CASE NO.

B258583
IN THE CALIFORNIA COURT OF APPEAL
FOR THE SECOND APPELLATE DISTRICT DIVISION 5

Sherry Hernandez

Plaintiff-Appellant. California Court of Appeals Case

V.
No. B258583
PNMAC MORTGAGE OPPORTUNITY
FUND INVESTORS, LLC aka PNMAC
MORTGAGE OPPORTUNITY FUND Superior Court Case No. YC068794
INVESTORS, LP; PENNYMAC LOAN
SERVICES, LLC; MTC FINANCIAL,
INC dba TRUSTEE CORPS; and
DOES 1-20, inclusive,
Defendants-Respondents
____________________________________ __________________________________

APPEAL FROM THE SUPERIOR COURT OF LOS ANGELES

HONORABLE JUDGE ROMONA SEE

APELLANTS OPENING BRIEF

Plaintiff and Appellant

In Pro Per
 TABLE OF CONTENTS

TABLE OF AUTHORITIES.1
ISSUES ON APPEAL6
STANDARD OF REVIEW7
PROCEDURAL BACKGROUND.....8
STATEMENT OF FACTS
1) Lack of Reporters Transcripts or Suitable Substitute..10
2) Tender of Payment10
3) Assignment of Deed of Trust10
4) Wrongful Foreclosure11
ARGUMENTS
ISSUE 1: Whether Plaintiffs Failure To Provide A Reporters Transcript Or
Suitable Substitute Warrants Affirmance Based On Inadequacy Of The
Record.11

ISSUE 2: Whether The Trial Court Erred By Requiring Plaintiff/Appellant To

Allege Tender Of Payment In A Wrongful Foreclosure Action.14

A) Authority to Initiate non-foreclosure proceedings.14

B) Challenging a Foreclosure Proceeding...16
C) Sale of Interest has no effect on Plaintiffs obligation to make payments
.17
D) The Trustee Has an Obligation to All Parties..18

ISSUE 3: Whether The Trial Court Erred By Admitting Into Evidence

An Assignment Of Deed Of Trust Whose Authenticity Is The Basis Of The
Wrongful Foreclosure Action And Where The Defendants Have Not
Authenticated The Assignment Or Otherwise Disproved The Allegations Of
Fraud.
A) Trial Court Ruling is Based on Unwarranted Assumptions.20
B) The Utterance of Fraudulent Documents upon the Court Demonstrates a
Pattern of Moral Turpitude..22

i
 C) Can a Complete Stranger to any Tranaction Foreclose?.....................28

ISSUE 4: Whether The Trial Court Erred In Allowing The Wrongful

Foreclosure To Go Unchallenged.

A) Fruit of the Poisonous Tree..30

B) Prejudice...34

CONCLUSION.35
RELIEF SOUGHT...36

CERTIFICATE OF WORD COUNT36

APPENDIX...37

ii
 TABLE OF AUTHORITIES

CASES

Graphic Arts Mutual Insurance Company v. Time Travel International, Inc. (2nd Dist.,
2005)126 Cal.App.4th 405, 410........7

Aubry v. TriCity Hospital Dist. (1992) 2 Cal.4th 962, 966967.)...7

Rabin v. Dep't of State, No. 95-4310, 1997 U.S. Dist. LEXIS 15718...8

Platsky v. C.I.A., 953 F.2d. 25:....8

Miles v. Deutsche Bank National Trust Co., [4/29/2015] 042915 CAAPP4-3,

G050294.12, 13, 33, 34

Chavez v. IndyMac Mortgage Services (2013) 219 Cal.App.4th 1052,

1062......14

Lona v. CITIBANK, NA, 202 Cal. App. 4th 89 - Cal: Court of Appeal, 6th Appellate
Dist. 2011.....14

Stockton v. Newman (1957) 148 Cai.App.2d 558, 564.....15

Onofrio v Rice (1997) 55 Cai.App.4th 413, 424....15

Carter v. Deutsche Bank National Trust Co. (N.D.Cal. 2010) 2010 WL

1875718,2.......15

Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1155...16

Lester v. J.P. Morgan Chase Bank, supra, F.Supp.2d, [2013 WL 633333, p.

*8]........16

Mulato v. WMC Mortgage Corp., 2010 U.S. Dist. LEXIS 47100 (N.D. Cal. 2010)..17

(Dimock v. Emerald Properties LLC, supra, 81 Cal.App.4th at p. 875 [interpreting

2934a].17

Donabedian v. Mercury Ins. Co. (2004) 116 Cai.App.4th 9681 994...18

001
Dryden v. Tri-Valley Growers (1977) 65 Cai.App.3d 990, 998...18

Blank v. Kirwan (1985) 39 Cal.3d 3111 318; ......18

Donabedian, supra, 116 Cai.App.4th 968, 994)....18

Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cai.App.4th
1216, 1228....18

Ainsa v. Mercantile Trust Co. (1917) 174 Cal. 504, 510 [163 P. 898]....18

Pacific S. & L. Co. v. N. American etc. Co. (1940) 37 Cal. App.2d 307, 310 [99 P.2d
355]...18

Kerivan v. Title Ins. & Trust Co., 147 Cal. App. 3d 225 Cal....19

Woodworth v. Redwood Empire Sav. & Loan Assn. (1971) 22 Cal. App.3d 347, 366
[99 Cal. Rptr. 373]....19

Munger v. Moore (1970) 11 Cal. App.3d 1, 7 [89 Cal. Rptr. 323]...19

Dahl-Beck Electric Co. v. Rogge (1969) 275 Cal. App.2d 893 [80 Cal. Rptr.
440]....20

United States of America et al v. (under seal) defendants C.A. No.10-cv-01465-JFA

(second amended complaint) Pg. 51......20

People of the State of California vs.Zepeda et al (Case #BA400145).passim

Evans v City of Berkeley, 38 Cal.4th 1, 5 (2006)....23

Mirkin v. Wasseman, 5 Cal.4th 1082,1093 (1993)........23

Alliance Mortgage Co. v. Rothwell, 10 Cal.4th 1226, 1239(1995)....23

People v. Clark (2011) 52 Cal.4th 856...23, 29

People v. Parks, 7 Cal. App. 4th 883 - Cal: Court of Appeal, 4th Appellate Dist., 1st
Div. 1992.....25

People v. Feinberg (1997) 51 Cal.App.4th 1566, 1579.25

002
Wolfe v. Lipsy (1985) 163 Cai.App.3d 633, 638. .26

Kwikset v. Superior Court (2011) 51 Cal. 4th 310, 322.....27

Miller v. Cote (1982) Cal.App.3d 888, 894........32

Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375:..32
Pro Value Properties, Inc. v. Quality Loan service Corp....33

Glaski v. Bank of America, 218 Cal.App.4th 1079, 1094 (2013)...33

Ram v. OneWest Bank, 223 Cal.App.4th 1, 10 (2015.....33

Barrionuevo v. Chase Bank (N.D. Cal. 2012) 885 F.Supp.2d 964, 972.)
.....33

Biakanja v. Irving (1958) 49 Cal.2d 647, 650-651..34

Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 293.33

Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004,

1033, 103934

Knapp. v. Doherty (2004) 123 Cal.App.4th 76, 86; 4 .35

New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403,

1422..35

STATUTES

STATE

CCC 2923.55 (b)..16

Calif. Exceptions to Hearsay rule: 12:1320.....21

California Commercial Code 3203(d)..21

Evidence Code 352......23

003
CPC 115(a)....... 24, 26

CPC 134......25

CPC 127..25

CBC 8214.1.... 26

CCC 2924(c)16, 26, 36

CCC 2924(a)(6)..16, 16, 30

CCC 2924.17(b).17, 28 32

CC 8214.1....25, 41

CPB 17200.27

CPB 17500.27

CPC 470(d).27

CPC 487(a).26

CPC 118(a).................26

CCP 749.5.....26, 41

CCC 3412..25

CGC 8214..35

FEDERAL

Constitutional 5th
Amendment...14

Constitutional 7th
Amendment14

8 U.S. Code 1324c.32

004
38 Congressional Congress 13 State 116 55...33

OTHER AUTHORITIES

Miller & Starr California Real Estate 3D10:4 p.2334

Miller & Starr, Cal. Real Estate (3d ed. 2000) 10:254, p. 989-990.).33

PUBLICATIONS

IS THE TRUSTEE a Common Agent for All Parties? YES, say the Experts at
Northwest Trustee Services, Inc., in Santa Ana, CA., Atty Kathy
Shakibi... 18

http://insiderealestate.heraldtribune.com/2011/12/15/fbi-estimates-80-of-mortgage-
fraud-....21

http://scholarship.law.georgetown.edu/cgi/viewcontent. - Adam Levitin with

Georgetown University....22

CONSUMER ALERT issued by the DRE on 3/17/2012 written by: Wayne S. Bell
(Chief Counsel) and Summer B. Bakotich (Special Investigator) California
Department of Real Estate......28

California Notary Handbook 2012.......32

Miller & Starr California Real Estate 3D10:4 p.23......18, 34

http://www.standardandpoors.com/ratings/articles/en/us/?articleType=HTML&assetI
D=1245351407910...31

005
 APPELLANTS OPENING BRIEF

ISSUES ON APPEAL

This is an appeal from the trial courts ruling sustaining Defendants demurrer
without leave to amend. The issues before this court are:
1. Whether plaintiffs failure to provide a reporters transcript or suitable substitute

warrants affirmance based on inadequacy of the record.

