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1 VALERIE ANNE LOPEZ

2328 Sunningdale Drive (SPACE BELOW FOR FILE STAMP ONLY)

2 Tustin, California 92782


Telephone: (714) 760-4117
3 2rms@sbcglobal.net
4
Attorney In Pro per
5
6 SUPERIOR COURT OF THE STATE OF CALIFORNIA
7 IN AND FOR THE COUNTY OF ORANGE
8
CENTRAL JUSTICE CENTER
9
) Case No.:
10 )
) Judge:
11 )
)
12 ) MEMORANDUM OF POINTS AND
VALERIE ANNE LOPEZ, individually, ) AUTHORITIES RE: EXPARTE
13 ) APPLICATION FOR TEMPORARY
Plaintiff, ) RESTRAINING ORDER AND ORDER TO
14 ) SHOW CAUSE WHY A PRELIMINARY
vs. ) INJUNCTION SHOULD NOT ISSUE.
15 )
)
16 ) [CCP §§ 526, 527(c)(1) & Rules of Court, Rule
THE SUNNINGDALE TRUST #2328 ) 3.1200]
17 VECCHIO REAL ESTATE TRUST CORP., )
ORANGE COUNTY’S SHERIFF )
18 DEPARTMENT, IN ITS OFFICIAL ) DATE: October___ , 2018
)
CAPACITY, SANDRA HUTCHENS, IN )
19 TIME: ____________am/pm.
HER INDIVIDUAL AND OFFICIAL )
20 CAPACITY, JUDGE ROBERT MOSS, IN )
HIS INDIVIDUAL AND OFFICIAL ) DEPT: ____________.
21 CAPACITY; JUDGE TIMOTHY )
STAFFORD, IN HIS INDIVIDUAL AND )
22 OFFICIAL CAPACITY; and DOES 1
through 500, Inclusive,
23
24
TO THE ABOVE ENTITLED COURT, ALL DEFENDANTS AND THEIR ATTORNEY
25
OF RECORD:
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1
EXPARTE APPLICATION RE: MEMORANDUM OF POINTS AND AUTHORITIES
1 TABLE OF CONTENTS

2 I. INTRODUCTION.................................................................................................. 1
3 II. STATEMENT OF FACTS .................................................................................... 1
4
III. IMMINENT IRREPARABLE HARM .................................................................. 4
5
IV. ARGUMENT ......................................................................................................... 4
6
7 A. THE STANDARDS GOVERNING TEMPORARY RESTRAINING
ORDERS AND PRELIMINARY INJUNCTIVE RELIEF. ......................... 4
8
B. A TEMPORARY RESTRAINING ORDER AND PRELIMINARY
9
INJUNCTION SHOULD BE ISSUED IF PLAINTIFF’S RIGHT TO
10 RELIEF IS APPARENT FROM THE COMPLAINT AND THE
RELIEF CONSISTS IN RESTRAINING THE COMMISSION OR
11
CONTINUANCE OF THE ACT COMPLAINED OF. ............................... 5
12
C. A TEMPORARY RESTRAINING ORDER AND PRELIMINARY
13 INJUNCTION SHOULD BE ISSUED IF AN ACT WOULD
14 PRODUCE WASTE OR GREAT OR IRREPARABLE INJURY TO A
PARTY DURING LITIGATION. ................................................................. 5
15
D. A TEMPORARY RESTRAINING ORDER AND PRELIMINARY
16
INJUNCTION SHOULD BE ISSUED IF AN ACT WOULD RENDER
17 THE JUDGMENT INEFFECTUAL ............................................................. 6
18 1. Injunctive Relief is Proper to Stop Foreclosure ............................................. 9
19
2. The Court Should Halt The Foreclosure Proceedings Because a Genuine
20 Dispute Exists ........................................................................................... 10
21 3. The Court Should Grant An Injunction Because Defendant is
22 Threatening Acts Which Would Render Judgment Ineffectual ................ 10

23 4. The Court Should Not Permit Foreclosure If Its Propriety is In Question .. 10


24 5. Reasonable Success on the merits. .............................................................. 11
25
6. Imminent Irreparable Harm ......................................................................... 11
26
7. Balance of hardships tips in Plaintiffs’s favor. ............................................ 12
27
28 8. Public Interest .............................................................................................. 13

1
MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 9. Security Bond is not warrant ....................................................................... 14
2 F. WELLS FARGO BANK N.A. AND ITS AGENTS HAVE NO
3 STANDING TO FORECLOSE ON PLAINNFF'S HOME, AS IT HAS
NO ENFORCEABLE RIGHTS IN PLAINTIFF'S HOME. ....................... 15
4
5
1. DEED OF TRUST WITHOUT AN ENFORCEABLE RIGHT IS A
LEGAL NULLITY. .................................................................................. 15
6
2. WELLS FARGO BANK N.A. HAS NO ENFORCEABLE RIGHT
7 UNDER THE NOTE PURSUANT TO CAL. COMM. CODE
8 SECTION 3301. ........................................................................................ 16

9 3. Wells Fargo Bank N.A. IS NOT THE HOLDER OF THE NOTE


10
REQUIREMENTS. ................................................................................... 16

11 G. WELLS FARGO BANK N.A. HAS NO ENFORCEABLE RIGHT


UNDER THE NOTE PURSUANT TO CAL. CIV. CODE 2932.5............ 16
12
13 H. PLAINTIFF HAS ALLEGED VIOLATIONS OF California Civil Code
§ 2923.5, WARRANTING TEMPORARY AND PRELIMINARY
14 RELIEF. ....................................................................................................... 21
15
I. WELLS FARGO BANK N.A. HAS NO ENFORCEABLE RIGHTS IN
16 PLAINTIFFS’ HOME ................................................................................. 21
17 III. CONCLUSION ..................................................................................................... 22
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MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION
3
California Homeowner Bill of Rights (HBOR) became law, and 49 state Attorneys
4
General agreed to the National Mortgage Settlement (NMS) with five of the country’s largest
5 mortgage servicers. The servicers agreed to provide $20 billion worth of mortgage-related relief to
6 homeowners and to abide by new servicing standards meant to address some of the worst
7 foreclosure abuses. The California Legislature passed HBOR to give borrowers a private right of

8 action to enforce these protections in a court of equity and law [See CAL. CIV. CODE §§ 2924.12
& 2924.19 (2013); see also A.B. 278, supra note 2, at 22 (After California’s non-judicial
9
foreclosure process was hit with the foreclosure crisis, this “place[ed] an overwhelming amount of
10
authority and judgment in the hands of servicers . . . ).”] and to apply these requirements to all
11 mortgage servicers and its Agents. This Memorandum supports this individual right of Plaintiff to
12 sue and enjoin Defendants for violation of this mandated law and abuses initiated by Wells Fargo
13 Bank N.A. and its Agents.

