1 2 3 4 5 6 7 8 Robert Salzano, 9 Plaintiff, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs.

Deutsche Bank National Trust Company, as Trustee for Residential Asset Securitization Trust 2006-A16, Mortgage Pass-Through Certificates, Series 2006-P under the Pooling and Servicing Agreement dated December 1, 2006; Aztec Foreclosure Corporation; L.P.S. a.k.a. Lender Processing Services; MERS a.k.a. Mortgage Electronic Registration Systems; One West Bank FSB; Indymac Bank; Homecomings Financial Network Inc.; Does 1 through 1000 Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Salzano, Robert (Pro Se) PO 2674 Valley Center, CA 92082 760 580 5571

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF CALIFORNIA
325 “F” STREET, SAN DIEGO, CALIFORNIA 92101-6991

Case

No.: 11-09586-LA-13

Adversary No.: 11-90314-LA

Honorable Louise DeCarl Adler

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIIFF’S OBJECTIONS TO DEFENDANTS’ MOTION TO DISMISS
Hearing Date: September 15th 2011 Time: 2:00pm Department 2

REQUEST FOR JUDICIAL NOTICE To the Honorable Louise DeCarl Adler, United States District Court Judge. Plaintiff wishes the court to take notice of the following: The court to recognize the Plaintiff’s “Pro Se” status.

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For the court to notice that delays in responses were/are due to plaintiff’s health from approx 7/18 through 8/18 of this year. For the court to take notice that due to Plaintiff’s Pro Se status some or all of Pleadings, Motions etc. are not to form or custom of this court and are due to Plaintiff’s lack of familiarity and are not intentional. Plaintiff wishes to state that none his actions are intentional delays of proceedings nor are they intended as delay tactics. Plaintiff wishes court to take notice that: ALL the following defendants co-operated in the creation of the documents, some of which are filed with the County of San Diego Recorder’s Office, in regards to the foreclosure on the Plaintiffs’ property. Aztec Foreclosure (Aztec) One West FSB (One West) Deutsche Bank National Trust Company, as Trustee for Residential Asset Securitization Trust 2006-A16, Mortgage Pass-Through Certificates, Series 2006-P under the Pooling and Servicing Agreement dated December 1, 2006. (Deutsche Trust)

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Mortgage Electronic Registration Systems (MERS) Lender Processing Systems (LPS) Each of the above named defendants has had a part in the creation of the following: “Exhibit A” “The Notice of Default” (NOD) Filed 2/10/2011

“Exhibit B” “Substitution of Trustee” acknowledged 3/09/2011 (substitution) “Exhibit C” “Assignment of Deed of Trust” acknowledged 4/09/2011 Filed 5/12/2011 (assignment) “Exhibit D” “Notice of Trustee’s Sale” “Exhibit E” (PSA) “Pooling and Servicing Agreement” Dated 12/01/2006 Filed 5/16/2011

www.sec.gov/Archives/edgar/data/1384692/000090514807000187/0000905148-07-000187.txt

NOD filed 2-10-2011, Aztec states it is the duly appointed “Trustee”. It cannot be “duly appointed” on this date because:

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The substitution is not acknowledged until 3-09-2011. The NOD is void. The substitution is invalid because: The Deutsche Trust has no power to substitute any “Trustee” on 3-09-2011 as it is not the legal beneficiary. The assignment is not acknowledged until 5-04-2011, which is after the both the NOD and substitution. The substitution is void as is the NOD. The assignment is invalid because: DATE of ACKNOWLEDGEMENT of ASSIGNMENT The assignment is acknowledged 5-04-2011. This is the date that MERS “solely as nominee for Homecomings” assigns the DOT “together with the Note” to the Deutsche Trust. Within California’s comprehensive statutory nonjudicial foreclosure scheme found at Civil Code sections 29202955 It would prohibit the Deutsche Trust from initiating a foreclosure on 2-09-2011 NOD when the Deutsche Trust does not own the Note and DOT until 5-04-2011.