A) Appellant asserts that affirmance is not warranted.

2. Whether the trial court erred by requiring Plaintiff/Appellant to allege tender of

payment in a wrongful foreclosure action without regard to the exceptions to
tender.
A) Appellant asserts in the affirmative.
3. Whether the trial court erred by admitting into evidence an Assignment of Deed
of Trust whose authenticity is the basis of the wrongful foreclosure action and
where the Defendants have not authenticated the Assignment or otherwise
disproved the allegations of fraud.
A) Appellant asserts in the affirmative.
4. Whether the trial court erred in allowing the wrongful foreclosure to go
unchallenged.
A) Appellant asserts that an error was made by not leaving room to
amend the complaint. Here the answer is Yes, in the trial courts ruling there
was reference to the fraud being a viable reason to go forth.

Appellant sets forth the following: standard of review, procedural background,

statement of facts and arguments in support thereof.

006
 STANDARD OF REVIEW
The standard of review for a dismissal without leave to amend is de novo or
abuse of discretion. In a dismissal without leave to amend, the foundational issue is;
Was a cause of action was stated, or if not, Could a cause of action be stated if leave
to amend were granted? The standard of review at the first stage is de novo; the
decision is derived from the entire record and the court reaches a decision
independent of the trial courts ruling. If the cause of action is determinable in the
suit, the stand of review is abuse of discretion. Graphic Arts Mutual Insurance
Company v. Time Travel International, Inc., (2nd Dist., 2005) 126 Cal.App.4th 405,
410. We apply the abuse of discretion standard when reviewing the trial court's
denial of leave to amend.
Here, whether a cause of action was stated depends on the purely legal
question of whether, as the trial court stated, tender must be alleged when fraud
in the inception is the basis of the case.

On appeal from a judgment dismissing an action after sustaining a demurrer .

. . , the standard of review is well settled. The reviewing court gives the complaint a
reasonable interpretation, and treats the demurrer as admitting all material facts
properly pleaded. [Citations.] The court does not, however, assume the truth of
contentions, deductions or conclusions of law. [Citation.] The judgment must be
affirmed if any one of the several grounds of demurrer is well taken. [Citations.]
[Citation.] However, it is error for a trial court to sustain a demurrer when the
plaintiff has stated a cause of action under any possible legal theory. (Aubry v. Tri
City Hospital Dist. (1992) 2 Cal.4th 962, 966967.)
As to abuse of discretion in not granting leave to amend even if a cause of
action were not stated, no evidence was before the trial court that appellant
could not allege tender. No statute of limitations bar or any such impossibility
of alleging a cause of action exists, so particularly because appellant is a pro
per, it abuses all requirements of judicial discretion to refuse a chance to amend

007
after explaining what the trial court thinks is the problem. In Rabin v. Dep't of
State, No. 95-4310, 1997 U.S. Dist. LEXIS 15718. The court noted that pro
se plaintiffs should be afforded "special solicitude." In Platsky v. C.I.A., 953 F.2d.
25: In re Platsky: court errs if court dismisses the pro se litigant .... without
instruction of how pleadings are deficient and how to repair pleadings. This ruling
indicates that a pro se litigant has the opportunity to correct his/her pleading at least
once.

PROCEDURAL BACKGROUND
Plaintiff filed suit, the case commenced on March 6, 2013 when
Plaintiff/Appellant brought suit in the Superior Court of the State of California,
County of Los Angeles, Southwest District, CASE # # YC068794; Sherry
Hernandez, plaintiff vs. defendants, PNMAC MORTGAGE OPPORTUNITY
FUND INVESTORS, LLC aka PNMAC MORTGAGE OPPORTUNITY
FUND INVESTORS, LP; PENNNYMAC LOAN SERVICES, LLC; MTC
FINANCIAL, INC. dba TRUSTEE CORPS; and DOES 1-20, inclusive. All
parties were served.
The dispute concerned real property. This action arises out of the alleged
wrongful conduct of defendants, in using an alleged fraudulent assignment of
deed of trust to wrongfully foreclosure on the Subject Property.
On October 8, 2012, the foreclosure was stayed in the Chapter 7
bankruptcy proceeding of co-trustor Elizabeth Hernandezs Chapter 7 Case, case
No. 2:12-bk-43888-ER. On November 20, 2012, Defendant PNMAC filed for relief
from the automatic Stay. A hearing was held on January 2, 2013 in which PNMAC
was unable to produce the supporting authorization to show that PNMAC was the
entitled party to ask for relief. PNMAC received two extensions from the
Bankruptcy Court in order to provide proof that PNMAC was entitled to enforce the
note, on February 12, 2013 and March 18, 2013. PNMAC was unable to provide

008
evidence. On Monday April 15, 2013, Judge Ernest Robles issued the Courts issued
an order granting relief from stay on subject property based on a colorable interest.
(CT Volume 2 pg. 460, CT Volume 3, pg. On Tuesday, April 16, 2013, in the
morning Trustee Corps sold the subject property at auction to the highest bidder,
PNMAC, a defendant in this case.
The 1st hearing on demurrer to the original complaint was scheduled for May
14, 2013.
Plaintiff/Appellants 1st Amended Complaint was filed on June 25, 2013.
On July 15, 2013 PNMAC filed an Unlawful Detainer against Appellants/Plaintiffs,
in case #13F04889, at the George Deukmejian Courthouse in Long Beach, and on
August 6, 2013 Plaintiff/Appellant filed a notice of related case with the trial court,
requesting that the actions be consolidated.
On Sept. 17, 2013 Appellants filed a motion to stay, and consolidate the cases.
Consolidation was denied, with leave to amend.
On November 12, the Unlawful Detainer Court sent Appellants back to
consider the matter for consolidation. The trial court combined the hearing on the
consolidation matter with the amended complaint. The consolidation was denied and
the First Amended Complaint was dismissed with leave to amend.
On December 2, 2013, Plaintiff/Appellant filed the Second Amended
Complaint, dropping the complaint of Declaratory Relief and Lack of Standing.
On July 31, 2014 the trial court held a hearing on the Second Amended
Complaint and the matter was argued and taken under submission.
On August 19, 2014 the trial court issued the ruling from which Plaintiff
appeals.

009
 STATEMENT OF FACTS

1. Lack Of Reporters Transcript Or Suitable Substitute

On March 6, 2013 this court ordered the parties to brief the issue of whether
lack of reporter's transcript of suitable substitution warrants affirmation based on
inadequacy of the record. Plaintiff asserts not.
Effective May 15, 2012, the Los Angeles Superior Court policy regarding normal
availability of official court reporters was issued. This rule now required litigants to
hire independent court reporters for court appearances. Plaintiff/Appellants then
counsel advised against having a court reporter at the few hearings held, stating that it
was not necessary at demurrer level of complaint. Then counsels logic was that a
court reporter was not necessary until the trial, especially given that most arguments
were by submission.
Appellant filed with this Appeals Court the Clerk Transcript from the trial
court, consisting of seven volumes of all proceedings, which adequately outlines all
complaints and counter-complaints before the trial court.
2. TENDER OF PAYMENT
Appellant's action is based on challenge to Defendant PNMACs wrongful
foreclosure based on fraudulent. The Assignment of Deed of Trust is void, and as a
consequence, all subsequent documents using the void Assignment of Deed of Trust
are void also. The Assignment of Deed of Trust was executed on January 18, 2012, a
time after the assignor had dissolved and was nonexistent and it was witnessed by a
notary who, during the pendency of this case, was convicted of over one-hundred
(100) criminal acts pertained to the illegal use and abuse of her notary license.
Assignor was administratively dissolved by the Secretary of State of Georgia on May
30, 2010. The Assignment of Deed of Trust formed is the basis for the foreclosure.
Given these facts, Appellant is not required to allege tender.
3. ASSIGNMENT OF DEED OF TRUST
In the Chapter 7 petition of co-trustor mentioned above, the Bankruptcy court

010
did not affirm the proffer of Defendant PNMAC as to an ownership interest in the
debt of Deed of Trust. Additionally, Appellant challenged the validity of the
authentication of the Assignment of Deed of Trust. The authenticating authority was
one , Corina Castillo, a Notary Public, State of California.
In the proceedings below, Plaintiff repeatedly brought to the courts attention
the nefarious character of Corina Castillo, to no avail. As noted in the Motion for
Judicial Notice, filed concurrently with this pleading. Corina Castillo, during the
pendency of this case, has been charged with over one-hundred (100) criminal
offenses related to the misuse and abuse of her notary commission and is now
convicted of over 100 charges related to the misuse of her notary commission. (see
RJN Part I, Exhibit 1 & 2)
4. WRONGFUL FORECLOSURE
Defendant PNMAC moved to foreclose less than 1 day after the lift of Stay in
the related Bankruptcy Case, described above. The case before this court now; had
already been filed complaining of the fraudulent Assignment of Deed of Trust, and
prior to the foreclosure sale. All documents and acts flowing from the fraudulent
Assignment of Deed of Trust are also void, including the foreclosure.

