exparte-application-bfortro by stariya

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     LAW OFFICES OF TIMOTHY MCCANDLESS
2    Timothy McCandless, Esq. (SBN 147715)
     15647 Village Drive
3    Victorville, CA 92392
     Tel: (760) 690-8575
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     Fax: (760) 494-4214
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     Attorney for Plaintiff,
6    PLAINTIFF1, and PLAINTIFF2
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9                         SUPERIOR COURT OF THE STATE OF CALIFORNIA
10                                    COUNTY OF SAN BERNARDINO
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13                                                         CASE NO:
       PLAINTIFF1 and PLAINTIFF2
                                                           Department: V9
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                                                           EX PARTE APPLICATION FOR
                                  Plaintiffs,
                                                           TEMPORARY RESTRAINING ORDER
16                                                         AND PRELIMINARY INJUNCTION AND
          V.                                               PERMANENT INJUNCTION TO STAY
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                                                           FORECLOSURE, MEMORANDUM OF
       DOWNEY SAVINGS AND LOAN                             POINTS AND AUTHORITIES,
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       ASSOCIATION, P.A.; U.S. BANK, INC.;                 DECLARATION OF PLAINTIFF2
19     FCI LENDER SERVICES INC.; DSL
       SERVICE COMPANY, INC.; and DOES 1-                  Date: January 22, 2009
20     XX Inclusive.                                       Time: 8:30 AM
21                                                         Dept: V9
                                    Defendants.
22                                                         Assigned for all purposes to Honorable
                                                           Gilbert Ochoa
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            NOTICE IS HEREBY GIVEN that on January 22, 2009, at 8:30 AM, in Department V9
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      of the Superior Court of California, County of San Bernardino located at 14455 Civic Drive,
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     _________________________________________________________________________________________________________
         EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION TO STAY
                    FORECLOSURE, MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION
      Victorville, CA 92392, Plaintiffs, Plaintiff1 and Plaintiff2, will move the above-entitled court by
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2     ex parte application for issuance of a Temporary Restraining Order and request to stay the non-

3     judicial foreclosure as against Plaintiff’s real property.
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            Good cause exists for issuance of the Temporary Restraining Order because Plaintiff has
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     filed a civil action in which it is alleged that the terms and conditions of the loans were not
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     disclosed to Plaintiff, these loans were neither proper nor suitable for her financial condition and

8    station in life, these loans exceeded the reasonable expected value of the property at that time and
9    in the foreseeable future based upon expected market changes and these loans were an attempt to
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     acquire mortgage broker premiums, appraiser fees, mortgage service fees, and to pay sub-prime
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     loans, that said loan terms were unconscionable, the trustee breached his duty in the procedure
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13   leading up the to holding of the sale, in that the trustee does not have possession of the original

14   promissory note, and Plaintiff is entitled to a set-off because the amount allegedly owed by
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     Plaintiff as set forth in the Notice of Default and Notice of Trustee’s Sale is incorrect, and Plaintiff
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     needs the court to review the foreclosure procedure to avoid the irreparable loss of the property.
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     Plaintiff could not under any reasonably scenario of underwriting afford the two loans which were
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19   secured as against her property and as such, the loans were unconscionable. Finally and most

20   compelling, Plaintiff alleges that Defendants, and each of them, failed to comply with California
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     Civil Code section 2923.5(c)(1), in that said Defendants failed and/or refused to comply with the
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     mandates of said section which requires in part that the Defendants provide Plaintiff with options
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     to avoid the foreclosure of her property, and as such any foreclosure sale would be void, thus there
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25   is a great likelihood that Plaintiff will prevail upon the merits. Plaintiff is the owner of the real

26   property located at Address1, Apple Valley, California 92307.          The Ex Parte Application will
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     _________________________________________________________________________________________________________
         EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION TO STAY
                    FORECLOSURE, MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION
     be based upon this notice, the Memorandum of Points and Authorities in support thereof, the
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2    Declaration of Plaintiff1, the Declaration re: Certification

3    of Notice of Ex Parte Application, and other and further oral and documentary evidence to be
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     adduced at the hearing of this Application.
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     Dated: January 21, 2009
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                                                                    ___________________________
8                                                                   Timothy McCandless, Esq.
                                                                    Attorney for Plaintiffs
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                                                        I.
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                                              INTRODUCTION
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13          Plaintiffs, Plaintiff1 and Plaintiff2, seek to restrain the non-judicial foreclosure sale of her

14   real property located at Address1, Apple Valley, California 92307, based upon a variety of
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     procedural mistakes in the foreclosure process, violations of statutes by the trustee conducting the
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     foreclosure, and fraud in the factum at the time of creating the loan. To be certain, loss of the
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     Plaintiff’s property would constitute irreparable harm, whereas, if the court issues the Temporary
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19   Restraining Order, there will be no prejudice to the Defendants whatsoever.

