You are on page 1of 35

Case: 11-15370 UNITED STATES

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, 152153, 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, 18981899, 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

corporate entity has no parent corporation, subsidiaries or affiliates that has issued shares to the pub STATEMENT OF THE BASIS OF APPELLATE JURISDICTION First, the notice of appeal was timely filed because it was filed within fourteen days after entry of the order or judgment being appealed. Second, the appeal is based upon a final order by Federal Judge Claudia Wilken. The Appellant filed an "Opposition to Summary Judgment" and it was denied. Federal Judge Claudia Wilken ruled in favor of the Appellees Wells Fargo Bank and granted Summary Judgment, denying all fourteen points made by the Appellant. As a result of that decision, if allowed to stand, 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. 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. CASE NO: 08-MISC-384283 - U.S. BANK V ANTONIO IBANEZ CASE NO: 08-MISC-386755 - WELLS FARGO BANK V MARK & TAMMY LARACE BAP NO. cc-09-1396-HPDu. Bk. No. 09-15088-TD - FAWN RIDGE PARTNERS, LP V BAC HOME LOANS SERVICING, LP CASE NO: 08-15337 CH 7 - IN RE: HWANG CASE NO: 08-17036 CHAPTER 7 - - IN RE: VARGAS CASE NO: 10-21656 CHAPTER 11 - IN RE: WALKER 13DAVIES V NDEX WEST CASE NO: 20100314 - EDSTROM V NDEX WEST, WELLS FARGO BANK CASE NO: CV10-5152GW -CARSWELL V. JPMORGAN CHASE CASE NO. CV10-2168IEG -KHAST V WASHINGTON MUTUAL, 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 - DEUTSCHE BANK (Ohio).

STATEMENT OF THE ISSUES PRESENTED AND APPLICABLE STAND FOR REVIEW Appellant's case has questions of law and is therefore a de novo issue. Federal Judges in the State of California are not consistent in their rulings, which raises the question of "When the Debtor challenges the Bank's standing in court, 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, 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. She failed to rule on six of the material facts presented before her. 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. 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. However, Judge Wilken neglected to rule on all actions brought before the court. Therefore, material facts in dispute remain. In accordance with the recent ruling in EHP GLENDALE HILTON, LLC v. County of Los Angeles, 193 Cal. App. 4th 262 that stated ...that the trial court erred in granting a summary judgment on an incomplete record, and, in any case, the record establishes there are triable issues of material fact. For the reasons explained below, the judgment must be reversed and the case remanded for trial, this court has solid grounds to reverse and remand this case. Appellant is requesting an independent determination of the issues, giving no special weight to the Federal court's decision. "Salve Regina College v Russell", 499 U.S. 225, 238 (1991). Appellant asserts that WELLS FARGO must provide the Note in order to prove standing to foreclose. "The burden of proving an assignment falls upon the party asserting rights thereunder. In an action by an assignee to enforce an assigned right, the evidence must not only be sufficient to establish the fact of assignment when that fact is in issue, 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.""Cockerell v. Title Insurance & Trust Co" (1954) 2.Cal.2d 284, 292 - "Only the holder of the Note can initiate foreclose

Appeal from Final Judgment-5

proceedings, regardless of to whom the mortgage is owed."- Adler v. Sargent (1895) 109 Cal. 42, 49) "A common practice was to assign a note in "blank" the bank that purportedly is receiving the note is not named. Such was the case with Appellant's note. 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. It breaks the "clear chain of title" that requires the note be endorsed over to the buyer of the mortgage at each sale, and public recording of the transfer. So even if notes can be produced in foreclosure cases, they do not have the necessary assignments showing each sale and thus proof of the chain of title" Further, [a]n assignment of the note carries mortgage with it, while assignment of the latter alone is a nullity. In Re Leisure Time Sports, Inc., 194 B.R. 859, 861 (9th Cir. 1996) See also, Restatement (3d) of Property (Mortgages) 5.4, stating that, [a] mortgage may be enforced only by, or in behalf of, a person who is entitled to enforce the obligation that the mortgage secures. The only way of determining real party of interest, especially when there has been breaks in the chain in title as the Appellant has discovered, is to examine the original note. Therefore producing the note is central to identifying as to who is actually entitled to demand payment. The Honorable Judge was clearly erroneous in her denial of the Appellant's opposition to Summary Judgment that Appellant had "no good cause". Appellant provided new evidence to the Judge in the form of a preliminary forensic audit report that stated WELLS FARGO et al, had broken the chain of title, therefore had no standing to foreclose. Appellant believes, based on the merits of her evidence, 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. "Las Vegas Ice & Cold Storage Co. v. Far West Bank," 893 F.2d 1182, 1185 (10th Cir. 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 Appellees Attorney Christopher Carrs declaration that he was in possession of Appellants original promissory note without making the Appellees attorney present the note to the court. An attorney representing the Appellee cannot also testify in behalf of their client. Moothart v Bell, 21 F.3d 1499, 1504 (10th Cir. 1994). Judge Wilken demonstrated clear prejudice in favor of the banks in this

instance when Appellant presented written verifiable proof in the form of a forensic audit, CUSIP number and Affidavit by securitization expert, J.D Davis, but ruled in favor of the Appellees attorney who only presented a declaration without verifiable proof that he was in possession of the Appellants note. Respectfully, Attorney Carr is not qualified to state he has the original note, only a forensic handwriting expert could ascertain the validity of the document in question. Although it has been proven in court, publicized in the news and admitted by Wells Fargo that they performed 55,000 illegal foreclosures in the State of California, and that the Appellant is a Pick-a-Pay loan victim, a special category of borrowers that Wells Fargo has admitted were given the most toxic loan on the market, and as a result of deceptive advertising and predatory lending, have entered into an Assurance Agreement with the State Attorney General in order to compensate Pick-a-Pay borrowers, Judge Wilken disregarded these compelling facts and granted the Appellee Summary Judgment. Despite the submission of a forensic loan audit that revealed fraud in the Substitution of Trustee on December 9, 2010. Judge Wilken dismissed the Appellants fraud charges stating that the statute of limitation had run its course. The Judge was clearly in error. Fraud was committed from the inception of the loan in 2006, with the Substitution of Trustee on December 16, 2010, and with the illegal foreclosure upon Appellants home on April 29, 2010. California Code of Civil Procedure 338(d) In regards to the loan in 2006, 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. Accordingly, the statute of limitations will run in February 2013. Thus, Appellant is not barred and is within the Statute of Limitations, and therefore is allowed to bring an action for fraud. STATEMENT OF THE CASE Appellant, a school teacher, filed a Verified Complaint against WELLS FARGO in April 6, 2010 charging WELLS FARGO with Breach of Covenant of Good Faith and Fair Dealing; Concealment; Unjust Enrichment; Wrongful Foreclosure; Violation of California Code 1788.17; Misrepresentation/Fraud/ Breach of Contract; and Quiet Title. To save her home from sale Appellant was forced to file a Chapter 13. Appellant is a World Saving Bank Pick-A-Pay loan victim. The predatory nature of the Pick-a-Pay loans victimized many thousands of Californians. Borrowers unknowingly acquired toxic loans as a result of