14
II. STATEMENT OF FACTS
15
1. Wells Fargo Bank N.A. (herein known as Wells Fargo), and their agent Affinia Default
16
Services LLC acting as duly perfected trustee (herein known as Affinia or AGENT), have
17
mistakenly instituted a non-judicial foreclosure proceeding to foreclose on a deed of trust as to the
18
Property which was originally issued in the name of World Savings Bank FSB. Wells Fargo and
19
their agents did not have standing to initiate non-judicial foreclosure pursuant to CCP Section
20
2924
21
2. Wells Fargo via its AGENT has initiated a void and unlawful foreclosure without
22
beneficial interest in the deed of trust as defined by California law and has failed to prove that it is
23
entitled to enforce the Deed of Trust, which is the instrument of purported indebtedness which
24
would permit the legal holder thereof to declare a default which would trigger a foreclosure.
25
3. The Sunningdale Trust #2328 Vecchio Real Estate Corp. chose to participate in an illegal
26 auction which was administered by a business called Nationwide Posting and Publication which is
27 not a registered business in California per Secretary of State and Franchise Tax Board.
28

1
MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 4. Plaintiff is working with Franchise Tax Board and Internal Revenue Service to verify that
2 the Plaintiff has met her obligation and never owed Wells Fargo Bank FSB.
3 5. World Savings Bank FSB has been deemed a Unqualified Foreign Corporation never

4 registered in California or never contributed any payment to the Franchise Tax Board as required

5 by CA Corporate Code 2105.

6 6. Plaintiff has filed his complaint which allows Defendants 30 days to respond. Defendants

7 has been properly served. Plaintiffs will proceed with discovery to be met by Defendants, as

8 allowed by Civil Code of Procedure, which shall prove a preponderance of evidence to support

9 Plaintiffs' allegations of Defendant’s inability to evict Plaintiff from her home in particularly

10 based on a defective Notice of Default in violation of California’s Homeowner Bill of Rights act,

11 as codified in California Civil code section 2924 Et seq..

12 7. Plaintiff is and were at all times material hereto the legal owner of residential real property

13 located at 2328 Sunningdale Drive Tustin California, (hereafter the “Subject Property”).

14 8. Agent and Nationwide Posting and Publication held an illegal Trustee's sale on March 22,

15 2018 for the purpose of depriving Plaintiff of her interest in the subject property on a defective
Notice of Default and other issues set forth in his complaint.
16
9. Pursuant to the Complaint Filed by Valerie Anne Lopez in support hereof and filed
17
herewith (and incorporated herein by reference), Plaintiff has suffered irreparable harm as Agents
18
for The Sunningdale Trust #2328 Vecchio Real Estate Corp. are implementing actions within the
19
unlawful detainer court which deprive Plaintiff of due process as guaranteed by the California
20
Constitution Article 1 Section 7. Primarily, Plaintiff ‘s right to rescind the VOID deed of trust as
21
verified by various agencies. Plaintiff had been working primarily with the US Treasury to
22
confirm the obligation has been met.
23
10. As such, an emergency Temporary Restraining Order needs to be issued forthwith to
24
prevent the wrongful eviction of Plaintiffwhich would be premised on an unlawful conveyance
25
obtained by false, deceptive, and unfair practices and through violation of the California Civil
26
Code §2924 et seq.
27
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MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 11. Under the circumstances where the Defendants have intentionally violated California law
2 for the express purpose of wrongfully acquiring the Plaintiffs' real property with the specific intent
3 to profit from such wrongful conduct and where there is no harm to the Defendant in restraining it

4 from profiting from its unlawful actions, as based on a purported deed of trust in securing such

5 real property until all rights and liabilities can be ascertained, no additional bond should be

6 required of Plaintiff, as a precondition to the granting of the relief requested herein.

7 12. Plaintiff was illegal seized of her home by the same people on 12/30/2015. Refer to APP

8 30-2015-00822162 whereby Plaintiff was able to reverse the illegal eviction judgement. Steve

9 Silverstein is the same attorney who illegally seized Plaintiff’s home knowing the deed of trust

10 was eligible for a Quiet Title related to APP 30-2015-00822162.

11 13. Plaintiff has made a claim in his Verified Complaint for Declaratory and Injunctive Relief.

12 California Code of Civil Procedure (CCP) §§525 & 527 provides that the court, in its discretion

13 and upon such conditions and with or without such bond or other security as it deems necessary

14 and proper, may stay any ruling, order, or any other court proceedings and may restrain all parties

15 involved in order to secure the benefits and preserve and protect the rights of all parties to the
court proceedings.
16
14. As set forth above, Plaintiff's rights and legal status as to the Property have been affected
17
by the Defendant’s intentional and express violations of the provisions of the deed of trust and
18
California Civil Code 2924 et seq, and California Constitution Article 1 Section 1 and 7 which
19
has resulted in a void Notice of Default and Notice of Trustee's Sale and a void Trustee Deed
20
Upon Sale recorded against the property to perpetrate an illegal non-judicial foreclosure pursuant
21
to the California Homeowner Bill of Rights.
22
15. Plaintiff is aware of foreclosure abuse and the lack of banks adhering to the laws and
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Ask that this Court enjoin Defendants and its agents from any such eviction proceedings and
24
secure her benefits and preserve the status Quo and protect her rights in the property until final
25
adjudication in this instant matter with either the court or US Department of HUD or US Treasury
26
and other agencies working with Plaintiff.
27
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MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 III. IMMINENT IRREPARABLE HARM

2 Plaintiff, Valerie Lopez, faces the loss of his HOMESTEADED EXEMPT PROPERTY, if the

3 Defendant’s are not restrained and enjoined from executing a VOID judgement issued by Judge Moss

4 executed when he lacked jurisdiction between July 11, 2018 and October 11, 2018. The eviction case

5 was based on an illegal Trustee Deed Upon Sale where by Agents of The Sunningdale Trust #2328
Vecchio Real Estate Corp. decided to participate and hand money to an unregistered California
6
Business called Nationwide Posting and Publication.
7
Plaintiff, LOPEZ is facing the loss of her residence that would make her homeless based on a
8
defective Notice of Default and Trustee Deed Upon Sale and violations of the California
9
Homeowner Bill of rights for failure to meet the strict compliance requirements set forth by the
10
California legislature under the California Homeowner Bill of Rights act, which represents serious
11
irreparable harm.
12
13 IV. ARGUMENT
A. THE STANDARDS GOVERNING TEMPORARY RESTRAINING ORDERS AND
14
PRELIMINARY INJUNCTIVE RELIEF.
15
The standard for granting a preliminary injunction requires balancing plaintiffs’ likelihood of
16
success on the merits against the relative hardship to the parties. Here, the balance of hardships tips
17
sharply in support of plaintiff –he will lose his home if an injunction does not issue. In contrast,
18
defendants will suffer no serious hardship as their security in his home will remain (Demarest v Quick
19
Loan Funding, Inc. 2009 WL 940377 at 9 (C.D. Cal 2009) and it seems likely they will not
20
immediately sell the property even if they do foreclose since the property is encumbered with
21
numerous liens in which title is not transferrable and title Insurance is not conceivable due to pending
22 Federal and Civil litigation with regards to this property.
23 California Code of Civil Procedure Section 526(a)(1)-(5) states:
24
(a) An injunction may be granted in the following cases:
25
(1) When it appears by the complaint that the plaintiff is entitled to the relief demanded,
26 and the relief, or any part thereof, consists in restraining the commission or continuance
of the act complained of, either for a limited period or perpetually.
27 (2) When it appears by the complaint or affidavits that the commission or continuance of
28 some act during the litigation would produce waste, or great or irreparable injury, to a