20                                                      II.
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                                       HISTORICAL PERSPECTIVE
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            Plaintiff, Plaintiff1, an unsophisticated person and homeowner, simultaneously and
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     unknowingly executed two separate deeds of trust through a real estate mortgage broker in order
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25   to purchase the subject property located at: Address1, Apple Valley, California 92307, (hereinafter

26   “Subject Property”). The broker had a fiduciary duty to Plaintiff, by virtue of its real estate
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     license, to explain what Plaintiff was signing, the fact that there were two separate loans, what the
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     _________________________________________________________________________________________________________
         EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION TO STAY
                    FORECLOSURE, MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION
     terms of those loans were, the present and future payments, the cost of the loan, and to make an
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2    informed determination whether Plaintiff could afford to make the payments on two separate

3    loans, with differing terms and conditions. Plaintiff could not under any reasonably scenario of
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     underwriting afford the two loans which were secured as against her property. The loans were in
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     fact unconscionable.
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            On or about March 28, 2008, Defendants recorded a Notice of Default, claiming that

8    Plaintiffs were default in their monthly obligation under the promissory note and deed of trust
9    provided as security for the loan alleged above and on October 27, 2008 defendants served on
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     Plaintiffs and recorded with the San Bernardino County Recorder’s office a Notice of Trustee’s
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     Sale which provides notice of a trustee sale scheduled for November 13, 2008.
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13          On or about March 21, 2008, plaintiffs tendered to defendants the sum of approximately

14   $5,500.00, the amount that was due and payable as of said date to defendants said amount was
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     communicated at Downey Saving an tendered contemporaneously to Downey upon said Demand.
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            On July 8, 2008, the Governor of the State of California signed into law SB1137, now
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     codified as Civil Code sections 2923.5, 2923.5 and 2924.8 respectively, and became effective
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19   September 6, 2008. Civil Code section 2923.5(g)(2)(B) & (C) mandated that the Notice of Sale

20   contain a declaration that (a) the Borrower was contacted to assess the Borrower’s financial
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     situation and to explore options to avoid foreclosure, or (b) lists the efforts made, if any, to contact
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     the Borrower if no contact was made. The aforementioned sections apply only to loans which were
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     made from January 1, 2003 to December 31, 2007 (section (3)(i)).
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25          On September 6, 2008, the aforementioned statutes became effective.

26          On October 29, 2008, Plaintiff Plaintiff2 filed a declaration, i.e. constructive notice,
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     regarding aforementioned property bearing APN#: _______-__________-__________which
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     _________________________________________________________________________________________________________
         EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION TO STAY
                    FORECLOSURE, MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION
     stated the following: My Lender has not complied with civil code 2923.5. As such all notices of
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2    default and or trustee sales and such other recordings and actions are void as a matter of law.

3     A true and correct copy of the Declaration (Constructive Notice) is attached hereto as Exhibit
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     “A” and is incorporated by this reference.
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            On November 5, 2008, counsel for Plaintiffs mailed a Notice of Dispute & Request for
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     Accounting, Notice Pursuant to R.E.S.P.A., Qualified Request to the Loss Mitigation Department

8    at Downey Savings, 3501 Jamboree, P.O. Box 6000, Newport Beach, CA 92658.
9    A true and correct copy of Notice of Dispute & Request for Accounting is attached hereto as
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     Exhibit “B’ and is incorporated by this reference.
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            The Notice of Default did not include the mandated declaration as required in Civil Code
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13   section 2923.5(g) et seq. and as such any foreclosure proceeding would be void ab initio.

14                                                     III.
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                                             LEGAL ANALYSIS
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                        AN INJUNCTION IS A WELL RECOGNIZED REMEDY
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                        TO PREVENT AN UNWARRANTED FORECLOSURE.
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19          An action to enjoin a foreclosure sale is a well recognized remedy to prevent an

20   unwarranted foreclosure. (See 2 Ogden’s Rev. California Real Property Law § 959). A injunction
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     may issue to prevent acts which (a) cause great or irreparable injury; (b) violate the party’s rights
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     and tend to render the judgment ineffectual; (c) create harm for which money damages are
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     inadequate; (d) may lead to a multiplicity of actions; (e) violate a trust. Code of Civil Procedure
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25   section 526.

