12 31 11 CV08-01709 Carpentier 0204 62337 EMERGENCY MOTION for for Tro or Nrcp 60b Set Aside

7/29/2019 12 31 11 CV08-01709 Carpentier 0204 62337 EMERGENCY MOTION for for Tro or Nrcp 60b Set Aside

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EMERGENCY MOTION FOR TRO/INJUNCTION; or PLED IN THEALTERNATIVE; MOTION TO SET ASIDE ORDER GRANTING SUMMARY

JUDGMENT

Nevada is one of the Western States of the US that are Non-Judicial States. In these

states, foreclosures are governed by State Civil Code. These homeoners have it the

toughest being in a non-!udicial state, "enders need not #rove anything, some might say,

but it seems #retty clear they at least N$$% T& S$N% T'$ (&TI&N )&*

SU((+* JU%($NT T& S&($&N$ &T'$* T'+N +N +TT&*N$ W'&

'+% *$/I&US" 0$$N *+NT$% +N &*%$* +""&WIN 'IS

EMERGENCY MOTION FOR TRO/INJUNCTION; or PLED IN THE ALTERNATIVE; MOTION TO SET ASIDE ORDER GRANTING SUMMARY

JUDGMENT 1

2%ocument Code34ach Coughlin, $s5.N/ 0ar No3 678917:: $. 6thSt. ;:*eno, N/ 1Tele3 88=-::6-?898)a@3 676-??8-87>:

ro #er +##ellant4achCoughlinAhotmail.com+ttorney for Joni and James Car#entier

J+($S C+*$NTI$*, $T +",laintiff

v.

++($S )UN%IN C&* $T+",%efendant

Case No3C/>18>6%e#t No3 8

EMERGENCY MOTION FORTRO/INJUNCTION; or PLED IN THEALTERNATIVE; MOTION TO SETASIDE ORDER GRANTINGSUMMARY JUDGMENT

IN T'$ S$C&N% JU%ICI+" %IST*ICT C&U*T &) T'$ST+T$ &) N$/+%+ IN +N% )&*

T'$ C&UNT &) W+S'&$

F I L E DElectronically

12-31-2011:04:45:40 PMCraig Franden

Clerk of the Court

Transaction # 2676622


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WIT'%*+W+" )*&( T'IS (+TT$* B+N% %& "I$WIS$ )&* T'$ +%%*$SS

"IST$% IN T'$ C*$%IT&* (+T*ID IN T'$ %$"+W+*$ 0+N*UTC

T'+T ST+$% T'IS (+TT$* )&* &/$* &N$ $+*E, T'+T T'$ N$$% T&

UT T'$ C&**$CT C+S$ NU(0$* +N% C&U*T IN T'$ C+TI&N )&*

SUC' "$+%INS, $TC., $TC W'I"$ S&($ (+ C*ITICI4$ T'$

UN%$*SIN$% W&* IN T'$ )I"IN, CITIN T& )&*(+TTIN ISSU$S,

$TC., N& &T'$* +TT&*N$ W&*IN &N T'IS C+S$, ++*$NT",

%ISC&/$*$% T'$ )+CTU+" ISSU$S *$"+T$% T& %$)ICI$NCI$S IN T'$

N&TIC$FS$*/IC$F%U$ *&C$SS ISSU$ W*&U'T 0 T'$ )+I"U*S &)

&&SIN C&UNS$" T& +*&*I+T$" +%%*$SS T'$I* *&&)S &)

S$*/IC$FUT T'$ C&**$CT IN)&*(+TI&N IN T'$ C+S$ C+TI&NF"IST

T'$ C&**$CT +%%*$SS IN T'$ %$"+W+*$ 0 C*$%IT&* (+T*ID....

C&($ N&W, laintiffs J+($S S. C+*$NTI$* and J&+N $.

C+*$NTI$*, by and through their attorney, 4ach Coughlin, $s5, and asGs this

court to #ut on ice the Trustee Sale allegedly set for )ebruary =th, :>11 via an

in!unction. &n July 1=, :>11 a Notice of $ntry of &rder as entered in the courtHs

docGet shoing an &rder granting *$SI%$NTI+" C*$%IT S&"UTI&NS INC,

+N% U+"IT "&+N S$*/IC$ C&*&*+TI&NHS (&TI&N )&* SU((+*

JU%($NT. Counsel Coughlin admits at the outset that this motion is somehat

thron together in a rush, due largely to an allegedly rongful summary eviction

from the undersignedHs la office, based on a No Cause $viction notice and

involving a commercial lease, even though N*S 7>.:=9 bars the use of summary

eviction #roceedings in such circumstances, and here, even if the *eno Justice

Court found Coughlin as a residential tenant, it denied Coughlin the stay, hich

ould seem one of the automatic variety, accorded to residential tenants ith a

monthly rental value under 21,>>> #ursuant to N*S 7>.9


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obstacles, o##osing counsel in that eviction matter *ev:>11->>18>< is a##ly hat

the undersigned feels is an unlaful rent distraint u#on clientHs files and #ersonal

#ro#erty, including materials and e5ui#ment essential to CoughlinHs #ractice of la.

To that e@tent, Coughlin has herein cited to )ederal authority for basic things, such as

the standard for a (otion for *econsideration Band barely, if any tolling authority to

get #ast the :> day re5uirement of W%C* 19B8E and *ule 1: is included herein,

hoever, Coughlin commits to curing such deficiencies in short order and to maGe

great efforts not to #re!udice o##osing counsel ith unsu##orted argument or

allegations hilst still ealously #rotecting his clients rights. This is easier said than

done given the the inordinately ve@atious conduct the undersigned has been sub!ected

to lately incident to a rongful eviction stemming from a Commercial "ease here

non-#ayment of rent as not alleged, yet a Summary $viction roceeding tooG #lace

anyay, and to to# it off, a rent escro de#osit as forced u#on the undersigned to

the tune of 2:,:8? in the middle of the Summary $viction roceeding, in direct

violation of N*S 7>.:=9B?E, and JC*C 11 Bo##osing counsel

Schuler-'int did send an email to the undersigned late in the night of %ecember 111, asserting that the Trustee Sale has been #ost#oned again to early )ebruary,

:>1:, and, not to im#ugn (s. Schuler-'int credibility, nor that of (r. 4imbleman,

but there does seem to be authority to suggest that Trustee Sales and the attendant

scheduling changes, es#ecially those not reduced to a ritten sti#ulation, are a very

hard thing to #in don and that verbal or email assertions by the Trustee or banGs

re#resentatives or counsel are largely not something one can legally rely u#onE. This

is the second time the undersigned has sent o##osing counsel some eleventh hour


JUDGMENT 9


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corres#ondence, only to me told, basically, Koh, the sale as moved a cou#le days

agoL des#ite the fact that neither the undersigned or either of his clients Bthe timing of

hose divorce dovetailed 5uite nicely ith this foreclosure matterE as $/$*

informed of either of these #ost#onements of the scheduled TrusteeHs Sales and here

the undersigned has no reason to believe that these sales are being #ost#oned for any

reason other than the undersignedHs s5uaGing, and here o##osing counsel has

continually failed to #rovide any #roof that these #ost#onements occurred #rior to

said s5uaGing Bthe undersigned does recognie that it is #ossible that such

#ost#onements are a matter of the #ublic record and that such a hunch by the

undersigned might be !ust #lain rongE. 'oever, a collection of materials and

notices from the Washoe County *ecorderHs *ecords available online hich indicate

that they Trustee Sale that as a##arently scheduled for %ecember :1, :>11 as not

recorded, and some of the notices and recordings in this matter seem sus#ect ith

res#ect to the date they ere filed versus the date of service indicated on them, etc.,

etc., much liGe the #leadings in the instant case.