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MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 party to the action.
(3) When it appears, during the litigation, that a party to the action is doing, or threatens,
2 or is about to do, or is procuring or suffering to be done, some act in violation of the rights
3 of another party to the action respecting the subject of the action, and tending to render
the judgment ineffectual.
4 (4) When pecuniary compensation would not afford adequate relief.
(5) Where it would be extremely difficult to ascertain the amount of compensation which
5 would afford adequate relief.
6
B. A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
7
SHOULD BE ISSUED IF PLAINTIFF’S RIGHT TO RELIEF IS APPARENT
8 FROM THE COMPLAINT AND THE RELIEF CONSISTS IN RESTRAINING
THE COMMISSION OR CONTINUANCE OF THE ACT COMPLAINED OF.
9 [Code of Civil Procedure § 526(a) (1)]
10 In this case, the complaint demonstrates that, unless restrained, defendants will proceed with a
11 wrongful eviction against plaintiff’s real property without justification and in violation of California
12 Civil Code section 2924, CCP Section 415.45, CCP Section 1161a. As set forth in the complaint and
13 as evidenced by the Notices of Default and Trustee’s Sale recorded by one or more of the defendants
14 without right or privilege, defendants and their predecessors or successors in interest commenced a
15 non-judicial foreclosure against plaintiff’s property despite her attempt to get Wells Fargo to submit a
16 verification validating its status as a creditor – sent February 28, 2018. Internal Revenue Records and
17 US Treasury records confirmed that Wells Fargo was not a creditor. More importantly, despite the
18 apparent fact the VOID Deed of Trust and which is alleged by defendants to be a valid lien against
19 plaintiffs’ home, is void and does not constitute a valid lien against their home per Franchise Tax
20 Board and Internal Revenue Service. It is impossible for Wells Fargo to have purchased any asset
21 from World Savings Bank FBA based on CA Rev and Tax Code 23304.1. It is clear LOPEZ is the
22 true and rightful owner of the real property and did not enter into an enforceable loan transaction with

23 Wells Fargo Bank N.A. as evidenced both records held at the Securities Exchange Commission and

24 US Treasury.

25 C. A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION


SHOULD BE ISSUED IF AN ACT WOULD PRODUCE WASTE OR GREAT OR
26 IRREPARABLE INJURY TO A PARTY DURING LITIGATION.
27 An injunction may be granted when it appears by the complaint or affidavits (or declarations) that
28 the commission or continuance of some act during the litigation would produce waste, or great or

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MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 irreparable injury to a party to the action (Code Civ. Proc. § 526(a)(2), 2015.5; Volpicelli v. Jared

2 Sydney Torrance Memorial Hosp. (1980) 109 Cal. App. 3d 242 ; Smith v. Smith (1942) 49 Cal. App.

3 2d 716 ). The term ''irreparable injury'' means that species of damages, whether great or small, that

4 ought not to be submitted to on the one hand or inflicted on the other (Wind v. Herbert (1960) 186 Cal.

5 App. 2d 276). This definition warrants the use of the injunctive power of the court against a wrong

6 that a trial judge deems insufferable because it constitutes an overbearing assumption by one person of

7 superiority and domination over the rights and property of others (Fretz v. Burke (1967) 247 Cal. App.

8 2d 741). It is plain that Wells Fargo Bank’s recording a Notice of Default and and the Substitution of

9 Trustee is not justified, particularly where, as here, such Notice of Default was filed improperly and

10 that, specifically, Wells Fargo Bank N.A. – the servicer was NOT the Trustee of Record at the time

11 such Notice was filed nor did Wells Fargo know, as evidenced by documents contained in the public

12 records of the Orange County Recorder, who the actual beneficiary of the Deed of Trust stands to be.

13 Only the US Treasury can assist with pointing to the true creditor. Further, Wells Fargo knew or

14 should have known they have no presently cognizable interest in the property and that pursuance of
foreclosure would result in loss of plaintiff’s home at worst or so cloud her title as to make it
15
impossible for her to continue to reside in his home without incurring enormous legal expense as what
16
happened to Plaintiff when her home was illegally taken from her on 12/30/2015 by the same attorney
17
Steve Silverstein. Such a loss or suffering should not be inflicted by the defendants upon Plaintiff for
18
2nd time APP 30-2015-00822162.
19
D. A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
20 SHOULD BE ISSUED IF AN ACT WOULD RENDER THE JUDGMENT
21 INEFFECTUAL

22 An injunction may be granted when it appears, during the litigation, that a party to the action is

23 doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of

24 the rights of another party to the action respecting the subject of the action, and tending to render the

25 judgment ineffectual ( Code Civ. Proc. § 526(a)(3) ; Heckman v. Ahmanson (1985) 168 Cal. App. 3d

26 119; Lenard v. Edmonds (1957) 151 Cal. App. 2d 764; Rossi v. Rossi (1955) 134 Cal. App. 2d 639).

27 While the conduct alleged in the complaint is outrageous, and may justify an award of monetary

28 damages, the principal relief sought herein is to prevent defendants from wrongfully evicting plaintiff

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MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 from her property with a VOID judgement. Thus, if defendants were permitted to proceed with their

2 eviction, the VOID judgment relative to such an action would be ineffectual.

3 California Code of Civil Procedure Section 527 states:

4 (a) A preliminary injunction may be granted at any time before judgment upon
a verified complaint, or upon affidavits if the complaint in the one case, or the
5 affidavits in the other, show satisfactorily that sufficient grounds exist therefor.
No preliminary injunction shall be granted without notice to the opposing
6 party.
7 With the pending eviction based on a VOID JUDGEMENT executed by Judge Moss when he
8 did not have jurisdiction at time judgement was issued, Plaintiff faces a real, imminent, and severe
9 harm that cannot be adequately compensated with a monetary award. Once this home is sold, no

10 amount of money can compensate them for the loss of their home. CCP 526(a)(2), (4)-(5). This fact

11 is also recognized under California law in the context of a home purchase. California law recognizes

12 that both irreparable injury and inadequacy of money damages are presumed to be present where real

13 property is involved. California law further recognizes that where a single-family residence is

14 involved, the presumption of the inadequacy of money damages is conclusive. Civil Code Section

15 3387 states:

16 “It is presumed that the breach of an agreement to transfer real property be adequately
relieved by pecuniary compensation. In the case of a single-family dwelling which the
17 party seeking performance intends to occupy, this presumption is conclusive.”
18
19 In determining whether to grant a preliminary injunction, the Court shall consider the

20 probability of Plaintiff’s success on the merits, and whether greater injury will result to the Defendants

21 in granting the injunction than to the Plaintiff in refusing it. Continental Baking Co. v. Katz (1968) 68
Cal.2d 512, 528, 67 Cal.Rptr. 761, 771. Similarly, in Robbins v. Superior Court of Sacramento
22
County (1985) 38 Cal.3d 199, 211 Cal.Rptr. 398, the California Supreme Court explained the trial
23
court’s proper balancing of hardships in determining whether a preliminary injunction should issue:
24
“The trial courts consider two interrelated questions in deciding whether to issue a
25
preliminary injunction:
26
Are the plaintiffs likely to suffer greater injury from a denial of the injunction than the
27 defendants are likely to suffer from its grant; and
Is there a reasonable probability that the plaintiffs will prevail on the merits.”
28

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MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 In applying the first prong of this two-prong test, Defendants are wealthy individuals and

2 institutions sophisticated in financial matters and will not be harmed by the issuance of the preliminary

3 injunction. However, if the temporary restraining order and preliminary injunction are denied,

4 Plaintiff will be rendered homeless for a second time. App 30-2015-00822162 based on illegal

5 elements. In this case, the writ of possession was written when Judge Moss did not have jurisdiction.