Appeal from Final Judgment-7

deceptive advertising and WORLD SAVINGS BANK agents capitalized by obtaining negative amortization loan agreements which by their very nature are predatory, because these type of loans starts with a low teaser rate that kicks into one with escalating interest rates, no payment towards the principal, and within a few years a higher principal than originally agreed to. The results leave borrowers with payments they can no longer afford. Unfortunately, they foreclosed on the Appellant's property illegally. Despite a temporary restraining order in State court with a directive to answer the Appellant by April 15th 2010, the Appellee transferred Appellant case to federal court without proper notification. Appellant receive notification on April 26th that her case was transferred to federal court and on April 29th Appellee sold Appellants property back to their company for $27,000.00. More disturbing is that with the dismissal of the Appellants request for Preliminary Injunctive Relief on November 18th by Judge Wilken, the opportunity for relief from such prohibit forms of foreclosure is being denied. Denied despite Appellants 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, Judge Wilken abused her discretion by disregarding this evidence, not allowing Appellant a hearing, and granted Summary Judgment to the Appellee. Appellant is seeking the protection of Article I of the California Constitution and her Fifth and Fourteenth Amendments rights which grants rights to life, liberty and property under due process of law. Appellant asserts that she deserves the opportunity to prove the merits of her case, which despite supporting law, evidence, and fact, has yet to occur. STATEMENT OF FACTS A. Case History 11 B. C. D. E. Breach of Contact Concealment Wrongful Foreclosure Unjust Enrichment 13 16 16 19

F.. G..

Fraud Quiet Title

19 20

ARGUMENT The courts must give Appellant relief from the illegal foreclosure of her home by Wells Fargo. 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 argues that the Forensic Audit proves the merits of her charges. Appellant will show WELLS FARGO is guilty of all charges listed in her pleading. Appellant argues that because of a "standard operating procedure" mentality within the judicial system, the State, Federal and Bankruptcy judges in her case have not rendered justice and that this is a nationwide trend according to overwhelming fact. 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. Appellant argues that it is time to put an end to the foreclosure nightmare that the banks are perpetrating upon the public, which has recently been reported many times in mainstream national news. These reports expose so much fraud that presently the Attorney Generals in all fifty states are investigating the use of fraudulent documents, lost loan documents, robo-signers, and broken chain of title due to securitization. Appellant is one of its victims.

STATEMENT OF RELATED CASES CASE NO: 08-MISC-384283 - U.S. BANK V ANTONIO IBANEZ CASE NO: 08-MISC-386755 - WELLS FARGO BANK V MARK & TAMMY LARACE BAP NO. cc-09-1396-HPDu. Bk. No. 09-15088-TD - FAWN RIDGE PARTNERS, LP V BAC HOME LOANS SERVICING, LP CASE NO: 08-15337 CH 7 - IN RE: HWANG CASE NO: 08-17036 CHAPTER 7 - - IN RE: VARGAS

Appeal from Final Judgment-9

CASE NO: 10-21656 CHAPTER 11 - IN RE: WALKER 13DAVIES V NDEX WEST CASE NO: 20100314 - EDSTROM V NDEX WEST, WELLS FARGO BANK CASE NO: CV10-5152GW -CARSWELL V. JPMORGAN CHASE CASE NO. CV10-2168IEG -KHAST V WASHINGTON MUTUAL, 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 - DEUTSCHE BANK (Ohio)

STATEMENT OF FACT Appellant has owned 2027 Woolsey Street for 28 years where she raised her children and grandchildren, and where Appellant currently resides. Appellant is a retired school teacher, who through prudent savings and investments was able to buy property and prosper. 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. She is a WELLS FARGO Pick-aPay Victim, which has been made abundantly clear by the Attorney General's office throughout the United States that Pick-a-Pay is predatory lending, 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." The Appellant has found that the courts are not amenable to litigants challenging the banks standing. This is why Appellant is now in the appeal stage. 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. Federal Judge Wilken challenged Appellant/Appellants assertion that WELLS FARGO, et al, was guilty of RICO citing their singular entity status. 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. However, she disregarded Cal. Commercial Codes 1-201, 3-201(b),

3-203(a), 3-301, 3-603, and 3-309 which govern requirements for a party to prove they are the holder in due course, which ultimately requires proving possession of the note. Appellant responded that the contract she had entered into was fraudulent, thus nullifying the contract between the Appellant and Appellee, 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. Judge Wilken failed to acknowledge or consider that Appellee was guilty of deceptive practices, had enticed the Appellant into a confession of judgment with the signing of an illegal cognovit contract, 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. In a hearing before Judge Wilken, Appellant recited California Civil Code 1132(b) and 1133 to

substantiate her charges.

