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1 LESLIE MARKS

3099 SUTER STREET


2 OAKLAND, CA 94602
3
TEL: 510/434-9748
4 FAX: 866/813-8313

7
IN THE UNITED STATES BANKRUPTCY COURT
8 NORTHERN DISTRICT OF CALIFORNIA
9

10
INRE: ) CASE NO. 11-43140
11 )
LESLIE PATRICE BARNES MARKS ) CHAPTER 13
12 )
Debtor. ) RELATED CASES:
13
) USBC DELAWARE: 09-50244; 07-10416
14 ) 9TH CIR. COURT OF APPEAL: 10-16811;
) 10-16799 AND 10-17811
15 ) ACSC CASE NOS:
) CASE NO: RG 10545629 AND RG 10546852
16 )
17 ) OPPOSITION TO MOTION TO ANNUL
) AUTOMATIC STAY
18 )
)
19

20
TO THE COURT, PLAINTIFFS TRENOR ASKEW, and TRA PARTNERS, LLC AND
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ALL INTERESTED PARTIES:
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Plaintiff, Leslie Marks, hereinafter "Marks" hereby opposes the Motion to Annul the
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Automatic Stay brought by Trenor Askew dba TRA PARTNERS, LLC., herein after "Askew" or
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"TRA". The foreclosing documents are fraudulent on their face, the clearly reference a loan to
25
which Marks has no obligation and is not related to Marks Deed of Trust. The Notice of Default
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was recorded prior to the fraudulent assignment, in violation of law, and TRA should seek relief
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from the party that sold it a property with a clouded title not Marks. The 2007 lis pendens
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OPPOSITION TO MOTION TO ANNUL STAY
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remains recorded, has not been expundged and litigation continues on that lis pendens. TRA
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seeks relief from the wrong party.
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1. TRA's Motion to Annul Stay must be denied in its entirety, with prejudice. Not
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simply because it served Marks without following the Federal Rules of Civil Procedure, allowing
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Marks the required response time; TRA seeks relief based upon documents which it knows or
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reasonably should know are fraudulent on their face. TRA is NOT a creditor nor a lender. As
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litigation continues in other venues regarding Marks mortgage, including in the Delaware
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Bankruptcy Court with the New Century Liquidating Trust, Marks will be irreparable harmed
9
and suffer manifest injustice should TRA's improper motion for relief be granted.
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2. Rule 7017 (incorporating the Rule 17 real party in interest rule), Rule 7019
11
(incorporating Rule 19 by reference) after specifying the Part VII rules that apply automatically
12
to contested matters, Rule 9014(c) states: "The Standing is a "threshold question in every federal
13
case, determining the power of the court to entertain the suit." Warth v. Seldin, 422 U.S. 490, 95
14
S.Ct. 2197, 45 L.Ed.2d 343 (1975). Hence, "a defect in standing cannot be waived; it must be
15
raised, either by the parties or by the court, whenever it becomes apparent." u.S. v. AVX Corp,
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962 F.2d 108, 116 n. 7 (1st Cir.1992). The inquiry into standing "involves both constitutional
17
limitations on federal-court jurisdiction and prudential limitations on its exercise." Warth v.
18
Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). "In its constitutional
19
dimension, standing imports justiciability: whether the plaintiff has made out a 'case or
20
controversy' between himself and the defendant within the meaning of Art. III," Id.
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BACKGROUND OF THE CASE
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3. In 2004 New Century refinanced Marks Home and advised her that she must
23
continue to refinance every six months to improve her credit rating and to consistently lower her
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monthly payments while equity in her property would grow. Marks did not understand these
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matters, but followed the advice of the bank she believed she could trust. Marks did not know
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about pre-payment penalties and other fees and charges that effectively did not lower monthly
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mortgage payments but increased them.
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OPPOSITION TO MOTION TO ANNUL STAY
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4. In 2006 Home 123 former employee Tom Chicoine solicited Marks to engage in a
2
refinance. Mr. Chicoine approached Marks home, called, and emailed her. Marks son was ill at
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the time and Chicoine called Marks and prayed with her on the phone. Marks had become a
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certified Loan Signing Agent, and Chicoine promised Marks that she would be the exclusive
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notary public for all Home 123 mortgages in the bay area. Chicoine stated that Marks would
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make an additional $1000 per month. Marks also had just changed jobs and had received a
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$12,000 annual salary increase. Chicoine failed to advise Marks that he was using this
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information as income to qualify Marks for a burdensome mortgage. Chicoine failed to tell
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Marks that Home 123 and New Century were one in the same company. The terms of the 2006
10
mortgage included paying off Marks Mercedes SUV, among other things. Marks note should
11
have been around $2200.00 per month, per the terms of the agreement. A series of events
12
occurred which are in the court file in the United States District Court, Northern District of
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California 06-06806.
14
5. Marks received the first invoice from New Century in the amount of $4200.00.
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Marks made this payment. New Century employees then advised Marks that her next months
16
payment would be $4,700.00. New Century employees began calling Marks new employer, and
17
harassing Marks and her employer. Marks filed suit immediately and was not in default at the
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time she filed her lawsuit. Subsequently, New Century filed bankruptcy on April 2, 2007.
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Marks received monetary judgment against Tom Chicoine. Marks immediately filed a proof of
20
claim in Delaware.
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6. Ocwen claimed to have received Marks mortgage on April 2, 2007. There are no
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recorded assignments from Home 123 to Ocwen, or New Century to Ocwen. Marks alleged that
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Ocwen as the lender "walked in the shoes" of New Century and had to address the
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inconsistencies in her mortgage as alleged against New Century. From 2007 thru 2009 Ocwen
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failed to service Marks mortgage in any way. Judge Susan Illston ruled against Marks because
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Ocwen claimed to be a 'servicer" not the "lender" and had no duties to Marks as a "lender"
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would have. Marks was advised to file an Adversary Proceeding in Delaware against New
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OPPOSITION TO MOTION TO ANNUL STAY
1
Century and Marks did so. Marks filed and recorded a lis pendens which remains currently
2
recorded as actual and constructive notice that the title to the property is in question.
3
7. Marks filed bankruptcy in 2009 in the Tchaikovski court. Ocwen then filed a
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proof of claim in the amount of $600,000.00. Marks arguments that Ocwen claimed to be a
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"servicer" and had no standing to bring the proof of claim fell upon deaf ears. Ocwen then
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transferred its non-existent interest in Marks mortgage to GreenTree. GreenTree filed for and
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was granted a Motion for Relief from stay based upon fraudulent pleadings it filed. GreenTree
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filed pleadings on behalf of Home 123, which was in active bankruptcy in and without leave of
9
the Delaware Bankruptcy Court or the Trustee in Delaware. The Tchaikovski court failed to hear
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Marks claims, and granted GreenTree's motion for relief from stay. These matters are currently
11
under appeal in the 9th Circuit and reflected in this Court's docket No. 11 in the Notice of
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Related cases.
13
8. GreenTree then began sending Marks monthly invoices ranging from $0.0 to
14
$2,000,000.00. GreenTree recorded no assignments in 2009. In May of 2010 GreenTree
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recorded a Notice of Default. In August of 2010 GreenTree recorded assignments and a
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substitution of trustee signing for Home 123. Home 123 is currently in bankruptcy in Delaware
17
and there was no permission of the Delaware Bankruptcy Court nor the current trustee to
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approve such and assignment. Marks filed suit in the United States District court bringing these
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allegations, which the court refused to hear. The court however, did not deny Marks the right to
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appeal its decision. The Honorable Susan Illston stated in an order that she did not believe
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Marks was bringing her claims in bad faith. These issues are currently under appeal.
22
9. GreenTree then brought foreclosure proceedings and failed to expunge Marks lis
23
pendens prior to the unlawful trustee's sale. TRA claimed to have purchased the property at the
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foreclosure sale on October 20, 2010. Trenor Asknew then trespassed on Marks property with
25
another man. They had two empty pickup trucks parked in front of Marks home and apparently
26
were attempting to break in. Marks arrived and witnessed Mr. Asknew attempting to open a
27
window on her front porch. Mr. Askew stated that he purchased Marks home at the trustee's
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OPPOSITION TO MOTION TO ANNUL STAY
1
sale. Marks told him that was too bad, because the property is in active litigation since 2007 and
2
that he did not perform his due diligence prior to the Trustee's sale. Mr. Asknew stated that
3
there was no lis pendens recorded. Marks advised him that there was a lis pendens recorded.
4
10. On or about October 21,2010 Askew called Marks and stated that there was a lis
5
pendens recorded. Mr. Askew stated that his title company forgot to tell him about it. Mr.
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Askew stated that his title company told him that the court "forgot" to expunge the lis pendens.
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Askew then stated ifthe banks give him his money back "we are good." Marks advised him that
8
she had no obligation to him or his investors and that in this foreclosure crisis, he failed to
9
perform due diligence prior to purchasing the property. Furthermore, Marks advised him that the
10
party who conducted the foreclosure sale had no standing to do so. Marks referred Askew to the
11
pending cases and evidence. Despite all this Askew, hired a series of attorneys. Askew harassed
12
Marks by conducting unlawful surveillance and continued trespass on her property. Attorney
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Eikenberry joined in the harassment via telephone and making unprofessional comments about
14
Marks and her family, stating that it was "too bad" she had to endure the harassment and it must
15
be "scary".
16
11. This all led to the unlawful detainer trial, where the jury awarded TRA fees and
17
not Marks home. Marks filed for protection of the automatic stay and served both Eikenberry
18
and Department 30 of the Alameda County Superior court. Despite this Eikenberry continued to
19
violate the automatic stay and continued setting hearing dates and mailing Marks documents
20
daily.
21