6
In applying the second prong of the aforementioned two-prong test, Plaintiff has more than a
7
reasonable probability of success on her complaint as evidenced by her winning appeal against Steve
8
Silverstein APP 30-2015-00822162. The appeal issues are the exact same issues presented in unlawful
9
detainer case 30-2018-00983668. The Independent Action In Equity and declaration submitted in
10
support of this application clearly demonstrates that Plaintiff is a victim of fraudulent and oppressive
11
business practices by people regulated by State and Federal law and who have taken undue advantage
12
of many numerous persons in the general public such as Plaintiff, for huge profit and gain.
13
Defendants are clearly in violation of law set forth in Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d
14
773, 157 Cal.Rptr. 392 in that their agent, Affinia Default Service, Inc, is actually a law firm doing
15 business under this name for First American Title Company, Service Link, and Wells Fargo & Co. as
16 a fiduciary, had “duties which extended beyond bare written disclosure or terms of the transaction to
17 duties of oral disclosure and counseling, which applies to transactions with “mortgage loan brokers.”
18 Plaintiff’s mortgage broker failed to disclose or to counsel Plaintiff as to the disastrous loan she was
19 offering Plaintiff in a market that seller’s of transaction knew was about to collapse. It was not until
20 plaintiff received the forensic analysis did she see the glaring discrepancies and non-compliance with
21 the law and illegal status of World Savings Bank FSB.
22
Defendants are fully secured and, in fact, may NOT obtain any relief against Plaintiff except for
23
that they receive from a trustee's sale or illegal liquidation of Plaintiff’s home or any trading on cases.
24
If the Deed of Trust is void then Defendants are NOT entitled to the property in any fashion. In
25
contrast, Plaintiff is without resources as a result of Defendants’ wrongful actions and unable to raise
26
additional funds to post a bond and still seek legal redress against Defendants. Restraining the illegal
27
28

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MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 eviction will not materially affect the Defendants in the same way an illegal eviction will harm

2 Plaintiff as it has done in the past..

3 Foreclosure is a drastic sanction. Baypoint Mortgage Corp. v. Crest Premium Real Estate etc.

4 Trust, (1985) 168 Cal.App.3d 818, 837. Irreparable injury will almost always be involved in a home

5 foreclosure, especially if the grounds for invalidating the foreclosure rest on the voidability rather than

6 the voidness of the transaction. Furthermore, courts presume in a foreclosure context that the property

7 is unique, that its loss is irreparable and that money damages are inadequate unless the property is

8 being openly marketed and has no special value to the owner than its market price. Jessen v.

9 Keystone Sav. & Other Loa Assn. 142 Cal.App.3d 454, 457-58.

10
The law is perfectly clear under California Code of Civil Procedure §526, as interpreted by the
11
higher courts.
12
E. THE COURT SHOULD GRANT INJUNCTIVE RELIEF WHEN IT
13
APPEARS BY THE COMPLAINT THAT THE PLAINTIFF IS ENTITLED
14
TO RELIEF
15
California Civil Procedure section 526(a)(1) holds a Court may grant an injunction:
16 "When it appears by the complaint that the plaintiff is entitled to the relief demanded, and
17 the relief, or any part thereof, consists in restraining the commission or continuance of the
18 act complained of, either for a limited period or perpetually.”
19 1. Injunctive Relief is Proper to Stop Foreclosure
20 The Court should grant injunctive relief when it appears by the complaint that the Plaintiff
21 is entitled to relief.

22 California Civil Procedure section 526(a)(1) holds a Court may grant an injunction:
23 "When it appears by the complaint that the plaintiff is entitled to the relief
24 demanded, and the relief, or any part thereof, consists in restraining the
25 commission or continuance of the act complained of, either for a limited period or
26 perpetually.”
27
28

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MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 2. The Court Should Halt The Foreclosure Proceedings Because a Genuine
Dispute Exists
2
California Code of Civil Procedure Section 526(a)(2) indicates that an injunction is
3
appropriate where irreparable harm may be suffered by the applicant if relief is not granted.
4
33. All real property under the eye of the law is considered unique. Money cannot compensate
5
for the loss of a family residence and home.
6
3. The Court Should Grant An Injunction Because Defendant is Threatening
7 Acts Which Would Render Judgment Ineffectual
8 California Code of Civil Procedure Section 526(a)(3) holds an, Injunction may be granted:

9 "When it appears, during the litigation, that a party to the action is doing, or threatens, or
10 is about to do, or is procuring or suffering to be done, some act in violation of the rights of

11 another party to the action representing the subject of the section of the action, and

12 tending to render the judgement ineffectual.

13 4. The Court Should Not Permit Foreclosure If Its Propriety is In Question

14 The California Supreme court in More v. Calkins (1895) 84 Cal. 177 held that a sale under

15 foreclosure ought not to be made when the debt is uncertain or in dispute.

16 This is still true today as the Court in Baypoint Mortgage Corp. v. Crest Premium Real Estate
17 etc., Trust (1985) 168 Cal.App.3d 818 [214 Cal.Rptr.3d 531] noted "Given the drastic
18 implications of a foreclosure, it is not surprising to find courts quite frequently granting
19 preliminary injunctions to forestall this remedy while the court considers a case testing whether it
20 is justified under the facts and law.” (See, e.g., Stockton v. Newman (1957) Cal.App.2d 558 [307
21 P2d. 56]; Bisno v. Sax (1959) 175 CaLApp2d 714 [346 P2.d .S14].)
22
Plaintiff’s likelihood of prevailing at trial is substantially assured. If the eviction using the
23
VOID judgement is not immediately halted, Plaintiff will lose her home - a loss which is
24
irreparable and cannot be adequately compensated for by money.
25
Therefore, Plaintiff seeks, through his Complaint and this application, an order from this
26
Court enjoining all Defendants including the Orange County’s Sheriff Department from taking
27
possession of her home in any manner during the pendency of this litigation. The declaration
28

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MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 establishes that the Judgement is VOID due to Judge Moss writing the Bond when he lacked

2 jurisdiction.

3 5. Reasonable Success on the merits.