"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. Civ. Code of Proc. 1132(b) so that the confessed judgment is shown clearly on its face to been given voluntarily, knowingly, and intelligently after receiving independent legal advice..."(Isbell v. County of Sonoma (1978), 21 Cal. 3d, 61, 64, 74, 145 Cal. Rptr. 368 Despite submitting fifteen verifiable charges against the Appellee, Judge Wilken denied the Appellant's motion in Opposition to Summary Judgment pending the outcome of her Verified Complaint. Appellant's filings in State Court, 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. The certificate shall be filed with the filing of the statement required by section 1133.A statement in writing must be made, signed by the Appellee, and verified by his oath, to the following effect: It must authorize the entry of judgment for a specified sum; If it before money due, or to become due, it must state concisely the facts out of which it arose, and show that the sum confessed therefore is justly due, or to become due; Appeal from Final Judgment-11

lacks standing to foreclose as they are not the holder in due course. Appellant has a forensic loan audit that substantiates this charge. All charges Appellant has made against the Appellee WELLS FARGO have been totally ignored and discounted by the court thus far. Not one judge in any hearing has ever asked WELLS FARGO to prove they are the holder of the Appellant's note. Judge Wilken neglected in her order to address six of the Appellant's material facts in her Opposition to Summary Judgment. These material facts still apply and render the summary judgment void. Appellants right to argue the merits of her case were trampled upon. As a result, 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. In Bankruptcy and Federal court, 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. Pick-a-Pay is predatory because these negative amortization loans had teaser rates with interest rates that increased rapidly, rendering the loan not affordable after a short period of time. 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. In addition, the rampant non-disclosure of many aspects of this contract made the contract void ab initio. These issues were never allowed to be address by the judges in State, Federal or Bankruptcy court even though Appellant presented these facts in motions, exhibits and presentation which are all on the record.

CASE HISTORY Appellant obtained a mortgage from WORLD SAVINGS BANK. on ,October 6, 2006. The closing was a rushed process with no lawyer present, and the notary, Dena Walls, failed to explain anything to Appellant. Appellant has become informed and now realizes that the Loan Documents Appellant signed were full of cognovit clauses. World Saving induced Appellant to sign a contract of adhesion, and a confession of judgment which is

completely unconscionable. The contract was designed to deceive Appellant by concealing the true risks. WORLD SAVINGS BANK concealed how Appellants Loan Documents would be used by the Lender and other parties to profit through securitization, and WORLD SAVINGS BANK deceived Appellant into waiving her rights to ownership by what amounted to confession of judgment. Appellant was deprived of her rights to not be victimized by gross misrepresentation in the making of a contract. Appellant has become informed and realizes that the Lender, WELLS FARGO BANK N.A., engaged in predatory lending against her. Movant never verified Appellants income, and WORLD SAVINGS BANK has been widely exposed for misleading the greater public into risky home loans that resulted in foreclosures en masse.

Appellant is a victim of one of the largest loan scandals in United States history, the notorious pick-apay loan. 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 12,000 whose homes have been foreclosed upon.

When WELLS FARGO BANK N.A. acquired WACHOVIA MORTGAGE, FBS who acquired WORLD
SAVINGS BANK, Appellant had no idea of the whereabouts of her Loan Documents. When WACHOVIA BANK FSB assigned Appellants property to Appellee, WELLS FARGO BANK AND CAL-WESTERN RECONVEYANCE, Inc., who has attempted to evict Appellant, Appellant had no idea of the whereabouts of her Loan Documents. Appellant now knows the whereabouts of her note as a result of a forensic loan audit that Appellants note is in a securitized Fidelity Select Biotechnology Quote CUSIP # 316390772 (Major) FBIOX. To receive justice for WELLS FARGO egregious behavior and actions, Appellant filed a Verified Complaint on April 6, 2010 with the intention of obtaining an evidentiary hearing and discovery enabling Appellant to prove without a doubt, 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, according to the forensic audit, none of the named parties in the Complaint had authority

Appeal from Final Judgment-13

to enforce the note or had standing to foreclose. Therefore, any foreclosure action is void and fraudulent. Appellant's complaint was and still is supported with both law and facts. Appellee, WELLS FARGO BANK, who is named in Appellant's Verified Complaint, failed to answer as required by the Rules of Civil Procedure. Instead, they relied on the Federal Judge to deny the Temporary Restraining Order and Preliminary Injunction in order to foreclose. On July 12, 2010, the Honorable Judge Claudia Wilken denied the Appellant motion for a Temporary Restraining Order and Preliminary Injunction. To this day WELLS FARGO has not answered. According to the break in chain of title and the securitization of the Appellant's note, WELLS FARGO has no standing to take possession of the Appellant's property, yet for the last six months they have been attempting to do so. With the denial of the Temporary Restraining Order, Appellant was forced to file a Chapter 13 Bankruptcy for protection to allow time for her case to be heard. Appellant can and will prove the merits of the claims within Appellants Appeal which Appellant put in detail in her Verified Complaint, Motion for Reconsideration, Motion for Injunctive Relief and Opposition to Summary Judgment.

BREACH OF CONTRACT WELLS FARGO BANK is guilty of breach of contract from invalid substitution of trustee as well as securitization as explained below. Although Judge Wilken acknowledged the Substitution of Trustee in her Background statement, she failed to acknowledge that the substitution was a fraudulent conveyance. Evidence of fraud was submitted to her in the form of two forensic loan audits, one by Certified Forensic Loan Auditors and the other by AMR Management. 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. However both firms confirmed the fraudulent transference of the substitution of trustee. This alone should was grounds to deny the summary judgment. The judge also acknowledges that the Appellee transferred the Appellants case from state court to

federal court, but failed to acknowledge the evidence that the Appellant was not properly noticed, 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. Appellant's loan had cognovit clauses, 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. Civ. code 1132(b) and 1133 and Overmeyer vs. Frick. Terms such as "seized,", "the property is lawfully seized," "notice of presentment", irrevocably waived" were in the Appellant's contract. 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. Appellant informed Judge Wilken that she did not understand the above reference terms, therefore a "meeting of the minds" was impossible. If there is not a "meeting of the minds" the contract is void. 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. There was no extra consideration given by WORLD SAVINGS BANK to Appellant. 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, void, and is a breach of contract. 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. 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. Since WORLD SAVINGS BANK went out of business and Appellants Loan Documents were acquired by other parties, 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.