22
STATEMENT OF ISSUES
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12. At the unlawful detainer trial Defendants were awarded a monetary sum. The
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Jury did NOT award the Subject Property to named Defendants. The jury awarded monetary
25
damages only. Defendants and their counsel continue to violate the Automatic Stay by filing
26
motions to unlawfully take possession of Marks homestead/primary residence (herein after the
27

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OPPOSITION TO MOTION TO ANNUL STAY
1
"Subject Property") and obtain a judgment based upon fraudulent documents and other acts in
2
clear and bold violation of law.
3
13. There is an important difference between a void deed and one that is voidable. A
4
void deed is a nullity, invalid ab initio, or from the beginning, for any purpose. It does not, and
5
cannot, convey title, even if recorded. Empire Ranch & Cattle Co. v. Coldren, 51 Colo. 115, 121,
6
117 P. 1005, 1007 (1911). The interest of a good faith purchaser under a void deed is not
7
protected. See Upson v. Goodland State Bank & Trust Co., 823 P.2d 704, 706 (Colo. 1992) -
8
referring to a subsequent purchaser if a voided deed is recorded.
9
14. If a person has been fraudulently deceived about the nature of a document, so that
10
he or she is excusably ignorant about what has been signed, courts recognize "fraud in the
11
factum." Unlike other types of fraud, fraud in the factum yields an instrument that is void, and
12
not merely voidable. Svanidze, 169 P.3d at 266 (citation omitted); see also Upson, 823 P.2d at
13
706; Dan B. Dobbs, Handbook on the Law of Remedies § 9.6, at 645-46 (2d ed. 1993). Here
14
TRA has a deed that is not only void based upon fraud, it is void on its face as it refers to a loan
15
to which Marks has no obligation and a loan which is not related to the 2006 Deed of Trust.
16
15. In re Viencek, 273 B.R. 354, 357-59 (Bankr.N.D.N.Y.2002) (requiring that
17
servicing agent amend a proof of claim to identify the owner of the claim). Defendant Ocwen
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claimed to be the t "servicer" and is NOT the "lender" as such, its Proof of Claim is fraudulent
19
and Marks was entitled to relief under the law. The Tchaikovski Court failed to address this and
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this matter is currently under appeal. In re Kang Jin Hwang, 396 B.R. 757 (Bankr.C.D.Cal.,
21
2008 the court found that numerous declarants in relief from stay motions are not competent to
22
testify as to the information included in their declarations. See, e.g. In re Vargas, 393 B.R. 701,
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2008 WL 4200129 (Bankr.C.D.Ca1.2008) (fmding that the In re Kang Jin Hwang, 396 B.R. 757
24
(Bankr.C.D.Cal., 2008) declarant was a low level clerk who was not competent to provide any
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relevant testimony contained in his declaration). In conclusion the Kang court found upon
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reconsideration that the servicer must satisfy the procedural requirements of federal law. These
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requirements include joining the owner of the ORIGINAL note on two separate grounds: it is the
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OPPOSITION TO MOTION TO ANNUL STAY

-------------------------,-----------------------------------------------------------. --
1
real party in interest under Rule 17, and it is a required party under Rule 19. Unlike Rule 7017
2
(incorporating the Rule 17 real party in interest rule), Rule 7019 (incorporating Rule 19 by
3
reference) is not applicable automatically to contested matters (including relief from stay
4
motions) in a bankruptcy case. However, after specifying the Part VII rules that apply
5
automatically to contested matters, Rule 9014(c) states: "The court may at any stage in a
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particular matter direct that one or more of the other rules in Part 1VII shall apply." In the
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referenced case, the court has directed that Rule 7019 applies to a motion for relief from stay.
8
There is no precise formula for determining whether a particular non-party must be joined under
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Rule 19(a). The application of the rule turns on the facts of the individual case in light of the
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general policies of (a) avoiding multiple litigation, (b) providing the parties with complete and
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effective relief in a single action, and (c) protecting the absent persons form the possible
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prejudicial effect of deciding the case without them.
13
16. The "real party in interest" requirement, on the other hand, is generally regarded
14
as one of many "prudential" considerations that have been "judicially engrafted onto the Article
15
III requirements for standing." See, e.g., In re Village Rathskeller, 147 B.R. 665, at 668 (Bankr.
16
S.D.N.Y.1992). To obtain relief in federal court, a party must meet both the constitutional
17
requirements (standing) and the prudential requirements (including real party in interest).
18
Morrow v. Microsoft Corp., 499 F.3d 1332, 1339 (Fed.Cir.2007); see also Village Rathskeller,
19
Inc., 147 B.R. at 668 (citing Warth v. Seldin, 422 U.S. 490, 498,95 S.Ct. 2197,45 L.Ed.2d 343
20
(1975) for the proposition that "[t]he concept of standing subsumes a blend of constitutional
21
requirements and prudential considerations"). A party may have standing- having suffered an
22
"injury in fact"- but this may not make it the real party in interest. See, e.g., Whelan v. Abell,
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953 F.2d 663,672 (D.C.Cir.1992). Conversely, a party may be the real party in interest, but lack
24
standing. See, e.g., Davis v. Yageo Corp., 481 F.3d 661 (9th Cir.2007). Accordingly, In re
25
Conde- Dedonato, 391 B.R. 247, 250-51. This case is similar to In re Hayes, 393 B.R. 259
26
(Bankr.D.Mass.2008), where the movant seeking relief from stay failed to show that it ever had
27
any interest in the note at issue. In that case, the court found that the movant lacked standing
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OPPOSITION TO MOTION TO ANNUL STAY
1
altogether to bring the motion because it failed to show that the ORIGINAL BLUE INK note
2
was ever transferred to it, and thus it had no rights of its own to assert. See id. at 266-68; accord,
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In re Maisel, 378 B.R. 19,20-22 (Bankr.D.Mass.2007) (denying standing where movant did not
4
acquire note until after filing motion for relief from stay). In the matter at bar, there is NO
5
clarification that the note was ACTUALLY transferred to GreenTree, when it was transferred, if
6
it was the original note, or if Defendant Ocwen has any legal standing to collect on the note in
7
good faith. As Defendant Ocwen continues to have an (all be it invalid, illegal and questionable)
8
proof of claim on file in this court.
9
17. In In re Kang Jin Hwang, 396 B.R. 757 (BanIa.C.D.Cal., 2008) because IndyMac
10
has failed and refused to join the owner of the secured note, the motion for relief from stay was
11
denied. A governing principle was articulated more than sixty years ago by Judge Learned
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Hand, perhaps the most distinguished U.S. jurist who never sat on the U.S. Supreme Court.
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Judge Hand stated: "A judge is more than a moderator; he is charged to see that the law is
14
properly administered, and it is a duty which he cannot discharge by remaining inert." United
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States v. Marzano, 149 F.2d 923, 925 (2d Cir.1945). Plaintiff here seeks nothing more than
16
justice. Justice for which she has been fighting since 2006.
17

18 THE BANKRUPTCY TRUSTEE HAS THE POWER TO OVER TURN TRANSFERS


THAT VIOLATE THE AUTOMATIC STAY.
19
18. The Bankruptcy Code defmes "property" very broadly as all legal and equitable
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interests of the debtor and any property that is community property of the debtor 11 U.S.C. 541.
21
Fraudulent transfers are subject to avoidance. While the Chapter 13 debtor has most of the rights
22
and powers of the trustee under Chapter 7, courts have split as to whether the debtor also has the
23
trustee's avoiding powers. However, many courts have interpreted the legislative history so that,
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although the debtor does not have the exclusive right to the avoidance powers as she does under
25
§§1303 and 1304, she does share the avoidance power with the trustee, and since the debtor
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would have a greater incentive to use the avoiding power, most courts have allowed it.
27