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This alone would invalidate the foreclosure sale of the Plaintiffs property The Deutsche Trust and Deutsche Bank have proffered no proof otherwise. MERS ASSIGNMENT Within California’s comprehensive statutory nonjudicial foreclosure scheme found at Civil Code sections 29202955, four separate statutes corroborate that the secured debt must be assigned with the DOT. These are: Civil Code sections 2923.5 Assignee of a secured debt cannot nonjudicially foreclose without right to payment and a recorded assignment Civil Code sections 2935 Notice of an assignment of a mortgage does not change the borrower’s obligation to make payments to the holder of the Note Civil Code sections 2936 Transfer of the Note carries with it an assignment of the debt, not vice versa Civil Code sections 2937 Borrowers must be notified of transfers of servicing rights

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MERS role as nominee is limited and it must derive its power to assign from Homecomings who is its “Nominator” On 5-04-2011 Homecomings do not exist. This same date the assignment is acknowledged. MERS could not assign the Note and DOT ALL BY ITSELF. It can only assign at the request of its nominator. Therefore the assignment is void. Polhemus, 30 Cal. At 688; see also US Bank Nat’l v. Ibanez, 458 Mass. 637,651,941 N.E.2d 40 (2011) (“MERS’ only right is to record the mortgage. Its designation as the “mortgagee of record” does not change or expand its rights……”) MERS v Saunders, 2010 ME 79, 2A.d3 289, 295 (ME 2010) Defendants authority to foreclose cannot, therefore, be derived from MERS because MERS never had such authority. Shannon v. General Petroleum Corp. 47 Cal App. 2d 651,661, 118 P. 2d 881 (1941) (assignment can only carry rights owned by the assignor.) An assignment of a mortgage without assignment of the corresponding debt is a nullity under controlling law. Carpenter v. Longan, 83 U.S. 271,275, 21L. Ed. 313 1872; Kelly v. Upshaw, 39 Cal. 2d 179, 192, 246 P.2d 23 (1952); Johnson v. Razy, 181 Cal. 342, 344, 184 P. 657

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(1919 (“A mortgage is mere security for the debt, it cannot pass without transfer of the debt”) which is:

The Note A negotiable promissory Note such as the Note can only be enforced in accordance with Article 3 of the Commercial Code (“CCC”). Cal. Com. Code §§ 1101-16104 (Deering 2011). The CCC permits enforcement of a Note by a party who: 1. Holds a directly endorsed Note (§1201b(21)) 2. Previously had the ability to enforce the Note, but it was lost, destroyed, or stolen (§3309) 3. Has possession of an endorsed-in-blank instrument (§1201)(b)(21) 4. Can prove both possession of the enforcement rights received from its transferor (§3301). Id: In re McMullen Oil Co., 251 B.R. 558, 568 (Bankr. C.D. Cal.2000); In Re Carlyle, 242 B.R. 881,887(Bankr. E.D. Va.1999) These requirements apply to every link in the chain of transfer of the Note. Where a Note has been assigned several times, each assignment in the chain must be valid or the party claiming the Note cannot enforce it. In re Gavin, 319 B.R. 27, 32 (B.A.P. 1st Cir.2004); In re Wells, 407 B.R.873 (Bankr. N.D. Ohio 2009) Even if a party is the owner of a promissory Note, it is not entitled to enforce the Note unless it meets the

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statutory criteria for enforcement. Cal.Com. Code §3203(b) emt.2. Option 1 is not applicable. The NOTE is not payable to defendants, but to Homecomings. Defendants cannot enforce the Note as direct payee or endorsee. In re Wilhelm, 407 B.R. 392, 402 (Bankr.D.Idaho 2009); Chicago Title Ins. Co. v. Allfirst Bank, 394 Md. 270, 905 A.2d.366, 374 (Md.2006). No claim was made that the Note was lost or stolen which eliminates OPTION 2. As to option 3 and 4 an endorsement is not effective until it is signed. Com.Code §3203(c); Security Pacific Nat’l. Bank v. Chess, 58 Cal. App. 3d 555,564,129 Cal. Rptr. 852 (1976) Until the Note is properly endorsed, assignments of the deed of trust do not serve to transfer enforcement rights. Id. The endorsement must be on the Note or attached. Lopez v. Puzina, 239 Cal. App. 2d 708, 714, 49 Cal. Rptr. 122 (1st Dist 1966). The defendants refuse to proffer any evidence whatsoever instead wish to rely on the 5-04-2011 MERS assignment and hide behind California’s comprehensive, exhaustive statutory framework established to govern nonjudicial foreclosures by asserting the law and the courts do not require it to do so (prove legal ownership of the Note and DOT).