ARGUMENTS
ISSUE 1: Whether plaintiffs failure to provide a reporters transcript or
suitable substitute warrants affirmance based on inadequacy of the record.

On May 15, 2012, local rules suspended the availability of court reporters for
litigants. As a novice to the legal system, Appellant could not know, without sound
legal advice, that a court reporter transcript would be necessary for Appeal.
Appellant/Plaintiffs then attorney of record Robert Bonito, Esq., (Bar #113341) on
civil case YC068794, did not inform Appellant that a court reporter was essential
and, in fact, stated that since it was only a demurrer, a reporter was not necessary.
In the case at bar presently, appeal #B258583, an appeal from a demurrer to a

011
second amended complaint with no leave to amend (case #YC068794), there were no
witnesses at this stage of the proceedings and there were not any oral arguments that
were not effectively outlined within the written complaint. All matters were taken
under submission and written in the rulings, which are contained in Volume 7 of the
Clerks transcripts.
In the case of Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 713-714, the
appellants did not furnish a transcript of the hearing of the demurrer. The only record
before the court was the clerks transcript, not the court reporters transcripts. Of all
the examples cited, this is probably the most similar to the case at bar, yet in this
instance the Appeals court ruled in favor of the Plaintiff in spite of the missing
transcripts.
In a recent Appellant ruling; Miles v. Deutsche Bank National Trust Co.,
[4/29/2015] 042915 CAAPP4-3, G050294, although the court was not provided a record
of a hearing, they nonetheless ruled in favor of the Appellant; The court did not give
any indication of the basis of its ruling, and we were not provided a record of the
hearing
In reviewing the cases submitted with the Appeals Courts request, appellant
found that most were not comparable to the case at bar. The cases cited were
consistently dated prior to May 15, 2012, when the court still provided court
reporters. Many of the cases had important records missing from Jury instructions
and the actual trial. In Hernandez vs. PNMAC, case #YC068794, the appeal is a
result of a demurrer being sustained with no leave to amend. Consequently, oral
arguments or jury instructions were not at issue.
Appellant has reviewed the submitted cases, and has found that they lacked
similarity to the case as bar, for example:
In the case of Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, 1672
[transcript of judges ruling on an instruction request] and in Null v. City of Los
Angeles (1988) 206 Cal.App.3d 1528, 1532 , Calhoun v. Hildebrandt (1964) 230
Cal. App.2d 70, 72 [40 Cal. Rptr. 690]; and In re Salazar (1962) 205 Cal. App.2d

012
102, 105 [22 Cal. Rptr. 770], these cases were missing the jury instructions which
were a pertinent component of the reason for appeal.
In the case of Vo v. Las Virgenes Municipal Water Dist, the missing Clerk
Transcripts were only secondary to the fact that the appeal record was also missing
the complaint and the answer as well as the transcript from a 3-week jury trial.
In the referenced case Maria P. v Riles (1987) 43 Cal 3d 1281, 1295; and
Ehman v. Moore (1963) 221 Cal. App.2d 460 [34 Cal. Rptr. 540], these cases
involved a dispute over attorneys fees after trial and the court did not feel that there
was an adequate record of the oral arguments to address the matter without
transcripts.
In re Kathy P. (1979) 25 Cal.3d 91, 102, the appellant was a minor child. The
record failed to show if she had been advised of her right to counsel, and there was no
requirement that a transcript be made of the proceedings before the traffic-hearing
officer. There was no record or data amply sufficient for a judge to form a
judgment independent from that of the officer who decided the case. Nevertheless,
in this case the appellant was granted a rehearing due to the lack of transcripts.
In the case of Walker v. Superior Court (1991) 53 Cal.3d 257, 273-274. The
matters arose from automobile accidents. In the absence of transcript records and
reported hearings the appeals court ruled on the uncontested factual representations
in the briefs.
In a case that is similar to the case at bar, mentioned above; Miles v. Deutsche
Bank National Trust Co., [4/29/2015] 042915 CAAPP4-3, G050294, the appeals court
ruled that on a judgment dismissing an action after sustaining a demurrer., the
standard of review is well settled. The reviewing court gives the complaint a
reasonable interpretation, and treats the demurrer as admitting all material facts,
properly pleaded.
All references in the Appellants Opening Brief are taken from the 7-volume
Clerk Transcripts and referenced through out the brief with endnotes.

013
 There will be no references to any court testimony that is not contained within
the Clerk Transcripts on file. Consequently, the lack of Court Reporters Transcripts
should not be a fatal to this appeal.

ISSUE 2: Whether the trial court erred by requiring Plaintiff/Appellant to allege

tender of payment in a wrongful foreclosure action.

A. Authority to initiate non-foreclosure proceedings.

The trial court, in ruling on the cause of action for wrongful foreclosure,
stated:
Where Plaintiff challenges whether Defendants had authority to initiate
non-judicial foreclosure proceedings, the foreclosure process may be
conducted by the trustee, mortgagee or beneficiary or any of their
authorized agents. (CT Volume 7 pg. 1609)

This ruling assumes that the Defendants were duly authorized agents, which
overlooks all facts dispositive to Defendants. For instance, the lack of proof from
any Defendant in support of the validity of the Assignment of Deed of Trust, even
after repeated requests from Plaintiff for such proof; and repeated proffers showing
the fraudulence of the execution of the Assignment of the Deed of Trust. Plaintiff
asserts she has a colorable claim for wrongful foreclosure.

The elements of a wrongful foreclosure claim are: (1) the defendant caused an
illegal, fraudulent, or willfully oppressive sale of the property pursuant to a mortgage
or deed of trust; (2) plaintiff suffered prejudice or harm; and (3) plaintiff tendered the
amount of the secured indebtedness or is excused from tendering. Chavez v. IndyMac
Mortgage Services (2013) 219 Cal.App.4th 1052, 1062; Lona v. Citibank, NA. (2011)
202 Cal.App.4th 89, 112.)

014
 In the case as bar, Defendants have not responded to Plaintiffs allegations that
the Assignment of Deed of Trust was fraudulently executed; the basis for the
foreclosure was the fraudulent Assignment. As a result of the wrongful foreclosure,
Plaintiff/Appellant and her family were evicted from their home. As to tender,
Appellants situation falls within the exception for tendering the amount of the
secured indebtedness.

The trial court admits that the Appellant may have cause to seek allegations of
fraud, (CT Volume-7 pg. 1625)i and then proceeds to deny the Appellant the right to
do so, thereby denying the Appellant her rights to due process under the 5th and 7th
Constitutional Amendments. These fraudulent documents are absolutely fatal to the
case before this court. PNMAC did not present a document with a misspelled word
or a syntax error, but a fatally fraudulent document notarized by an admitted felon,
demonstrating a pattern of moral turpitude by the servicers and their agents.ii

Tender is typically excused in cases where: (1) the underlying debt is void, (2)
the foreclosure or trustee's deed is void on its face, (3) a counterclaim offsets the
amount due, (4) specific circumstances make it inequitable to enforce the debt, or (5)
the foreclosure has not yet occurred. (Chavez, supra, 219 c .al.App.4th at p. 1062.)

In Stockton v. Newman (1957) 148 Cai.App.2d 558, 564; Onofrio v

Rice (1997) 55 Cai.App.4th 413, 424, the court cites: While it is true that the sale
under the deed of trust could have been prevented by Appellant if he had made the
payments due under the note plus the other expenses required by section 2924c, Civil
Code, within 90 days after notice of default, such payment by him might well be
construed as an act in affirmance of the contract. "Any other act indicating an intent
to abide by the contract is evidence of an affirmance thereof and of a waiver of the
right to rescind." Along the same lines, Carter v. Deutsche Bank National Trust Co.
(N.D.Cal. 2010) 2010 WL 1875718, 2, states as follows: "The Court is unaware of
any requirement. .. , that a Appellant must tender if the complaint alleges fraud or a

015
substantive irregularity. While a tender may be required when a plaintiff alleges a
procedural irregularity that is not the theory that Appellants advance in their
complaint.
Appellant contends that the foreclosure is void inasmuch as the trustees deed
is void on its face.