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OPPOSITION TO MOTION TO ANNUL STAY
1
19. As such and for the reasons stated herein, the initial fraudulent transfer of
2
Plaintiff's Primary Residence to Defendant Ocwen from New Century and Defendant's Ocwen's
3
subsequent transfer to Home 123/GreenTree should be avoided. Debtor and the Chapter 13
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Trustee have the power to enforce the avoidance. Plaintiff wishes to do so here.
5
20.
6
21.
7
22.
8
ANNULLMENT OF THE AUTOMATIC STAY IS INAPPROPRIATE
9
23. Marks has not abused the bankruptcy process or bankruptcy law. Annulment of
10
the automatic stay is appropriate when a debtor has clearly abused the bankruptcy process.
11
Marks has not violated any rights to which she is entitled, nor any state or federal laws.
12
24. Immediately prior to the Unlawful Detainer Trial, Marks had to attend a Court
13
Ordered Evidentiary Hearing in Delaware. Mr. Eikenberry attempted to manipulate those
14
proceedings. When those attempts failed, Mr. Eikenberry refused to continue the Unlawful
15
Detainer trial. Immediately upon Marks return from Delaware, Marks had to attend the
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Unlawful Detainer trial, which turned out not to be a trial at all, it was a status setting procedure
17
to determine which court would hear the unlawful detainer trial. In the Chambers of Judge
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Rolofson, Mr. Eikenberry stated that it was his birthday that day and he preferred to continue the
19
trial. Had either Mr. Eikenberry or TRA had a lawful leg upon which to stand, or any intent to
20
act in good faith, these unprofessional behaviors would not be necessary from sworn officers of
21
the court, and respected members of the California State Bar.
22
25. In their Motion to Annul the Automatic Stay, TRA does not offer any evidence
23
that it is a bonafide purchaser for value. The Unlawful Detainer Jury did NOT award the Subject
24
Property, only a monetary sum, and these matters are under appeal as TRA is well aware.
25
Furthermore, TRA should seek relief from the party which it purchased the property with
26
clouded title. The 2007 lis pendens recorded by Marks remains recorded as actual and
27
constructive notice of pending legal action and clouds title. This lis pendens should have been
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OPPOSITION TO MOTION TO ANNUL STAY
1
expunged prior to the unlawful Trustee's sale. Askew, a real estate professional and licensed
2
real estate broker, was aware that the lis pendens was recorded and chose to harass Marks,
3
instead of seeking recovery from the party that conducted the unlawful trustee's sale.
4
26. Askew is a registered broker at the California Department of Real Estate, a real
5
estate professional. Askew allegedly "purchased" over 68 properties since on or about 2007 and
6
should have performed due diligence prior to purchasing a property in foreclosure - especially in
7
light of all the allegations of mortgage and foreclosure fraud. During the unlawful detainer trial,
8
Marks brought to the attention of the Unlawful Detainer court that the loan upon which the
9
foreclosure was based is NOT a loan to which Marks has had any obligation, Marks presented
10
evidence in support that is clear on its face. The Unlawful Detainer court Judge Le stated that
11
she did not think the loan number "was relevant." A copy of the index from the Alameda
12
County Recorder's office reflecting that TRA has represented itself as a "trustee" and has signed
13
itself as "beneficiary" on several properties, that Marks believes has been acquired in violation of
14
law.
15
27. Furthermore, the law is CLEAR that Marks should have been afforded the
16
opportunity to bring her allegations of fraud BEFORE to the commencement of the unlawful
17
detainer trial. The unlawful detainer court allowed Mr. Eikenberry to testify as to the merits of
18
Marks fraud case, claiming she did not name the proper defendants and would most likely not
19
prevail. The Unlawful Detainer Judge allowed Mr. Eikenberry's opinion's to be the basis for her
20
decision not to relate the fraud case to the unlawful detainer trial. The Unlawful Detainer Court,
21
hereinafter the "Le court") also refused Marks certain rights at trial for failure to "tender".
22
Marks presented case law that states that when allegations of fraud are brought, tender is waived.
23
The Unlawful Detainer court ignored this law as well.
24
28. When Marks cross-examined Mr. Askew, Mr. Eikenberry answered questions put
25
to Askew, who was the witness on the stand without objection of the court. Judge Le and Mr.
26
Eikenberry tag teamed Marks and even after Marks suffered manifest abuse during the unlawful
27
detainer court, the jury did not award the Subject Property to TRA. Mr. Eikenberry requested
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OPPOSITION TO MOTION TO ANNUL STAY
1
the court grant electronic notice of the proposed order, which was to be emailed to Marks prior to
2
the compliance hearing which was set for March 31, 2011. Marks never received the email of
3
the proposed order from either Eikenberry or the Court. Neither the Le Court nor Mr.
4
Eikenberry notified Marks that the compliance hearing was cancelled and the Le Court issued its
5
order without notice to Marks of any kind. Also the proposed order did not have the name of
6
Judge Le, the only presiding judge of the unlawful detainer trial. Immediately upon discovery of
7
the final order, Marks filed for protection of the Automatic Stay and Marks filed a Notice of
8
Appeal of the Unlawful Detainer case.
9
29. Furthermore, Marks brought to the attention of the Le Court at the unlawful
10
detainer trial that the loan upon which the foreclosure was based is NOT a loan to which Marks
11
has any obligation. The Le Court determined that "I don't think that matters." In violation of
12
law, as Marks properly alleged, the Notice of Default was recorded PRIOR to the Substitution of
13
Counsel and Assignment. Marks also advised the Court that in the Tchaikovsky Bankruptcy
14
Court Ocwen claimed to transfer Marks note to GreenTree. The recorded assignment
15
fraudulently signed by a representative of GreenTree, does not reflect any recorded assignment
16
from Ocwen. There is no recorded assignment to ANY ENTITY from Horne 123, per order of
17
the Delaware Bankruptcy Court or the Delaware Bankruptcy Trustee. As such, the Assignment
18
is fraudulent on its face. In order to be VALID any assignment would have had to be recorded in
19
2007. The Trust has confrrrned that Marks note, which is related to the 2006 Deed HAS BEEN
20
SATISFIED in 2007. The Trust also had testified at the 2011 Delaware Evidentiary Hearing that
21
it has NO RECORDS of transfer to any entity and that Marks should take the "word" of an
22
"officer of the court" that the transfer was done. There is no laws supporting that the "word" of
23
an officer of the Court is sufficient to validate the transfer of real estate OR to record same in the
24
Alameda County Recorder's office.
25
30. At the unlawful detainer trial Askew testified that he had a "business relationship"
26
with Fidelity. Marks attempted to establish that that relationship was the basis for the
27
questionable evidence of a handwritten document supporting the purchase of real estate. Mr.
28
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OPPOSITION TO MOTION TO ANNUL STAY
1
Askew did not present the front and bank of a cancelled check, nor did he present a Bill of Sale
2
that should have been recorded as evidence of sale of a bonifide sale for value. Lacking such
3
evidence, TRA cannot be a bonifide purchaser for value.
4
31. Marks alleges here and continues to allege Askew should seek relief from
5
Fidelity, not her. The reason why relief is not being sought from Fidelity is because no payment
6
for value was tendered. Fidelity and TRA have been in cahoots for years, defrauding the good
7
people of Oakland from their homes unlawfully. The handwritten receipt does not show
8
evidence specific to the Subject Property, and the same handwritten receipt could have been used
9
as support of purchasing several properties. A handwritten generic receipt cannot possibly be
10
used as evidence as purchase for value. Marks believes this is the reason why Askew is
11
aggressively pursuing Marks, which is nothing more than abuse of the judicial process and fraud
12
upon the court. Askew nor TRA has presented any evidence to the contrary. Askew nor TRA
13
has presented this Court with any evidence to support they are bonifide purchasers to this court.
14
Attached hereto as Exhibit C is a true and correct copy of the handwritten receipt presented by
15
TRA as evidence of the purchase of Marks property.
16
32. Furthermore, Askew and Attorney Eikenberry were telephonically present at the
17
Delaware Evidentiary hearing. There was no need for them to be present, as Marks request for
18
TRO was denied. Mr. Eikenberry's attendance was simply to trump up charges. He made a
19
statement - irrelevant to the hearing - at the end of the hearing to justify attorney hourly charges.
20
Mr. Eikenberry has a habit of adding charges to his tab for no reason. At the unlawful detainer
21
trial, Judge Le ordered Marks to appear at a deposition in Eikenberry's office. Marks
22
REFUSED. When asked why Marks refused, Marks stated that in Eikenberrys office, given his
23
pattern of bad faith acts against Marks, she would have NO protection under the law from his
24
bad faith practices. Marks would prefer her testimony be giving on the record and under oath.
25
Despite Marks CLEAR and [mal decision, the Le Court advised Marks that she had to call Mr.
26
Eikenberry the next day to confirm she would not be appearing because Marks MA Y change her
27
mind. In compliance with Judge Le's order, Marks called Eikenberry's office and advised him
28
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OPPOSITION TO MOTION TO ANNUL STAY
1
she would NOT be appearing. The next day at court Mr. Eikenberry presented charges for a court
2
reporter for the entire day, stating Marks MAY change her mind. Mr. Eikenberry's continued
3
practice of bad faith charges and verbal harassment over the telephone has caused Marks to
4
suffer manifest injustice in these matters.
5
33. Marks never defaulted on her 2006 mortgage. In 2006 Marks made the payment
6
of $4,200.00. Marks immediately contacted Home 123 because the payments nor the terms of
7
her loan were as agreed. In 2006, Home123 advised Marks that her next month's payment
8
would be $4,700.00. Marks immediately filed suit against New Century and its former
9
employee, Tom Chicoine. Marks received a monetary judgment against Tom Chicoine. At the
10
time Marks filed suit, she had was NOT in default of her loan. Marks testified to same that the
11
unlawful detainer trial. Eikenberry's continued harping about the number of payments Marks
12
made is irrelevant here. Eikenberry and Askew heard the testimony of Counsel for New Century
13
explain Marks mortgage was SATISFIED in 2007. As such, Marks mortgage could NOT be in
14
default in 2010.
15
34. Furthermore, the status of Marks note is NOT relevant to Eikenberry and his
16
clients. They state in their motion for relief from stay that they are NOT creditors. As such, they
17
need to provide evidence that the lis pendens was expunged prior to sale. Failing to do that, and
18
the other allegations as properly alleged by Marks, TRA, Eikenberry and Asknew come to bar
19
with unclean hands and continue to abuse the judicial process and commit fraud upon the court.
20
The relief they seek should come from the party that allegedly sold them a property with a
21
clouded title, not Marks.
22
35. After the fraudulent and unlawful foreclosure sale, two law suits were filed in
23
State Court: Marks filed to invalidate the foreclosure sale - alleging among other things that the
24
foreclosing trustee had no standing to do so and that the documents upon which the foreclosure
25
was based were also fraudulent; and TRA brought an unlawful detainer action. Attorney
26
Eikenberry filed a Motion for Summary Judgment against Marks which was DENIED, for
27
defects in his pleadings. Judge Carvill, the presiding judge for the motion for summary
28
-13-
OPPOSITION TO MOTION TO ANNUL STAY
1
judgment stated that he as a landlord and owned several properties in Marks neighborhood. The
2
Carvill court claimed not to have read Marks responsive pleadings. At the time of foreclosure
3
the foreclosing entity was NOT the original beneficiary of record and the unlawful foreclosure
4
was based upon recorded fraudulent and clearly forged assignments about 60 days after the
5
Notice of Default. These acts are clear violations of law.
6
36. As Marks stated to both Mr. Eikenberry and Askew AT THE ONSET, Marks
7
wished to invalidate the unlawful and fraudulent trustee's sale and reinstate the Home 123 loan
8
which has been in dispute and active litigation since 2006. The recorded lis pendens remains as
9
active and constructive notice that the title to the Subject Property is clouded.
10
37. Marks opposes the requested relief because TRA does not have standing to seek
11
relief from stay because the foreclosure sale was defective and based upon a loan to which
12
Marks has no obligation and which is not related to Marks Deed of Trust. Marks further
13
obtained evidence in the form of testimony at the February, 2011 hearing that the 2006 mortgage
14
had been satisfied in 2007 and any assignments had to be recorded prior to October 2007 when
15
Home 123 lost its license to do mortgage business in the State of California. The Trustee's sale
16
is defective because the Notice of Default was recorded before the Assignments, among other
17
violations of law.
18
38. Marks fraudulent foreclosure sale challenge must be addressed to resolve the
19
merits ofTRA's relief motion. Marks has presented prima facie case and clear evidence that the
20
foreclosure sale is void. Marks presents evidence that cannot be disputed. Marks has a
21
significant property interest entitled to protection by the automatic stay.
22
23 MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF OPPOSITION
24
39. TRA is seeking relief from stay is not a creditor of Marks, has not filed a proof of
25
claim, was not awarded the Subject Property at the unlawful detainer trial and has no standing
26
for this Court to grant the relief requested.
27
STANDING
28
-14-
OPPOSITION TO MOTION TO ANNUL STAY
1
40. Due to the limited scope and expedited nature of a relief from stay proceeding, the
2
standing requirement is not difficult to meet. Section 362( d) of the Bankruptcy Code provides
3
that stay relief may be granted to a "party in interest," and any party affected by the stay should
4
be entitled to seek relief. 3 Collier on Bankruptcy- 362.07[2] (3d ed. rev. 2010). In the Ninth
5
Circuit, challenges to secured claims are typically resolved in plenary proceedings. Johnson v. Righetti
6
(In re Joh-son), 756 F.2d 738, 740 (9th Cir. 1985) (liThe validity of the claim or contract underlying the
7
claim is not litigated during the hearing."), overruled on other grounds by Travelers Cas. & Sur. Co. v.
8
Pac. Gas & Elec. Co., 549 U.S. 443 (2007); Biggs v. Stovin (In re Luz Int'l), 219 B.R. 837,841-42
9
(B.A.P. 9th Cir. 1998). Even so, the moving party must establish a prima facie case of its claim or rights
10
against a debtor or its estate to seek relief from stay. In re Bialac, 694 F.2d 625, 627 (9th Cir. 1982); In re
11
Aniel, 427 B.R. 811, 816 (Bankr. N.D. Cal. 2010). A prima facie case of standing requires the moving
12
party demonstrate an undisputed interest in the bankruptcy case that is hindered by the automatic stay.
13
Standing is lacking where a secured creditor cannot present the rudimentary elements of its claim. In re
14
Gavin, 319 B.R. 27, 32 (B.A.P. 1st Cir. 2004) (holding the moving party could not trace the chain of title
15
through valid endorsements); In re Wilhelm, 407 B.R. 392, 398 (Bankr. D. Idaho 2009) ("each Movant
16
must show that it has an interest in the relevant note, and that it has been injured by debtor's conduct"). If
17
the moving party has a right to assert a claim, even though the claim is disputed, standing to seek stay
18
relief may be found. Brown Transp. Truckload v. Humboldt Express, 118 B.R. 889, 893 (Bankr. N.D.
19
Ga. 1990) (finding the non- creditor had standing for stay relief to pursue action against debtor in another
20
forum); In re Vieland, 41 B.R. 134, 139 (Bankr. N.D. Ohio 1984) (purchaser at a judicial foreclosure sale
21
acquired some interest in debtor's property and was a party in interest).
22 41. Title remains clouded in this matter at bar. Marks 2007 lis pendens remains recorded
23
and not expunged. Marks contends the foreclosing trustee should have expunged the lis pendens prior to
24 the unlawful foreclosure sale. Marks contends the TRA should seek relief from the entity from which it
25 purchased a property with a clouded title, not Marks. As title remains clouded, TRA lacks standing to
26 seek relief from stay. Even if TRA could establish a prima facie case of standing, however, the Court

