of limitation issues. Judge Wilken clearly depended on the assertions of the Appellee without investigating the facts for herself. or obligations incurred. WORLD SAVINGS BANK failed to assign to WACHOVIA the security instruments. which is a servicer without any indication of being a holder. real party in interest. or having authority from a creditor. Code 1132(b) requiring full disclosure by an attorney of the accurate accounting of the sums Appellant was expected to pay accompanied by a certification.
the predecessor to the OTS promulgated 12 Code of Federal Regulations .2d 443. 2.C. [Citations. 231.Ed. by the aggrieved party.S.) State laws can be contrary to. and thus preempted by. quoting Schwartz v. Kerr–McGee Corp.. 199. state law is still pre-empted to the extent it actually conflicts with federal law. art. The HOLA. APPELLANT IS NOT BARRED BY THE STATUTE OF LIMITATIONS Pursuant to California Code of Civil Procedure §338(d) states:“An action for relief on the ground of fraud or mistake. any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. of the facts constituting the fraud or mistake.A. 248. 97 L.P. The federal Constitution directs that “the Laws of the United States .Ct...S. codified in title 12 of the United States Code.” (Silkwood v. when it is impossible to comply with both state and federal law. (1984) 464 U. any state law falling within that field is preempted. VI. 78 L.2d 688.S. § 1464(a)(2)). the OTS.S. 202–203. 73 S. 37 L. or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.) “ ‘It will not be presumed that a federal statute was intended to supersede the exercise of the power of the state unless there is a clear manifestation of intention to do so. of Social Services v. the HOLA creates the Office of Thrift Supervision (“OTS”) (12 U.C.Ed. 405.” (U. [citations]. cl. 104 S. Dublino (1973) 413 U. 413. The cause of action in that case is not deemed to have accrued until the discovery. The Law of Federal Preemption in General. 238.. Texas (1952) 344 U. beginning with section 1461.Ed. Const. B. 232. §338(d).. Pursuant to that authority. 235. shall be the supreme Law of the Land .’ ” (New York Dept. that is..S.Ct.Ct..”C.  If Congress evidences an intent to occupy a given field. 2507.) 2. THE APPELLANTS' CLAIMS ARE NOT FEDERALLY PREEMPTED 1. § 1462a(a)) and authorizes its director to issue regulations prescribing the operation of federal savings associations according to the “best practices of thrift institutions in the United States” (id. federal law “in either of two general ways. 615. and its Regulations Federally chartered savings associations are regulated by the Home Owners' Loan Act (“HOLA”). 93 S. As amended.]  If Congress has not entirely displaced state regulation over the matter in question.
2608. quoting Rice v.. Federal Act unless that [is] the clear and manifest purpose of Congress.section 545. 1996). there is a “strong presumption” (Cipollone. which provides: “The regulations of this Part 545 are promulgated pursuant to the plenary and exclusive authority of the [OTS] to regulate all aspects of the operations of federal savings associations. except to the extent provided in paragraph (c) of this section . (Perdue v. 216 Cal.S. 44 Cal. 523. 240. no issue of implied preemption is before us.. the OTS issued 12 Code of Federal Regulations section 560. 112 S.2(a). Santa Fe Elevator Corp.S.Ed.4th 216.Ct. 148.Ed. 702 P.) It illustrates the scope of the preemption by listing various examples of the types of “requirements” that are within the field of exclusive regulation (§ 560. This exercise of the [OTS's] authority is preemptive of any state law purporting to address the subject of the operations of a Federal savings association.2d 807. 516. (1947) 331 U.2d 441. Crocker National Bank (1985) 38 Cal. 50952 (Sept.’ ” (Cipollone v.. When Congress adopts legislation that includes a provision expressly addressing the issue of preemption. as with any other issue arising under the Supremacy Clause of the United States Constitution. 120 L. 1447.2d 407.” (§ 560. 91 L. v.. 50951.Rptr.” thereby permitting federal savings associations to extend credit “without regard to state laws purporting to regulate or otherwise affect their credit activities. 937. (Smiley v.Rptr. The Appellants' UCL Claims Are Not Preempted by Section 560. p. Co. there is no need to infer congressional intent. 345. Reg.2d 690..) Therefore. 218.2d 566.2(b)) and then specifying the types of laws that are outside that field (§ 560. 2608) that section 560. 20th Century Ins.Rptr.2 (“section 560. as set forth in section 5(a) of the [HOLA]. Appeal from Final Judgment-25 . Liggett Group. (61 Fed. To overcome that presumption against preemption.3d 913.4th 138. (1992) 505 U.2”) to address preemption specifically in the context of lending operations.2 states that the “OTS hereby occupies the entire field of lending regulation for federal savings associations.2 (“section 545. 67 S. 32 Cal. Citibank (1995) 11 Cal.Ct.2(c)). Appellee bears the burden of establishing that the claims are preempted.2 does not preempt the claims brought in this action. Inc.2d 503.) Section 560. Garamendi (1994) 8 Cal. 230. 112 S.Ct.2”). 30. 504.) The states' historic police powers include the regulation of consumer protection in general and of the banking and insurance industries in particular.) Second.2 First. 3. Appellant’s analysis “ ‘start[s] with the assumption that the historic police powers of the States [are] not to be superseded by . 900 P.” In 1996. 878 P. 1146.