B. Challenging a foreclosure proceeding

The trial court further stated, there is no burden on the foreclosing party to
prove their right to foreclose. (CT Volume 7 pg.1609) The court relies on Civil
Code 2924(a)(1); Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th
1149, 1155. These have been superseded.

Appellants action is based on challenge to banks' acts of filing fraudulent

instruments against Appellants property, among other issues not yet fully
pled. Appellant alleges the Assignment of Deed of Trust and related documents are
void as a fraudulent assignmentiii from a defunct entity, rather than a challenge to
procedural irregularities in the foreclosure process where the issue of tender is made
applicable by statute. Where a plaintiff alleges that the entity lacked authority to
foreclose on the property, the foreclosure sale would be void. [Citation.] (Lester v.
J.P. Morgan Chase Bank, supra, F.Supp.2d, [2013 WL 633333, p. *8].)

Appellant directs this court to California Civil Code section 2923.55, which
requires large lending institutions, prior to recording a notice of default, to provide a
written notice to homeowners allowing them to request a copy of the original
promissory note and any applicable assignments. (2923.55(b).) In addition, newly
added Civil Code section 2924(a)(6) provides that a foreclosing party must be the
"holder of the beneficial interest" in the debt:

No entity shall record or cause a notice of default to be recorded or otherwise

initiate the foreclosure process unless it is the holder of the beneficial interest

016
 under the mortgage or deed of trust, the original trustee or the substituted
trustee under the deed of trust, or the designated agent of the holder of the
beneficial interest. No agent of the holder of the beneficial interest under the
mortgage or deed of trust, original trustee or substituted trustee under the deed
of trust may record a notice of default or otherwise commence the foreclosure
process except when acting within the scope of authority designated by the
holder of the beneficial interest.

Read together, these sections confirm the Legislature's intent to ensure that the
party foreclosing on a homeowner is the "holder" of the debt and can demonstrate
proof of ownership if called upon to do so.

Appellant has spent years making repeated requests for a copy of the
promissory note, all assignments and a full accounting of the payments applied to the
debt. None were forthcoming. In one incident Plaintiff learned that the records of
payments to the first lender were not transferred to the second purported lender, a
Defendant in the case at bar.

C. Sale of interest has no effect on Plaintiff's obligation to make payments

The trial court is plainly dismissive of Plaintiffs vigorous challenge to the

foreclosure sale, stating, The sale of the interest has no effect on Plaintiff's
obligation to make payments. See Mulato v. WMC Mortgage Corp., 2010 U.S. Dist.
LEXIS 47100 (N.D. Cal. 2010) (Ruling, p. 3). Apparently the myopic court cannot
see the potential chaos of permitting a stranger to a debt to collect on the debt.

If more than one party claimed the power to foreclose at any given time, the
practical effect would be to put the homeowner in jeopardy of being foreclosed upon
by multiple parties. As one Court of Appeal put it in an analogous context, "there
simply cannot be at any given time more than one person with the power to conduct a
sale under a deed of trust." (Dimock v. Emerald Properties LLC, supra, 81

017
Cal.App.4th at p. 875 [interpreting 2934a].) A contrary result would create
inestimable levels of confusion, chaos and litigation." (Ibid.).

The function of a demurrer is to test the legal sufficiency of a complaint, but

not the truthfulness of the allegations. Donabedian v. Mercury Ins. Co. (2004) 116
Cai.App.4th 9681 994. The allegations of a complaint must be regarded as being true
for purposes of ruling upon a demurrer (Dryden v. Tri-Valley Growers (1977) 65
Cai.App.3d 990, 998). A demurrer can be used only to challenge defects that appear
on the face of the pleading under attack, or from matters outside the pleading that are
judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 3111 318; Donabedian,
supra, 116 Cai.App.4th 968, 994). When considering demurrers, courts read the
allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water
and Power (2006) 144 Cai.App.4th 1216, 1228).

Inasmuch as the Defendants cannot prove that any of them is the true holder of
the note, and do not disprove Plaintiff/Appellants allegations of fraud, Appellant
asserts that the trial court ruling is clearly an abuse of discretion.

D. The Trustee Has an Obligation to ALL Parties.

The trial court has stated that Appellant has failed to allege that MTC
Financial dba Trustee Corps, owes a duty to the Appellant. (CT Volume 7, pg.
1597iv). However, California law states that the Trustee company DOES owe a duty
as a common agent to both parties, (Whether, apart from any question of the validity
of the sale, the trustee has an independent duty, as the common agent of the parties
(see Ainsa v. Mercantile Trust Co. (1917) 174 Cal. 504, 510 [163 P. 898]; Pacific S.
& L. Co. v. N. American etc. Co. (1940) 37 Cal. App.2d 307, 310 [99 P.2d 355])
moreover the law goes on to say that The Trustee is liable for proceeding to sale on a
void deed of trust.
Does the Trustee have an obligation as a common agents to ALL parties? The

018
California law says YES. Miller & Starr California Real Estate 3D10:4 p.23
In an article written for Foreclosure Nation by Kathy Shakibi, Attorney for
Northwest Trustee, titled IS THE TRUSTEE a Common Agent for All Parties?
YES, say the Experts at Northwest Trustee Services, Inc., in Santa Ana, CA., Atty
Kathy Shakibiv The attorney states the following:

IF the homeowner has gone to court PRIOR to a foreclosure sale THE

TENDER rule does not apply when the homeowner is challenging who
owns the note and the deed of trust.

SO, with a viable possibly successful lawsuit pending the CRIMINALS get
into a huddle and their ONLY STRATEGY becomes to PUSH THE
TRUSTEE SALE through as FAST AS POSSIBLE. Then, the homeowner
will have to come up with thousands of dollars after the sale to proceed in
their lawsuit.

See how it works? It is like injuring your opponent in a 300 meter dash who
is obviously going to win if you dont damage him in some way.

Or, like when the bull fighters knowing they cant beat the bull, first stab
the bull many times injuring the bull and making sure the bull fighter cant
lose.

In Kerivan v. Title Ins. & Trust Co., 147 Cal. App. 3d 225 - Cal: Court of
Appeal, 2nd Appellate Dist., 4th, the appeals court ruled:
We first must ascertain the status and duties of a trustee under a deed of trust. (3) In
Woodworth v. Redwood Empire Sav. & Loan Assn. (1971) 22 Cal. App.3d 347, 366
[99 Cal. Rptr. 373], the court stated as follows: "It is well established, however, that a
trustee under a deed of trust is not a trustee in the technical sense. Rather, he is the
agent of all the parties to the escrow at all times prior to performance of the
conditions of the escrow and bears a fiduciary relationship to each of them. His
obligation to each is measured by an application of the ordinary principles of
agency." As an agent, the trustee may be liable for negligence. This principle was
found applicable in Munger v. Moore (1970) 11 Cal. App.3d 1, 7 [89 Cal. Rptr. 323],
wherein the court stated: "That rule is that a trustee or mortgagee may be liable to the

019
trustor or mortgagor for damages sustained where there has been an illegal,
fraudulent or willfully oppressive sale of property under a power of sale contained in
a mortgage or deed of trust." (4) An agent has the duty to use reasonable skill and
diligence and if he violates this duty, he is liable for any loss which his principal may
sustain as the result of his negligence. (Dahl-Beck Electric Co. v. Rogge (1969) 275
Cal. App.2d 893 [80 Cal. Rptr. 440].)

Civil Code section 2924.17(b) commands: Before recording or filing any of

the documents described in subdivision (a), a mortgage servicer shall ensure that it
has reviewed competent and reliable evidence to substantiate the borrower's default
and the right to foreclose, including the borrower's loan status and loan
information. (Italics added.) These statutes now reflect a clear California public
policy: foreclosures shall not be initiated by a party unless it has the power to
foreclose. A prejudice test interferes with that policy because it makes it harder for
borrowers to allege and prove violations of the Homeowners Bill of Rights. If this
Court applies present California public policy as found in the Homeowners Bill of
Rights, it will see that the prejudice test has no place in this case.

ISSUE 3: Whether the trial court erred by admitting into evidence an

Assignment of Deed of Trust whose authenticity is the basis of the
wrongful foreclosure action and where the Defendants have not
authenticated the Assignment or otherwise disproved the allegations of
fraud.
A. Trial Court Ruling is Based on Unwarranted Assumptions:

The trial courts decision comes to the wrong conclusion based upon
presumptions arising out of suspect paperwork proffered by known violators of
disclosure, testimony and those who have stone-walled even the agreements they
made in settlements with Attorneys general, government agencies and the
Department of Justice. Below is an excerpt from: (Pg. 51 of the Syzmoniak

020
complaint, case #C.A. No.10-cv-01465-JFA) vi prerequisite to the National Mortgage
Settlement agreement.