27 may still determine if the foreclosure sale was valid to rule on the merits of the Motion.

28 Marks's Property Interest in the Residence

-15-
OPPOSITION TO MOTION TO ANNUL STAY
1
42. Whether Marks may retain valuable equitable title in the Property despite the
2
foreclosure sale is critical to the Motion. To decide the Motion, the Court must evaluate whether
3
Marks has equity in the Property necessary for an effective reorganization and whether cause
4
exists to grant relief to TRA. In re Hoopai, No. 04-02511,2005 U.S. Dist. LEXIS 42760, at Il-
5
l S (D. Haw. 2005) (relief from stay denied to foreclosing creditor because the property might
6
have value to the estate). If the foreclosure sale was invalid, Marks has an interest in the Property
7
which militates in favor of continuing the stay. If the foreclosing entity was not authorized to
8
foreclose the DOT under Civil Code section 2932.5, the foreclosure sale may be void, and Marks
9
would not need to tender to set aside the sale. Bank of America, N.A. v. La Jolla Group II, 129
10
CaL App. 4th 706, 710, 717 (5th Dist. 2005) (void foreclosure sale required rescission of
11
trustee's deed returning title to the status quo prior to the foreclosure sale); Dimock v. Emerald
12
Properties, 81 Cal. App. 4th 868,874 (4th Dist. 2000) (sale under deed of trust by former trustee
13
void, and tender of the amount due is unnecessary).
14
Civil Code section 2932.5 provides:
15
Where a power to sell real property is given to a mortgagee, or other
16 encumbrancer, 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
17 entitled to payment of the money.

18 GreenTree, LLC, as the foreclosing beneficiary and self-assignee of Home 123'ss interest in the

19 Loan, had to meet both requirements of Civil Code section 2932.57 for the foreclosure to be

20 valid. Under that statute, First, GreenTree had to be entitled to payment ofthe secured debt. Civ.

21 Code § 2932.5; see also Civ. Code § 2936 (Deering 2010); Comm. Code § 9203(a), (g) (Deeririg

22 2011); Carpenter v. Longan, 83 U.S. 271, 274 (1872) (the assignment of the note carries the
23 mortgage with it); Polhemus v. Trainer, 30 Cal. 686, 688 (1866) (the mortgage always abides

24 with the debt). GreenTree claimed to be the holder of the Note, which GreenTree obtained from

25 Ocwen (but there is no recorded assignments from Ocwen to GreenTree, nor from Home 123 to

26 II Ocwen); and 2. Substitution of Trustee and Assignment was endorsed by the same

27 II representative of GreenTree and recorded AFTER the Notice of Default. As such, GreenTree's

28 II status as holder of the Note fails to meets the fIrst requirement of Civil Code section 2932.5.

-16-
OPPOSITION TO MOTION TO ANNUL STAY
1
Second, Civil Code section 2932.5 also requires that GreenTree's status as foreclosing
2
beneficiary appear before the sale in the public record title for the Property. This second
3
requirement was not met. Marks 2007 lis pendens remains recorded.
4
43. At the unlawful detainer trial, TRA claimed the power of sale may be exercised
5
by the assignee if the assignment is duly acknowledged and recorded. Civ. Code § 2932.5
6
(Deering 2011) (emphasis added). However, State Compensation Ins. Fund v. Zamora (In re
7
Silverman), 616 F.3d 1001,1005 (9th Cir. 2010). While the Ninth Circuit reserved the issue of
8
whether bankruptcy courts are bound by district court decisions within the district where the
9
bankruptcy court sits, it recognized that such a requirement "could create the same problem of
10
subjecting bankruptcy courts to a non-uniform body oflaw." Id.
11
44. Code section 2932.5 mentions only assignees of mortgage interests, whereas in
12
those cases, and here, the instrument foreclosed upon was a deed of trust. Historically, a
13
technical distinction existed between deeds of trust and mortgages. For deeds of trust, title vested
14
in the trustee. For mortgages, title remained with the mortgagors. This distinction, however, has
15
been determined to be obsolete. Bank of Italy Nat. Trust & Sav. Assn. v. Bentley, 217 I Cal. 644,
16
656 (l933) (legal title under a deed of trust, though held by the trustee to the extent necessary for
17
execution of the trust, does not carry any "incidents of ownership of the property"); Yulaeva v.
18
Greenpoint Mortg. Funding, Inc., No. S-09-1504, 2009 u.S. Dist. LEXIS 79094, at *4 (E.D. Cal.
19
Sept. 3,2009) (citing 4 B.E. Witkin, Summary of California Law, ch. VIII, § 5 (lOth ed. 2005»;
20
N Brand Partners v. Colony GFP Partners, L.P. (In re 240 N Brand Partners), 200 B.R. 653, 658
21
(B.A.P. 9th Cir. 1996) ("The terminology creates a difference without distinction."); see also 1
22
Roger Bernhardt, California Mortgages, Deeds of Trust, and Foreclosure Litigation, § 1.35 (4th
23
ed. 2009); 4 Harry D. Miller & Marvin B. Starr, Miller and Starr California Real Estate, § 10: 1 n.
24
9 (3d 2010) (citing Domaradv. Fisher & Burke, Inc., 270 Cal. App. 2d 543,553 (1st Dist. 1969
25
(mortgages and deeds of trust have the same effect and economic function and are "subject to the
26
same procedures and limitations on judicial and nonjudicial foreclosure")."
27