4 In assuming Plaintiff’s allegations to be true, the court should find that the Plaintiff has
5
a reasonable chance of success on the merits on his claims, particularly as they relate to
6
Defendants’ conduct in failure to meet the strict requirements of the California Homeowner Bill
7
8 of rights of performing the necessary due diligence in contacting the Homeowner as required

9 by Cal. Civ. Code § 2923.55.


10 Plaintiff has provided sufficient facts to show that the Substitution of Trustee is fatal as
11
only the original lender is able to duly substitute a duly perfected trustee as explained in opinion
12
App. 30-2015-00806367 related to Steve Silverstein’s illegal seizure of Plaintiff’s Historical
13
home. The Substitution is insufficient to meet laws per CCP Section 2924 set-forth by the
14
15 California legislature.

16 The main issue stands to be that the judgement which The Orange County’s Sheriff
17
possesses is VOID. The Appellate Division held jurisdiction between July 11, 2018 and October
18
11, 2018 during period Plaintiff tried to get redress for due process violations pursuant to 473
19
d. Judge Moss did not have jurisdiction to invoke any judgement on 9/17/2018.
20
21 6. Imminent Irreparable Harm

22 A plaintiff seeking a temporary restraining order or preliminary injunction must


23 demonstrate that “irreparable injury is likely in the absence of an injunction.” Winter, 129 S.Ct.
24
at 375 (emphasis in original). This requires a plaintiff to demonstrate more than the
25
“possibility” of irreparable harm. Id.
26
27 In lite of the fact that a trustee sale is not the possibility of irreparable injury, it is actual

28 imminent “Irreparable” harm considering a foreclosure sale of Plaintiffs' Property constitutes

11
MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 the loss of Plaintiff home. Losing one’s home through foreclosure is an irreparable injury. See
2 Alcaraz v. Wachovia Mortgage FSB, 592 F.Supp.2d 1296, 1301 (E.D. Cal.2009) (“clearly, loss
3
of a home is a serious injury.”).
4
The threat to Plaintiff’s home is imminent, and such a loss constitutes irreparable harm
5
6 to him. “[L]osing one’s home through foreclosure is an irreparable injury.” Wrobel v. S.L. Pope

7 & Assoc., et al., 2007 WL 2345036, at * 1 (S.D. Cal. August 15, 2007). “Real property and

8 especially a home is unique” and “[i]rreparable injury is suffered when one is wrongfully
9
ejected from his home.” Johnson v. U.S. Dept. of Agriculture, 734 F.2d 774, 789 (11th Cir.
10
1984); see also Sundance Land v. Community First Fed’l Sav. & Loan, 840 F.2d 653, 661 (9th
11
Cir. 1988) (the threat of losing one’s home through foreclosure may constitute a threat of
12
13 irreparable injury).

14 The Court should find that the eviction Plaintiff from her home meets the irreparable injury
15 requirement and grant a Temporary Restraining order for this reason alone.
16
Plaintiff has thus demonstrated the likelihood of imminent irreparable injury absent judicial
17
intervention. Using a VOID judgement to evict Plaintiff opposes California Constitution Article 1
18
Section 7.
19
20 7. Balance of hardships tips in Plaintiffs’s favor.

21 In order to obtain injunctive relief, a plaintiff must establish that "the balance of equities

22 tips in his favor." Winter, 129 S.Ct. at 374. "In exercising their sound discretion, courts of equity
23 should pay particular regard for the public consequences in employing the extraordinary remedy of
24
injunction." Winter, 129 S.Ct. at 376-77.
25
The balance of hardships weighs in Plaintiffs' favor. If the sale of Plaintiffs' Property
26
proceeds as scheduled, Plaintiffs will lose his home. Even if Defendants were ultimately to
27
28

12
MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 prevail, a temporary restraining order will only force them to delay the sale of the Property by a

2 matter of days.

3 In Gonzales v. Gem Properties, Inc., 37 Cal.App.3d 1029 (1974) 112 Cal.Rptr. 884, the
4 trustee's sale was deemed void because the defendants had acted collusively, deliberately and
5 oppressively to obtain plaintiff's property for their own gain. The court concluded that the
6 defendants' conduct was fraudulent, deliberate, reckless and malicious. Here, Plaintiff have
7 demonstrated the instant Defendants have acted with far more malicious intent by going so far as
8 placing fraudulent documents into the Orange County Recorder's Office in attempt to divest
9 Plaintiff of their Home.
10
Defendants cannot present to the Court any compelling reasons why the eviction should
11
not be stopped finding on the merits of Plaintiff’s claims considering the fact that it is Plaintiff that
12
13 would be homeless, where only profiting is their only issue and Wells Fargo has refused to establish

14 a valid debt owed. Thus, irreparable harm to Plaintiff of losing her home before she can be heard
15 on the merits of her claims outweighs any harm to Defendants that may result from the delay. The
16
Court should find that the eviction of Plaintiff’s home meets the irreparable injury requirement and
17
grant a Temporary Restraining order for this reason alone. Using a VOID judgement and writ of
18
eviction would be a liability not only for the Plaintiff but also for the County of Orange.
19
20 Because Plaintiff have demonstrated balance of the hardship’s tips in a Homeowners favor,

21 Plaintiff has shown that the balance certainly tips in favor of granting his request for a temporary

22 restraining order for this reason alone.

23 8. Public Interest

24 A plaintiff seeking a temporary restraining order or preliminary injunction must demonstrate

25 than an injunction is in the public interest. Winter, 129 S.Ct. at 374. Plaintiffs bear the initial
burden. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009) (citing Winter, 129 S.Ct.
26
at 378).
27
28

13
MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 There is a strong interest in accurately resolving ownership of real property. See DaSilva v.

2 Wells Fargo Bank, N.A., No. 3:10 cv000381, 2010 WL 3910139, at *7 (D.Nev. Oct. 1, 2010)

3 (“[The] public interest in the prevention of improper non-judicial foreclosures is great.”); Perry v.

4 Nat’l Default Servicing Corp., No. 10-CV-03167, 2010 WL 3325623. At *6 (N.D. Cal. Aug. 20,

5 2010) (nothing that preventing a party from proceeding with a foreclosure sale to which it is

6 entitled does not serve the public interest).

7 Because Plaintiff have demonstrated likelihood of success on the merits by her complaint and
8 supporting documents, Plaintiff has shown that the public interest favors granting their request for
9 a temporary restraining order against permitting Defendants to continue to use illegal tactics to
10 seize Plaintiff’s home and permit Plaintiff a right to due process to protect her home. In time, she
11 will prove that all obligations were satisfied but need to be placed in a venue safe from further
12 abuse.
13 9. Security Bond is not warrant
14 This Court has broad discretion as to the amount of the security bond, including the
15 discretion to waive or limit the amount where no hardship against defendant is apparent, or where
16
plaintiff’s case involves the enforcement of a public interest. See Jorgensen v. Cassidy, 320 F.3d
17
906, 919 (9th Cir. 2003). Here, both situations exist. There is no realistic harm to Defendants from
18
a temporary restraint of the current illegal eviction proceedings, since their interests are purportedly
19
20 secured by the Deed of Trust. If the Defendants ultimately prevail in this litigation, Defendants may

21 proceed with the sale of the Property. The Court should find no bond is required at this time for this

22 reason alone on the basis that there is no explanation how Affinia Default Services was substituted
23 without efforts of World Savings Bank FSB and only efforts of Affinia Default Services LLC’s
24
clerks.
25
26
27
28

14
MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 F. WELLS FARGO BANK N.A. AND ITS AGENTS HAD NO STANDING TO
FORECLOSE ON PLAINNFF'S HOME, AS IT HAS NO ENFORCEABLE
2 RIGHTS IN PLAINTIFF'S HOME.
3 1. DEED OF TRUST WITHOUT AN ENFORCEABLE RIGHT IS A LEGAL
4 NULLITY.