Mortgage Assignments Signed By Officers Of The Grantee

Fraudulently Identifying Themselves As Officers Of The Grantor
173. Realtors investigations revealed that hundreds of mortgage
assignments were signed by officers of BA, who fraudulently signed on
behalf of the grantor, when they were actually employees of the grantee.
By signing as officers of the grantor BA officers, lacking any authority,
fraudulently created mortgage assignments to be filed in foreclosure
actions. [iv]

The ruling by the trial court erroneously ignored consequential facts in the
preliminary pleadings. More importantly, the trial court ignored the obvious
evidence of Defendant PNMACS lack of standing to issue a foreclosure. The
purported lender, PNMAC, presented no evidence to this court to establish its right as
the entity entitled to enforce the note in question. (CT Volume 5, pg. 994 -995 line
25)vii Neither had the bankruptcy court made any ruling whatsoever as to the validity
of the documents presently at issue.
California Commercial Code 3203(d) states as follows:
(d) If a transferor purports to transfer less than the entire instrument,
negotiation of the instrument does not occur. The transferee obtains no rights
under this division and has only the rights of a partial assignee.

PNMAC, comprised and run by former Countrywide Executives, is not

entitled to the benefit of the presumptions in light of the obvious history of
forgery, perjury and other flagrant violations well documented across our nation.viii

The FBI estimates that 80 percent of all mortgage fraud involves

collaboration or collusion by industry insiders.
This confirms what one of the countrys top fraud experts has said for
years: that it was fraud by the big banks more than anything done by the
little guy which caused the financial crisis:ix

The problem with affidavits filed in many foreclosure cases is that the

021
 affiant lacks any personal knowledge of the facts alleged whatsoever.
Many servicers, including Bank of America, Citibank, JPMorgan Chase,
Wells Fargo, and GMAC, employ professional affiants, some of whom
appear to have no other duties than to sign affidavits. These employees
cannot possibly have personal knowledge of the facts in their affidavits.
One GMAC employee, Jeffrey Stephan, stated in a deposition that he
signed perhaps 10,000 affidavits in a month, or approximately 1 a minute
for a 40-hour work week.49 For a servicers employee to ascertain
payment histories in a high volume of individual cases is simply
impossible.

When a servicer files an affidavit that claims to be based on personal

knowledge, but is not in fact based on personal knowledge, the servicer is
committing a fraud on the court, and quite possibly perjury. The
existence of foreclosures based on fraudulent pleadings raises the question
of the validity of foreclosure judgments and therefore title on properties,
particularly if they are still in real estate owned (REO). x

Appellant and her husband, on the other hand, a couple married for over 42
years and near retirement age, have owned their own homes since 1976, with no
history of fraud, forgery, foreclosures, previous bankruptcies or lack of good faith
with which to draw the derogatory conclusions issued upon this court by opposing
counsel. (CT Volume 5 pg. 1047, 1049xi)
At this point rather than putting burdens not appropriate in the circumstances
upon Appellant, the trial court should have required defendant PNMAC to prove that
this pattern has changed. The trial court instead has allowed defendant PNMAC to
repeat the pattern of its predecessors in violation of the National Mortgage
Settlement. This is evidenced in the fact that the notary on the Assignment of Deed
of Trust, Corina Castillo has recently been convicted in case #BS400145. (see RJN,
Part I, EXHIBIT 1 & 2)

B. The Utterance of Fraudulent Documents upon the Court

Demonstrates a Pattern of Moral Turpitude.
Appellant included pertinent facts in each of the pleadings stressing that
defendant PNMAC had no legal right to enforce the note. (CT Volume 1, pg. 11,
volume 2, pg.352, Volume 3, pgs.563, 572, 599 696) Appellant has alleged fraud in

022
the documents. (CT Volume 3, pgs. 698-711, Volume 4 pgs. 714-715, 800-817,
Volume 7 pg. 1508)xii
This court, like the trial court, must assume the truth of all facts that the
Appellant has pled in her complaint. Evans v City of Berkeley, 38 Cal.4th 1, 5 (2006).
The Bankruptcy court did NOT affirm the documentation that PNMAC presented to
the court. (CT Volume 1 pg. 185)[13] Appellant presented the charges against the
notary, Corina Castillo, to the court, emphasizing the serious problems with the
Assignment of Deed of Trust. (CT Volume 3 pg. 698-711, cont. to Volume 4 pg 712-
714, Volume 4 pg. 747-763).[x]
Respondents continue to allege that Appellants have not adequately alleged
that the Assignment of Deed of Trust was fraudulently assigned (CT V-7 pg. 1534)xiii
Yet, the cause of the default, and the illegal assignment is an issue of fact that courts
cannot resolve on demurrer in a foreclosure situation. Mirkin v. Wasseman, 5
Cal.4th 1082,1093 (1993); Alliance Mortgage Co. v. Rothwell, 10 Cal.4th 1226,
1239(1995). Discovery and Evidence need to be presented to prove or disprove all
allegations.
Corina Castillo has been convicted of over 100 violations involving the misuse
of her notary commission. (see RJN Part I, Exhibit 1 & 2). At the time of the ruling
in the trial court giving Appellant no leave to amend, the case against Corina Castillo
had not yet reached fruition. These facts alone should have provided enough leeway
to give Appellant leave to amend the complaint to consider the outcome of the
underlining case.
California law also states that "A witness may be impeached with any prior
conduct involving moral turpitude whether or not it resulted in a felony
conviction, subject to the trial court's exercise of discretion under Evidence
Code section 352." (People v. Clark (2011) 52 Cal.4th 856. In the case of Corina
Castillo, the notary on the Assignment of Deed of Trust in question, there IS a felony
conviction involved, (RJN EXHIBIT 1) and that is only one of the many problems on
the fraudulent Assignment of Deed of Trust. This makes Corina Castillo an

023
impeachable witness, consequently, Ms. Castillos witnessing by notarizing the Note
is void.
Appellant has also alleged that Todd Graves could not be whom he claims on
the Assignment of Deed of Trust, (CT Volume 5, pg. 999, 1000)xiv because YOUR-
BEST-RATE-FINANCIAL was administratively dissolved by the Secretary of State
of Georgia on May 30, 2010, given leave to amend, Appellant can add additional
allegations along with numerous other violations since discovered. The seriousness
of these charges should give reasonable justification for leave to amend the
pleadings.
The State of California found the charges against Corina Castillo and the
Zepeda defendants egregious enough to prosecute. The charges brought against
Corina Castillo in case #BA400145, are no different than Ms. Castillos misuse of her
notary commission in the case before this court. In District Attorney Daniel L.
Kinneys formal objection to courts indicated open probationary plea offers, dated
5/9/2014, the District Attorney stated on record regarding Corina Castillo: Corina
Castillo acted as a notary on several fraudulent signed documents and she deposited
and transferred approximately $621,498 into her four bank accounts in a one year
period. Additionally, she funneled money to her husband, Eduardo Teran. (See
RJN Part 1, Exhibit 2). Appellant has verified that it is the same Corina Castillo
based on Ms. Castillos notary files on record and the notary number used to notarize
the documents in question. (See RJN Part II, Exhibits 3-6).
In the action filed 1-14-2013 by the People of the State of California against
private parties, case #BA400145, the following charges were cited and are relevant to
our complaint against Todd Graves and Corina Castillo:
California Penal Code 115: (a) Every person who knowingly procures
or offers any false or forged instrument to be filed, registered, or
recorded in any public office within this state, which instrument, if
genuine, might be filed, registered, or recorded under any law of this
state or of the United States, is guilty of a felony.

024
 Penal Code 134. Every person guilty of preparing any false or ante-
dated book, paper, record, instrument in writing, or other matter or
thing, with intent to produce it, or allow it to be produced for any
fraudulent or deceitful purpose, as genuine or true, upon any trial,
proceeding, or inquiry whatever, authorized by law, is guilty of felony.