28
-17-
OPPOSITION TO MOTION TO ANNUL STAY
1
45. The outdated distinction between mortgages and deeds of trust is especially
2
moribund in the context of borrower's rights in the nonjudicial foreclosure context, such as the
3
borrower rights protected by Civil Code section 2932.5. Bank of Italy, 217 CaL at 658 ("
4
[I]mportant rights and duties of the, parties should not be made to depend on the more or less
5
accidental form of the security. "); Dimock, 81 Cal. App. 4th at 877 (" [The title distinction] has
6
been ignored in order to afford borrowers with the protection provided to mortgagors. "). Civil
7
Code section 2932.5 protects borrowers from confusion as to the ownership of their loans.
8
Stockwell, 7 Cal. App. at 416-17; Bank of America, 129 Cal. App. 4th 9.
9
46. The two other historical distinctions between mortgages and deeds of trust
10
identified in Bank of Italy, 217 Cal. at 656, are also defunct. Both mortgages and deeds of trusts
11
are now subject to time limitations on enforcement under sections 880.020-887.09 of the
12
Marketable Record Title Act. Civ. Code §§ 880.020-887.09 (Deering 2011). Bernhardt, supra, §
13
1.35. In addition, Code of Civil Procedure section 729.010 now provides for a right of
14
redemption following a judicial sale under either a mortgage or a deed of trust. Civ. Proc. §
15
729.010 (Deering 2011) at 712 (citing 4 Harry D. Miller & Marvin B. Starr, Miller and Starr
16
California Real Estate, § 10:123 (3d ed. 2003 ("Statutory provisions regarding the exercise of the
17
power of sale provide substantive rights to the trustor and limit the power of sale for the
18
protection of the trustor."); see also Civ. Code§§ 2935-2937 (Deering 2010) (providing
19
requirements for the transfer of interests of indebtedness on residential real property that put
20
borrower on notice). Civil Code section 2932.5 must therefore be applied to deeds of trust to
21
ensure trustors are provided the same protection as mortgagors under California law.
22
47. The borrower concern addressed by Civil Code section 2932.5 -that it be able to
23
identify the assignee of its loan -is more exigent, not less, than it was during the Great
24
Depression, when Bank of Italy was decided. Problems with the residential mortgage foreclosure
25
process have been widely chronicled. See Katherine Porter, Misbehavior and Mistake in
26
Bankruptcy Mortgage Claims, 87 Tex. L. Rev. 121, 148-49 (2008), cited in Ameriquest Mortg.
27
Co. v. Nosek (In re Nosek), 609 F.3d 6,9 (1st Cir. 2010) (noting mortgage holders and servicer's
28
-18-
OPPOSITION TO MOTION TO ANNUL STAY
1
"(c)onfusion and lack of knowledge, or perhaps sloppiness, as to their roles is not unique in the
2
residential mortgage industry"); Andrew J. Kazakes, Developments in the Law: the Home
3
Mortgage Crisis, 43 Loy. L.A. L. Rev. 1383, 1430 (2010) (citing David Streitfeld, Bank of
4
America to Freeze Foreclosure Cases, N.Y. Times, Oct. 2, 2010, at Bl) I (explaining that after
5
publication of Katherine Porter's study several Banks froze foreclosures); Eric Dash, A
6
Paperwork Fiasco, N.Y. Times, Oct. 23,2010, at WK5 (reporting the repeal of the initial freeze
7
and the problems banks faced in clearing up foreclosure paperwork); Office of the Special
8
Inspector General for the Troubled Asset Relief Program, Quarterly Report to Congress 12 (Jan.
9
26,2011), available at http://www.sigtarp.gov/ (follow link for "Quarterly Report to Congress").
10
48. Specifically in the context of loan assignments, there are "serious distributional
11
consequences to all parties in a bankruptcy if a mortgagee cannot prove it holds a valid security
12
interest." See Porter, I supra, at 148-49. Because controlling Supreme Court authority requires
13
this Court to enforce statutory borrower protections regardless of whether nonjudicial foreclosure
14
is sought under a mortgage or a deed of trust, the Court must conclude Civil Code section 2932.5
15
applies to the DOT here.
16
49. Under Cathay Bank v. Lee, 14 Cal. App. 4th 1533, 1539 (4th Dist. 1993), a waiver
17
of borrower protections must be specific and explain the substance ofthe statutory rights at issue.
18
In Cathay Bank, id., the court refused to enforce language of a deed of trust authorizing the
19
lender to exercise the power of sale, because it served to waive the guarantor's defense to the
20
deficiency claim. 13 See also Miller v. United States, 363 F. 3d 999, 1006 (9th Cir. 2004);
21
Hoffman v. Blum, No. C06-2416 MHP, 2008 U.S. Dist. LEXIS 7643, at *8 (N.D. Cal. 2008)
22
("any waiver of an important statutory right must be knowing and intelligent"); DeBerard
23
Properties v. Lim., 20 Cal. 4th 659,670 (1999) (borrower protection foreclosure provision in
24
Code of Civil Procedure section 580(b) cannot be waived even though it is not included in the
25
list of non-waivable foreclosure provisions detailed in Civil Code section 2953).
26
50. The full scope of California's nonjudicial foreclosure law, found at Civil Code
27
sections 2020-2955, exhaustively covers every aspect of the real estate foreclosure process and
28
-19-
OPPOSITION TO MOTION TO ANNUL STAY
1
must be respected. Associates v. Safeco. Title Ins. Co., 39 Cal. 3d 281,285 (1985) (refusing to
2
supplement the notice requirements found in Civil Code section 2924); Dimock, 81 Cal. App. 4th
3
at 874 (holding a sale under a deed of trust by former trustee void as failing to comply with Civil
4
Code section 2934); Moeller v. Lien, 25 Cal. App. Cathay Bank's holding, 14 Cal. App. 4th at
5
1539, was later limited by legislation to commercial transactions. Civ. Code § 2856(e). However,
6
it is still relevant for consumer transactions involving borrowers' residences such as the one
7
before the Court.
8
Cause Does Not Exist to Annul Stay
9
51. Whether the stay should be lifted to permit the unlawful detainer litigation to
10
proceed in state court under 11 V.S.c. §§ 362(d)(l) and (2) requires consideration of the
11
following factors: effective administration of the estate, avoiding prejudice to the parties, and
12
promoting judicial economy. Benedor Corp. v. Conejo Enters. (In re Conejo Enters.), 96 F.3d
13
346, 352 (9th Cir. 1996) (affmning the bankruptcy court's refusal to lift the stay to allow state
14
court litigation to proceed because maintenance of the stay promoted judicial economy by
15
minimizing duplicative litigation and advanced the efficient administration of the estate); In re
16
Kronemyer, 405 B.R. 915,921 (B.A.P. 9th Cir. 2009).
17
52. Whether the bankruptcy court should abstain from deciding state law issues
18
pending in an imminent state court trial was previously determinative in the stay relief context.
19
In re Tucson Estates, Inc., 912 F.2d 1162, 1166 (9th Cir. 1990). After the statutory changes in 28
20
V.S.C. § 1334(c)(2) and 28 V.S.C. § 1334(d), the Ninth Circuit in Conejo, 96 F.3d at 352
21
clarified that so long as the record supports discretion exercised by the bankruptcy court in
22
denying relief from stay, this factor is no longer determinative.
23
Effective Administration of the Estate
24
53. Maximizing the opportunities for reorganization of the estate is the most
25
important factor in determining whether to grant relief from stay to permit litigation in another
26
forum to proceed. Conejo, 96 F.3d at 353. Marks, in hers chapter 13 case, seeks to regain title to
27
the Property by invalidating the foreclosure sale and curing the default on the Loan to Home 123.
28
-20-
OPPOSITION TO MOTION TO ANNUL STAY
1
Marks reorganization could be thwarted if the Court allows the foreclosure issues to proceed
2
before it determines whether there is equity in the Property, or whether Marks can resolve Home
3
123' s interest in her reorganization.
4
Prejudice to the Parties
5
54. Denying relief from stay at this time is the least prejudicial option for both parties.
6
Even if the stay prohibits TRA from gaining possession of the Subject Property in the near term,
7
that inconvenience is appropriate because the foreclosure process was flawed. 11 U.S.C. §§ 361,
8
363(e) (2011); United Sav. Ass'n of Texas v. Timbers of Inwood Forest Assocs., Ltd, 484 U.S.
9
365, 370 (1988) (adequate protection payments can protect valid interests of creditors). In
10
contrast, Marks could be substantially prejudiced by loss of her property interest if the unlawful
11
detainer action proceeded even though the foreclosure sale may be void. Marks has established a
12
prima facie case of ownership of the Property, subject to whatever defenses TRA might bring in
13
the state court proceeding. These rights should be protected by the automatic stay. Accordingly,
14
as Marks properly addresses TRA should seek relief from the foreclosing entity from which it
15
purchased a property with a clouded title. To the extent, this fact is clear, as per the evidence
16
submitted by Marks, TRA will not be prejudiced if relief from stay is denied. As TRA is NOT a
17
creditor, it is not entitled to adequate protection payments.
18
Considerations of Judicial Economy.
19
55. Challenges to Fidelity's foreclosure sale are simultaneously pending in state and
20
bankruptcy court, creating the potential for confusion and a waste of judicial resources. Even if
21
not specifically raised in the unlawful detainer proceeding, the validity of the foreclosure sale
22
could be decided by default. Cheney v. Trauzette, 9 Cal. 2d 158 (1937); Seidell v. Anglo-
23
California Trust Co., 55 Cal. App. 2d 913,920 (3d Dist. 1942) (challenges to foreclosure sales
24
are barred if not raised in unlawful detainer action). Maintaining the automatic stay until the
25
Court can hear TRA defenses, and can assess Marks reorganization prospects, preserves judicial
26
resources.
27
VIOLATIONS OF THE AUTOMATIC STAY
28
-21-
OPPOSITION TO MOTION TO ANNUL STAY
1
56. Marks served copies of her Voluntary Petition on Defendants and on Department
2
30 of the Alameda County Superior Court upon filing her Bankruptcy Petititon. A copy of those
3
Proofs of Service are filed in this Court's docket No. 11, Request for Judicial Notice with proofs
4
of service attached to those documents.
5
57. Willful violations are those done deliberately and intentionally with knowledge of
6
the automatic stay. A creditor gains knowledge of the automatic stay by oral or written notice of
7
the stay or, since the stay begins automatically upon the filing of a petition for bankruptcy, upon
8
notice of those proceedings. In the event that a creditor inadvertently violates the stay, the
9
creditor must return the property immediately upon notice of the stay. Failure to do so will likely
10
be held a violation of the stay. Pettitt v. Baker, Id., concluded that 11 D.S.C. § 362(h) created
11
both a "private cause of action" and a "private remedy" that belonged to a debtor. The 5th Circuit
12
overruled the lower courts by specifically ruling that debtors do, in fact, have a private cause of
13
action and remedy under § 362(h). The 5th Circuit stated in pertinent part:
14