Appeal from Final Judgment-15

Appellant went into detail as stated above in her Verified Complaint regarding breaks in the chain of title and securitization. Appellant submission of AMRs forensic loan audit substantiated the Appellants 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 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, thereby making a "meeting of the minds" and an acceptance of terms and conditions impossible. Judge Wilken ruled in favor of the Appellee stating that the cognovits clauses were not cognovits clauses or unconscionable. She ruled that the Appellant cited them out of context, and "the provisions in the Deed of Trust appear to be typical for loan documents." Judge Wilken ruled on presumption rather than fact. The citations were not out of context. Appellant submitted as evidence the Deed of Trust in which the cognovits clauses were found. If Judge Wilken had read the Deed of Trust, which it is apparent she did not, she would have seen the statements were not cited out of context. As for the provisions appearing to be typical for loan documents, 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. Fifty-five thousand illegal foreclosures by WELLS FARGO have already been identified in the State of California alone. Obviously presumption is not enough for the Federal and State investigators. The fact that Appellant was unknowingly misled and rushed into signing an illegal cognovit note forfeiting ownership of her property to her grave detriment, resulted in being deprived of her rights to protect her property under due process of law for violations of law such as fraud, misrepresentation, concealment, and suppression or omission of material facts. The contract presented by WORLD SAVINGS BANK was one of adhesion, 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. "Under California law, where a party in a position of unequal bargaining power is presented with an offending clause without the opportunity for meaningful negotiation, oppression and therefore,

procedural unconscionability, are present." See Ferguson v. Countrywide Credit Industries, Inc., C.A.9 (Cal.) 2002, 298 F.3d 778. Judge Wilken dismisses the Appellants charge of fraud stating that the statute of limitation of three years has passed. Appellant argues that the statute of limitations starts tolling when the fraud is discovered. The doctrine of equitable tolling was defined by the Supreme Court in Holmberg v. Armbrecht, 327 US 392, 66 S. Ct. 582, 90 L. Ed. 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, the bar of the statute does not begin to run until the fraud is discovered, 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. 327 U.S. at 397. The Supreme Court went on to state: This equitable doctrine is read into every federal statute of limitation. unless Congress has expressly legislated otherwise, the equitable doctrine of discovery is read into every federal statute of limitations. Ibid. (quoting Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946)). The Doctrine Of Fraudulent Concealment - If a lender conceals wrongdoing, thereby preventing a borrower from discovering a cause of action, the statute of limitation will be tolled until the date the Appellant, through due diligence, would have learned of the existence of a claim. 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. 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). The doctrine of equitable tolling extends the statutory period only where, despite all due diligence, a Appellant is unable to obtain vital information bearing on the existence of his claim. Santa Maria v. Pac. Bell, 202 F.3d 1170, 1178 (9th Cir.2000). Equitable tolling focuses on whether there was excusable delay by the Appellant, and does not depend on any wrongful conduct by the Appellee to prevent the Appellant from suing. Another area of case law that applies here is on the court being "equitable" and "doing justice" which

Appeal from Final Judgment-17

takes precedence over everything else. In the case of a fraudulent transaction California law is settled. The Court in Trout v. Trout, (1934), 220 Cal. 652 at 656 made as much plain: Numerous authorities have established the rule that an instrument wholly void, such as an undelivered deed, a forged instrument, or a deed in blank, cannot be made the foundation of a good title, even under the equitable doctrine of bona fide purchase. Consequently, the fact that Appellee Archer acted in good faith in dealing with persons who apparently held legal title, is not in itself sufficient basis for relief. (Emphasis added, internal citations omitted). This sentiment was clearly echoed in 6 Angels, Inc. v. Stuart-Wright Mortgage, Inc. (2001) 85 Cal.App.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, unfairly or unlawfully conducted, or is tainted by fraud, or where there has been such a mistake that to allow it to stand would be inequitable to purchaser and parties. (Emphasis added).Appellant discovered the fraud when she obtained a forensic loan audit in 2010. In addition new fraud was committed in 2009 with the Substitution of Trustee was assigned. All occurred within the three year period of time. In regards to privity of contract, 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. WELLS FARGO fraudulently relied on the Substitution of Trustee dated January 14, 2010, recorded on February 3, 2010 and signed by Jennifer Victa, Assistant Vice President The forensic loan audit provides evidence that CAL-WESTERN RECONVEYANCE was not duly assigned and Jennifer Victa, was not a duly appointed officer. These are fatal issues that rendered Pretender Lender Wells Fargo's foreclosure invalid, fraudulent and illegal. The forensic loan audit also reveals that there was a break in the chain of title. The note was securitized to Fidelity Select Biotechnology Quote on January 5, 2007.

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. WACHOVIA committed fraud by misrepresenting itself as a beneficiary. WACHOVIA committed misrepresentation and fraud because they never delivered the original Note and the Deed of Trust together to WELLS FARGO. 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. 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. There is no provision in the Deed of Trust allowing for securitization. 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. WELLS FARGO failed to follow this procedure since they had no beneficial interest and capability to duly acknowledge and record such a substitution. All parties, WORLD SAVINGS BANK, 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. See WELLS FARGO BANK v Mark & Tammy Larace 08MISC-386755 and U.S. Bank v Antonio Ibanez 08-MISC-384283.

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. 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. Code 2924. Appellant, upon research discovered that WACHOVIA is responsible for undisclosed and unauthorized securitization resulting in unjust enrichment. Judge Wilken made no reference to the concealment material fact in Appellant Opposition to Summary Judgment.