Penal Code 127. Every person who willfully procures another person
to commit perjury is guilty of subornation of perjury, and is punishable
in the same manner as he would be if personally guilty of the perjury so
procured. (see CT Volume 4 pg.800 815)[x]

The penal code violations included these "white collar crimes" as crimes
because we, the people, have decided that this specific type of behavior is
undesirable, unacceptable, illegal and worthy of being punished. Knowingly
participating in these crimes by misrepresentation is a violation law. (PC 115)
(People v. Parks, 7 Cal. App. 4th 883 - Cal: Court of Appeal, 4th Appellate Dist., 1st
Div. 1992) `The core purpose of Penal Code section 115 is to protect the integrity and
reliability of public records.' [Citations.] This purpose is served by an interpretation
that prohibits any knowing falsification of public records." (People v. Feinberg
(1997) 51 Cal.App.4th 1566, 1579.
These laws do not offer a variation for large corporations or small business
entities. If the notary has no duty to the truth, then it is an unnecessary office and
should be eliminated entirely. The Assignments of Deeds of Trust has need of
authentication as required by the State of California to protect the integrity of the
public records. The law made no exceptions for large corporate entities, nor should it
have considering the repetitive pattern that is continuing in spite of the National
Mortgage Settlement.
Defendant PNMAC demurs to the 4th cause of action for cancellation of deed
by arguing that Appellant failed to allege specific facts demonstrating the invalidity
of the assignment of the Deed of Trust.
The elements of a cancellation of deed cause of action are, as follows:
(1) A written instrument;

025
(2) a reasonable apprehension that it may cause serious injury to someone; and
(3) as to whom it is void or voidable. Civ. Code 3412.xv
There can be no reasonable assumption that Corina Castillo acted
independently in fraudulently signing a Substitution of Deed of Trust for PNMAC,
nor can there be a reasonable assumption that Todd Graves acted on his own volition,
therefore, it leaves an open door for amending the complaint as to the complicity of
the defendant, PNMAC. Upon discovery we will provide evidence that YOUR
BEST RATE FINANCIAL has been out of business since 2009, and was
administratively dissolved by the Secretary of State of Georgia on May 30, 2010.
Appellant sufficiently alleged facts to support the cause of action. (CT Volume
7 pg. 1500xvi ), The cause of action is based on allegations that Todd Graves was not
ever an Associate Secretary of Mers for YOUR BEST RATE FINANCIAL LLC.. A
demurrer is not sufficient to determine the facts of this case without evidence. (CT
Volume 5 pg. 999)[43] In any event, evidence can be alleged upon leave to amend,
and Todd Graves can be deposed to aid in discovery. Corina Castillo was not
qualified to notarize the document as true under penalty of perjury.xvii
"To state a cause of action to remove a cloud, instead of pleading in general terms
that the defendant claims an adverse interest, the Appellant must allege, inter alia,
facts showing actual invalidity of the apparently valid instrument or piece of
evidence." Wolfe v. Lipsy (1985) 163 Cai.App.3d 633, 638.
Appellant submits that these allegations, supported by fact are sufficient to
support Appellants claims. (CT Volume-7, 1508-1513, court docket for Criminal
case #BA400145, PNMAC #17, Corina Castillo) (RJN Part 1, Exhibit 1, Sentencing
hearing for Corina Castillo) Given these allegations the cause of action is not based
merely on general terms or mere conclusions as argued by defendant, and the
respondents argument that Corina Castillo has not been convicted of these charges is
no longer viable. (CT Volume 7 pg. 1534-1535) (RJN Part I, Exhibit 1) The trial
court committed reversible error in not considering the seriousness and consequence
of the charges alleged.

026
 Defendant PNMAC claims the only one harmed by a fraudulent Assignment
of Deed of Trust would be MERS and/or the Lender, not the plaintiff. Nothing could
be further from the truth. First of all, MERS cannot be harmed by an invalid
assignment, since MERS was not a party to the transaction that took place in 2008,
two years prior to MERS acquiring a business license and an agent for service in
California. Second, even if a Lender were to be harmed by PNMACs fraudulent
assignment, defendant PNMAC is not that lender and PNMAC is not entitled to profit
from its fraud or to keep Appellant from working toward a resolution with the true
party of interest. This is patently illegal and a violation of the Professional and
Business sections -17200, 17500. (CT Volume 7 pg. 1540) xviii
The truth is, Appellant questioned defendant PNMACs acquisition from the
onset and was met with evasive maneuvers. Defendant PNMAC is a complete
stranger to the Appellants mortgage transaction. The Appellant and Appellants
husband have been responsible citizens and responsible homeowners for over 40
years. Appellants are not asking for a free house. However, they should not have to
relegate years of hard work and retirement investment to a stranger to the note who
has attempted to procure title through fraud.xix Defendant PNMACs utterance of
fraudulent documents into this transactions is a violation of the Professional and
Business sections -17200, 17500, as well as Penal Code violations; 470 (d), 487(a),
115(a), 118(a). Essentially, Defendant PNMAC is seeking to profit from a
transaction to which they have no legally standing, giving themselves an unfair
advantage by falsifying documents and filing them as true. xx
There "are innumerable ways in which economic injury from unfair
competition may be shown. A plaintiff may (1) surrender in a transaction more, or
acquire in a transaction less, than he or she otherwise would have;(2) have a present
or future property interest diminished;(3) be deprived of money or property to which
he or she has a cognizable claim; or (4) be required Kwikset v. Superior Court
(2011) 51 Cal. 4th 310, 322.

027
 C. Can a Complete Stranger to a Mortgage Tranaction Foreclose?

The question is presented here: Can a complete stranger to the mortgage

transaction simply file a document with the recorders office allowing them
possession of a property simply because there may be a debt owed on the property?
What would this do to our land records? Is simply filing a record with the County
Recorder enough to prove authority? The State of California prosecute 22 people in
the Zepeda case, (BA400145) in which Corina Castillo was defendant #17 for using
their authority to file false documents. (RJN Part II, Exhibit 5) What the defendant
PNMAC did in filing false assignments and profiting unjustly was no different than
what Appellants are stating herein. The trial court erred in not holding a large
corporation such as PNMAC to the same standard to which it holds the individual.
(Clerks Transcripts (CT) Volume-3 pg. 699-711 cont. to Volume-4 712-713, CT
Volume-4 (Exhibit A) pg. 747-763, CT Volume-4 (EXHIBIT A) pg. 799-815, CT
Volume-7 (EXHIBIT A) pg. 1473 -1477)xxi
In a CONSUMER ALERT issued by the DRE on 3/17/2012 written by:
Wayne S. Bell (Chief Counsel) and Summer B. Bakotich (Special Investigator)
California Department of Real Estate, he wrote:
What is important to understand here, and not always generally known,
is that the county recorder is not responsible for verifying the validity,
authenticity or legitimacy of the document that is recorded. In other
words, the recorder is not responsible for detecting a fraudulent
document, and the recorder does not look beyond the document itself. If
the document meets the essential recording requirements, and the proper
fees are submitted, the county recorder is obligated to and will record the
document.

Because of the composition and operation of the recordation system,

which is designed to smoothly facilitate the recording of many
documents, anyone can go down to a county recorders office and
present a document for recording against a particular property, whether
that document is legitimate or fraudulent.

028
 Therefore, there is no true safeguard or deterrent against the recording of
illegitimate deeds (forged, fictitious and/or fraudulent) on any property
and the prevention of the same is nearly impossible.xxii

The trial court erred in making light of the accusations contained in the
complaint, thereby compounding the error by misstating that Appellant argued that
PNMAC did not have the note, or that Appellant was alleging robo-signing. (CT
Volume 7 pg. 1630)xxiii In the recent Amicus Brief by the California State Attorney
General in Supreme Court Case #S218973, the State Attorney General noted that the
Home Owners Bill of Rights gave homeowners protections against abusive
practices: (see RJN Part IV, EXHIBIT 9, pg. 88) (3) a requirement that loan
servicers have reviewed "competent and reliable evidence" of default prior to
initiating foreclosure, i.e., an anti-robosigning protection( 2924.17); and (4) a
private right of action for plaintiffs seeking to enforce certain protections within the
act ( 2924.12).
While the HBOR reforms may have taken effect only recently, the
provisions regarding debt ownership codify existing law. In California, it
.has always been the rule that only a debt owner or its agent has authority to
foreclose.
The questions become much more pertinent than mere procedural errors, the
question becomes; Can any entity, a complete stranger to a transaction, seize upon an
obligation with no authority or financial consideration invested? And can this entity
do it by fraudulent producing a document? In view of the multiple accusations and
convictions in the Zepeda case BA400145 (RJN Part 1, Exhibit 1) regarding the false
signing and filing of fraudulent documents, the State of California takes these crimes
seriously, consequently, the only answer to that question should be NO. The trial
court erred in dismissing a case making these allegations.

Defendant PNMAC, has offered no true evidence on record that they are
entitled to enforce the note in favor of Your Best Rate Financial, LLC. This should

029
be fatal to their claims that they have a right to enforce this deed of trust.
Appellants submit that everything that Defendant PNMAC has offered before
the trial court was issued in fraud, demonstrating a pattern of moral turpitude by the
defendants. Appellants contend, irrefutably, that they can offer proof of this fraud,
given leave to amend.

ISSUE 4: Whether the trial court erred in allowing the wrongful foreclosure to
go unchallenged.