15 "We are cognizant that there are scant primary or secondary authorities applying
or discussing the relatively new subsection (h). Nor is there a plethora of
16 enlightening references in the relevant legislative history. We do not consider
such essential, however, to today's task. To hold that 11 D.S.C. § 362(h) does not
17
create a private right of action would require us to ignore its plain and express
18 language. As we read that language, we cannot but conclude that Congress
established a remedy for an individual injured by a willful violation of a section
19 362(a) stay". Id. at 457-459. (Emphasis added).

20 Also see, Matter of Pointer, 952 F.2d 82, 86 (5th Cir. 1992) (we held that § 362(h) creates a

21 private right of action for one (there, the debtor)); In re Joubert, 411 F3d 452, 456 (3rd Cir.

22 2005) (Congress's choice in § 362(h) to create private causes of action for violations of
23 bankruptcy stays); Smith v. Keycorp Mortg., Inc., 151 B.R. 870, 875 (N.D.lll. 1993) (The

24 Bankruptcy Code is a comprehensive system .... When Congress wanted to provide a private

25 cause of action under the Bankruptcy Code, it did so expressly); In Re Hutchinson, 211 B.R. 325,

26 329 (E.D.Ark. 1997) (It is well settled, despite the unsupported assertions of the defendants, that

27 a debtor has the right to plead causes of action for violations of the automatic stay, and recover

28 the appropriate damages); In re Gullett, 230 B.R. 321, 331 (S.D.Tex. 1999) (Section 362(h)
-22-
OPPOSITION TO MOTION TO ANNUL STAY
1
creates a private right of action for a debtor); In re Reyes, 238 B.R. 507, 518 (R.!. 1999)
2
(Congress explicitly created private causes of action to enforce certain provisions of the Code,
3
such as Section 362(h)), for a few similar cases and conclusions relied upon).
4
58. Furthermore, it was brought to the attention of the Judge in the Unlawful Detainer
5
trial that the loan upon which the foreclosure is based is NOT the loan upon which Marks has
6
ANY obligation and is NOT related to the Deed of Trust, which was ignored by the Unlawful
7
Detainer Court. Furthermore, Mr. Eikenberry is well aware that the jury awarded his clients a
8
monetary sum NOT Marks property. Mr. Eikenberry commits fraud upon the court and abuse of
9
the judicial process by continuing in this manner in violation of law. TRA Partners, continue to
10
unlawfully surveil Marks home, call Marks home and hang up the telephone, and other acts to
11
make Marks and her family uncomfortable in their own home.
12
TRANSFER OF REAL ESTATE CANNOT BE BASED UPON FRAUD
13
59. Where there has been a notice defect and no conclusive presumption language in
14
the deed,the sale has been held void. (Scott v. Security Title Ins. & Guar. Co. (1937) 9 Cal.2d
15
606 [72P.2d 143]; United Bank & Trust Co. v. Brown, supra, 203 Cal. 359; Standley v. Knapp
16
(1931)113 Cal.App. 91 [298 P. 109]; Seccombe v. Roe, supra, 22 Cal.App. 139.) Where there
17
has been a notice defect and conclusive presumption language in the deed, courts have
18
characterized the sales as "voidable." (Lancaster Security Inv. Corp. v. Kessler (1958) 159
19
Cal.App.2d 649 [324 P.2d 634]; Pierson v. Fischer, supra, 131 Cal.App.2d 208; Mack v. Golino,
20
supra, 95 Cal.App.2d 731; Leonard v. Bank of America etc. Assn., supra, 16Cal.App.2d 341.)
21
The trustor wishing to set aside a "voidable" sale must prove to the trial court that the conclusive
22
presumption language does not apply to the sale either because there are grounds for equitable
23
relief, such as fraud related to the provision, or because the conclusive presumption does not
24
apply to the buyer, often on the basis that the buyer is not a bona fide purchaser for value. The
25
trustor may then attempt to prove defective notice. (Wolfe v. Lipsy (1985) 163 Cal.App.3d 633,
26
639-640 [209 Cal.Rptr. 801]; Lancaster Security Inv. Corp. v. Kessler, 159 Cal.App.2d 649,
27
655.) In the case at hand, the deed of trust was not lawfully assigned to any entity. The parties
28
-23-
OPPOSITION TO MOTION TO ANNUL STAY
1
who unlawfully sold the property to the Plaintiffs were not the lawful beneficiaries to the
2
property and had no lawful right to sell to any party. Litigation continues in these matters. As
3
such, Plaintiffs unlawful purchase is clearly VOID.
4
CONCLUSION
5
60. Marks contends that TRA lackss standing to seek relief from stay as the recorded
6
lis pendens provided constructive and actual notice that issues of title existed since 2007. Marks
7
currently has an equitable title interest for the automatic stay to protect. This Honorable Court
8
should deny the Motion for relief as requested by TRA. The Trustee's Deed upon sale should
9
be deed VOID not voidable.
10
61. Marks 2007 lis pendens remains recorded and has not been expunged prior to the
11
unlawful trustee's sale. The Notice of Default is based upon and clearly references on its face -
12
a note upon which Marks has NO obligation. That same loan is NOT related to Marks Deed of
13
Trust. There are pending appeals that must be completed prior to completion of any State Court
14
actions. Marks allegations of fraud must be addressed. Justice demands same. Marks continues
15
to suffer manifest injustice in these matters.
16
62. Marks has recently discovered in March of 2011 a Motion for Relief from Stay
17
which was GRANTED against New Century aka Home 123 in Delaware in 2008. Marks further
18
requests that this Court allow the related proceedings in the Ninth Circuit and the Delaware
19
Bankruptcy Court to continue concurrently with this matter. The outcomes to those matters will
20
have a direct relation to the matters at bar. That the State Court Unlawful Detainer proceeding
21
be Stayed until the Marks allegations of fraud are litigated on their merits as transfer of Real
22
Estate cannot be based upon fraudulent documents and fraud. As Marks was not allowed to
23
bring the underlying allegations of fraud in the state court, any judgment of the Unlawful
24
Detainer court that violates the decision of the jury would be in clear violation of the Automatic
25
Stay.
26

27

28
-24-
OPPOSITION TO MOTION TO ANNUL STAY
1
63. The Jury did NOT award Defendants Marks home only damages to which they
2
are not entitled to receive. TRA can and should receive reverse the Trustee's sale and restore
3
Marks to her position prior to the unlawful trustee sale. Justice demands same.
4
64. As Marks properly advised TRA, Askew and Eikenberry at the onset, TRA should
5
seek relief from the entity that sold it a property with a cloud on title. As a real estate
6
professional, and an 'investor" in over 60 properties in Alameda County, Askew should have
7
performed reasonable diligence prior to making the purchase. Askew admitted failure of his
8
"title company" to advise him of the currently recorded 2007 lis pendens demands that Askew
9
seek relief with that entity not Marks.
10
65. A governing principle was articulated more than sixty years ago by Judge Learned
11
Hand, perhaps the most distinguished u.s. jurist who never sat on the u.s. Supreme Court.
12
Judge Hand stated: "A judge is more than a moderator; he is charged to see that the law is
13
properly administered, and it is a duty which he cannot discharge by remaining inert." United
14
States v. Marzano, 149 F.2d 923, 925 (2d Cir.1945). Plaintiff here seeks nothing more than
15
justice. Justice for which she has been fighting since 2006.
16
66. Marks seeks monetary relief for all costs incurred relating to the fraudulent
17
foreclosure sale, the unlawful detainer trial and any and all further relief this Honorable Court
18
deem fair just and proper.
19

20

21
22
April 28, 2011
fiwu?)
LESLIE MARKS
23
24

25
26
27
28
-25-
OPPOSITION TO MOTION TO ANNUL STAY
1 LESLIE MARKS
3099 SUTER STREET
2 OAKLAND, CA 94602
3
TEL: 510/434-9748
4 FAX: 866/813-8313

6
7
IN THE UNITED STATES BANKRUPTCY COURT
8 NORTHERN DISTRICT OF CALIFORNIA
9

10
INRE: ) CASE NO. 11-43140
11 )
LESLIE PATRICE BARNES MARKS ) CHAPTER 13
12 )
Debtor. ) RELATED CASES:
13
) USBC DELAWARE: 09-50244; 07-10416
14 ) 9TH CIR. COURT OF APPEAL: 10-16811;
) 10-16799 AND 10-17811
15 ) ACSC CASE NOS:
) CASE NO: RGI0545629 AND RGI0546852
16 )
) DECLARATION OF LESLIE MARKS
17
) IN SUPPORT OF OPPOSITION TO
18 ) MOTION TO ANNUL AUTOMATIC
) STAY
19

20 I, Leslie Marks, declare:


21
1. I am the Debtor in the above-entitled action. I have personal knowledge of the
22
matters set forth within and can competently testify thereto if called upon to do so.
23
2. On or about April 26, 2011 I received the Motion to Annul the Automatic Stay
24
served by mail. This service is defective in that it does not allow for the response time under the
25
26 Federal Rules of Civil Procedure. Furthermore more there is no notice that is an emergency

27 notice or any other evidence to expedite the hearing as set.