31 Cal. Those predicate duties are not requirements or prohibitions of the sort that section 560. at p. 875 P..2d 36. 875 P.. The predicate duties underlying the Appellant’s claims do not meet that . pp. 112 S. Inc.Ct. 993 P. 517. The question. 523. 112 S. therefore. 112 S. at p.) The same reasoning applies here. p. p. (Cipollone.Rptr.Rptr. (1994) 7 Cal.Ct. on the duty not to misrepresent material facts. where the express statement of preemptive intent is included in an administrative regulation rather than a statute.) The Appellant claims that World Savings Bank committed fraud because of misrepresentation. 2608. 505 U. Inc. 2608. Etcheverry.Rptr. Mangini. 875 P. supra. 93 Cal. a. Tri–Ag Service. No Preemption Under Cipollone v. 93 Cal.J.2 preempts.2d 73. the central inquiry is whether the legal duty that is the predicate of the claims constitutes a requirement or prohibition of the sort that federal law expressly preempts.2d 358. e. 335. (2000) 22 Cal.2d 36.” (Ibid.2d 366 [Federal Insecticide.(Cipollone v. 523–524.Rptr.2d 358. p. 112 S. and on the duty to refrain from unfair or deceptive business practices. 1067.. (Cipollone v. 993 P. Reynolds Tobacco Co. Liggett Group.2d 73.2d 73) and in others (see. Etcheverry v. Inc. 335.Ct. pp. 2608. and Rodenticide Act] ). 505 U. That section preempts (1) state laws that (2) either purport to regulate federal savings associations or otherwise materially affect their credit activities.2d 358.S. R. Inc.4th 316. illegal cognovit clauses and securitization of Appellant's note.4th 1057.’ ” (Mangini.S. is whether the scope of the express preemption extends to the claims at issue here. 1066–1067. 524.2d 366. supra. The method by which the scope of preemption is determined was explained by the United States Supreme Court when it decided the preemptive effect of the Federal Cigarette Labeling and Advertising Act. 31 Cal. The aforementioned claim is predicated on the duties of a contracting party to comply with its contractual obligations and to act reasonably to mitigate its damages in the event of a breach by the other party.Ct. 2608. 31 Cal. the same method has been applied by California courts both in that context (Mangini v. 1066–1067.g.) Since then. *1301 Liggett Group. This Court “ ‘must fairly but―in light of the strong presumption against pre-emption―narrowly construe the precise language of [the preemptive statute or regulation] and must look to each of [the Appellant's state] law claims to determine whether it is in fact pre-empted.) As to each state law claim. Fungicide.) “Congress' enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not preempted. Liggett Group. deceptive adverstising. quoting Cipollone.Rptr.