A) Fruit of the Poisonous Tree:

PNMAC has been able to move forward with foreclosure while not having the
legal right to do so. Unchallenged, PNMAC has been able to cease the prearranged
modification payments and then use the claim of non-payment as extortion to charge
unconscioncable fees and arrearages in order to hide its lack of standing and blame
the homeowner for the default. Consequently, Appellant is put in the position of
having to pay exorbitant legal fees as well as a court bond to show good faith,
while PNMAC has shown none.
PNMAC and its related defendants were aware of the lawsuit and the lis
pendens on the property when they rushed to conduct the illegal auction less than
one (1) working days after the bankruptcy court filed the release from stay in BK
#2:12-bk-43888 ER (CT Volume 1, pg. 184) (CT Volume 6 pg. 1202).xxiv They
rushed forward in spite of the lawsuit questioning title and in spite of the Bankruptcy
Courts non-affirmation of the documents filed to prove standing. The trial court
addressed this issue as follows: Plaintiff simply says that she relied on the
postponed sale date, but does not plead that she attempted to tender the amount
necessary at least five business days before the noticed foreclosure sale date. See
Civil Code 2924c(e). (CT Volume 7 pg.1585.)xxv The sale date had been under
bankruptcy protection. When the BK court released the stay upon the property in
question, Defendant PNMAC moved for a rushed sale in less than a day.

030
Appellant/ Plaintiff was not given a 5-day rescission period to even consider this
requirement. Another way the Appellant was prejudiced and another reason for leave
to amend. While Defendant PNMAC argues that Appellants offered no proof how
Appellant was prejudiced by the premature sale, they also offer no evidence that they
were authorized to conduct the sale, once again succeeding in turning Appellants
case into one of being a defendant and avoiding addressing the primary issue of
standing. (CT Volume 5 pg. 1058)xxvi .
Defendant PNMAC continues to claim ignorance in posting the trustees sale
date of May 16, 2013, claiming that it was a third party website, when in fact it is
public knowledge that LPS has a business relationship with PNMAC as noted on
the Standard & Poors website: There are 31 employees assigned to foreclosure
administration. Management and staff average 14 and two years' experience
respectively; two employees are assigned to bankruptcy administration, both
sufficiently experienced. To maximize efficiency and effectiveness while managing
loans in foreclosure, PennyMac partners with LPS, and uses proprietary
applications to manage foreclosure review and vendors (attorneys).xxvii (emphasis
mine) LPS is the Real Estate Industry standard go-to site for foreclosure listings
and is used throughout California to meet the posting requirements of CC 2924, this
reliance is demonstrated by the solicitation flyers from various agencies, included in
the complaint along with the LPS posting.
After filing fraudulent documents and rushing to sell prior to the civil trial,
PNMAC used the fruit of the poisonous tree to proceed with a false sale and
attempt to bury the fraudulent documents by producing a Trustees Deed Upon Sale.
Yet even in this, Defendant Trustee Corp seems reluctant to become complicit as they
stamped on the front of the recorded document: This instrument is being recorded
as an ACCOMODATION ONLY with no Representation as to its effect upon
title. ((CT) Volume-2 pg. 432, CT Volume-3 pg. 522, CT Vjolume-3 pg. 659, CT
Volume-4 pg. 892, CT Volume-5 pg. 1121, CT Volume-6 pg. 1201, CT Volume-6
pg. 1320,)xxviii also RJN Part III, Exhibit 7.

031
 The laws are very clear with regard to fraud: 8 U.S. Code 1324c - Penalties
for document fraud: (a) Activities prohibited
It is unlawful for any person or entity knowingly
(1) to forge, counterfeit, alter, or falsely make any document for the purpose of
satisfying a requirement of this chapter or to obtain a benefit under this chapter,
(2) to use, attempt to use, possess, obtain, accept, or receive or to provide any forged,
counterfeit, altered, or falsely made document in order to satisfy any requirement of
this chapter or to obtain a benefit under this chapter, (3) to use or attempt to use or to
provide or attempt to provide any document lawfully issued to or with respect to a
person other than the possessor (including a deceased individual) for the purpose of
satisfying a requirement of this chapter.
Defendant PNMAC filed the Fraudulent Assignment of Deed of Trust on
1/18/2012. On the face of the Assignment it states: .under that certain Deed of
Trust dated as of Jan. 18, 2008 executed by ALFREDO HERNANDEZ AND
SHERRY HERNANDEZ, HUSBAND AND WIFE AND ELIZABETH
HERNANEZ, A SINGLE WOMAN, as Trustor(s), to RICHARD SNEDDEN as
Trustee, and recorded January 20, 2008, as instrument No. 20080179256 (see
RJN Part II, Exhibit 3) (CT Volume 5, pg. 1096)
On the referenced instrument # 20080179256, The Deed of Trust, the Trustee
of that instrument is listed as RICHARD SNEDDEN. (CT Volume 5 pg. 1080) Yet
without a formal substitution of Trustee, by YOUR BEST RATE FINANCIAL or
CitiMortgage, Trustee Corp filed the Notice of Default, instrument #20120078648,
on the same day as the Fraudulent Assignment of Deed of Trust. (CT Volume 5 pg.
1104). Once again, another procedural error in violation of CC2924(a)(6) and
another apple from the poisonous tree. (Miller v. Cote (1982) Cal.App.3d 888, 894
["a trustees sale based on a statutorily deficient notice of default is invalid"].)
Appellant's argument that Defendant PNMAC's reliance on publicly recorded
instruments is improper, is well-taken. As explained in Herrera v. Deutsche Bank
National Trust Co. (2011) 196 Cal.App.4th 1366, 1375:

032
"'Taking judicial notice of a document is not the same as accepting the truth of its
contents or accepting a particular interpretation of its meaning.' ... While courts take
judicial notice of public records, they do not take notice of the truth of matters stated
therein .... 'When judicial notice is taken of a document, ... the truthfulness and proper
interpretation of the document are disputable. 111 [citations .omitted]
Thus, Defendant PNMAC's contention that the recorded documents "clearly
indicate that the chain of title is clear" is rejected. (CT Volume 7 pg. 1535)xxix . In
addition, as noted above, the Trustees Deed upon Sale becomes fruit of the
poisonous tree. The Los Angeles Country Registrar-Recorder, as well of the
Department of Real Estate[7] both contend that the Recorders office does not verify
the truthfulness of the documents recorded. (see RJN, Part III, Exhibit 8)
The Notary Handbook issued 2012 pg. 32 states the laws and responsibilities
of a Notary and the consequence of misuse in Government Code 8214 Misconduct
or neglect.xxx
8214 - For the official misconduct or neglect of a notary public, the
notary public and the sureties on the notary publics official bond are liable in
a civil action to the persons injured thereby for all the damages sustained.

The Federal Statutes from which all statutes are derived dictates in 13 Stat 116
55 That it shall be further enacted, that every president, director, cashier, teller,
clerk, or agent of any association, who shall embezzle, abstract, or willfully
misapply any of the moneys, funds, or credits of the association, or shall, without
authority from the directors, issue or put in circulation any of the notes of the
association, or shall, without such authority, issue or put forth any certificate of
deposit, draw any order or bill of exchange, make any acceptance, assign any note,
bond, draft, bill of exchange, mortgage, judgment, or decree, or shall make any false
entry in any book, report, or statement of the association, with intent, in either case,
to injure or defraud the association or any other company, body politic or corporate,
or any individual person, or to deceive any officer of the association, or any agent
appointed to examine the affairs ot any such association, shall be deemed guilty of a

033
misdemeanor, and upon conviction thereof shall be punished by imprisonment not
less than five nor more than ten years.
In California, when a party authorizes a foreclosure without the power to do
so, the foreclosure is void, not voidable. See, e.g., Pro Value Properties, Inc. v.
Quality Loan service Corp., 170 Cal.App.4th 579, 581, 583 (2009), and Glaski v.
Bank of America, 218 Cal.App.4th 1079, 1094 (2013). As the First District recently
held, a sale is rendered void when it is conducted by an entity that lacks authority to
do so. Ram v. OneWest Bank, 223 Cal.App.4th 1, 10 (2015). "Several courts have
recognized the existence of a valid cause of action for wrongful foreclosure where a
party alleged not to be the true beneficiary instructs a trustee to file a Notice of
Default and initiate nonjudicial foreclosure." to do so. Barrionuevo v. Chase Bank
(N.D. Cal. 2012) 885 F.Supp.2d 964, 972.)