3. Attached hereto as Exhibit A is the Notice of Default recorded on May 21,2011


28
-1-
DECLARATION IN SUPPORT OF OPPOSITION TO MOTION TO ANNUL STAY
1
pnor. No assignment or substation of Trustee is recorded prior to this date. The Assignment is
2
signed by a representative of GreenTree and not the Delaware Bankruptcy Trustee, as Home 123
3
is in active bankruptcy in Delaware currently. The Substitution is also signed by a representative
4
of GreenTree. These documents also reference a loan to which Marks has no obligation and is
5
not related to the 2006 Deed of Trust.
6
4.. Attached hereto as Exhibit B is a true and correct copy of the 2007 Lis Pendens
7
which remains recorded and is not expunge.
8
5. Attached hereto as Exhibit C is a true and correct copy of correspondence from
9
New Century showing status of Marks loan, the loan number and the cover page of the 2006
10
Deed of Trust reflecting the current loan number.
11
6. Attached hereto as Exhibit D is a true and correct copy of the Trustee's Deed
12
upon sale which reflects a loan to which Marks has no obligation and is not related to the 2006
13
II Deed of Trust.
14
7. Attached hereto as Exhibit E is a true and correct copy of the handwritten receipt.
15 II 8. Attached hereto as Exhibit F is a true and correct copy of correspondence
II
16
evidencing Mr. Eikenberry's attempt to manipulate the Delaware hearing.
17
9. Attached hereto as Exhibit G is a true and correct copy of the Blanket Relief from
18
Stay Order issued by the Delaware Court in 2008. Marks was not made aware of this order, even
19
though her California case was pending at the time. Marks recently discovered this order in
20
March 2011 as a result of a hearing in a Hawaii case, attached hereto for the court's convenience.
21
Perhaps these subsequent litigations could have been avoided had New Century acted in good
22
faith and provided Marks with this order. Her California case was pending at that time and New
23
Century should have been brought in to resolve issues.
24
10. Attached hereto as Exhibit H is a true and correct copy of a recent Memorandum
25
of Decision which closely mirror's Marks case. In re Salazar, USBC SDC Case No. 10-17456.
26
11. Attached hereto as Exhibit I are true and correct copies of other relevant evidence
27
to this case. First a pleading filed by Les Zieve on behalf of Home 123, which is in active BK in
28
-2-
DECLARATION IN SUPPORT OF OPPOSITION TO MOTION TO ANNUL STAY
1
Delaware - this document is fraudulent on its face. Exhibit 1-2 is a copy of correspondence
2
from GreenTree depicting a loan number which is not related to Marks deed of trust, and is not
3
even the same loan number reflected on the foreclosing documents. Furthermore, as you can see,
4
GreenTree could have expunged the lis pendens and recorded its assignments in 2009 had it had
5
the legal or lawful right to do so. Exhibit 1-2 is evidence Ocwen claims to transfer to GreenTree.
6
There is no recorded documents evidencing this transfer. Exhibit 1-3 is a copy of the Proof of
7
Claim filed by Ocwen, which claimed to be only a "servicer" in the Illston Court. Only the
8
Lender can file a Proof of claim, the law is clear. Exhibit 1-4 is the current status of former New
9
Century Employee Tom Chicoine. Exhibit 1-5 copies of envelopes that contained documents sent
10
by Mr. Eikenberry in violation of the automatic stay.
11
12. Attached hereto as Exhibit AA through AA-7 are true and correct copies of the
12
index from the Alameda Country Recorder's office showing that TRA has purchased over 60
13
properties in Alameda County. This document also reflects that TRA is listed itself as a lender,
14
Trenor Asknew has recorded himself as a Trustee.
15
13. TRA has caused me and my family monetary loss by simply refusing to obtain
16
relief from Fidelity or Green'Iree, whatever entity it purchased a property with clouded title,
17
based upon fraudulent documents which are fraudulent on its face. 1 have had to not only battle
18
the banks but now an investor who has no standing whatsoever to proceed against me. 1 am
19
seeking reimbursement for all costs relating to the unlawful detainer trial and to defend my
20
position against TRA and Trenor Asknew.
21
1 declare under penalty of perjury, under the laws of the state of California, that the
22
foregoing is true and correct and executed on this 2~THst day of April at Oakland, California.
23

24

25

26

27

28
-3-
DECLARATION IN SUPPORT OF OPPOSITION TO MOTION TO ANNUL STAY
Case3:10-cv-03593-SI Document35-6 Filed09/14/10 Page2 of 3

i.. •.

... -'-'-- - .. - --.. -_ ... ...... .. ~..... - _._.--.


Recording R.queIted By
a.awyera TItItt CompaflY Zll11_ 85/2112110
13:42PfI
and WMn Reconled Mail to: • • IfUtJ!l. ••W!ii!!IJ.OfI w.••••••COUNTY
• •.••
iI&D~ 21."

Default R,101ution Network


, 7592 E. 17th Street. Sulte 300
Tuatln, CA 827'SO
f'}.

If
• '. 1111111111111.· ..~ ..
-J, .2 TruatM 8M No: 1~3O-e. Order No. S802497
~ Loan No: 8885525) ~

NonCE OF DEFAULT AND ELECTION TO SELL UNDER DEED OF TRUST


IMPORTANT NOTICE
IF YOUR PROPERTY IS IN FORECLOSURE BECAUSE YOU ARE BEHIND IN
YOUR PAYMENTS, IT MAY BE SOLD WITHOUT ANY COURT ACTION, and ~ mey
have the leaa' right to brine your account In good Iblndlng by paylrio an of your pUt due
paym •••• ptu. permitted coats and expena •• wtthln the time permttt.d by taw for
reinstatement of your account, whlch I. normally five bUll•••• dayt prior to the .te •• t for
the aa•• of your property. No sale date may be •• t untll th'" montht from the date thII notic.
of defautt may be recorded (which date of recordatlon appura Oft thla notice).
This amount •• $176.432.10 as of May 19, 2010, and win inorea. until your account becomes
current. .
While your property •• in forecl_ure. you .tlll must pay other obllgallo •• Ceuch•• iMuMne.
and tax •• ) requlrad by yOurnote and deed of tniat or mortpge. If you fan to make future
IH'ymenta on the 'OlIn. pay tu •• on the property, provide IMuranoe on •••• property. or pay
other obllgaUons •• required in the note and dMd of tru.t Of mortgage, tile beneficiary or
mortgag •• may In.lat that you do 10 In ord.r to relnatate your account In good atlndinl. In
addition, the benefiCiary or mortgag •• may require _ • condition to relnatlltement that you
provide ,.nlble written .vldence that you paid al •• nlor 'iena, property taus. and hazard
inluranc. premluma.· .
Upon your written •.•q•••• t, the benefiCiary or mortgagH willi," you • written ItImlzlltion Of
the entire ••••ount you-mult pay. You may not have to pay the entire unpaid porUon of your
account, even thouah full payment was demanded, but you muat pay an amounta 'n default at
the Um. paym.nt IImade. How.ver, you and your beneftclaty or may mutUlllly mort.,....
ag•.•• in writing prior to the time the notice of •••• I. PH*' (which may not be •••.••• r than the
end of the thMe","onth period ,.tedabove) to,. among other thtnp. (1) provide addltlone.
time In which to CUN t•.•• default by traM'" of the property or otherwtH; or (2) eatabl •••••
acheduleof payments In order to cur. ,our defaulti or bolh (1) Ind (2••
FollowIng u.. expiration oru.. time period •.••••f1'M to In the flrat ,.regrapta of lb. notice,
un' ••• the obligation MIne foreclotect upon or a • .,. •.•••written •• reement Htwttan 1" .mI
your creditor pennlta • longer pertod. you hav. only th •••••• I1Iht to stop the •••• of your
property by paying the enllre .mount demanded by ,our creditor.

To find out the amount you mUlt ".y,


or to a,range for ~.nt
your property is in fo.-cloaUN for .ny oll1.r reason, contact:
to .top the forecloaww, or If
Case3:10-cv-03593-SI Document35-6 Filed09/14/10 Page3 of 3

..
, ..