Appeal from Final Judgment-19

WRONGFUL FORECLOSURE When the Deed of Trust is separated from the Note the Deed is rendered a nullity. The Deed of Trust states, "This Security Instrument secures to Lender (a) the repayment of the debt evidenced by the Note." Therefore the Deed without the Note is inconsequential. WELLS FARGO never possessed the note again falsely representing beneficial interest. By transferring or assigning the Note and separating it from the Deed, WELLS FARGO took part in a chain of actions which led to wrongful foreclosure, thereby damaging Appellant and depriving her of beneficial use of her property. CAL-WESTERN RECONVEYANCE, the Substitute Trustee was not "duly assigned" according to the forensic loan audit and paperwork submitted by CAL-WESTERN RECONVEYANCE themselves. On December 12, 2009, Cal Western recorded the Notice of Default. When the Notice of Default is recorded the beneficiary must be in physical possession of the Note and Deed of Trust. However, CALWESTERN didn't record the Substitution of Trustee until February 3, 2010 which means that CALWESTERN RECONVEYANCE had no authority on December 12, 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. With such extreme irregularities regarding the Trustee's Sale. Appellant is not bound by the tender rule in this action and cannot be subjected to such fraudulent actions by the Appellee. 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. Furthermore, only the creditor can require tender. CAL-WESTERN RECONVEYANCE was obviously not the creditor, and WELLS FARGO was a servicer. With abundant proof of void conditions of the contract and fraudulent actions by WORLD SAVINGS BANK, and the wrongful foreclosure by CAL-WESTERN RECONVEYANCE, Appellee's contract with Appellee's is totally void, rendering any requirement for tender invalid. 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. Code 2924.

"The bankruptcy court determined that the Debtor's challenge to BAC as the real party in interest was waived. However, 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.. . .For the foregoing reasons, we REVERSE the bankruptcy court's order granting stay relief to BAC. BAC is free to file a new motion for relief from stay if it can properly demonstrate its standing." Fawn Ridge Partners, LP v. BAC Home Loans Servicing, LP United States Bankruptcy Appellate Panel of the Ninth Circuit, 3/29/10, p.12 According to the Forensic Loan audit, WELLS FARGO nor CAL-WESTERN RECONVEYANCE had possession of all the genuine security instruments originally executed by the Appellant. Absent Wells Fargo's actual possession of the genuine security instruments or authority of ownership, at all material times relevant to their actions, deprives them and any representatives including any agents or John Does, also lacking possession of said security instruments of legitimate standing by which to effectuate sale of Appellant's property. "The deed of trust is a typical contract of adhesion; therefore, when interpreting the trust deed any ambiguities are interpreted against the beneficiary who prepared the form." (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.) "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, even if the customer has a meaningful choice as to service providers. Shroyer v. New Cingular Wireless Services, Inc., C.A. 9(Cal.) 2007, 498 F.3d 9786" The foreclosure on Appellant's property is wrong because at all material times antecedent to their actions, WELLS FARGO knew or should have known, 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. According to In Re Walker, 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.

Appeal from Final Judgment-21

There is no GAAP-Compliant Ledger showing assets and liabilities which provide evidence that WELLS FARGO is a Creditor of Appellants' Security Instruments. Only by inspecting the original Note can Appellant determine who the actual creditor is and who is authorized to collect payment. Appellant has been clearly harmed by such deceptive and improper actions related to real party in interest status, which has resulted in wrongful foreclosure and the loss of her property. If the wrongful foreclosure is upheld for any reason, WELLS FARGO or any Does must return Appellant's certified original Security Instruments for her possession with Note marked satisfied or discharged. Otherwise, they will wantonly leave the Security Instruments at issue in the open stream of commerce, thereby subjecting Appellant to double jeopardy, 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, in violation of Appellant's rights.

UNJUST ENRICHMENT Appellant re-alleges points made under the section under concealment. Selling Appellant's Note to a securitized trust to be traded on Wall St. with profits collected by multiple entities such as the originator, master servicer, depositor, CDO manager, document custodian, trustee, underwriter, securities administrator, and certificate holders constitutes unjust enrichment. 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. The Forensic audit shows the chain of conversion when the Security Instruments were securitized in January 2007 with the Fidelity Select Bio-Technology Quote, CUSIP Number 316390772 hedge fund manager's name is Rajiv Kaul, located at 82 Devonshire Street, Boston MA 02109 and in a Fidelity Advisor Global Capital Appreciation CL A,CUSIP Number 315920629. Hedge Fund Manager's Name is victor Y Thay at 82 Devonshire Street , Boston MA 02109. 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

Conversion." Judge Wilken failed to address in her order whether Appellee was guilty of unjust enrichment.

FRAUD Jonathan Castillo, 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. Mr. Castillo knew the Pick-a-Pay loan was a set up for failure. Dena Walls, the notary, misrepresented and committed fraud by failing in her legal obligation to comply with Cal. Civ. Code 1132(b) requiring full disclosure by an attorney in a confession of judgment, accompanied by a certification. Jonathan Castillo and Dena Walls committed fraud by failing to comply with Cal. Civ. 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. WORLD SAVINGS BANK failed to assign to WACHOVIA the security instruments.

WACHOVIA committed fraud by misrepresenting itself as a beneficiary. 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. WELLS FARGO, which is a servicer without any indication of being a holder, real party in interest, or having authority from a creditor, committed fraud by misrepresenting that they had standing to foreclose when they didn't. Fraud was committed on December 10, 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. 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.
2

_Fraud in the Factum is a type of fraud where misrepresentation causes one to enter a transaction

without accurately realizing the risks, duties, or obligations incurred. This can be when the maker or drawer of a negotiable instrument such as a promissory note or checks, 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."

Appeal from Final Judgment-23

A.

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. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.C.C.P. 338(d). B. THE APPELLANTS' CLAIMS ARE NOT FEDERALLY PREEMPTED

1. The Law of Federal Preemption in General. The federal Constitution directs that the Laws of the United States ... shall be the supreme Law of the Land ...; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (U.S. Const., art. VI, cl. 2.) State laws can be contrary to, and thus preempted by, federal law in either of two general ways. [1] If Congress evidences an intent to occupy a given field, any state law falling within that field is preempted. [Citations.] [2] If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, [citations], or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress. (Silkwood v. KerrMcGee Corp. (1984) 464 U.S. 238, 248, 104 S.Ct. 615, 78 L.Ed.2d 443.)