The undersigned hereby re5uires the trustee to verify a com#rehensive list of

issues related to the legal nature of the foreclosure #roceedings enacted by the lender,

hich as a by#roduct, Car#entier as homeoner still retains full onershi# of the

#ro#erty and lives there. The Trustee assumes the liability in auctioning the #ro#erty,

and should not foreclose on the #ro#erty if there is a #otential violation #ointed out

to them #rior to the +uction Sale %ate as they could face sanctions and ultimately

lose their license. To that end, the undersigned seeGs a definite e@tension of time to

verify these matters Band the overcome the deleterious effect rought on the

undersigned life and la #ractice by the rongful eviction and alleged a##lication of


JUDGMENT 7


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an unlaful rent distraint and other bad faith conduct by the defendant and his

counsel in *eno Justice Court case *ev:>11->>18>11->>18>>6 I caused the above and foregoing document entitled N&TIC$ &)

0+N*UTC )I"IN +N% +UT&(+TIC ST+ to be served as follos3 @ by #lacing

same to be de#osited for mailing in the United States (ail, in a sealed envelo#e u#on hich


JUDGMENT =


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first class #ostage as #re#aid in "as /egas, NevadaM andFor @ to be sent via facsimileM to

the #artyBiesE andFor attorneyBsE listed belo at the address andFor facsimile number

indicated belo3

Ja#es M 9a%s*, Es Do0$%e R .%v( S0")e ARe&o, Neva(a >-?+@

A))or&e2s 3or Ja#es S Car'e&)"er a&( Joa& E Car'e&)"er

F0r)*er, Ms S1*0%erH"&)B 3a"%e( )o res'o&( a''ro'r"a)e%2 )o )*e Or(er Gra&)"&4

9a%s*5s 9")*(rawa% as A))or&e2 o3 Re1or(, a&( )*e s0$se Do0$%e R .%v( S0")e A

Re&o, Neva(a >-?+@ A))or&e2 3or P%a"&)"33

F0r)*er, )*e 1a')"o& o& Ms H"&)B Mo)"o& "&("1a)es )*e 1ase "s "& De'ar)#e&) =,

(es'")e )*e 3a1) )*a) '# Fe$r0ar2 @@, +-, a Case Ass"4e&) No)"3"1a)"o& E&)r2 was

e&)ere( "& )*e (o1e) 3or )*"s 1ase CV>@-, "&("1a)"&4 )*"s CASE REASSIGNED

TO DEPARTMENT FROM DEPARTMENT = PER ADMINISTRATIVE ORDER

T*e&, 3or so#e reaso& )*a) "s &o)


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RESIDENTIAL CREDIT SOLUTIONS , INC AND UALITY LOAN SERVICE

CORPORATIONS MOTION FOR SUMMARY JUDGMENT, H0&)er a4a"& '0)s

De'ar)#e&) = "& )*e 1ase 1a')"o& w*ere De'ar)#e&) s*o0%( $e

> F"&a%%2, o& J0%2 @?, +@@ )*"s Co0r) 4ra&)e( D"s)r"1) Co0r) R0%e @ 'rov"(es,

KFa"%0re o3 )*e o''os"&4 'ar)2 )o serve a&( 3"%e *"s wr"))e& o''os")"o& #a2 $e

1o&s)r0e( as a& a(#"ss"o& )*a) )*e #o)"o& "s #er")or"o0s a&( a 1o&se&) )o 4ra&)"&4 )*e

sa#eK T*0s, "& )*"s 1ase, )*e 1o0r) 1o&s)r0es P%a"&)"33s5, JAMES S CARPENTIER

a&( JOAN E CARPENTIER, a&( De3e&(a&)s5, AAMES FUNDING

CORPORATION a&( 9INDSOR MANAGEMENT COMPANY5S 3a"%0re )o o''ose

De3e&(a&)s5 RCS a&( LS5s Mo)"o&/or S0##ar2 J0(4#e&) as a(#"ss"o& )*a) )*e

Mo)"o& "s #er")or"o0s8

T*e J0%2 @?, +@ No)"1e o3 E&)r2 o3 Or(er "&1orre1)%2 %"s) De'ar)#e&) = "&s)ea( o3

De'ar)#e&) "& )*e 1a')"o&

T*e 9as*oe Co0&)2 Re1or(er5s we$ s")e (oes &o) %"s) a No)"1e o3 Tr0s)ee

Sa%e 3or )*e a%%e4e( Tr0s)ee sa%e )*a) was se) )o )ae '%a1e o& De1e#$er +@s),

+@

FACTS

1. +t all times mentioned herein, laintiffs James S. Car#entier and Joan $.

Car#entier, hereinafter collectively referred to as KC+*$NTI$*,L are husband and

ife residing in the County of Washoe, State of Nevada.

:. %efendants, %&$S I through DD are fictitious namesM that laintiffs are

ignorant of the true names of the individuals, cor#orations, co-#artnershi#s, and

associations so designated by said fictitious names, and hen the true names are

discovered, laintiffs ill seeG leave to amend this Com#laint and #roceedings

herein to substitute the true name of said %efendants. laintiffs believe that each of

the %efendants designated herein as %&$ is negligent or res#onsible in some manner

for the events herein referred to and negligently, carelessly, recGlessly and in a


JUDGMENT


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manner that as grossly negligent and illful and anton, caused damages

#ro@imately thereby to the laintiffs as herein alleged.

9. +t all times mentioned herein, C+*$NTI$* is the oner of certain real

#ro#erty commonly Gnon as :->61-1:, hereinafter referred to as the

K*&$*T,L and more #articularly described as follo3

"&T ? &) "$WIS '&($S-S+*S N&. =-+, +CC&*%IN T& T'$ (+

T'$*$&), )I"$% IN T'$ &))IC$ &) T'$ C&UNT *$C&*%$* &)

W+S'&$ C&UNT, ST+T$ &) N$/+%+ &N JU"16, 168?, +S )I"$ N&.

718916 +N% +S T*+CT (+ N&. 1=>=, C+*$NTI$* had an e@isting mortgage

against the *&$*T in the a##ro@imate #rinci#al amount of 21=>,>>>.>>

=. &n or about (ay 7, :>>=, C+*$NTI$* as in default and in financial

trouble ith regard to the e@isting first %eed of Trust in that James S. Car#entier

became in!ured, as unable to orG, as receiving only orGmans com#ensation

#ayments, and Joan $. Car#entier at that time as unem#loyed.

?. &n or about (ay 7, :>>=, C+*$NTI$* as unable to meet their

current obligations under the first Note and %eed of Trust.

8. C+*$NTI$* received a mail solicitation to refinance their #ro#erty

from %efendant +ames )unding Cor#oration dba +ames 'ome "oan, hereinafter

referred to as K++($S.L


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6. In furtherance of the refinance, %efendant ++($S as re5uired to maGe

a loan a##lication. Said loan a##lication as filled out by the re#resentatives by

%efendant ++($S and intentionally misstated the income of C+*$NTI$* to be

in e@cess of 2?,>>>.>> #er month.

1>. The true fact as C+*$NTI$* received only 2:7>>.>> #er month, and

the true fact as Gnon to %efendant ++($S.

11. %efendant ++($S made a loan to C+*$NTI$* in the amount of

218>,>.>>.

1:. The loan made by %efendant ++($S as an ad!ustable rate hich

ould re5uire #ayments in e@cess of 217>>.>> #er month.

19. +t the time of maGing the loan and filling out the loan a##lication by

%efendant ++($S, %efendant ++($S made the loan ithout determining or using

any commercially reasonable means or mechanism to determine C+*$NTI$*s

ability to re#ay the loan and in fact Gne or should have Gnon that C+*$NTI$*

did not have the ability to re#ay the loan.

17. The 218>,>.>> loan closed on or about (ay 7, :>>=, and, on or about

that date, C+*$NTI$* did maGe, e@ecute and deliver a %eed of Trust securing

re#ayment of the ne loan. Said %eed of Trust having been given to %efendant

Windsor (anagement Co., a California cor#oration, as Trustee by James S.

Car#entier and Joan $. Car#entier, husband and ife as !oint tenants, as Trustors in

favor of %efendant +ames )unding Cor#oration dba +ames 'ome "oan, as

0eneficiary. Said %eed of Trust as recorded (ay 7, :>>= as %ocument No.

9:>


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1?. %efendant ++($S has assigned the right to collect under the terms and

conditions of the romissory Note and the %eed of Trust to %efendant *esidential

Credit Solutions, Inc., hereinafter referred to as K*$SI%$NTI+",L as of (ay 91,

:>>8.

18. C+*$NTI$* has contacted %efendants ++($S and *$SI%$NTI+"

in an attem#t to again refinance but informed %efendants ++($S and

*$SI%$NTI+" of their inability to 5ualify, and %efendants ++($S andFor

*$SI%$NTI+" offered to #rovide them ith false and fraudulent W: )orms in order

to meet financial re5uirements. C+*$NTI$* declined to #artici#ate in this loan

fraud.

1>< as %ocument No. 9?:6871, &fficial *ecords of Washoe

County.

16. Subse5uent to the recordation of the Notice of 0reach and %efault,

%efendant ++($S has recorded a Notice of Trustees Sale scheduling sale on the

*&$*T for July 6, :>>< at the hour of 113>>am at the County Court 'ouse

located at /irginia Street and Court Street in the City of *eno. The Notice of

Trustees Sale as recorded June 16, :>>< as %ocument No. 9??1768, &fficial

*ecords of Washoe County.

:>. The actions of %efendant ++($S in failing to maGe a determination of

C+*$NTI$*s ability to re#ay the loan and inducing them to enter into said loan

constitutes an unfair lending #ractice #ursuant to the #rovisions of N*S =6>.

:1. C+*$NTI$* has been damaged as a direct and #ro@imate result of

unfair lending #ractices of %efendants ++($S and *$SI%$NTI+", and


JUDGMENT 11


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C+*$NTI$* is entitled to damages and treble damages #ursuant to the #rovisions

of N*S =6.

::. C+*$NTI$* is entitled to their attorney fees #ursuant to the #rovisions

of N*S =6B:EBbE.

:9. C+*$NTI$* is further entitled to an offset against all sums oed under

the romissory Note secured by the %eed of Trust as herein alleged #ursuant to the

#rovisions of N*S =6B9E.