Instead. Inc. If it does. No Preemption under the OTS's Formula Appellant’s conclusion is the same if this Court were to employ an analysis suggested by the OTS rather than that prescribed by the United States Supreme Court. 50951. applying this three-step formula to the Appellant's claims shows that they are not preempted. 112 S. they do not purport to regulate federal savings associations and are not specifically directed toward them. 526. This presumption can be reversed only if the law can clearly be shown to fit within the confines of paragraph (c). Any effect they have on the lending activities of a federal savings association is incidental rather than material. On their face. but anyone engaged in any business and anyone contracting with anyone else. Moreover. the next question is whether the law affects lending. At the time it promulgated section 560. Liggett Group. 30. If the law is not covered by paragraph (b). Contractual duties are voluntarily undertaken by the parties to the contract.” (61 Fed. or that in practice they have a disproportionate impact on lending institutions. 2608. Nor is there any evidence that they were designed to regulate federal savings associations more than any other type of business. not imposed by state law. paragraph (c) is intended to be interpreted narrowly. The Court erred in concluding otherwise. the OTS explained the manner in which it intended that section to be applied when determining whether a particular provision of state law is preempted: “[T]he first step will be to determine whether the type of law in question is listed in paragraph (b). If so.description. none of the predicate duties are directed toward federal savings associations. at p.) A stated intent to preempt requirements or prohibitions imposed by state law does not reasonably extend to those voluntarily assumed in a contract.. the presumption arises that the law is preempted.S. For these purposes.Reg. 1996). 505 U. (Cipollone v. Any doubt should be resolved in favor of preemption. then. The Appellant’s principal complaint concerns the violation of contractual duties. the law is preempted. the duties on which the Appellants' claims are predicated govern. in accordance with paragraph (a). the analysis will end there. Appeal from Final Judgment-27 . supra.Ct.2. the Appellant’s claims are not preempted by section 560. b. not simply the lending business.) Even if this Court were to ignore the contractual nature of the principal obligation that the Appellant seeks to enforce.2. 50966–50967 (Sept. Accordingly.
The Appellants seek to enforce a general proscription of unfair business practices. the Appellants rely upon legal principles regarding the need to comply with contracts and the requirement to refrain from deceptive conduct. At the time section 560.2 does not “preempt basic state laws such as state uniform commercial codes and state laws governing real property. Put another way. Therefore.2 was issued. the state cannot dictate to the . or pursuing other state policy objectives. and crimes... fraud. they are part of the legal infrastructure that undergird all contractual and commercial transactions. contract. that presumption is rebutted if the laws at issue are general contract and commercial laws that only incidentally affect lending operations. contracts. However. that is. or commercial laws. under the OTS's interpretation of the regulation. 1996). or employ fraudulent methods in its operations. we are guided by OTS's own explanation of the intended scope of its regulatory preemption. The laws themselves do not relate to any of the subjects listed in subdivision (b). Therefore.) The limitation that the effect of those laws on lending cannot be more than incidental is intended to catch “state laws that may be designed to look like traditional property. OTS stated that “the purpose of paragraph (c) is to preserve the traditional infrastructure of basic state laws that undergird commercial transactions. the types of laws that the Appellant seeks to enforce are not listed in subdivision (b) of section 560. They are not designed to regulate lending and do not have a disproportionate or otherwise substantial effect on lending.) Accordingly.) The duties to comply with contracts and the laws governing them and to refrain from misrepresentation. how it may conduct its operations.” (Ibid. it simply insists that the Appellee cannot misrepresent how it operates.” (61 Fed.” (Ibid.First. Moving to the second step. protecting the safety and soundness of lenders.2. such as regulating the relationship between lenders and borrowers. torts.Reg. section 560. tort. but in reality are aimed at other objectives. In determining whether the effect of those laws is more than incidental. just as they affect any other business that enters into contracts or makes representations during the course of its operations. 30. are principles of general application.. 50966 (Sept. To wit. a presumption of preemption arises. More specifically. their effect is incidental and they are not preempted. Appellant's ability to sue the Appellee for fraud does not interfere with what the Appellee may do. To the contrary. the laws do affect lending businesses.