5 Even if the Deed of Trust had been assigned, in California only the holder of the Note can initiate

6 foreclose proceedings, regardless of who the mortgage is owed. (See Adler v. Sargent (1895) 109 Cal.

7 42, 49). A “mortgagee's purported assignment of the mortgage without an assignment of the debt

8 which is secured is a legal nullity.” (Kelly v. Uspahaw (1952) 39 Cal.2d 179, 192.)

9 Plaintiff executed both the Note and Deed of Trust in favor of CityLine Mortgage

10 Corporation.
11 Wells Fargo Bank N.A. corporation is nowhere listed in the Deed of Trust. As such
12
Wells Fargo Bank N.A. corporation has no enforceable rights arising directly from the
13
Deed of Trust.
14
15 More importantly, any assignment of the Deed of Trust to Wells Fargo Bank N.A. without the

16 Note would still render the Deed of Trust a legal nullity with no enforceable power of sale. Economic

17 Stability Act of 2008 establishes the status of notes and remics as verified by Internal Revenue Service

18 and US Treasury.

19
A power of sale shall not be exercised until a notice of default is recorded in the office of the
20 county recorder, which shall include "a statement identifying the mortgage or deed of trust by stating
21 the name or names of the trustor." Cal. Civ. Code § 2924 (a) (1) (A).
22
A notice of sale shall be recorded in the office of the county recorder at least 20 days prior to the
23
date of sale and the notice of sale shall contain the name of the original trustor. Cal. Civ. Code § 2924f
24
(b)(1).
25
26
27
28

15
MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 2. WELLS FARGO BANK N.A. HAD NO ENFORCEABLE RIGHT UNDER THE
NOTE PURSUANT TO CAL. COMM. CODE SECTION 3301.
2
There is no reference to Wells Fargo Bank N.A. anywhere in the Note. Cal. Comm.
3
Code § 3301 states:
4
"Person entitled to enforce" an instrument means (a) the holder of the instrument, (b)
5 a nonholder in possession of the instrument who has the rights of a holder, or (c) a
6 person not in possession of the instrument who is entitled to enforce the instrument
Pursuant to Section 3309 or subdivsion (d) of Section 3418.
7
As detailed below, Wells Fargo Bank N.A. cannot meet any of the three requirements and is thus,
8
not a "person, entitled to enforce" the Note and foreclose, Indeed, such standing requirements have
9
prohibited foreclosures all across America recently.
10
11 3. WELLS FARGO BANK N.A. WAS NOT THE HOLDER IN DUE COURSE
REQUIREMENTS
12
Cal. Comm. Code § 1201 defines a "Holder," as
13
14 (A) the person in possession of a negotiable instrument that is payable either to
bearer or, to an identified person that is the person in possession; or
15 (B) the person, in possession of a document of title if the goods are deliverable either
to bearer or to the order of the person in possession.
16
Here, the Note is a negotiable instrument. (Comrn. Code § 3104.) The Note does not
17
have any type of endorsement. IRS records show that World Savings Bank FSB never deposited
18
the notes into the REMIC.
19
20 Accordingly, Wells Fargo Bank N.A. is not the holder of the Note.

21 G. WELLS FARGO BANK N.A. HAD NO ENFORCEABLE RIGHT UNDER THE


NOTE PURSUANT TO CAL. CIV. CODE 2932.5.
22
In California, California Civil Code § 2932.5 governs the Power of sale under an assigned
23
mortgage, and provides that the power of sale can only vest in a person entitled to money payments:
24
"Where a power to sell real property is given to a mortgagee, or other encumbrancer,
25 in an instrument intended to secure the payment of money, the power is part of the
security and vests in any person who by assignment becomes entitled to payment of the
26
money secured by the instrument. The power of sale may be exercised by the assignee
27 if the assignment is duly acknowledged and recorded."

28

16
MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 The Orange County Recorder's Office does not contain any evidence of a lawfully recorded

2 assignment from the World Savings Bank FSB to Wells Fargo Bank N.A. World Savings Bank N.A.

3 has never assigned their rights under the Note.

4 Accordingly, the power of sale may not be exercised by Wells Fargo Bank N.A. since there

5 was never an acknowledged and recorded assignment pursuant to California Civil Code §2932.5,

6 which likewise failed to render the Notice of Default provisions of California Civil Code §2924 and

7 Notice of Sale provisions, of California Civil Code §2924(f) effective.

8 Moreover, since Wells Fargo Bank N.A. also never complied with the Notice of Default

9 provisions of California Civil Code §2924 and Notice of Sale provisions of California Civil Code,§

10 2924(f), it likewise cannot conduct a non-judicial foreclosure at this time either.

11 2. EVEN ASSUMING THAT Wells Fargo Bank N.A. CAN ENFORCE A


FORECLOSURE, ANY SUCH FORECLOSURE WILL RESULT IN
12 VIOLATION OF CIVIL CODE 2923.6
13 Assuming arguendo that Wells Fargo Bank N.A. meets the requirements of Cal. Comm. Code §
14 3301 and has an enforceable right to foreclosure, it still owes duties to all other members to maximize
15 the value of Plaintiff's property. Effective July 8, 2008, California Civil Code Section 2923.6 states:
16 (A) The Legislature finds and declares that any duty servicers may have to maximize
net present value under their pooling and servicing agreements is owed to all parties in
17 a loan pool, not to any, particular parties, and that a servicer acts in the best interests
18 of all parties if it agrees to or implements a loan modification or workout plan for which
both of the following apply:
19
1. The loan is in payment default, or payment default is reasonably
20
foreseeable.
21
2. Anticipated recovery under the loan modification or workout plan
22
exceeds the anticipated recovery through foreclosure on a net present
23
value basis.
24
In enacting this code section, the Legislature sought to prevent the current market trends
25
in selling homes for great losses when reasonable modifications and work-out plans would
26
increase profits over time and keep families in their homes instead of on the streets. There is
27
28

17
MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 no doubt that Plaintiff’s Home will sell at a significant loss as thousands have in ORANGE
2 county.
3 The present fair market value of the property is $525,000. The Joint Economic Committee

4 of Congress estimated in June, 2007, that the average foreclosure results in $77.935.00 in

5 costs to the homeowner, lender, local government, and neighbors. Of the $77,935.00 in

6 foreclosure costs, the Joint Economic Committee of Congress estimates that the lender will

7 suffer $50,000.00 in costs in conducting a non-judicial foreclosure on the property to a third

8 party. Freddie Mac places this loss higher at $58,759.