:7. C+*$NTI$* is further entitled to have this court cure any e@isting

default of the home loan and cancel the #ending foreclosure and Trustees Sale

#ursuant to the #rovisions of N*S =6B9E.

:=. 1laintiffs incor#orate herein by this reference all #a#ers and #leadings on

file in this action.

:?. +s a direct and #ro@imate result of the actions of %efendants ++($S

and *$SI%$NTI+", C+*$NTI$* is in danger of loosing their interest in uni5ue

real #ro#erty by virtue of the foreclosure sale.

:8. C+*$NTI$* is entitled to a tem#orary restraining order, #reliminary

in!unction and #ermanent in!unction #recluding %efendants from conducting a

foreclosure sale of the *&$*T.

:11, folloing their default in their

mortgage #ayments. The home remains occu#ied by the title oner. The Notice of

Sale did not give Joni or James Car#entier the re5uisite notice of the date of the

foreclosure sale. ursuant to N*S 1>8.>, the foreclosure trustee must record a

Notice of Sale and give notice of the time and #lace of the sale by B1E #ersonally


JUDGMENT 1:


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serving or mailing the notice by registered or certified mail to homeoner and others

Oentitled to noticeOM B:E #osting the notice in a #ublic #lace here the #ro#erty is

located for :> successive daysM B9E #ublishing a co#y of the notice 9 times Bonce a

eeG for three eeGsEM +N% B7E #osting the notice on the #ro#erty 1= days before the

sale date. The Notice of Sale as recorded on &ctober 9 ith a sale date of &ctober

:1. This is only an 1< day notice #eriod. This fails to com#ly ith at least section B:E

above, and #erha#s section B7E should they fail to #ost the notice on the #ro#erty on

or before &ctober ?, de#ending u#on hether section B7E re5uires that action to occur

ithin 6> days or to occur only after the #assing of 6> days.

9>. The substitution of uality "oan Servicing as the foreclosure trustee as not

recorded. Under the %eed of Trust *ecorded on +#ril 1>=, Windsor

(anagement Co. as named as the Trustee. No document could be found ith the

*ecorderHs &ffice indicating any entity substituted uality "oan Servicing as the

foreclosure trustee under the %eed of Trust.

91. %efendantHs have substantially de#arted from the notice, manner of service,

and #rocess re5uirements of various la, including, but not limited to N*S 1>8.>.

When in5uiry as made ith %efendantHs as to the basis, reasoning, and !ustifications

for the de#artures, laintiffHs ere told that Kits your ord against oursL and

otherise res#onded to in a hostile, aggressive, and dece#tive manner. (ore

discovery is in order in this regard.

+ However, as Mr !"#$e%#a& 'rov"(e(, )*e A'r"% +- .a&r0')12 3"%"&4 "&

De%aware $2 !"#$e%#a&5s 1%"e&) %"s)e(, "& )*e Cre(")or Ma)r"6, a 7Cre(")or No)"1e

Na#e8 o3 9a%s*, .aer, : Rosevear, )*e Car'e&)"ers )*e& 3or#er a))or&e2, as Ja#es

9a%s*5s Mo)"o& )o 9")*(raw as Co0&se% *a( $ee& 4ra&)e( $2 )*"s 1o0r) O& Ja&0ar2

++, +-, w")* 9a%s* 3"%"&4 a No)"1e o3 E&)r2 o3 )*a) Or(er o& Ja&0ar2 +, +-, "&

'%e&)2 o3 )"#e 3or !"#$e%#a&5s 1%"e&) )o 0'(a)e )*e 7Cre(")or No)"1e Na#e8 a&(

a((ress )o re3%e1) )*e 3a1) )*a) 9a%s* was &o) a))or&e2 o3 re1or( 3ro )*e Car'e&)"ers


JUDGMENT 19


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a&2#ore, a&( )*a) )*ose &o)"1es s*o0%( *ave $ee& se&) ("re1)%2 )o )*e Car'e&)"ers

I&(ee(, Mr !"#$e%#a&5s CERTIFICATE OF SERVICE P0rs0a&) )o NRCP

?$, 3or *"s Ma2 @-, +- 3"%"&4 o3 NOTICE OF .ANRUPTCY FILING AND

AUTOMATIC STAY rea(s 7I 1er)"32 )*a) I a# a& e#'%o2ee o3 PEEL .RIMLEY

LLP a&( )*a) o& )*"s @-)* (a2 o3 Ma2, +- I 1a0se( )*e a$ove a&( 3ore4o"&4

(o10#e&) e&)")%e( NOTICE OF .ANRUPTCY FILING AND AUTOMATIC STAY

)o $e serve( as 3o%%ows 6 $2 '%a1"&4 sa#e )o $e (e'os")e( 3or #a"%"&4 "& )*e U&")e(

S)a)es Ma"%, "& a sea%e( e&ve%o'e 0'o& w*"1* 3"rs) 1%ass 'os)a4e was 're'a"( "& Las

Ve4as, Neva(a; a&(/or 6 )o $e se&) v"a 3a1s"#"%e; )o )*e 'ar)2"es a&(/or a))or&e2s

%"s)e( $e%ow a) )*e a((ress a&(/or 3a1s"#"%e &0#$er "&("1a)e( $e%ow

Ja#es M 9a%s*, Es Do0$%e R .%v( S0")e ARe&o, Neva(a >-?+@

A))or&e2s 3or Ja#es S Car'e&)"er a&( Joa& E Car'e&)"er

= F0r)*er, Ms S1*0%erH"&)B 3a"%e( )o res'o&( a''ro'r"a)e%2 )o )*e Or(er

Gra&)"&4 9a%s*5s 9")*(rawa% as A))or&e2 o3 Re1or(, a&( )*e s0$se Do0$%e R .%v( S0")e A

Re&o, Neva(a >-?+@ A))or&e2 3or P%a"&)"33

F0r)*er, )*e 1a')"o& o& Ms H"&)B Mo)"o& "&("1a)es )*e 1ase "s "& De'ar)#e&) =,

(es'")e )*e 3a1) )*a) '# Fe$r0ar2 @@, +-, a Case Ass"4e&) No)"3"1a)"o& E&)r2 was

e&)ere( "& )*e (o1e) 3or )*"s 1ase CV>@-, "&("1a)"&4 )*"s CASE REASSIGNED


JUDGMENT 17


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TO DEPARTMENT FROM DEPARTMENT = PER ADMINISTRATIVE ORDER

? T*e&, 3or so#e reaso& )*a) "s &o) @- #01* %ess )*e 304")"ve or 3"1)")"o0s 1ase CV-@- )*a) Mr H0&)er

%"s)e( "& )*e Ca')"o&, "& a C%ar Co0&)2 D"s)r"1) Co0r) 1ase 3"%e( "& 9as*oe Co0&)2,

"&("1a)"&4 )*"s CASE REASSIGNED TO DEPARTMENT FROM DEPARTMENT

= PER ADMINISTRATIVE ORDER So, )*e Car'e&)"ers were $0r(e&e( w")* $o)*

a))or&e2s se&("&4 "#'or)a&) '%ea("&4s )o o&e w*o was &o %o&4er A))or&e2 o3 Re1or(

3or )*e Car'e&)"ers, (es'")e a No)"1e o3 E&)r2 o3 )*a) Or(er Gra&)"&4 9")*(rawa% o3

Ja#es 9a%s*, Es


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&0#$er a&( )*e wro&4 De'ar)#e&) &0#$er, %"s)"&4 CV-@- a&( De'ar)#e&) =

w*ere CV>@- a&( De'ar)#e&) s*o0%( $e I&)eres)"&4%2, E6*"$") )o H0&)er5s

J0&e +, +@ Mo)"o& 3or S0##ar2 J0(4#e&), w*"%e 1o&)a"&"&4 )*e )e6) o3 )*e

De%aware Co0r)5s Or(er re#ov"&4 )*e s)a2, (oes&5) 1o&)a"& )*e De%aware .a&r0')12

Co0r)5s Proo3 o3 Serv"1e 3or )*a) Or(er 0'o& )*e Car'e&)"ers

Ne6), o& J0%2 @+)*, +@ REUEST FOR SU.MISSION OF DEFENDANTS

RESIDENTIAL CREDIT SOLUTIONS , INC AND UALITY LOAN SERVICE

CORPORATIONS MOTION FOR SUMMARY JUDGMENT, H0&)er a4a"& '0)s

De'ar)#e&) = "& )*e 1ase 1a')"o& w*ere De'ar)#e&) s*o0%( $e

> F"&a%%2, o& J0%2 @?, +@@ )*"s Co0r) 4ra&)e( D"s)r"1) Co0r) R0%e @ 'rov"(es,

KFa"%0re o3 )*e o''os"&4 'ar)2 )o serve a&( 3"%e *"s wr"))e& o''os")"o& #a2 $e

1o&s)r0e( as a& a(#"ss"o& )*a) )*e #o)"o& "s #er")or"o0s a&( a 1o&se&) )o 4ra&)"&4 )*e

sa#eK T*0s, "& )*"s 1ase, )*e 1o0r) 1o&s)r0es P%a"&)"33s5, JAMES S CARPENTIER

a&( JOAN E CARPENTIER, a&( De3e&(a&)s5, AAMES FUNDING

CORPORATION a&( 9INDSOR MANAGEMENT COMPANY5S 3a"%0re )o o''ose

De3e&(a&)s5 RCS a&( LS5s Mo)"o&/or S0##ar2 J0(4#e&) as a(#"ss"o& )*a) )*e

Mo)"o& "s #er")or"o0s8

- T*e J0%2 @?, +@ No)"1e o3 E&)r2 o3 Or(er "&1orre1)%2 %"s) De'ar)#e&) = "&s)ea( o3