2009 and purporting to convey title. 3rd ed. Conversion. Judge Wilken denied Appellant’s Rico act allegations based upon the discrepancies of the two forensic Appeal from Final Judgment-29 . WELLS FARGO's Quiet title is based upon the Trustee's Deed purporting to have been executed by Cal Western Reconveyance on December 10. at 269. void and of no force. 1.Appellee how it can or cannot operate. QUIET TITLE Appellant at all times herein mentioned is the true and equitable owner and entitled to possession of the property located at 2027 Woolsey Street. it do so free from fraud and other deceptive business practices. Wells Fargo is the servicer. Judge Wilken also failed to recognize that the purpose of the Appellant’s Verified Complaint was to state claims that would prevent foreclosure. therefore the sale was valid and proper. but it can insist that. not the lender and had/has no standing to foreclose. Based upon proof by the forensic loan audit WELLS FARGO never had legal authority to foreclose or transfer title. Judge Wilken ruled Trustor (Appellant) failed to effectively exercise her right to redeem.. The forensic audit has already established that the Trustee's Deed is invalid. or interest in said property. however the Appellee chooses to operate. CA 94703 DICTIONARY. we conclude that Appellant's causes of action against the Appellee are not preempted by Appellee regulations. quoting 18 AmJur2nd. Berkeley. Consequently. The Note and Deed of Trust have been bifurcated therefore the Deed of Trust can no longer serve as a basis for the foreclosure at the Trustee sale. Judge Wilken without asking Appellee for proof that they were the holder in due course determined that WELLS FARGO was the lender. rendering any related Trustee Deed void ab initio. never had the authority to exercise the power of sale as an assignee of the promissory note and Deed of Trust and never had the legal authority to foreclose as WORLD SAVINGS BANK assigned the note in 2007 to a hedge fund. WELLS FARGO has no legal or equitable right or claim. Judge Wilken fails to consider that Appellant’s contract with Appellee was fraudulent and fraud in the factum nullifies any contract. The Court therefore erred in granting the order of summary judgment on Appellee’s preemption grounds. therefore Appellant had rights to quiet title.
Certified Forensic Loan Auditors submitted incomplete information which was noted throughout the audit. the Judge Wilken ruled that the evidence submitted by the Appellant did not prove that the loan was securitized. Request for Injunctive Relief and Opposition of Summary Judgment.D. held in San Antonio Texas and sold to a Fidelity BioTech Fund in Boston Mass. . Despite having this information. the Appellant also submitted an affidavit by J. Davis was not sold the note solely because the manager informed Mr. Appellant subsequently submitted a complete audit based upon a complete investigation. an affidavit by J. The crossing of state lines for unjust enrichment occurred as Appellant asserted in her Verified Complaint. If the loan was initiated in California. Judge Wilken chose to side with the incomplete audit because it sided with Appellee Attorney Chris Carr's claim that the original notes and deeds of trust were in his possession. the hedge fund managers names and phone numbers and the dates the two loans were securitized. Judge Wilken at no time asked to see the documents Attorney Carr purported to have in his possession and totally ignored Appellant's substantive proof in the form of two CUSIP numbers (one for each loan). Davis that he was in negotiations to buy back the note and the CUSIP numbers that are the Wall Street industry standard when a note has been securitized. The first Forensic audit by Douglas Rian and Elizabeth Jacobson of Certified Forensic Loan Audit (Docket #61) was submitted but later replaced based upon discovery by Appellant that Certified Forensic Loan Auditors were not a credible firm. Davis that WELLS FARGO asked them not to sell the note because they were in the midst of a court proceeding regarding the loan. a realtor who attempted negotiations to repurchase the loan from the hedge fund unsuccessfully. Appellant did provide evidence that her loan was securitized in the form of a complete forensic loan audit.D. In addition to the two CUSIP numbers and the forensic loan audit. J. Judge Wilken states that Appellant's claim of RICO fails because Appellant’s evidence failed to establish that Appellee securitized her loan and that Appellant has not proven that securitization of her loan constitutes a pattern of racketeering. Davis. Tragically Judge Wilken chose to base her decision upon the incomplete forensic audit versus the complete audit.D.loan audits submitted by Appellant. Judge Wilken states that Appellant did not prove that the securitization of her loan constitutes a pattern of racketeering. In addition Appellant submitted a CUSIP number that is the Wall Street industry standard showing the securitization of notes.