9 Plaintiff' loan is allegedly in default. Plaintiff was willing, able, and ready to enter into

10 alternative foreclosure prevention options if Defendant was determined to be the holder of the

11 note.

12 The anticipated recovery through foreclosure on a net present value basis is $50,000

13 amount or less. The recovery under the proposed loan modification at $80,000 amount

14 exceeds the net present recovery through foreclosure of $30,000 amount by over $50,000

15 amount.
Pursuant to California Civil Code 2823.6, if defendant can enforce the note and non-
16
judicial sale, it was contractually bound to accept the loan, modification as provided above.
17
In no uncertain terms a greater amount would have been received from modifying
18
Plaintiff’s account instead of foreclosing. Foreclosure resulted in a greater, liability under
19
Civil Code Section 2923.6, and separate cause of action for wrongful foreclosure.
20
21 B. THE COURT SHOULD HALT THE EVICTION PROCEEDINGS
BECAUSE A GENUINE DISPUTE EXISTS
22
California Code of Civil Procedure Section 526(a)(2) indicates that an injunction is
23
appropriate where irreparable harm may be suffered by the applicant if relief is not granted.
24
All real property under the eye of the law is considered unique. Money cannot
25
compensate for the loss of a family residence and home.
26
27 C. THE COURT SHOULD GRANT AN INJUNCTION BECAUSE
DEFENDANT IS THREATENING ACTS WHICH WOULD RENDER
28 JUDGEMENT INEFFECTUAL

18
MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 California Code of Civil Procedure Section 526(a)(3) holds an, Injunction may be
2 granted
3 "When it appears, during the litigation, that a party to the action is doing, or threatens,
or is about to do, or is procuring or suffering to be done, some act in violation of the rights
4 of another party to the action representing the subject of the section of the action, and
tending to render the judgment ineffectual.
5
6 D. FORECLOSURE SHOULD NOT HAVE BEEN INVOKED IF ITS
7 PROPRIETY IS IN QUESTION.
8 The California Supreme court in More v. Calkins (1895) 84 Cal. 177 held that a sale
9 under foreclosure ought not to be made when the debt is uncertain or in dispute.
10
This is still true today as the Court in Baypoint Mortgage Corp. v. Crest Premium Real
11
Estate etc., Trust (1985) 168 Cal.App.3d 818 [214 Cal.Rptr.3d 531] noted "Given the drastic
12
implications of a foreclosure, it is not surprising to find courts quite frequently granting
13
preliminary injunctions to forestall this remedy while the court considers a case testing whether
14
it is justified under the facts and law.” (See, e.g., Stockton v. Newman (1957) Cal.App.2d 558
15
[307 P2d. 56]; Bisno v. Sax (1959) 175 CaLApp2d 714 [346 P2.d .S14].)
16
Plaintiffs' likelihood of prevailing at trial is substantially assured. If the eviction is not
17
immediately halted, Plaintiff will lose her home - a loss which is irreparable and cannot be
18
adequately compensated for by money.
19
Therefore, Plaintiff seeks, through their Complaint and this application, an order from
20
this Court enjoining ALL DEFEDANTS including THE ORANGE COUNTY’SHERIFF
21
DEPARTMENT and its Agents from evicting Plaintiff from her home in any manner during
22
the pendency of this litigation and a non-bias trial by jury can be granted to Plaintiff.
23
Wells Fargo Bank N.A. is an unknown third party without any enforceable right to
24
foreclose on Plaintiff’s home. It can show no interest whatsoever in the Note and thus is
25
precluded from a foreclosing under California Laws.
26
Even assuming arguendo it can establish standing, it is still required under recently
27
enacted California Civil Code Section 2923.6, to accept a modification to the loan.
28

19
MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 If the eviction proceeds using the VOID Writ of Possession, Plaintiff’s losses will be
2 irreparable and cannot be adequately compensated by money.
3 Plaintiff respectfully request an order to show cause why a preliminary injunction
4 prohibiting all Defendants, their agents and assigns, from evicting Plaintiff from her property
5 in any way until a fair trial by jury is granted.
6 Wells Fargo was not authorized to invoke a non-judicial foreclosure as required under
7 Plaintiffs’ Deed of Trust and California Administrative and statutory law.
8 Wells Fargo is a fictitious payee without any beneficial interest in Plaintiffs' Note and
9 Deed of Trust. Plaintiffs contracted with World Savings Bank FSB in the form of a Note and
10 Deed of Trust. The Deed of Trust has strict provisions that must be adhered to if the beneficiary
11 desires to invoke a non-judicial foreclosure. WELLS FARGO BANK N.A. is a stranger to the
12 transaction and an intermeddler who has caused false documents to be recorded against the
13 property to perpetrate a non-judicial foreclosure. WELLS FARGO BANK N.A. has no
14 authority or capacity to declare a default on the Note as required by Plaintiffs' deed of trust.
15 Assuming arguendo , that WELLS FARGO BANK N.A. has lawful standing the Notice of
16 Default is defective in failure to meet the strict requirements set forth as a matter of law.
17 Consequently, AFFINIA Default Services LLC is not authorized to execute power of
18 sale as a duly appointed trustee of the deed of trust. "The rights, powers, and duties of trustees
19 in non-judicial foreclosure proceedings are strictly limited and defined by the contract of the
20 parties and the statutes." Banc of Amer. Leasing & Capital, LLC v. 3 Arch Trustee Services,
21 Inc. (2009) 2009 WL 4727904, 9. Plaintiff executed a deed of trust that mandates the
22 beneficiary to appoint trustee. WELLS FARGO BANK N.A. was not appointed by the
23 beneficiary. Affinia Default Services LLC is an intermeddler and has no authority or capacity
24 to act as the trustee of the deed of trust with any power of sale authority. "Additionally, a lender
25 or beneficiary may make a substitution of the trustee to conduct the foreclosure and sale.
26 Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 334. See also Civ. C. 2924b(b)(4).
27 Defendant WELLS FARGO BANK N.A. cannot comply with California Civil Code
28 §2924. "Upon default by the trustor, the beneficiary may declare a default and proceed with a