De'ar)#e&) "& )*e 1a')"o&

= T*e 9as*oe Co0&)2 Re1or(er5s we$ s")e (oes &o) %"s) a No)"1e o3

Tr0s)ee Sa%e 3or )*e a%%e4e( Tr0s)ee sa%e )*a) was se) )o )ae '%a1e o& De1e#$er +@s),

+@

II LA9 AND ARGUMENT

I. The &rder ranting Summary Judgment $ntered +gainst laintiff Should be

Set +side or /acated %ue to it being /oid )or "acG of Jurisdiction iven theNumberous %eficiencies in Service of $ssential leadings and Notices U#on thelaintiffs, $@cusable Neglect, )raud on The Court, an Intervening %ecision of theNevada Su#reme Court, To of them, from July 8, :>11, and The &verly "ongassing of Time 0eteen No and the ranting of the Summary Judgment &rder.

The e@cusable neglect argument is 5uite strong given 'itn and 4imblemanHs


JUDGMENT 1?


17/230

continual failure to a##ro#riately address their roofHs of Service an or #ut the correct

case number or Court in the Ca#tion for im#ortant filings Bsuch as the (otion for

Summary JudgmentE. (ight be a voidness basis for Setting +side the &rder +s

Well, lacG of !urisdiction here im#ortant #leadings, such as the (otion for

Summary Judgment ere not a##ro#riately served or noticed, no 1 limitations

#eriod under N*C ?>BbEB7E void basis for setting aside, further tolling arguments

and facts are #resent in this matter ith res#ect to the N*C ?>BbEB1-9E basis due to

the alleged failure of #revious attorney (ahan Bho a##arently never filed a notice of

a##earance des#ite getting a Nissan Dterra signed over to her, though, according to

Jim Car#entier, she did have her mother accom#any (r. Car#entier to former

attoreny WalshHs office to have it e@#lained to Car#entier that his case as a lost

cause by the attorney ho had ithdran from Car#entierHs case already. (ahan

a##arently failed to s#ot the deficiencies in serviceFnotice, addressing mailings to one

ho as no longer attorney of recordFlisting an inccorect address in the creditor

matri@, rong case numberFrong court in ca#tion, etc., etc. that the undersigned

s#otted. )urther, (r. Car#entier a##arenty had some dealings ith another attorney,

a Shan atterson, ho allegedly counseled (r. Car#entier, only to Kcall a friend of

his in the industryL for some in#ut, '&W$/$*, T'$ )*I$N% IN T'$ IN%UST*

JUST S& '+$N$% T& 0$ &&SIN C&UNS$" &N (*. C+*$NTI$*HS

C+S$, *ISTIN SC'U"$*-'INT4, hereu#on the KdiscoveryL of that

circumstance Band after, a##arently, a good deal of #erha#s #rivleged information

as relayed to o##osing counselE, (r. atterson informed (r. Car#entier that he as

needed to a#ologie to (r. Car#entier as he Kas afraid he had aaGened a slee#ing

giantL in light of his, a##arently, inadvertently contacting o##osing counsel in an

attem#t to seeG advice from a Kfriend in the industryL, hereu#on (r. attersonHs

contacting (s. 'int a##arently resulted in immediate aggressive action by 'int

against Car#entierHs interest in this matter Bostensibly the &ctober :>11 Trustee Sale

as set in #lace, ith a causal correlation evident ith res#ect to (r. attersonHs call


JUDGMENT 18


18/230

to o##osing counsel 'int. (aybe the Car#entierHs have some of these things rong,

and attorneyHs atterson and (ahan deserve an o##ortunity to rebut any allegation of

conduct that ould #rovide a N*C ?>BbE basis for setting aside the &rder ranting

Summary Judgment in this matter. )urther, the &rder granting Summary Judgment is

void given the lacG of !urisdiction #ossessed by this Court here so many essential

deficiencies e@ists in this matter related to the most #ertinent filings and notices

#ossible. There is, a##arently, some indication that the &rder ranting Summary

Judgment is too old, and that 'int, et al, have taGen far too long to act on it, and

therefore it is legally unenforceable. )urther, a N*C ?>BbE basis for setting aside

the &rder may e@ist ith res#ect to all the fraudulent activity that #ermeates this

industry, #articularly ith res#ect to lenders seeGing to bring actions here the lacG

standing, cannot #roduct the note, etc, etc.

What follos are useful selections from something called the K)oreclosure %efense'andbooGL3

Kerfection of Chain of Title

In January :>11 , the (assachusetts Su#reme Court issued a decision in U.S.

0+N N+TI&N+" +SS&CI+TI&N /S. +ntonio I0+N$4 in hich all the

Justices unanimously agreed. In order for the banG to be able to foreclose,

they must sho a #erfection of chain of title, both in the %eed of

TrustF(ortgage and the romissory note. It as also ruled that a blanG

assignment as not acce#table #roof of #erfection of title for the #romissory

note.

This is 'U$. ou should be referring to this case and motion the court to

taGe Omandatory !udicial noticeO for the ruling decision in your case if you are

considering doing any sort of litigation, hether as a defendant in a Judicial

State or as a laintiff in a Non-Judicial State.

'ere are the im#ortant #oints you need to understand from this Su#reme Court

decision 3

1E + %efective Title cannot be fi@ed .

The (assachusetts Su#reme Court ruled that the banG has to demonstrate

#erfection of title at the time the Notice of %efault is issued .


JUDGMENT 1


19/230

+ defective title is liGe bad food . &nce food has gone bad , you can never fi@ it.

The same goes ith the %eed of TrustF(ortgage. The OlenderO cannot retro sign

or Oreverse engineerO the Chain of Title after the fact. 0ut most of the time this is

the case hen it is handled by a foreclosure mill. They have robo-signers hose

!ob is to sign bogus assignments and reverse engineer titles.

It is your !ob to challenge this #oint hen your lender #resents su##osed O#roofHbefore the court. &ftentimes, they ill bring in a #hotoco#y of the %eed of Trust

made years ago at the time you closed on your loan . The #hotoco#y does not

and cannot attest to ho the current real and beneficiary #arty in interest

is.

:E The 0anG must sho a #erfection of the Chain of Title for the %eed of

TrustF(ortgage

This means that any assignments of the romissory note must also be reflected

at the county recorderHs office Band not ith ($*S- I ill talG about ($*S in a

bitE.

If an assignment of the romissory Note is not recorded on the County *ecords,

then #erfection is not achieved.

What this means is, if you can #rove that your note has been securitied or sold

to another #arty aay from your original lender, and that they did not record this

assignment at the County *ecorderHs &ffice, then bifurcation occurred . This

leads to a defect In the chain of title, maGing the %eed of TrusU(ortgage

unenforceable.

9E The 0anG must sho a #erfection of the Chain of Title for the romissory

Note

If e have a situation here you closed ith 0anG + and 0anG + sold the note to

0anG 0, ho then sold the note to a *$(IC Bsecuritied the noteE, then it as

ruled that there must be a chain of endorsement follo ing Uniform Commercial

Code P 6-:>?. Ty#ically, this is done in the form of a stam# on the bacG of the

#romissory note from 0anG + to 0anG 0 as Oay to the &rder of 0anG 0 Without

*ecourseO.

Title must sho this chain of Oay to the &rder ofH on the bacG of the note, !ust

liGe it ould on a checG, all the ay to the last #erson trying to collect on the

note. If the banG cannot sho this chain of title ending in a #oint as the #erson on


JUDGMENT 16


20/230

the title, it does not have #erfection of title and is not eligible to collect.

In order to collect and enforce the note under UCC P 6-9>1 , the #arty enforcing

the note must demonstrate that it has the #osition of 'older in %ue Course or

having authority from the 'older. )ailing that, the banG is committing theft.

7E 0lanG +ssignments are Not +cce#table

It is ST+N%+*% 0+N *+CTIC$ to maGe blanG assignments to avoid the#roblem of having to maintain #ro#er chain of title on the #romissory note. In

#revious situations, the courts have alloed blanG assignment and #ossession to

be acce#table forms of #roof of claim.

With the (assachusetts Su#reme Court ruling , th is is no longer true. 0lanG

assignments are no longer acce#table forms of #roof of erfection.

"et me re#eat th is if you missed it.

If your note has been securitied, then the banG that is handling the securitiation

+"W+S creates a 0lanG +ssignment to be used in the event a foreclosure

action is initiated and #roof of title needs to be #roduced . +ll they do is to give the

blanG assignment #romissory note to the #arty ishing to foreclose and voila Q

With your nefound Gnoledge, you no Gno ho to build an ob!ection to this

#ractice.