In Saxon vs Hillery. To easily understand. ruled in favor of the Appellee’s stating that Appellee’s had standing to foreclose as they were not obligated to produce the note or production of any chain of ownership of title. and as a result. production of the note is not required to proceed in foreclosure and similarly no production of any chain of ownership is required”). Inc. The Deed of Trust enforces the Note. where fraud Appeal from Final Judgment-31 .. An assignment of the debt carries with it the security instrument. 2010 WL 546896.Judge Wilken denied Appellant’s claim that Appellee's did not have standing because they did not possess the original loan documents. then there can be no enforcement of the Note.D. Judge Wilken. The Deed of Trust is a mere incident of the debt it secures. *3 (N. an action by Saxon to foreclose on a property by lawsuit was dismissed due to lack of legal standing. The Court ruled that when the Note and Deed of Trust were separated. if the Deed of Trust and the Note are not together with the same entity. Saxon had one option.Cal. Therefore. It has no market or ascertainable value apart from the obligation it secures. If the Deed is separate from the Note. A Deed of Trust has no assignable quality independent of the debt.e. which was to rescind the foreclosure. CA. This was because the Note and the Deed of Trust were “owned” by separate entities. the enforceability of the Note was negated until rejoined.. foreclosure cannot occur. Suntrust Mortg. i. However. it may not be assigned or transferred apart from the debt. reunite the Deed and the Note by Assignment and then foreclose again. then enforcement. making foreclosure when not in possession of the note an illegal action. the court has a judicial obligation to act. Separation immediately makes the Deed of Trust void. Contra Costa County Superior Court. It provides the capability for the lender to foreclose on a property. the Note is then an “Unsecured Debt”. The Judge's assertion is true if possession of the note goes unchallenged. Judge Wilken’s position is based upon the fact that California is a nonjudicial state and possession of the original note does not affect the validity of a non-judicial foreclosure sale citing Roque v. “ This very “simple” statement poses major issues.) (“Uniformly among courts. However if ownership and break in the chain of title is challenged in a court and fraud is discovered. Dec 2008. and an attempt to assign the Deed Of Trust without a transfer of the debt is without effect. a Deed Of Trust is inseparable from the note/debt and always abides with the debt.
(Code Civ. “Rules of Evidence” where Appellee's used hearsay and unsubstantiated assertions by the attorney of record which Appellant addressed extensively in her opposition to summary judgment.or altering its nature. . subd. to the alteration of their condition or the exclusion of the owner's rights." Id.3d 18. or wrongfully assuming title in himself. 1. § 437c. at 300." BALLENTINE'S LAW DICTIONARY. . Conversion is "An unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another.. Judge Wilken failed to address item V. Judge Wilken failed to address WELLS FARGO’s act of conversion based upon Appellant’s fifteen material facts. Second. 35 If there is a single issue of material fact in dispute.. Judge Wilken failed in her judicial responsibilities to address the fifteen material facts in dispute. Judge Wilken adjudicated in favor of the Appellee. (c). Judge Wilken should not have ruled favorably as fraud is against the law. if so. to exclusion or inconsistent with the rights of owner. the court must decide whether to exercise its jurisdiction. Proc." BLACK'S LAW DICTIONARY.is committed in the execution of loan documents and Notices of Default.'" Mann v. Appellant charged WELLS FARGO with conversion. . To not address each fact constitutes grounds for granting Appellant’s motion to set-aside the Summary Judgment.) REASON FOR THE APPEAL Judge Wilken cited that the court must determine if there exists an actual case or controversy within the court’s jurisdiction.or that of a third person. . This act of conversion is further clarified: "It is an essentially tortuous act. 3rd ed. The Judge also did not address item VI regarding the use of improper affidavits on the part of Attorney Christopher .. quoting 18 AmJur2nd. at 300. 5th ed. the motion must be denied. at 269. finding no case or controversy exists between the parties and granted the Appellee Summary Judgment. an act which cannot be justified or excused in law.. Unauthorized and wrongful exercise of dominion and control over another's personal property. WELLS FARGO and Judge Wilken must address each fact. Direct Conversion is "The act of actually appropriating the property of another to his own beneficial use. Conversion. Cracchiolo (1985) 38 Cal. Any unauthorized act which deprives an owner of his property permanently or for an indefinite time. The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory.