20
MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 non-judicial foreclosure sale. (Civ. Code §2924...) ..." WELLS FARGO BANK N.A. is not the
2 beneficiary. Their ability to comply with CC §2924 is a physical and legal impossibility.
3 2. FORECLOSURE HAS RESULTED IN VIOLATION OF CALIFORNIA
CIVIL CODE SECTION 2923.6
4
Loan servicers have a duty to maximize the value of a loan when payments are in default
5
and the anticipated recovery of a loan modification exceeds that or foreclosure sale. Assuming
6
that WELLS FARGO BANK N.A. might be entitled to enforce the note, they will still breach
7
Civil Code section 2923.6 if it sells Plaintiffs’ Home for amount less than a reasonable
8
modification would recovery.
9
10 H. PLAINTIFF HAS ALLEGED VIOLATIONS OF California Civil Code § 2923.5,
WARRANTING TEMPORARY AND PRELIMINARY RELIEF.
11 California Civil Code § 2923.5 was enacted in 2008 in response to the mortgage crisis.
12 Mabry v. Superior Court, 185 Cal. App. 4th 208, 219 (2010). It requires a mortgage servicer to
13 take certain procedural steps before recording a notice of default. See Cal. Civ. Code §
14 2923.5(a). For instance, a mortgage servicer must make initial contact with the mortgagor
15 before recording a notice of default. Id. § 2923.5(a)(1)(A). If a mortgagor has submitted a
16 “complete application” for loan modification, the mortgage service may not record a notice of
17 default “until the borrower has been provided with a written determination by the mortgage
18 servicer regarding that borrower’s eligibility for the requested loan modification.” Id. §
19 2924.18(a)(1); see § 2923.5(a)(1)(A). A “complete application” is defined as “when a borrower
20 has supplied the mortgage servicer with all documents required by the mortgage servicer within
21 the reasonable timeframes specified by the mortgage servicer.” Id. § 2924.18(d).
22 AGENT for WELLS FARGO BANK N.A. did not comply with the requirements of
23 California Civil Code § 2923.5 and communicate and Notify borrower of his alternative
24 foreclosure prevention options prior to recordation of a Notice of Default.
25 I. WELLS FARGO BANK N.A. HAD NO ENFORCEABLE RIGHTS IN
26 PLAINTIFF’S HOME
The Deed of Trust without an enforceable rights is a legal nullity. Even if the Deed of
27
Trust had been assigned legally, in California only the holder of the Note can initiate foreclosure
28
proceedings, regardless of who the mortgage is owed. (See Adler v. Sargent (1895) 109 Cal.

21
MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 42, 49). A “mortgagee’s purported assignment of the mortgage without an assignment of the
2 debt which is secured is a legal nullity.” (Kelly v. Upshaw (1952) 39 Cal.2d 179, 192.)
3 Plaintiff executed both the Note and Deed of Trust in favor of World Savings Bank
4 FSB. WELLS FARGO BANK N.A. is nowhere listed in the Deed of Trust. As such, WELLS
5 FARGO BANK N.A. has no enforceable rights arising directly from the Deed of Trust. More
6 importantly, any assignment of the Deed of Trust to WELLS FARGO BANK N.A. without the
7 Note would still render the Deed of Trust a legal nullity with no enforceable power of sale.
8 III. CONCLUSION

9 Based on the aforementioned, Defendants is administratively proceeding with an illegal

10 eviction in violation of law due to Judge Moss executing the judgement dated 9/17/2018 while the

11 Appellate Division held jurisdiction. For the foregoing reasons, Plaintiff respectfully requests that

12 the Court grant her application for a stay while the merits of the Independent Action of Equity are

13 evaluated so that justice can prevail. Plaintiff has endured extensive legal abuse and has submitted

14 her appeal win to verify her earnest commitment to the law. Plaintiff will concurrently be working

15 with other agencies to assist in rescinding the contract on her home based on satisfied obligation

16 and CA Rev and Tax Code 23304.5. Plaintiff has disclosed her distress and why a restraining

17 order his required.

18 This is an action for emergency temporary and permanent injunctive relief which is
19 brought pursuant to applicable law. Plaintiff has a clear legal right to seek temporary and
20 permanent injunctive relief as Plaintiff is currently being threatened with a VOID writ of
21 possession and continues to be harmed and denied due process in the eviction court. Plaintiff
22 The Sunningdale Trust #2328 Vecchio Real Estate Corp is seeking, without satisfying the
23 necessary legal standing requirements. to conduct an illegal eviction and may eventually
24 attempt to take possession, custody, control of the Property and ultimately remove the
25 Plaintiff from her home.
26 The specific facts set forth in the Independent Action in Equity demonstrates that
27 unless an emergency temporary injunction against the eviction proceedings pending is not
28 granted that Plaintiff will suffer the irreparable injury, loss, and damage of the loss of her

22
MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 home for 2nd time and by same parties who harmed her on 12/30/2018. See App 30-2015-
2 00806367 The Sunningdale Trust #2328 Vecchio Real Estate Trust has no legal standing to
3 institute or maintain an eviction against the Property and there is no harm to said Defendant
4 with the granting of the requested relief, and any claimed harm is substantially outweighed by
5 the irreparable harm to the Plaintiff if the relief requested herein is not granted. The granting
6 of the relief requested herein is in the public interest, as the consuming public, including
7 Plaintiff, will continue to be harmed by the illegal and unlawful conduct of the Defendants if
8 she is not granted protection against Defendants who intend to use the VOID writ of
9 possession if the relief requested herein is not granted.
10 The alleged bonafide trustee Affinia Default Service LLC failed to meet, participate
11 and or follow the statutory laws governing a California non-judicial foreclosure.
12 The Court Trout v Taylor (1934), 220 Cal. 652 at Page 656 made that plain long ago
13 holding: “Numerous authorities have established the rule that an instrument wholly void, such
14 as undelivered deed, a forged instrument, a deed in blank, cannot be made the foundation of a
15 good title, even under the equitable doctrine of bona fide purchase.
16 The Court in Erickson v. Bohne(1955) 130 Cal. App.2d 553 held at page 556:”And in
17 Corpus Juris Secundum, page 307 and 308 it stated:”A void deed passes no title and cannot be
18 Made the foundation of a good title even under the equitable of doctrine of bona fide
19 purchase. In recent 2012 case of La Jolla Group v. Bruce (2012) 211 Cal.App. 4th461 the
20 Court held at head note 11 on page 477:”[11]…..Although the law protects innocent
21 purchasers and encumbrancers, ’that protection extends only to those who obtained good legal
22 title…[A] forged documents is void ab initio and constitutes a nullity.
23 In Closing Good Title Cannot be based on Fraud, Even as to a BFP (Bona Fide
24 Purchaser). I warned the agents for The Sunningdale Trust #2328 Vecchio Real Estate Corp.
25 on 3/22/2018 about validated title issues.
26 The Agent for The Sunningdale Trust #2328 Vecchio Real Estate Corp proceeded
27 regardless of the warning. Steve Silverstein appears to have a strong relationship with the
28 court which permits him to abuse Defendants as he has Plaintiff. Plaintiff is asking for the

23
MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
1 stay so she can finally exercise her rights under the California Constitution Article 1 Section
2 7. The courts willingness to use a VOID judgement to assist Silverstein remove the Plaintiff
3 from her home needs to be addressed and such actions avoided with the administration of the
4 Independent Action in Equity.
5 WHEREFORE, Plaintiff requests that this Court immediately enter a Temporary
6 Restraining Order immediately staying the eviction proceeding pending the final disposition
7 of the Independent Action in Equity Case citing injustices which have been inflicted upon
8 Plaintiff and for any other and further relief which is just and proper and to issue and approve
9 for recording a Notice of Pending Action.
10
11 Dated: October 17, 2018 Respectfully submitted,

12
_________________________________
13 Plaintiff, Valerie Anne Lopez
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MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT
OF EXPARTE NOTICE AND APPLICATION
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PROOF OF SERVICE