If you refer to #oint 1E, the banG cannot reverse engineer these assignments.

&nce the instrument is defective, it is forever defective. ro#er assignment must

be done in con!unction and at the time of the deed , not retros#ectively....

Illegal Trustee Argument

There have been two instances in which a Federal Court Judge issued a

statewide injunction freezing all foreclosures against homeowners against Bank

of America and Recontrust !ne was in "tah in late #$%$& and more recentl'& in

Januar' #$%% in (evada& because in both instances& Recontrust is not registered

to do business in that state

If a com)an' wants to do business in a state& it needs to register within that state

as an entit' This wa'& if someone within that state wants to sue them& the' can

look u) who the owners are& and where the' live& so the' can be )ro)erl' servedwith a summons

In almost all instances& these foreclosure mills are not registered to do business

in the state the' are attem)ting to foreclose in

*an' homeowners have used this defense to at least forestall foreclosure It is


JUDGMENT :>


21/230

not enough to sto) a forectosure& but it is another claim the homeowner can

make in a +uiet Title Action defense making the argument that the Trustee is a

,non-entit' ,.

The Reconve'ance Argument

This strateg' comes from an attorne' in California who is doing this with his own

house

If 'ou look at 'our /eed of Trust or *ortgage& 'ou will invariabl' see language

that covers the clause of ,reconve'ance, The language t')icall' goes like this0

,#1 Reconve'ance ")on )a'ment of al2 sums secured b' this 3ecurit'

Instrument& 4ender shall re5uest Trustee to reconve' the 6ro)ert' and

shall surrender this 3ecurit' Instrument and all notes evidencing debt

secured b' this securit' agreement to trustee n

7hen 'ou have a situation where0

a8 The note can be )roven that it was securitized& then it can be )roven that

the lender has& in fact& been )aid in full

b8 The note has been sold from Bank A& to Bank B& and then to Bank C& who

is tr'ing to foreclose

In an' event& this strateg' involves bringing a civil action against the !riginator9

Bank A& re5uiring them to do their job in a breach of contract civil action

:ou see& a /eed of Trust secures the )romissor' note It is the /eed of Trust

that gives the 4ender the ,)ower of sale, clause to foreclose If the original lender

is forced to issue a reconve'ance& then the /eed of Trust has colla)sed

This is a ver' effective& 'et eas'& method some )eo)le have used to sto)foreclosure& reason being that0

a8 The originator is often out of business and cannot res)ond to the civil

action& thus the homeowner wins b' default

b8 The !riginator had alread' sold the note with ,no recourse, This means

the R;*IC or the servicer can (;


22/230

It is for this reason that the !riginator often doesn>t show u)& or settles when

confronted with this strateg'

If 'ou are interested in learning more about this strateg'& we have a sam)le kit

that will guide 'ou through the )rocess on our site at0

htt)022wwwconsumerdefense)rogramscom 4ook under the 6roducts tab for the

,+uick Reconve'ance *ethod /

The /ebt s anal'ze the Fair /ebt Collections 6ractices Act& and s)ecificall' the )ortion

governing the validation of debt "nder "3C Title %? 3ection %@#g8& 'ou are

entitled to ask a debt collector for the verification of the debt ")on dis)ute of the

debt& all collection activities must cease until the debt collector can validate the

debt 3adl'& the consumer has onl' 1$ da's to dis)ute the debt or else the'

admit to the debt

If 'ou have received a (otice of /efault (!/8 from 'our ,lender&, 'ou will see

that there is language s)ecificall' that sa's ,If 'ou do not dis)ute this debt within

1$ da's& then 'ou admit to owing this debt, o on o grab 'our letter and take

a good look

If 'ou have not received a (otice of /efault letter or if 'ou have received it within

1$ da's8& 'ou can still send a (otice of /ebt validation letter to 'our ,lender, to

dis)ute the debt I have included a sam)le (!/ /is)ute letter on

htt)022wwwconsumerdefense)rogramscom

=owever& this does not mean 'ou waive 'our rights to challenge 'our lender if

'ou are more than 1$ da's )ast default :ou can still do it :ou can write 'ourlender and 'our Trustee in a non-Judicial 3tate8 demanding that the' )roduce

)roof of claim under the F/C6A under "3C Title %? 3ection %@#g8 :our

,lender, is re5uired to res)ond within 1$ da's Failure to do so results in a

violation of the F/C6A& which carries a )enalt' of u) to D%$$$ )er violation 'ou

sim)l' have to sue them to collect8 The F/C6A also has s)ecial damage

)rovisions for class actions %? "3C E%@#k Recover' of statutor' damages

for the class is limited to % of the debt collector>s net worth or D?$$&$$$&

whichever is less

:ou will know when the debt collector doesn>t have the note when a res)onse is

sent back giving the Borrower either a ,7e don>t recognize 'our re5uesf or

stating the information is ,6ro)rietar', /on>t let them get awa' with that The

F/C6A rules are clearG In most cases& the 4enderl3ervicer will send 'ou

an'thing but the items re5uested *ost of the time& debt collectors will send the


JUDGMENT ::


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following0

H 3ome )a)ers )rinted from a com)uter& not sure what the' are

H (othing certified notarized8 and es)eciall' not dated recentl'

H (othing showing the name and signature of the original lender or )ast

note holder

H (othing )roving the notification of a transfer

H 3im)le co)ies of some kind of billing statement etc

All of which are unacce)tablel The 4enders& 3ervicers and /ebt Collectors

AB3!4"T;4: know what the legal re5uirements are The' will challenge

an'one who dis)utes a debt to see if 'ou know the law This is wh' it is so

im)ortant for 'ou to know the law as wellG

"nder the "niform Commercial Code 3ection 1-#$& the name and the

signature of both the beneficiar' and the original creditor must be disclosed in the

same document E 1-#$ d8 The signature of the borrower must be included as

well into the assignment or transfer9 unless a clause in the deed of

trust2mortgage waives that most deeds of trust disclose this at clause #$8

title to the debt obligation& whether through a )urchase& assignment& or

other transfer& and who ac5uires more than one mortgage loan in an'

twelve-month )eriod For )ur)oses of this section& a servicer of a

mortgage loan shall not be treated as the owner of the obligation if the

servicer holds title to the loan or it is assigned to the servicer solel' for

the administrative convenience of the servicer in servicing the

obligation:ou will also note that the sco)e does not cover the servicer if the servicer was

assigned the note for administrative convenience in servicing the obligation

This means& the servicer is not treated as and does not have the rights of a

lender or owner of the obligation8

As I discussed eartier& even if the servicer was to bu' the note back after it has

been securitized& reattachment of the loan2note to the /eed of TrustI*ortgage is

im)ossible

:ou Cannot *ake Carrots from Carrot Juice

!nce a loan has been written off& it is discharged !nce a loan has been

securitized& reattachment is im)ossible

Reattachment is im)ossible for the following reasons0

%8 6ermanent conversion

The )romissor' note had been converted into a stock as a )ennanent fiKture


JUDGMENT :9


24/230

Its nature is forever changed It is now and forever a stock It is treated as a

stock and governed as a stock under the 3;C

3ince the /eed of Trust secures the )romissor' note& once the )romissor'

note is destro'ed& the /eed of Trust secures nothing Therefore& the Trust is

invalid

#8 Asset has been written off

!nce an asset is written off& the debt is discharged& since the owner of the

asset has received com)ensation for the discharge in the form of taK credits

from the IR3 The debt has been settled

The servicer ads as a debt co"ector of an unsecured note The servicer is

deceiving the court& the count'& and the borrower when it tries to re-attach the

note to the /eed of Trust as if nothing has ha))ened Irs called adhesion

The funn' thing about the law is& it is legal until or unless the other )art'

objects 3ince this scam is so devious& it is be'ond the com)rehension of

most )eo)le including that of law'ers and judges It takes someone who has

studied accounting& securities and law to unravel this dece)tion *ost )eo)le

in the legal )rofession onl' take the arguments on face value

18 Broken chain of assignment

"nder the "niform Commercial Code "CC8& the )romissor' note is a one of

a kind instrument All assignments much like endorsements on the back of a

check8 have to be done as a )ermanent fiKture onto the original )romissor'

note The original )romissor' note has the onl' legall' binding chain of title

7ithout a )ro)er chain of title& the instrument is fault'-

Rarel' can a lender ,)roduce the note&, because b' law& the original note has

to be destro'ed RememberL The note and the stock cannot eKist at the

same time !ftentimes& the lender would come into court with a )hotoco)' of

the original note made 'ears ago

Another )o)ular method of deceit lenders )refer is to use the 3tate Civil Code

in non-judicial states to state that ,there is no law re5uiring a lender to

)roduce the note or an' other )roof of claim, T=;: /!(>T =A


25/230

records

4efs be ver' clear here !nce a loan has been securitized& the note is no

more An'thing the lender brings to court as evidence is )rima facie evidence

of fraud The attorne' for the lender is either an accessor' to fraud through

ignorance or willful intent ;ither wa'& as an informed borrower& it is 'our job

to bring this dece)tion to light so these law'ers can be sanctioned

3o& 'our lender would close 'our loan& sell it to R;*IC and get )aid

!nce 'our loan goes into default& the loan is written off The loan is then bought

b' the same lender in the o)en secondar' market as a dead2unsecured note To

be able to )ull this stunt off& ever' lender involved in this scheme is re5uired to

act in collusion

!nce the servicer bu's the dead note& the' then claim to be the true holder in

due course of a written off asset The' then )resent to the world that the' are

who the' claim The' rel' on the homeownerlborrower to be ignorant of this

dece)tion and clean u)& allowing them to take )ossession of a house for )ennies

on the dollar

This is the eKtent of the fraud done to the American )ublic ever' 3ingle da'