Appeal from Final Judgment-33 . Despite the fact that Appellant provided fifteen material facts in dispute proving Appellee has no foundation or standing to foreclose. Mr.A. 3-309 which states that “Judgment to enforce the instrument cannot be given unless the court finds that the (Appellants) will be adequately protected against a claim to the instrument by a holder that may appear at some later time. unenforceable and fraudulent. Carr did not comply with the rules of filing a sufficient affidavit and asked that Judge Wilken rule for Summary Judgment based on unauthenticated hearsay evidence. Appellant seeks relief from a contract that is unconscionable. Judge Wilken failed to address material fact VII in which Appellant’s due process rights were violated. Judge Wilken’s failure to address all material facts of the summary judgment before ruling in favor of the Appellee is substantial proof that Appellant has a right to an Appeal so that her case can be heard completely and without bias. Judge Wilken also failed to respond to Material fact VIII in regards to returning the note and deed pursuant to U.C.an employee of WELLS FARGO BANK N.” And although Appellant made it very clear that predatory lending had occurred and stated why in Material fact X. Instead WELLS FARGO noticed her in the form of a package of papers being left in a corner of her porch on April 26th then sold her home at auction on April 29th. A lawyer cannot both prosecute a case and testify and Judge Wilken allowed this violation to occur.Carr . and his own testimony was a violation of the attorney code of ethics.C. Appellees fail to properly notice Appellant of two hearings they conducted before Judge Grillo and Judge Freeman to have her case moved to federal court and did not abide by the Superior Court TRO to inform her of any action by April 15th. foreclosure and illegal sale of the Appellant’s home. Judge Wilken failed to address the Material fact X entirely that Appellant is a WACHOVIA/WELLS FARGO Pick-a-Pay loan victim and has been offered compensation by Wells Fargo for their deceptive advertising and predatory lending practices. The Appellee’s Attorney Christopher Carr's declaration was based upon hearsay and not supported by a competent fact witness with personal knowledge. Appellant showed clear evidence that she was suppose to be notified by opposing counsel by April 15 of their actions in regards to the TRO granted by Judge Roesch. Judge Wilken failed to rule on the irregularities of the Appellee's improper notice..
Anything short of this exposes Appellant to the confiscation of her property from a party who is not the real-party-in-interest and . Appellant is requesting the court to return her home to her free from any encumbrance. without encumbrance. illegal foreclosure upon her property. or assert rights in a federal court. CONCLUSION Appellant has proven herein that Judge Wilken has erred in granting summary judgment. effectively getting the house for free. Appellant is requesting compensatory damages in the sum of $433. fraud and quiet title.000 and setting aside of the wrongful foreclosure. and therefore. The Appellant is praying for relief as a result of breach of contract. bankruptcy court and by filing an Adversarial pleading. The California Commercial Code sets forth specific rules for the enforceability of commercial notes. the “lender” actually took possession of the property it had no legal right to. Appellant is requesting relief because she is here today solely as a result of Wells Fargo's fraudulent behavior. and they cannot or are not forced to produce legal evidence that they are the owner of the loan. federal court. Appellant is requesting relief to establish that tender cannot be required when the Appellee's underlying actions are based in fraud. This Honorable Appeals Court has comprehensive grounds to grant this appeal and remand Appellant’s case so that the alleged creditor is required to prove its legal status to collect on Appellant's loan. the agreement is void as a result of fraud in the factum and the foreclosure was wrongful.Appellant has sought justice in state court. concealment. Appellant requests that this Honorable Court set aside Wells Fargo's illegal foreclosure action and determine that WELLS FARGO is not the holder in due course. the Honorable Court has solid grounds to reverse and remand this case back to district court for trial. unjust enrichment. that Appellant did indeed prove many material facts in dispute. This is not an unreasonable request considering when a "lender" seeks to foreclose. Appellant has never had a fair opportunity to have her pleading(s) heard. Appellant asserts that the restoration of her property to its rightful owner is the only just and equitable way that Appellant can be compensated for the wrongful. misrepresentation. wrongful foreclosure.
Appellant prays that this Honorable Court acknowledge the fraud. sanction WELLS FARGO and set aside the wrongful foreclosure. Appellant prays this Court will award damages. Appellant prays that this Honorable Court will take the evidence submitted before this court and agree that the Appellant has been victimized by WORLD SAVINGS BANK. malfeasance and malicious behavior the banks have perpetrated against an unaware public for decades. Appellant reminds this Honorable Court that she is Pro Per. Commercial Code 3-309. . Appellant also request the opportunity for oral argument.exposes her to illegal debt collection actions for which she is entitled to be protected from pursuant to Cal. marked discharged so that they are removed from the stream of commerce. Respectfully Submitted. Date: June 8. WACHOVIA and WELLS FARGO for their own enrichment and benefit. and requests that this appeal be reviewed for the substance. Dennis Appeal from Final Judgment-35 . Appellant prays that the Court will order her Loan Documents be returned pursuant to Cal. 2011 ___________________________________ Tanya D. and requests that her pleadings with exhibits be fully reviewed so as to understand the weight of her claims and evidence. If for any reason the foreclosure is allowed to stand. Commercial Code 3-309.
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