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. (New York Dept. of Social Services v. Dublino (1973) 413 U.S. 405, 413, 93 S.Ct. 2507, 37 L.Ed.2d 688, quoting Schwartz v. Texas (1952) 344 U.S. 199, 202203, 73 S.Ct. 232, 235, 97 L.Ed. 231.) 2. The HOLA, the OTS, and its Regulations Federally chartered savings associations are regulated by the Home Owners' Loan Act (HOLA), codified in title 12 of the United States Code, beginning with section 1461. As amended, the HOLA creates the Office of Thrift Supervision (OTS) (12 U.S.C. 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., 1464(a)(2)). Pursuant to that authority, the predecessor to the OTS promulgated 12 Code of Federal Regulations

section 545.2 (section 545.2), 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, as set forth in section 5(a) of the [HOLA]. 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. In 1996, the OTS issued 12 Code of Federal Regulations section 560.2 (section 560.2) to address preemption specifically in the context of lending operations. (61 Fed. Reg. 50951, 50952 (Sept. 30, 1996).) Section 560.2 states that the OTS hereby occupies the entire field of lending regulation for federal savings associations, thereby permitting federal savings associations to extend credit without regard to state laws purporting to regulate or otherwise affect their credit activities, except to the extent provided in paragraph (c) of this section .... ( 560.2(a).) It illustrates the scope of the preemption by listing various examples of the types of requirements that are within the field of exclusive regulation ( 560.2(b)) and then specifying the types of laws that are outside that field ( 560.2(c)). 3. The Appellants' UCL Claims Are Not Preempted by Section 560.2 First, as with any other issue arising under the Supremacy Clause of the United States Constitution, Appellants analysis start[s] with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress. (Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407, quoting Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447.) The states' historic police powers include the regulation of consumer protection in general and of the banking and insurance industries in particular. (Smiley v. Citibank (1995) 11 Cal.4th 138, 148, 44 Cal.Rptr.2d 441, 900 P.2d 690; 20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 240, 32 Cal.Rptr.2d 807, 878 P.2d 566.) Therefore, there is a strong presumption (Cipollone, p. 523, 112 S.Ct. 2608) that section 560.2 does not preempt the claims brought in this action. To overcome that presumption against preemption, Appellee bears the burden of establishing that the claims are preempted. (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 937, 216 Cal.Rptr. 345, 702 P.2d 503.) Second, no issue of implied preemption is before us. When Congress adopts legislation that includes a provision expressly addressing the issue of preemption, there is no need to infer congressional intent.

Appeal from Final Judgment-25

(Cipollone v. *1301 Liggett Group, Inc., supra, 505 U.S. at p. 517, 112 S.Ct. 2608.) Congress' enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not preempted. (Ibid.) The same reasoning applies here, where the express statement of preemptive intent is included in an administrative regulation rather than a statute. The question, therefore, is whether the scope of the express preemption extends to the claims at issue here. a. No Preemption Under Cipollone v. Liggett Group, Inc. 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. (Cipollone v. Liggett Group, Inc., supra, 505 U.S. at p. 523, 112 S.Ct. 2608.) Since then, the same method has been applied by California courts both in that context (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 10661067, 31 Cal.Rptr.2d 358, 875 P.2d 73) and in others (see, e.g., Etcheverry v. TriAg Service, Inc. (2000) 22 Cal.4th 316, 335, 93 Cal.Rptr.2d 36, 993 P.2d 366 [Federal Insecticide, Fungicide, and Rodenticide Act] ). This Court must fairly butin light of the strong presumption against pre-emptionnarrowly 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. (Mangini, pp. 10661067, 31 Cal.Rptr.2d 358, 875 P.2d 73, quoting Cipollone, pp. 523524, 112 S.Ct. 2608.) As to each state law claim, 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. (Cipollone, p. 524, 112 S.Ct. 2608; Etcheverry, p. 335, 93 Cal.Rptr.2d 36, 993 P.2d 366; Mangini, p. 1067, 31 Cal.Rptr.2d 358, 875 P.2d 73.) The Appellant claims that World Savings Bank committed fraud because of misrepresentation, deceptive adverstising, illegal cognovit clauses and securitization of Appellant's note. 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, on the duty not to misrepresent material facts, and on the duty to refrain from unfair or deceptive business practices. Those predicate duties are not requirements or prohibitions of the sort that section 560.2 preempts. That section preempts (1) state laws that (2) either purport to regulate federal savings associations or otherwise materially affect their credit activities. The predicate duties underlying the Appellants claims do not meet that

description. The Appellants principal complaint concerns the violation of contractual duties. Contractual duties are voluntarily undertaken by the parties to the contract, not imposed by state law. (Cipollone v. Liggett Group, Inc., supra, 505 U.S. at p. 526, 112 S.Ct. 2608.) A stated intent to preempt requirements or prohibitions imposed by state law does not reasonably extend to those voluntarily assumed in a contract. Moreover, none of the predicate duties are directed toward federal savings associations. Instead, the duties on which the Appellants' claims are predicated govern, not simply the lending business, but anyone engaged in any business and anyone contracting with anyone else. On their face, they do not purport to regulate federal savings associations and are not specifically directed toward them. Nor is there any evidence that they were designed to regulate federal savings associations more than any other type of business, or that in practice they have a disproportionate impact on lending institutions. Any effect they have on the lending activities of a federal savings association is incidental rather than material. Accordingly, the Appellants claims are not preempted by section 560.2. The Court erred in concluding otherwise. b. No Preemption under the OTS's Formula Appellants 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. At the time it promulgated section 560.2, 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, the analysis will end there; the law is preempted. If the law is not covered by paragraph (b), the next question is whether the law affects lending. If it does, then, in accordance with paragraph (a), the presumption arises that the law is preempted. This presumption can be reversed only if the law can clearly be shown to fit within the confines of paragraph (c). For these purposes, paragraph (c) is intended to be interpreted narrowly. Any doubt should be resolved in favor of preemption. (61 Fed.Reg. 50951, 5096650967 (Sept. 30, 1996).) Even if this Court were to ignore the contractual nature of the principal obligation that the Appellant seeks to enforce, applying this three-step formula to the Appellant's claims shows that they are not preempted.