As a homeowner defending 'our rights& it is im)erative 'ou understand the

nature of this fraud so 'ou can use these arguments to defend 'our home

As a legal )rofessional& it is im)erative that 'ou understand these arguments so

'ou can raise the )ro)er objections and interrogatories when re)resenting 'our

clients in a foreclosure defense

6ractical *attersIn this cha)ter& we go through s)ecific )ractical things 'ou can do right awa' to

challenge 'our lender

At its heart& there are four classes of )eo)le that are affected b' foreclosures

% 3omeone who is about to lose his or her home in a (on-Judicial 3tate

California& (evada& Arizona& !regon& 7ashington& etc8

# 3omeone who is about to lose his or her home in a Judicial 3tate (ew

:ork& (ew Jerse'& !hio& Florida& etc8

1 3omeone who has alread' lost his or her home

3omeone who is hanging b' their teeth& who is u)side down or can no

longer )a' their mortgage& tr'ing to get a loan modification& or someone in

good standing

;ach class of )erson has different o)tions and )rocedures available to them

This cha)ter will outline in brief some of these o)tions !f course& this is just a


JUDGMENT :=


26/230

book and is no substitute for com)etent legal advice& so )lease consult counsel

before doing an'thing that could affect 'our home

(on-Judicial 3tate =omeowners

*ost 7estern 3tates of the "3 are (on-Judicial 3tates In these states&

forecfosures are governed b' 3tate Civil Code

These homeowners have it the toughest Being in a non-judicial state& 4enders

need not )rove an'thing The' can sim)l' notif' the homeowner of the default&

then after a certain number of da's& as defined under 3tate Civil Code& the

)ro)ert' then )roceeds to a Trustee sale at a )ublic auction

The onl' o)tion available to 'ou if 'ou are a (on-Judicial 3tate resident is for 'ou

to file a civil action against 'our lender to com)el them to )rovide )roof of claim&

and therefore standing

The other o)tion is to declare bankru)tc' also known as BIM8 In bankru)tc'&

generall' s)eaking& 'ou have two o)tions& Cha)ter N no asset BIM8 or a Cha)ter

%1 asset BIM8 7hat some homeowners do is to declare Cha)ter N and list their

)ro)ert' as an unsecured asset and wait for the lender to object This then )uts

the burden of )roof on the lender If 'our loan was dosed with 4ender A and is

being foreclosed on b' 4ender B or C there must be b' law8 a valid chain of

assignment to show that 4ender C is the real and beneficial )art' of interest As

we disaJssed& because of the )roblem of securitization& this is never done This

creates a real )roblem for the 4ender who is frankl' doing this fraudulentl'

an'wa'8

For those with a lot of assets such as e5uit' in their homes8& the' can do aCha)ter %1 "nder a Cha)ter %1 bankru)tc'& 'ou can file an Adversar'

6roceeding where 'ou sue 'our lender to com)el them to )roduce valid )roof of

claim The beaut' with Bankru)tc' Court is that 'ou have the law on 'our side

Rule 1$$% d8 of the Federal Code of Bankru)tc' re5uires that 'our lender )rovide

evidence of ,)erfected title,

If 'ou choose to file a civil action against 'our lender& 'ou better have )roof as

we discussed earlier The best )roof 'ou can bring is a securitization audit to

)rove that 'our loan has been securitized Then& work with 'our law'er to build

an argument around the )oints outlined in this book "nfortunatel'& this will set

'ou back at the minimum D?$$$& and more likel' closer to D%$&$$$ to D#?&$$$

Another o)tion 'ou could do is to do a ,5uick reconve'ance method, as

discussed in Cha)ter This can be ver' effective in sto))ing 'our servicer>s

abilit' to foreclose because it closes out the /eed of Trust2*ortgage This


JUDGMENT :?


27/230

method is onl' a))licable when 'ou have clear evidence of movement or

securitization :ou can find out more about this method on our website under the

6roducts tab

Alternativel'& if 'ou cannot afford a law'er& 'ou could tr' to do this 'ourself reat

)laces to start are 4iving4iescom and sto)foreclosurefraudcom These are

blogs with lots of articles& sam)le )leadings and lots of other resources I used

during m' research

Another o)tion is to join our foreclosure defense membershi) )rogram 7e

realized that there are 3! *A(: homeowners needing hel) That is wh' we

develo)ed a coaching membershi) )rogram with s)ecific information and

resources to hel) homeowners with their foreclosure defense !ur membershi)

)rogram has sam)le )leadings& sam)le res)onses& forms and )rocedures others

have used in their foreclosure defense :ou will also be able to network with

other homeowners local to 'ou meet with them to have coffee& and su))ort

each other For more information about this )rogram& come to our website at0

htt)022wwwconsumerdefense)rogramscom

A good )lace to start& if 'ou are in a (on-Judicial 3tate& is to start writing to 'our

lender to demand that the' )roduce valid )roof of claim :ou can find a cou)le of

sam)le letters on our site This will be a good )lace to get started

Judicial 3tate =omeowners

In a Judicial 3tate& 'our lender has to sue 'ou to get a judgment before the' can

foreclose on 'our house As we discussed earlier& the burden of )roof is on the

)laintiff This means that if 'ou are in a Judicial 3tate& 'ou have the advantage ofre5uiring the lender to )roduce )roof of claim

The )roblem in most cases is that homeowners in Judicial 3tates do not know

the nature of foreclosure fraud The' either don>t show u) or if the' show u)&

don>t know how to argue their )oints& and thus end u) losing their homes

an'wa'

The other )roblem in Judicial 3tates is that because there are so man' cases&

judges end u) forgoing their !ath of !ffice to the )eo)le the' serve Instead of

dis)ensing justice fairl' to all& the' rubber-stam) judgments without a second

glance This is not fair to the homeowners& but if homeowners don>t know their

rights& nor know how to argue their )oints& then sadl'& there>s little justice for

them As the' sa'& 'ou have no rights unless 'ou know what those rights are

3o& the best thing to do if 'ou are a resident of a Judicial 3tate then is to arm

'ourself with education 4earn the nature of loan fraud 4earn the )rocedure of


JUDGMENT :8


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rules of court and on how to defend 'ourself in answering a summons and

com)laint

:ou should know b' now that 'our best course of action is to )ush the Federal

Rules of Civil 6rocedure %N& ,an action has to be taken in the name of a real

)art' in interesf> in other words& 'ou are to challenge 'our lender>s 3tanding

and their right to foreclose If the' are not a real and beneficial )art' in interest&

then the' do not have the right to foreclose Allowing them to )roceed with their

foreclosure without 3tanding amounts to nothing more than theft and eKtortion&

both of which are illegal

!ther homeowners in Judicial 3tates choose to take a more )roactive a))roach

Instead of waiting to be sued b' their lender& the' do a forensic audit& gather

evidence of loan securitization and then sue their lender to get a +uiet Title

Action to remove the *ortgage from their )ro)ert'& since no one can come forth

to )roduce valid )roof of claim

For members of our foreclosure defense membershi) )rogram& we have sam)le

tem)lates that homeowners can use to take matters into their own hands

=omeowners 7ho =ave 4ost Their =omes

For those homeowners who have alread' lost their homes& there are two

situations There are those who have lost their homes due to a sale& but are still

sta'ing in their homes and there are those who have been forced to move out

*an' law'ers and )eo)le in the media are advising homeowners who have lost

their homes but are still living in them to sta' in their homes It could take

months sometimes for the lender to come around to actuall' force thehomeowner out

T')icall'& in order for a lender to force a homeowner to move out& the' 7Ill need

to file for an ,unlawful detainer> This takes a while to be granted and this gives

the homeowner additional time 3ta'ing another month or three at home means

another few more months the' do not have to )a' rent elsewhere

Another techni5ue homeowners do is to challenge the lenders standing to

foreclose& even after the fact& to fight the unlawful detainer This is something 'ou

will likel' need to consult with an attorne' about for more information

The 7rongful Foreclosure Action

=omeowners who have alread' lost their homes but believe their loans have

been securitized might want to see if the' can do a 7rongful Foreclosure civil

action against their ,)retender lenders,

=ere are some hints that 'our loans have been securitized0


JUDGMENT :