26          In determining whether to issue any temporary restraining order or preliminary injunction,
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     the trial court must examine two interrelated factors: (1) The first is the likelihood that the plaintiff
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     _________________________________________________________________________________________________________
         EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION TO STAY
                    FORECLOSURE, MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION
     will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to
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2    sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer

3    if the preliminary injunction were issued. IT Corp. v. County of Imperial, (1983) 35 Cal.3d 63,
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     69-70; 196 Cal.Rptr. 715.
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             Foreclosure is a drastic sanction. Baypoint Mortgage Corp. v. Crest Premium Real Estae
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     etc. Trust, (1985) 168 Cal.App.3d 818, 837. Irreparable injury will almost always be involved in

8    a home foreclosure, especially if the grounds for invalidating the foreclosure rest on the
9    voidability rather than the voidness of the transaction. Furthermore, courts presume in a
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     foreclosure context that the property is unique, that its loss is irreparable, and that money damages
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     are inadequate unless the property is being openly marketed and has not special value to the owner
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13   other than its market price. Jessen v. Keystone Sav. & Loan Assn., 142 Cal.App.3d 454, 457-58.

14   In addition, the trustor will suffer irreparable injury because the trustor generally has no right of
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     redemption after a foreclosure sale. A foreclosure will often render ineffectual any ultimate relief
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     that may be awarded. If the trustor, for example, is entitled to damages but not rescission in a
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     particular transaction, the trustor would be allowed to retain the property and would be
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19   compensated in damages. But, such a judgment would be rendered ineffectual through the loss of

20   the property at foreclosure. Stockton v. Newman (1957) 148 Cal.App.2d 558, 563-564. Similarly,
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     a foreclosure would render moot the trustor’s attempt to cancel a trust deed if the property were to
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     be sold to a bona fie purchaser. Thus, an injunction is necessary to preserve the status quo.
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     Weingand v. Atlantic SAv. & Loan Assn., (1970) 1 Cal.3d 806, 819, 83 Cal.Rptr. 650.
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25           Courts have held that injunctions are appropriate to restrain foreclosure sales in various

26   contexts including but, not limited to: improper notice of default, Lockwood v. Sheedy, 157
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     _________________________________________________________________________________________________________
         EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION TO STAY
                    FORECLOSURE, MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION
     Cal.App.2d 741, 742; trustee’s breach of duty in conducting the sale, Baron v. Colonial Mortgage
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2    Service Co., 111 Cal.App.3d 316, 324.

3                                                      IV.
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                    THERE IS A GREAT LIKELIHOOD THAT PLAINTIFF WILL
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                         PREVAIL UPON THE MERITS GIVEN THE PATENT
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                             VIOLATION OF STATUTE BY DEFENDANTS.

8           There is a great likelihood that Plaintiff will prevail upon the merits in this action given the
9    patent violation of Civil Code section 2932.5(c) et seq., by failing to include the mandated
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     declaration of attempts to contact the Plaintiff on the Notice of Default. The proper procedural
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     mechanism for Defendants would have been to comply with the statute, if the parties could not
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13   enter into a loan modification or other remedy, then Defendants could lawfully refile their Notice

14   of Default. Under the present circumstances, the failure to include the declaration in the Notice of
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     Sale is fatal to the foreclosure, which would be void ab initio. A true and correct copy of the
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     Declaration (Constructive Notice) is attached hereto as Exhibit “A” and is incorporated by this
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     reference.
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19          A nonjudicial foreclosure sale under the power-of-sale in a deed of trust or mortgage, on

20   the other hand, must be conducted in strict compliance with its provisions and applicable
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     statutory law. A trustee's powers and rights are limited to those set forth in the deed of trust and
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     laws applicable thereto. (See, e.g., Fleisher v. Continental Auxiliary Co., (1963) 215 Cal.App.2d
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     136, 139, 30 Cal.Rptr. 137; Woodworth v. Redwood Empire Sav. & Loan Assn., (1971) 22
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25   Cal.App.3d 347, 366, 99 Cal.Rptr. 373.) (Emphasis added.)

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     _________________________________________________________________________________________________________
         EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION TO STAY
                    FORECLOSURE, MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION
            There is a great likelihood that if the foreclosure sale is not enjoined, that the foreclosure
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2    will proceed, and that any sale arising thereof will be void, necessitating the Plaintiff seek to set

3    aside a void sale.
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            Additionally, the Notice of Trustee’s Sale was recorded by a out-of-state company,
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     however, said business is not registered with the Secretary of State of California, and as such any
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     acts of such business are void pursuant to Revenue and Taxation Code section 23301,

8    Corporations Code sections 1502, 2204, and 2205.
9           Plaintiff alleges in part that the Notice of Trustee’s Sale is void because it fails to comply
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     with Civil Code section 2932.5 et seq., in that it does not contain the mandated declaration. Some
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     case hold that a sale held without proper notice of sale is void. Scott v. Security Title Ins. & Guar.
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13   Co., (1937) 9 Cal.2s 606, 613, 72 P.2d 143. The power of sale under a deed of trust will be strictly