Appeal from Final Judgment-27

First, the types of laws that the Appellant seeks to enforce are not listed in subdivision (b) of section 560.2. The Appellants seek to enforce a general proscription of unfair business practices, fraud. More specifically, the Appellants rely upon legal principles regarding the need to comply with contracts and the requirement to refrain from deceptive conduct. The laws themselves do not relate to any of the subjects listed in subdivision (b). Moving to the second step, the laws do affect lending businesses, just as they affect any other business that enters into contracts or makes representations during the course of its operations. Therefore, under the OTS's interpretation of the regulation, a presumption of preemption arises. However, that presumption is rebutted if the laws at issue are general contract and commercial laws that only incidentally affect lending operations. In determining whether the effect of those laws is more than incidental, we are guided by OTS's own explanation of the intended scope of its regulatory preemption. At the time section 560.2 was issued, OTS stated that the purpose of paragraph (c) is to preserve the traditional infrastructure of basic state laws that undergird commercial transactions.... (61 Fed.Reg. 50966 (Sept. 30, 1996).) Accordingly, section 560.2 does not preempt basic state laws such as state uniform commercial codes and state laws governing real property, contracts, torts, and crimes. (Ibid.) 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, contract, tort, or commercial laws, but in reality are aimed at other objectives, such as regulating the relationship between lenders and borrowers, protecting the safety and soundness of lenders, or pursuing other state policy objectives. (Ibid.) The duties to comply with contracts and the laws governing them and to refrain from misrepresentation, are principles of general application. They are not designed to regulate lending and do not have a disproportionate or otherwise substantial effect on lending. To the contrary, they are part of the legal infrastructure that undergird all contractual and commercial transactions. Therefore, their effect is incidental and they are not preempted. To wit, Appellant's ability to sue the Appellee for fraud does not interfere with what the Appellee may do, that is, how it may conduct its operations; it simply insists that the Appellee cannot misrepresent how it operates, or employ fraudulent methods in its operations. Put another way, the state cannot dictate to the

Appellee how it can or cannot operate, but it can insist that, however the Appellee chooses to operate, it do so free from fraud and other deceptive business practices. Consequently, we conclude that Appellant's causes of action against the Appellee are not preempted by Appellee regulations. The Court therefore erred in granting the order of summary judgment on Appellees preemption grounds.

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, Berkeley, CA 94703 DICTIONARY, 3rd ed., at 269, quoting 18 AmJur2nd, Conversion, 1. WELLS FARGO has no legal or equitable right or claim, or interest in said property. WELLS FARGO's Quiet title is based upon the Trustee's Deed purporting to have been executed by Cal Western Reconveyance on December 10, 2009 and purporting to convey title. The forensic audit has already established that the Trustee's Deed is invalid, void and of no force. Based upon proof by the forensic loan audit WELLS FARGO never had legal authority to foreclose or transfer title, 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. 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, rendering any related Trustee Deed void ab initio. Judge Wilken ruled Trustor (Appellant) failed to effectively exercise her right to redeem, therefore the sale was valid and proper. Judge Wilken fails to consider that Appellants contract with Appellee was fraudulent and fraud in the factum nullifies any contract. Judge Wilken also failed to recognize that the purpose of the Appellants Verified Complaint was to state claims that would prevent foreclosure. Judge Wilken without asking Appellee for proof that they were the holder in due course determined that WELLS FARGO was the lender. Wells Fargo is the servicer, not the lender and had/has no standing to foreclose, therefore Appellant had rights to quiet title. Judge Wilken denied Appellants Rico act allegations based upon the discrepancies of the two forensic

Appeal from Final Judgment-29

loan audits submitted by Appellant. 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. Certified Forensic Loan Auditors submitted incomplete information which was noted throughout the audit. Appellant subsequently submitted a complete audit based upon a complete investigation. In addition Appellant submitted a CUSIP number that is the Wall Street industry standard showing the securitization of notes. Tragically Judge Wilken chose to base her decision upon the incomplete forensic audit versus the complete audit. 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. 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), the hedge fund managers names and phone numbers and the dates the two loans were securitized. Despite having this information, the Judge Wilken ruled that the evidence submitted by the Appellant did not prove that the loan was securitized. In addition to the two CUSIP numbers and the forensic loan audit, the Appellant also submitted an affidavit by J.D. Davis, a realtor who attempted negotiations to repurchase the loan from the hedge fund unsuccessfully. J.D. Davis was not sold the note solely because the manager informed Mr. Davis that WELLS FARGO asked them not to sell the note because they were in the midst of a court proceeding regarding the loan. Judge Wilken states that Appellant's claim of RICO fails because Appellants 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. Appellant did provide evidence that her loan was securitized in the form of a complete forensic loan audit, an affidavit by J.D. 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. Judge Wilken states that Appellant did not prove that the securitization of her loan constitutes a pattern of racketeering. If the loan was initiated in California, held in San Antonio Texas and sold to a Fidelity BioTech Fund in Boston Mass. The crossing of state lines for unjust enrichment occurred as Appellant asserted in her Verified Complaint, Request for Injunctive Relief and Opposition of Summary Judgment.

Judge Wilken denied Appellants claim that Appellee's did not have standing because they did not possess the original loan documents. Judge Wilkens 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. Suntrust Mortg., Inc., 2010 WL 546896, *3 (N.D.Cal.) (Uniformly among courts, production of the note is not required to proceed in foreclosure and similarly no production of any chain of ownership is required). The Judge's assertion is true if possession of the note goes unchallenged. However if ownership and break in the chain of title is challenged in a court and fraud is discovered, the court has a judicial obligation to act. In Saxon vs Hillery, CA, Dec 2008, Contra Costa County Superior Court, an action by Saxon to foreclose on a property by lawsuit was dismissed due to lack of legal standing. This was because the Note and the Deed of Trust were owned by separate entities. The Court ruled that when the Note and Deed of Trust were separated, the enforceability of the Note was negated until rejoined. Saxon had one option, which was to rescind the foreclosure, reunite the Deed and the Note by Assignment and then foreclose again. The Deed of Trust is a mere incident of the debt it secures. An assignment of the debt carries with it the security instrument. Therefore, a Deed Of Trust is inseparable from the note/debt and always abides with the debt. It has no market or ascertainable value apart from the obligation it secures. A Deed of Trust has no assignable quality independent of the debt, it may not be assigned or transferred apart from the debt, and an attempt to assign the Deed Of Trust without a transfer of the debt is without effect. This very simple statement poses major issues. To easily understand, if the Deed of Trust and the Note are not together with the same entity, then there can be no enforcement of the Note. The Deed of Trust enforces the Note. It provides the capability for the lender to foreclose on a property. If the Deed is separate from the Note, then enforcement, i.e. foreclosure cannot occur. Separation immediately makes the Deed of Trust void, and as a result, the Note is then an Unsecured Debt, making foreclosure when not in possession of the note an illegal action. Judge Wilken, ruled in favor of the Appellees stating that Appellees had standing to foreclose as they were not obligated to produce the note or production of any chain of ownership of title. However, where fraud