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- There is a com)an' called *;R3 *ortgage ;lectronic Registration 3'stems8

involved in the (otice of 3ubstitution of Trustee& or on the original /eed of

Trus"*ortgage this is usuall' on the first # )ages of 'our documents8

- :our loan is with one of the following institutions0 *AC& Countr'wide =ome

4oans& Bank of America& 7ells Fargo& or Chase

- :ou closed with a small no name bank& and 'ou are now being serviced b' a

more well-known institution like the ones named above

If 'ou can gather sufficient evidence that 'our loan has been securitized& then

'ou might be able to build a case using the arguments )resented in this book to

bring a civil action against 'our lender for a wrongful foreclosure and2or fraud

;ssentiall'& 'ou are accusing 'our lender of committing fraud in that the' did not

have 3tanding to foreclose on 'our )ro)ert'

In a civil action in which 'ou have suffered damages as a result of something the

other )art' has done against 'ou& t')icall' 'ou are entitled to three times the

damages three times the value of 'our loan8 This is t')icall' called ,)unitive

damages, It means there are damages other than documented realO

K+ccordingly, hen this court issues an intervening decision that constitutes a

change in controlling la, courts may de#art from the decided la of the case and

a##ly the ne rule of la.L 'su v. County of ClarG. See, e.g., 'o#Gins v. %yer, 1>7

&hio St.9d 7?1, N.$.:d 9:6, 999 B:>>7E Bholding that an intervening o#inion

issued by the &hio Su#reme Court constituted a change in controlling la

necessitating de#arture from the la of the case doctrineEM %edge v. State, -foot height variance for

construction of a billboard on their #ro#erty does not constitute Ksubstantial ne

evidenceL that !ustifies de#arture from the la of the case doctrine. R &ur


JUDGMENT :6


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determination in 'su I that the landoners had not demonstrated the futility of

e@hausting their administrative remedies rested on several #ieces of evidence besides

the erroneous Kbillboard variance,L indicating that this Kne evidenceL ould have

little bearing on our #revious decision. R See Suel v. Secretary of 'ealth and 'uman

Services, 16: ).9d 6


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or otherise vacated, or it is no longer e5uitable that an in!unction should have

#ros#ective a##lication. The motion shall be made ithin a reasonable time, and for

reasons B1E, B:E, and B9E not more than ? months after the #roceeding as taGen or the

date that ritten notice of entry of the !udgment or order as served. In some

instances KtollingL may be a##licable to the ? month limitations #eriod.

The Nevada Su#reme Court recently addressed a critical issue involving the

)oreclosure (ediation *ules in the case of "eyva v. National %efault Servicing

Cor#., +##. No. ==:1?, +##eal from the ClarG Co. %istrict Court, +-1>-?>>-?=1,

1:8Nev. , .9d B+dv. . No. 7>, July 8, :>11E. The issue relates to the

obligation of the lender to bring documents to the mediation that reveal ho is the

oner of the deed of trust and mortgage note. The Courts ruling in this case ill

immediately arm homeoners ith a serious ea#on against the big banGs and their

servicers. Used in the correct ay, many foreclosures may be sto##ed because of this

recent o#inion.

The State of Nevada )oreclosure (ediation rogram as created in :>>6. )acing

foreclosure, the homeoner may re5uest mediation through hich a modification to

home loan may be achieved. &nce the homeoner re5uests mediation, no further

action may be taGen to e@ercise the #oer of sale until the com#letion of the

mediation. The Nevada Su#reme Court created the )oreclosure (ediation *ules

BK)(*LE to govern those mediations.

The "eyva case #resented the Nevada Su#reme Court ith an o##ortunity to

inter#ret a critical #ortion of the mediation #rogram re5uirements. N*S 1>8.>


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attend the mediation, fails to #artici#ate in the mediation in good faith or does not

bring to the mediation each document re5uired by section 7 or does not have

authority or access to #erson ith authority re5uired by section 7, the mediator shall

#re#are and submit to the (ediation +dministrator a #etition and recommendation

concerning im#osition of sanctions against the beneficiary of the deed of trust or the

re#resentative, as the court deems a##ro#riate, including, ithout limitation,

re5uiring a loan modification in the manner determined #ro#er by the court.L

The Nevada Su#reme Court faced the issue of hether the lenders failure to

bring the re5uired assignments and other documents as re5uired by N*S 1>8.>


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constitutes a valid assignment of deeds of trust and mortgage notes. 0y reaching this

issue, the Su#reme Court set the obligations for each lender ith regards to their

obligation to #roduce documents at mediation.

The Su#reme Court then discussed the la regarding the assignment of a deed of

trust. Since an assignment of an interest in land must be in riting, the Su#reme

Court concluded that Kto #rove that (ortgageIt #ro#erly assigned its interest in land

via the deed of trust to Wells )argo, Wells )argo needed to #rovide a signed riting

from (ortageIt demonstrating that transfer of interest.L

The Su#reme Court then analyed the method by hich the interest in a mortgage

note may be transferred and looGed to Nevadas Uniform Commercial Code X

Negotiable Instruments. The Su#reme Court rote Kthe obligor on the note has theright to Gno the identity of the entity that is Kentitled to enforceL the mortgage note

under +rticle 9, see N*S 1>7.99>1, Kotherise, the homeoner may #ay funds to

a stranger in the case.L BCitation omitted.E

The Su#reme Court re!ected the arguments of Wells )argo that mere #ossession

of the mortgage note as sufficient. KWe conclude that +rticle 9 clearly re5uires

Wells )argo to demonstrate more than mere #ossession of the original note to be able

to enforce a negotiable instrument under the facts of this case.L To meet its

obligation under the Uniform Commercial Code, Wells )argo had to sho both

endorsement of the mortgage note to it by the original lender and #ossession of the

note.

+lternatively, Wells )argo could have also demonstrated a transfer of the note to

it. To demonstrate a transfer, Wells )argo as obligated to #rove that it as given

the mortgage note for the #ur#ose of enforcing it.

The Su#reme Court then concluded that since Wells )argo had failed to #roduced

documents to demonstrate either a valid endorsement or transfer, Wells )argo had

neither demonstrated that it as entitled to foreclose on the #ro#erty nor that it had


JUDGMENT 99


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authority to mediate ith regards to the note. The Su#reme Court, relying on its other

o#inion issued the same day, asillas v. 'S0C 0anG, 1:8Nev. , .9d , +dv.

. 96, July 8, :>11E, ruled that the failure of Wells )argo to bring the re5uired

documents Kis a sanctionable offense under N*S 1>8.>


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from alloing the foreclosure #rocess to #roceedL. Wells )argo as also the cul#rit

in this case.

Significantly, in discussing the transfer of the Note, the Su#reme Court of

Nevada cited to the recent In *e /eal decision from the 6th Circuit 0anGru#tcy

+##eals anel Bhich as #reviously discussed on this ebsiteE, holding that the

borroer Khas the right to Gno the identity of the entity that is entitled to enforce

the mortgage note under +rticle 9 Bof the Uniform Commercial CodeE.L The Court

concluded that +rticle 9 Kclearly re5uires Wells )argo to demonstrate more than mere

#ossession of the original note to be able to enforce a negotiable instrumentL. The

court found that there as no endorsement and no assignment, and reversed the

%istrict Court.

The o#inion in "eyva cited to the Courts o#inion in asillas v. 'S0C 0anG as

Trustee, No. =?969, 1:8 Nev. +dvance inion 96 Balso decided July 8, :>11E,

hich also reversed the %istrict Court and also cited to /eal , setting forth the

re5uirements for #roduction of evidence of chain of title to the note and %eed of

Trust in a foreclosure.

The multi#le citations to /eal, hich is a )ederal 0anGru#tcy a##ellate court

o#inion, by the state Su#reme Court of Nevada, is more than im#ortant. It

demonstrates that sim#ly because a foreclosure issue is decided by a 0anGru#tcy

court does not mean that it is not a##licable to a non-0anGru#tcy Bor non-)ederalE

foreclosure case. Time and again, hen e argue that an issue in a state foreclosure

case has already been decided by a 0anGru#tcy court in the foreclosure conte@t,

attorneys re#resenting foreclosing KlendersL and servicers argue KWell, Judge, that

as a 0anGru#tcy case, and e are not in 0anGru#tcy CourtL. "eyva and asillas

have no #ut that argument to bed. If a )ederal 0anGru#tcy decision is good enough

for the Su#reme Court of Nevada in to se#arate o#inions, it should be good enough

for any state court.


JUDGMENT 9=


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+ttorney (isconduct (ay Su##ort Setting +side the &rder, )or a ood )aith

0asis for Changing the "a (ay +uger Toard 'olding #osing CounselHs )ailur

to Withdra the (otion for Summary Judgment or &therise +lert the Court as to

the "iGely $ffect of /ery ro@imate Time *elease of to (andatory and Controlling

Nevada Su#reme Court %ecisions Issued &ne WeeG 0efore This CourtHs &rder (ay

*ise to ositive (isconduct iven the rimacy of the Sub!ect (atter of This

"itigation to these, +t That Time, ro Se "itigants.