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Defendants, by their creation of the NOD, substitution and assignment raise these “questions of fact”, not the Plaintiff. The Backdating of the Assignment The assignment acknowledgement date is 5-04-2011 The assignments purports to be effective 01/11/2011 Although Defendants do not make any claim as to the backdating of the assignment. It is wholly suspicious in its very nature. It appears to be an attempt to “cover their tracks” as to exactly when the Deutsche Trust acquired the Note and DOT. See Salazar v. U.S.Bank 10-17456-MM13 4/11/2011 (“Recordation of assignments with backdated effective dates may taint the Notice of Default”) see also Ohlendorf v. American home Mortgage Servicing No. CIV.S-09-2081 In order for the court to function all parties must take their representations and responsibilities seriously. Chambers v. NASCO Inc., 501 U.S.32,43,47 111 S. Ct. 2123, 115 L.Ed. 2d 27 (1991) Courts have held that lenders’ actions amount to bad faith where the lender is shown to have routinely misrepresented its role in bankruptcy cases, caused unnecessary, litigation, or prejudiced another party. See Ameriquest Mortg. Co. v. Nosek (In re Nosek), 609 F.3d 6, 9(1st Cir. 2010)

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Studies have shown that mortgage holders and servicers routinely file inaccurate claims, some of which may not be lawful. See Kathrine Porter, Misbehavior and Mistake in Bankruptcy mortgage claims, 87 Tex. L. Rev.121, 12324 (2008); Andrew J. Kazakes, Developments in the Law: The Home Mortgage Crisis, 43 Loy. L.A. L. Rev.1383, 1430 (2010) (citing David Streitfeld, Bank of America to Freeze foreclosure Cases, N.Y. Times, Oct 2, 2010 at B1) (reporting that after revelation of Porter’s study several Banks froze foreclosures);Eric dash, A Paper Work Fiasco, N.Y. Times Oct. 24th 2010, at WK5 (reporting the repeal of the initial freeze and the problems the banks faced in clearing up foreclosure paper work). The Inspector general overseeing this financial crisis has studied the issue and concluded: Anecdotal evidence of loan servicer’s failures has been well chronicled. From the repeated loss failure borrowers of borrower’s follow delays while paperwork, program that to blatant to harm to standards severely

unnecessary

benefitting

servicers

themselves, stories of servicer negligence and misconduct are legion, and…..they too often have financial interests that don’t align with those of either borrowers or investors.

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Office

of

the

Special

Inspector

General

for

the

Troubled Asset Relief Program (TARP), Quarterly Report to Congress 12 (Jan. 26th 2011, available at; http://www.sigtarp.gov/ Report to Congress”). You cannot initiate foreclosure except under California Civil Code Cal. Com. Code §§ 1101-16104. The Plaintiff prays the court will allow this matter to go forward Plaintiff is at great risk of losing his personal residence, and small business (A citrus orchard located on the same property) to a TRUST and or Bank he has never heard of until the NOD) Plaintiff can make no connection between Deutsche Trust and Homecomings except for the May 4th 2011 assignment, which on its face appears to be void and fraudulently created. Even after submitting “QWR”s to Indymac, One West, Deutsche no information was made available to Plaintiff. Plaintiff may suffer this loss due to defendants filing of documents that are false upon their face and are intended to deceive him, this court and our judicial system. (follow link for “Quarterly

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Jointly or Severally For all the above reasons Plaintiff prays for all relief that this court may grant, including punitive damages, sanctions, quiet title, an order for the removal of all illegal notices, assignments, substitutions from the San Diego County Recorder’s Office records and any and all other remedies the court may decide jointly or severally against any or all defendants. One West, Deutsche Trust and MERS are parties to this suit and should be held accountable as co-conspirators. They have aided in the creation of these documents that no ordinary and reasonable person could possibly believe are accidental, or oversight, or mistake. They leave no doubt their creation is intended to deceive and deprive plaintiff of his right to property and due process. LPS and Aztec are parties to this suit and should be held accountable as co-conspirators. They have aided in the creation of these documents that no ordinary and reasonable person could possibly believe are accidental, or oversight, or mistake. They leave no doubt their creation is intended to deceive and deprive plaintiff of his right to property and due process.

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These 5 defendants are responsible for thousands and thousands of foreclosures. It would be impossible to believe that they do not know what they are doing is not legal.

Dated this September 11, 2011

--------------------------------Robert Salzano PO 2674 Valley Center, CA 92082 760-580-5571 – cell

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