Appeal from Final Judgment-31

is committed in the execution of loan documents and Notices of Default, Judge Wilken should not have ruled favorably as fraud is against the law. Appellant charged WELLS FARGO with conversion. Conversion is "An unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of the owner's rights. Any unauthorized act which deprives an owner of his property permanently or for an indefinite time. Unauthorized and wrongful exercise of dominion and control over another's personal property, to exclusion or inconsistent with the rights of owner." BLACK'S LAW DICTIONARY, 5th ed., at 300. Direct Conversion is "The act of actually appropriating the property of another to his own beneficial use. . .or that of a third person,. . .or altering its nature, or wrongfully assuming title in himself." Id. at 300. This act of conversion is further clarified: "It is an essentially tortuous act, an act which cannot be justified or excused in law." BALLENTINE'S LAW DICTIONARY, 3rd ed., at 269, quoting 18 AmJur2nd, Conversion, 1. Judge Wilken failed to address WELLS FARGOs act of conversion based upon Appellants fifteen material facts. WELLS FARGO and Judge Wilken must address each fact. To not address each fact constitutes grounds for granting Appellants motion to set-aside the Summary Judgment. 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.'" Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35 If there is a single issue of material fact in dispute, the motion must be denied. (Code Civ. Proc., 437c, subd. (c).)

REASON FOR THE APPEAL Judge Wilken cited that the court must determine if there exists an actual case or controversy within the courts jurisdiction. Second, if so, the court must decide whether to exercise its jurisdiction. Judge Wilken adjudicated in favor of the Appellee, finding no case or controversy exists between the parties and granted the Appellee Summary Judgment. Judge Wilken failed in her judicial responsibilities to address the fifteen material facts in dispute, Judge Wilken failed to address item V, 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. The Judge also did not address item VI regarding the use of improper affidavits on the part of Attorney Christopher

Carr ,an employee of WELLS FARGO BANK N.A. The Appellees Attorney Christopher Carr's declaration was based upon hearsay and not supported by a competent fact witness with personal knowledge. Mr. 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, and his own testimony was a violation of the attorney code of ethics. A lawyer cannot both prosecute a case and testify and Judge Wilken allowed this violation to occur. Judge Wilken failed to address material fact VII in which Appellants due process rights were violated. 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. 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. 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. Despite the fact that Appellant provided fifteen material facts in dispute proving Appellee has no foundation or standing to foreclose, Judge Wilken failed to rule on the irregularities of the Appellee's improper notice, foreclosure and illegal sale of the Appellants home, Judge Wilken also failed to respond to Material fact VIII in regards to returning the note and deed pursuant to U.C.C. 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. And although Appellant made it very clear that predatory lending had occurred and stated why in Material fact X., 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. Judge Wilkens 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. Appellant seeks relief from a contract that is unconscionable, unenforceable and fraudulent. Appeal from Final Judgment-33

Appellant has sought justice in state court, federal court, bankruptcy court and by filing an Adversarial pleading. Appellant has never had a fair opportunity to have her pleading(s) heard. Appellant is requesting relief because she is here today solely as a result of Wells Fargo's fraudulent behavior. Appellant is requesting relief to establish that tender cannot be required when the Appellee's underlying actions are based in fraud, the agreement is void as a result of fraud in the factum and the foreclosure was wrongful. The Appellant is praying for relief as a result of breach of contract, concealment, unjust enrichment, wrongful foreclosure, misrepresentation, fraud and quiet title. Appellant is requesting compensatory damages in the sum of $433,000 and setting aside of the wrongful foreclosure, without encumbrance.

CONCLUSION Appellant has proven herein that Judge Wilken has erred in granting summary judgment, that Appellant did indeed prove many material facts in dispute, and therefore, the Honorable Court has solid grounds to reverse and remand this case back to district court for trial. 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, illegal foreclosure upon her property. 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. Appellant is requesting the court to return her home to her free from any encumbrance. This is not an unreasonable request considering when a "lender" seeks to foreclose, or assert rights in a federal court, and they cannot or are not forced to produce legal evidence that they are the owner of the loan, the lender actually took possession of the property it had no legal right to, effectively getting the house for free. The California Commercial Code sets forth specific rules for the enforceability of commercial notes. This Honorable Appeals Court has comprehensive grounds to grant this appeal and remand Appellants case so that the alleged creditor is required to prove its legal status to collect on Appellant's loan. Anything short of this exposes Appellant to the confiscation of her property from a party who is not the real-party-in-interest and

exposes her to illegal debt collection actions for which she is entitled to be protected from pursuant to Cal. Commercial Code 3-309. Appellant prays that this Honorable Court acknowledge the fraud, malfeasance and malicious behavior the banks have perpetrated against an unaware public for decades. 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, WACHOVIA and WELLS FARGO for their own enrichment and benefit, . Appellant prays this Court will award damages, sanction WELLS FARGO and set aside the wrongful foreclosure. If for any reason the foreclosure is allowed to stand, Appellant prays that the Court will order her Loan Documents be returned pursuant to Cal. Commercial Code 3-309, marked discharged so that they are removed from the stream of commerce. Appellant reminds this Honorable Court that she is Pro Per, and requests that this appeal be reviewed for the substance, and requests that her pleadings with exhibits be fully reviewed so as to understand the weight of her claims and evidence. Appellant also request the opportunity for oral argument.

Respectfully Submitted, Date: June 8, 2011 ___________________________________ Tanya D. Dennis

Appeal from Final Judgment-35