In Staschel v. Weaver 0rothers, "td., 6< Nev. ==6, ?== .:d =1< B16


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Cal.+##.:d at 961, 9< Cal. *#tr. at 8>>. 'oever, the court ent on to alter this

harsh rule, holding that Othere are e@ce#tional cases in hich the client, relativel free

from #ersonal neglect, ill be relieved of a default or dismissal attributable to the

inaction or #rocrastination of his counsel. O Id. The court found that the %efendantHs

attorneyHs neglect as ine@cusable and e@treme, amounting to #ositive misconduct.

The attorneyHs consistent and long continued inaction as so visibly and inevitably

disastrous, that his client as effectually and unGnoingly de#rived of

re#resentation. 0y his refusal to get on ith the lasuit or get out of it, the

%efendantHs attorney inflicted severe damage on his clientHs case. She had legal

re#resentation only in a nominal and technical sense.

Under these unusual circumstances, here the client as unGnoingly

de#rived of effective re#resentation, she ill not be charged ith res#onsibility for

the misconduct of her nominal counsel of record. ::8 Cal.+##.:d at 961-6:, 9>. The court then stated the rule - Gnon as the O#ositive misconductO

rule - that here an attorneyHs inaction rises to a level of active, #ositive misconduct,

the OattorneyHs authority to bind his client does not #ermit him to im#air or destroy

the clientHs cause of action.O ::8 Cal.+##.:d at 961, 9< Cal. *#tr. at 8>>. The

reasoning for such a rule is obvious3 Clients should not be forced to act as haG liGe

in5uisitors of their counsel, sus#icious of every ste# and 5uicG to sitch layers.

The #rofession Gnos no orse headache than the client ho mistrusts their

attorney. The lay litigant enters a tem#le of mysteries hose ceremonies darG,

com#le@ and unfathomable. retrial #rocedures are cabalistic rituals of the layers

and !udges ho serve as #riests and high #riests. Gnos nothing of their tactical

significance.


JUDGMENT 98


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'e Gnos only that his case remains in limbo hile the #riests and high

#riests chant their lengthy an arcane #retrial rites. 'e does Gno this much3 that

several years fre5uently ela#se beteen the commencement and trial of lasuits.

Since the la im#ose this state of #uled #atience on the litigant, it should #ermit

him to si bacG in #eace and confidence ithout sus#icious in5uiries and incessant

checGing on counsel. ::8 Cal.+##.:d at 961-6:, 9< Cal.*#tr. at 8>>-8>1. The

California Su#reme Court ado#ted the #ositive misconduct rule stated in %aYey in

CarroYY v. +bbott "aboratories, Inc., ?=7 .:d 88= B16


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Hine@cusable neglectH ould be charitable but hardly candid. 'is dereliction of the

#rofessional obligations oed a##ellant constituted actual misconduct.OE. See

generally, S. 0ernstein, +nnotation, +ttorneyHs Inaction as $@cuse for )ailure to

Timely rosecute +ction, 1= +.".*.9d ?87 B16?8 U.S. 93 119 S.Ct. 17:M ?1 U.S.".W. 7:?9M := )ed *.Serv. 9d

BCallaghanE 7>1M 0anGr. ". *e#. BCC'E 8=, 1=8+M :< Collier 0anGr.Cas. :d B(0E

:?8M:7 0anGr Ct %ec.?9M 69 Cal %aily Service :>6?M 69 %+* 98>=M 8 )"+ ".

WeeGly )ed. S 1>1.

The #articular facts and circumstances of the Car#entierHs case deserve closer

consternation, #articularly in light of the fact that "eyva and asilla actually ere

issued #rior to this CourtHs July 1=, :>11 &rder granting Summary Judgment, the

manifest in!ustice that results from leaving the &rder as it is and alloing the

TrusteeHs Sale to go forard. )urther, ursuant to N*S 1>8.>, the re5uisite

statutory :> days notice is, on its face, not #resent in the notice to the Car#entiers.

)urther, the assignments have arguably not been #roduced or attested to in the

manner re5uired by la, and the bald face arrogance of the lenderHs and trusteeHs

street level em#loyees in telling the Car#entierHs that, basically, they are in a fight

ith a big ugly bully and its Kour ord against yoursL one little #uny #athetic so to be

no longer homeoners.

C+*$NTI$* received a Notice of Sale indicating that their lender

ould sel1 their home at auction on &ctober :1, :>11, folloing their default in their


JUDGMENT 96


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mortgage #ayments. The home remains occu#ied by the title oner. The Notice of

Sale did not give Joni or James Car#entier the re5uisite notice of the date of the

foreclosure sale. ursuant to N*S 1>8.>, the foreclosure trustee must record a

Notice of Sale and give notice of the time and #lace of the sale by B1E #ersonally

serving or mailing the notice by registered or certified mail to homeoner and others

Oentitled to noticeOM B:E #osting the notice in a #ublic #lace here the #ro#erty is

located for :> successive daysM B9E #ublishing a co#y of the notice 9 times Bonce a

eeG for three eeGsEM +N% B7E #osting the notice on the #ro#erty 1= days before the

sale date. The Notice of Sale as recorded on &ctober 9 ith a sale date of &ctober

:1. This is only an 1< day notice #eriod. This fails to com#ly ith at least section B:E

above, and #erha#s section B7E should they fail to #ost the notice on the #ro#erty on

or before &ctober ?, de#ending u#on hether section B7E re5uires that action to occur

ithin 6> days or to occur only after the #assing of 6> days.

The substitution of uality "oan Servicing as the foreclosure trustee as

not recorded. Under the %eed of Trust *ecorded on +#ril 1>=, Windsor

(anagement Co. as named as the Trustee. No document could be found ith the

*ecorderHs &ffice indicating any entity substituted uality "oan Servicing as the

foreclosure trustee under the %eed of Trust.

%efendantHs have substantially de#arted from the notice, manner of service, and

#rocess re5uirements of various la, including, but not limited to N*S 1>8.>.

When in5uiry as made ith %efendantHs as to the basis, reasoning, and !ustifications

for the de#artures, laintiffHs ere told that Kits your ord against oursL and

otherise res#onded to in a hostile, aggressive, and dece#tive manner. (ore

discovery is in order in this regard. This #leading is further filed ith an eye toards

asserting a N*C =6 basis for challenging the July 1=, :>11 order Bsomeho a

tolling argument ill need to be made to overcome the 1> day re5uirement for such a

motion, and the same could be said for maGing a (otion for *econsideration here

more than :> days have #ast since.


JUDGMENT 7>


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Co&1%0s"o&

W'$*$)&*$, laintiffs res#ectfully re5uest this Court order as follos3

1. )or damages in e@cess of 21>,>>>M

:. )or treble damagesM and any sanctions a##ro#riate under any a##licable la,

including the to recent Nevada Su#reme Court decisions of July 8, :>11, assila and

"eyva.

9. )or tem#orary restraining order, #reliminary in!unction and #ermanent in!unction

barring foreclosure of the %eed of Trust recorded in favor of %efendant ++($S and any

successor in interest.

7. )or tem#orary restraining order, #reliminary in!unction and #ermanent in!unction

barring the contem#lated and scheduled TrusteeHs Sale set for &ctober :1, :>11.

=. )or costs of suit herein incurredM and for attorneys feeM

?. )or such other and further relief as this court may deem #ro#er, including attorneyHs

fees involved in #re#aring this filing.

AFFIRMATION P0rs0a&) )o NRS +-.

%+T$% this 91thday of %ecember, :>113

FsF 4ach Coughlin

4ach Coughlin, $s5.

+ttorney for laintiffs Joni and James Car#entier


JUDGMENT 71


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PROOF OF SERVICE

I, 4ach Coughlin, declare, that on %ecember 91st, :>11, I caused the forgoing

to be deliver to all named %efendantHs in this action, by electronic filing to3

ristin +. Schuler-'int, $s5.Christo#er 'unter, $s5.(cCarthy Z 'olthus, ""6=1> W. Sahara +ve., Suite 11>"as /egas , N/ :-?9:6)a@3


43/230

INDE TO EHI.ITS

1. $D'I0IT 13 )&*$C"&SU*$ %$)$NS$ '+N%0&&. &ne hundred and

fifteen #ages B11= +$SE.

:. $D'I0IT :3 C&""$CTI&N &) (+T$*I+"S )*&( W+S'&$ C&UNT

+CC$SS&*SF*$C&*%$*S &N"IN$ %&CU($NT +CC$SS W$0SIT$

*$"+T$% T& T'$ *&$*T +T ISSU$ IN T'IS C+S$. Tenty eight

#ages B:< +$SE.

9. $@hibit 93 s#eaGs to some of the enormous obstacles the undersigned has faced

in litigating this matter, including the e@tremely bad faith conduct of the

o##osing attorneyHs and landlord in the Summary $viction from the

undersignedHs commercial tenancy, his home la office in *JC *ev:>11-

>>18>


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EXHIBIT 1

F I L E DElectronically

12-31-2011:04:45:40 PMCraig Franden

Clerk of the Court

Transaction # 2676622


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