B. Prejudice:
Wrongful foreclosure is a tort and plaintiff may recover damages proximately
caused by defendants wrongdoing. (John Miles vs. DEUTSCHE BANK (2015)
Cal.4th G050295 Super.Ct. No. RIC541334). In this recent ruling by the 4th Appellate
district, the panel ruled that evidence of damage is enough to survive a summary
judgment motion.
A tort of wrongful foreclosure satisfies the basic factors for finding a tort duty
enunciated in Biakanja v. Irving (1958) 49 Cal.2d 647, 650-651. The transaction is
intended to affect the plaintiff it is intended to dispossess the plaintiff; it is easily
foreseeable that doing so wrongfully will cause serious damage and disruption to the
plaintiffs life; the injuries are directly caused by the wrongful foreclosure; the moral
blame of foreclosing on someones home without right supports finding a tort duty;
and recognizing a duty will help prevent future harm by discouraging wrongful
foreclosures. (See Ibid.) Such a tort bears some analogy to a wrongful eviction tort,
which is well recognized and can exist in parallel with a breach of lease claim.
(Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 293

034
[California recognizes the tort of wrongful eviction];
Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004,
1033, 1039 [permitting both a breach of lease and tortious wrongful eviction to
proceed].) (Miles v. Deutsche Bank National Trust Co., [4/29/2015] 042915
CAAPP4-3, G050294)
Defendant PNMAC alludes that Appellant cannot allege prejudice, yet
Appellant has essentially screamed fraud throughout the pleadings. Fraud upon the
court IS prejudice. Fraud presented as truth sways the court and corrupts the truth
and it is illegal.
In the California Attorney Generals Appellant Brief, it states:
California courts have traditionally required that a plaintiff demonstrate "prejudice,"
or a causal link between the wrongful misconduct and resulting harm. (Knapp. v.
Doherty (2004) 123 Cal.App.4th 76, 86; 4 Miller & Starr, Cal. Real Estate (3d ed.
2000) 10:254, p. 989-990.) When a non-debt holder forecloses, a homeowner is
harmed because she has lost her home to an entity with no legal right to take it. If not
for the void assignment, the incorrect party would not have pursued a wrongful
foreclosure. Therefore the void assignment is the "but for" cause of the homeowner's
injury and all she is required to allege. (see RJN, Part IV, EXHIBIT 9 pg. 97)

CONCLUSION:.
An abuse of discretion occurs if, in light of the applicable law and considering
all of the relevant circumstances, the courts decision exceeds the bounds of reason
and results in a miscarriage of justice. [Citations.] (New Albertsons, Inc. v. Superior
Court (2008) 168 Cal.App.4th 1403, 1422.)
Appellant has standing because clear contract language in deeds of trust;
California public policy, as expressed in the foreclosure statutes; and decades of
California and federal laws grant them the right to sue.
This is a complex pleading case with multiple violations. Giving leave to
amend will only allow Appellant to have their case heard; it does not decide the

035
outcome.

RELIEF SOUGHT:
For these reasons, Appellant, Sherry Hernandez, respectfully requests that the
Court reverse the judgment of the trial court and grant leave to amend and leave to
add the necessary causes of action to fill in the gaps in Appellants pleadings. In the
alternative, Appellant is asking this court to reverse the foreclosure as fraudulent.

Dated: ____________________

Sherry Hernandez in Pro Per

CERTIFICATE OF WORD COUNT

Pursuant to California Rules of Court 8.2049(c), Appellant in pro
per, Sherry Hernandez hereby certifies that the typeface in the attached
brief is proportionately spaces, the type style is Roman, the type size is
13 point or more and the text of this brief consists of 9,939 words (not
including the cover, the Table of Contents and Authorities, this
certificate, the verification, and the signature blocks) as counted by the
Microsoft Word word-processing program used to generate this brief.

036
i
CT Volume-7 pg. 1625 - Trial Court states grounds for fraud, but denies
leave to amend to do so.
ii
CC 8214.1.
(b) Conviction of a felony, a lesser offense involving moral turpitude, or a
lesser offense of a nature incompatible with the duties of a notary public. A
conviction after a plea of nolo contendere is deemed to be a conviction within
the meaning of this subdivision.

iii
Miller & Starr California Real Estate 10:7 (execution and delivery)

iv
CT Volume 7, pg. 1597 Trial courts ruling regarding MRC Financial
(Trustees Corp)

v
http://foreclosurenation.org/foreclosure-education/is-the-trustee-a-common-
agent-for-all-parties-yes-say-the-experts-at-northwest-trustee-services-inc-in-
santa-ana-ca-attny-kathy-shakibi/

vi
United States of America et al v. (under seal) defendants C.A. No.10-cv-
01465-JFA (second amended complaint) Pg. 51

vii
CT Volume 5, pg. 994 -995 line 25 Bankruptcy Courts ruling without
acknowledging standing.
viii
Calif. Exceptions to Hearsay rule: Section 12: 1320

ix
http://insiderealestate.heraldtribune.com/2011/12/15/fbi-estimates-80-of-
mortgage-fraud-involved-industry-insiders/

x
http://scholarship.law.georgetown.edu/cgi/viewcontent. - Adam Levitin with
Georgetown University

xi
CT Volume 5 pg. 1047, 1049 sample of only some of derogatory remarks
unsubstantiated by evidence.

xii
CT Volume 3, pgs. 698-711, Volume 4 pgs. 714-715, 800-817, Volume 7 pg. 1508

037
Appellant alleges fraud in the documents
xiii
CT V-7 pg. 1534 - PNMACS argument regarding Assignment of Deed of
Trust.

xiv
CT Volume 5, pg. 999, 1000 Questioning who Todd Graves claims to be.

xv
3412. A written instrument, in respect to which there is a reasonable
apprehension that if left outstanding it may cause serious injury to a person against
whom it is void or voidable, may, upon his application, be so adjudged, and ordered
to be delivered up or canceled.
xvi
CT Volume 7 pg. 1500 Appellants accused PNMAC of filing fraudulent
documents

xvii
Business and Professional Codes 17200. As used in this chapter, unfair
competition shall mean and include any unlawful, unfair or fraudulent
business act or practice and unfair, deceptive, untrue or misleading
advertising and any act prohibited by Chapter 1 (commencing with Section
17500) of Part 3 of Division 7 of the Business and Professions Code.

xviii
CT Volume 7 pg. 1540 PNMAC denies Appellants have alleged fraud.

xix
CCP 749.5.(a) In an action for damages by an assignee or a successor in
interest against a beneficiary of a trust deed on real property consisting of a
single-family residence containing not more than four dwelling units, wherein
it is established the trust deed was forged in whole or in part by the
beneficiary, judgment may be entered for three times the amount at which the
actual damages are assessed.

xx
749.5. (a) In an action for damages by an assignee or a successor in
interest against a beneficiary of a trust deed on real property consisting of a
single-family residence containing not more than four dwelling units, wherein
it is established the trust deed was forged in whole or in part by the
beneficiary, judgment may be entered for three times the amount at which the

038
actual damages are assessed.

xxi
CT) Volume-3 pg. 699-711 cont. to Volume-4 712-713, CT Volume-4
(Exhibit A) pg. 747-763, CT Volume-4 (EXHIBIT A) pg. 799-815, CT Volume-
7 (EXHIBIT A) pg. 1473 -1477 listed Indictment against Corina Castillo.

xxii
CONSUMER ALERT: What Should You Do If You Learn that a Forged
and/or Fraudulent Deed Has Been Recorded Against Your Real Property?
By Wayne S. Bell (Chief Counsel) and Summer B. Bakotich (Special
Investigator) California Department of Real Estate

xxiii
CT Volume 7 pg. 1630 Trial court err in alleging robo-signing

xxiv
CT Volume 1, pg. 184) (CT Volume 6 pg. 1202 auction conducted less
than 1 working day after release from stay.

xxv
CT Volume 7 Pg. 1585: Plaintiff simply says that she relied on the
postponed sale date, but does not plead that she attempted to tender
the amount necessary at least five business days before the noticed
foreclosure sale date. See Civil Code 2924c(e).
xxvi
PNMACs argument regarding date of sale

xxvii
http://www.standardandpoors.com/ratings/articles/en/us/?articleType=HTM
L&assetID=1245351407910

xxviii
((CT) Volume-2 pg. 432, CT Volume-3 pg. 522, CT Vjolume-3 pg. 659, CT
Volume-4 pg. 892, CT Volume-5 pg. 1121, CT Volume-6 pg. 1201, CT
Volume-6 pg. 1320, - Trustees Deed Upon Sale
xxix
CT Volume 7 pg. 1535 PNMAC claims chain of title is clear

xxx
FROM PAGE 32 OF THE NOTARY HANDBOOK: 8214.1. Grounds for
refusal, revocation or suspension of commission (b) Conviction of a felony, a
lesser offense involving, or a lesser offense of a nature incompatible with the

039
duties of a notary public. A conviction after a plea of nolo contendere is
deemed to be a conviction within the meaning of this subdivision.

040