14   construed, and in its execution the trustee must act in good faith and strictly follow the
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     requirements of the deed with respect to the manner of sale. The sale will be scrutinized by courts
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     with great care and will not be sustained unless conducted with all fairness, regularity and
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     scrupulous integrity …” Pierson v. Fischer, (1955) 131 Cal.App.2d 208, 214.
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19          The injunctive relief sought herein seeks to enjoin the trustee and the beneficiary. Because

20   if only the trustee is enjoined, the beneficiary might be able to circumvent the order by substituting
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     a new trustee. (See Civil Code section 2934a). Additionally, Plaintiff seeks an injunction which
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     applies to the selling, attempting to sell, or causing the sale of the property and any act authorized
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     or permitted by Civil Code section 2924, 2924b, 2924f, 2924g, and 2934a, in connection with or
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25   incident to the sale.§ 2923.5.

26          (a) (1) A mortgagee, trustee, beneficiary, or authorized agent may not file a notice of
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            default pursuant to Section 2924 until 30 days after contact is made as required by
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         EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION TO STAY
                    FORECLOSURE, MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION
            paragraph (2) or 30 days after satisfying the due diligence requirements as described in
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2           subdivision (g).

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            (2) A mortgagee, beneficiary, or authorized agent shall contact the borrower in person or
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5           by telephone in order to assess the borrower's financial situation and explore options for

6           the borrower to avoid foreclosure. During the initial contact, the mortgagee, beneficiary, or
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            authorized agent shall advise the borrower that he or she has the right to request a
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            subsequent meeting and, if requested, the mortgagee, beneficiary, or authorized agent shall
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            schedule the meeting to occur within 14 days. The assessment of the borrower's financial

11          situation and discussion of options may occur during the first contact, or at the subsequent
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            meeting scheduled for that purpose. In either case, the borrower shall be provided the toll-
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            free telephone number made available by the United States Department of Housing and
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            Urban Development (HUD) to find a HUD-certified housing counseling agency. Any
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16          meeting may occur telephonically.

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            (b) A notice of default filed pursuant to Section 2924 shall include a declaration from the
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19          mortgagee, beneficiary, or authorized agent that it has contacted the borrower, tried with

20          due diligence to contact the borrower as required by this section, or the borrower has
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            surrendered the property to the mortgagee, trustee, beneficiary, or authorized agent.
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23          (c) If a mortgagee, trustee, beneficiary, or authorized agent had already filed the notice of
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            default prior to the enactment of this section and did not subsequently file a notice of
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            rescission, then the mortgagee, trustee, beneficiary, or authorized agent shall, as part of the
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            notice of sale filed pursuant to Section 2924f, include a declaration that either: (1) States

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     _________________________________________________________________________________________________________
         EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION TO STAY
                    FORECLOSURE, MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION
            that the borrower was contacted to assess the borrower' s financial situation and to
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2           explore options for the borrower to avoid foreclosure. (Emphasis added.)

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            The Notice of Trustee’s Sale did not contain the mandated declaration as set forth in
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5     subdivision “c”, and as such any foreclosure would be a nullity. Therefore, the likelihood that

6     Plaintiff will prevail upon the merits is rather compelling and the injunction should issue.
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                                                         V.
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              DEFENDANTS WILL NOT BE PREJUDICED BY A STAY OF THE NON-
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10                   JUDICIAL FORECLOSURE PENDING A COURT HEARING.

11          Defendants will not be prejudiced by a stay of the non-judicial foreclosure pending a
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      hearing by this court on the preliminary injunction. Absent prejudice on the part of Defendants
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      and the great prejudice to Plaintiff by the loss of the property, the court would properly exercise
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      its learned discretion by issuing the Temporary Restraining Order.
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16                                               CONCLUSION

17          For all pleading filed in this matter, the Memorandum of Points and Authorities, the
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      Declaration of Plaintiff1 and other and further oral and documentary evidence to be adduced at
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      the hearing of this matter, Plaintiff Plaintiff1 respectfully requests that this court issue a
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      Temporary Restraining Order, restraining Downey Savings and Loan Association, P.A.; U.S.
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22    Bank, Inc; FCI Lender Services Inc.; and DSL Service Company and from proceeding with the

23    foreclosure against the subject property pending a hearing on this matter.
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     _________________________________________________________________________________________________________
         EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION TO STAY
                    FORECLOSURE, MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION
      Dated: January 21, 2009
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                                                                    ____________________________
3                                                                   Timothy McCandless, Esq.
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                                                                    Attorney for Plaintiffs
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         EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION TO STAY
                    FORECLOSURE, MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION

								
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