GREEN TR!I SERVICING. LLC (MANUFACTURED HOtJalNG DIVISION)


c/o DefauH RHoIUIIon Netwot1t
17e2 •• 17th8treet, Suite 300
Tuatln. CA .2780
Phone: 714-101-5100 REF' 10-0123801 .
If you have any queatlon •• you ahould contaet • lawyer or the governm.ntal ••••• cy which
may have .naured y.our loin. NOlWithltancling the fact that your ,NtMrty Ia'nfoNcloe ••••, you
may offer your property for Hte. provldttd the •••• fa conctuded prior to the concluaton of the
foreclo.lIN.
REMEMBER, YOU MAY LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT
ACTION. NOTICE IS HEREBY GIVEN THAT: Def8u1t ••• bHft dHtarecI under a Deed of
Truat datltd •• of Man:b 24, 2001, eucuted by LESLII! BARNa MARKS. AN UNMARRII!D
WOMAN ••• tn.aator. to HeU,. oIJIlgetiona In favor of H0MI123 CORPORATION•••
.t
Beneftclary. recorded March 30,2001, •• Instrument No. 20011#517 of the otIIclal R.conIa In
the otftce of the Recorder of Alameda COunty. California, and subject to tile tarm. and
COndttlOIWcontained ••••••••• and that
The 0Md of Trust enoumb.,. certain property more partlcul ••.•y de.crlbed the"'n (the "Tftlat
Propeny"), and that
The 0Hd of Trust •• eu•.•• the payment of and the performance of certain obllgatlona,
includfng but not limited to. the obllgdona ut forth In a promlUory note(.) WIth a face
amount of $411.000.00. and that
A breach of, and default Int the obligations for which •• Id Deed of trust fa HCurity h••
occumtd In that the tnaator has failed to perform obllgltlona purauant to or under the Note
anellor the DHdof T•.•••t, .peclficall~: failed to pay Plyments WhIch became due; toedter
with .a. Chlrges due; together with other"" and .xpe •••• IncurrH bytile Beneficiary; and
that

By fellOn theNof. the , •• ent beneficiary under auch Deed of Tru.t. hat dellv8fld to •• tel
Tru •••• a oec'aratlOn anet Demand fOr sele, and hIt depOelted with ,.Id duly appoJnwd
Tru.t ••• uch Deed of Tru.t and .11documema evidencing the obllgltlona MOuNd thereby,
and h•• declared and doH hereby declare a"lurn .ecurecl ••••• by ImlMdlatelydue and
payable .nd •••• elected .and doH htmy elect to caua. the Truat Prope,rty to be lold to
•• a.ty the obligation. tItlCured thereby.
The mortgagee. beneficiary or authorized 1gent for tta. mortpgee or benencllry pu,.ulnt to
California Civil Codel2t23.S(c) decl,,.. that the mortplJHt beneficiary or the mortpgH·'
or bende....,._ authorized agent ha eft••••.contacted the borrower or tried with due diligence
to contact the borrower u requlNd by cattfotnla CIvIl Code t 2123.'.

Date: May 21. 2010


Default Resolution Network
Agent for the Beneficiary
By; Lawye•• TIle Com""ny. ~
By: SPL Inc., IS Agent

By:
t'

\\\
"\ . '
.~
--_.-
------4- _

RECORDING REQUESTED BY
LAWyeRS TITLE COMPANY
)\/\ AND WHEN RECORDED MAIL TO
FIdelity National Title Company
~ -17592 E. 17th Street, Suite 300 PGS
Tustin. CA 92780

Space above this Iinef9( recorder's use only


Trustee Sale No. 10-09236-6 Loan No. 89655256
.IH~7
SUBSTITUTION OF TRUSTEE Hi
Affidavit attached I!'
'11
WHEREAS. LESLIE BARNES MARKS, AN UNMARRIED WOMAN, was the Or[§inal Trustor. NORTH
AMERICAN TITLE, was the original Trustee. and HOME123 CORPORATION. was the original
BenefiCiary under that certain Deed of Trust dated March 24, 2006, and record~b March 30. 2006 as
Instrument Number 2006122537 of Official Records in the Office of the Recora~r of Alameda County,
California; .11
Ii
WHEREAS, the undersigned current Beneficiary of the Deed of Trust desires to sQbstitute a new Trustee
under said Deed of Trust; - il
!'

;y~ *~
Now. THEREFORE, the undersigned hereby substitutes Fidelity NatlonalT!ije Company, whose
address is 17592 E. 17th Street, Suite 300, Tustin, CA 92780, as Trustee under said Oeed of Trust
lttttt4td. Jj
DATE: ~~ID "~I
q

By:

before me, JklO'e> $',. ~rS!l{eJe ,.... a Notary PUblic~j personally appeared
"""l.5JiI:a:!I..-+~~~Wd~.,....,.... who proved to me WiI the basis of satisfactory evid~~ce to be the person(s)
whose name(s) is! ~ subscribed to the within instrument and acknowledged to me tl)at: h~/shelthey executed the
same in hislherltheir authoriz~ capacity{ies), and that by his/herltheir signature(s) on the i1strument the person(s).
or the entity upon behalf of which the person{s) acted. executed the instrument.;:

I certify under PENALTY OF PE;RJURYunderthe laws of the State of ;Yh,·am.¢rt14 that th~ foregoing
paragraph is true and correct. II

WITNESS my hand and official seal. • J


.'.\

• Delores E. Kargleder
~ (~~rARY !'UBLIC
~-mleof Minnesota
MyCOntmission Expires 1.31"2015

--.--~-.---~------- -----
RECORDING REQUESTED BY

LAWYERS TiTLE COMPANY


AND WHEN RECORDED MAl L TO

GREEN TREE SERVICING, LLC


(MANUFACTURED HOUSING DIVISION)
33600 6TH AVE. S., SUITE 220,
FEDERAL WAY, WA 98003

Space above this line for tecorde( s use only


Trustee Sale NO.10-09236-6 . Loan No. 89655256 Title Order No. 5802497 !
i

ASSIGNMENT OF DEED OF TRUST ;


I
FOR VALUE RECEIVED, the undersigned hereby grants, assigns and transfers to Green Tree Servicing LLC all .
beneficial interest under that certain Deed of Trust dated as of March 24, 2006 executed by LESLIE BARNES
MARKS, AN UNMARRIED WOMAN, as Trustor; to NORTH AMERICAN TITLE, as'Trustee; and Recorded on
March 30, 2006 with recorder's reference 2006122537 of official records in the Offic~ of the Recorder of Alameda
County, California. . ..

TOGETHER with the note or notes therein described and secured thereby. the mdn~y due and to become due
thereon, with interest, and all tights accrued or to accrue under said Deed of Tru~tl including the right to have
reconveyed, in whole or in part. the real property described therein. .

DATE: ~:2 ,qCHJl 0

Home123 Corporation, a California Corporation

i~ By: . tJ> I1UwV A~l..,,\ J ""'5",,,,,,,-


STATE OF: =z11dn ~
COUNTVOF:~v""~ ~_

On /••~; ~~ ,,),;r, t rv re me, -...~u;....<I,..:I;:::;.J,o~:.......s<::::::;;;.--t;.~~~~~_~""'"'::":~:-':;-:~' Notary Public,


pers~ whQ· proved to me on the basis
of satisfactory evidence to be the person( whose name{s) is/are subscribed to
the within instrument and
acknowledged to me that he/she/they execu ed the same in hislherltheir authoriz~d capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument

I certify under PENALTY OF PERJJJ.RYunder the laws of the State of .-ltlin ICiM,gf;:; a that the foregoing
paragraph is true and correct. - i
WITNESS my hand and official seat.'

'!l#~£A~) ..
Nota~= A"ft

'!~
_ =_
Delores E. Kargleder
~ ~ NOTARY PUBLIC
State of Minnesota
., •.••• My CommisSIon £xp"es 1.31.2015
RECORDING REQUESTED BY
AND WHEN RECO~DED MAIL TO:
~~.......-.~~~~--~==-- MAY X 3 Z007
Leslie Marks COpy of Document Recorded
3099 Suter Street on.HEL. 8 2007~~J!.~'~~D~i~:~;~~~,:;'w
Oakland, CA 94602 as No. _ dO r)? 17 c'j "F~ i. ~{E:'iNO!.;rp'::T::~;~~l
r.=G"!~n,~
Has not been compared with Original
ALAMEDA COUNTY RECORDER

SPACE ABOVE THIS UNE FOR RECORDER'S USE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LESLIE MARKS, In Pro Per, ) CASENO. C072133 S1


)
Plaintiff, ) RELATED CASES:
) UNITED STATES DISTRICT COURT
v. ) CASE NO: 06-06806 S1 :;:-'-
)
OCWEN FINANCIAL CORPORATION, ) UNITED STATES BANK.RUPTCY COURT
OCWEN LOAN SERVICING, DB ) DISTRICT OF DELAWARE CHAPTER 11
STRUCTURED PRODUCTS, INC. and DOES,) CASE NOS: 07-104-16 KJC~JOINTLY
1-100, ) ADMINISTERED
)
Defendants. ) AMENDED LIS PENDENS
) [CCP SECTION 405.20]
)
) Original Complaint filed
_______________ ). In State Court: July 28,2006

Notice is given that the above-entitled action was filed in the above-entitled court on

Apri117, 2007 by Leslie Barnes Marks, plaintiff, against OCWEN LOAN SERVICING, LLC

AND DB STRUCTURED PRODUCTS, lNC. The action affects title to specific real property or

the right to possession of specific real property identified in the complaint in the above-entitled

action.
.--~----

1
LIS PENDENS
The specific real property affected by the action is located in Alameda County,

California, commonly known as 3099 Suter Street and the land referred to is situated in the State

of California, County of Alameda, City of Oakland, and is described as follows:

A portion of Lots 10, 11 and 12, in Block 1(, of "Oakland Highlands, 1912", filed
Apri112, 1912, in Map Book 26, Page 79, Alameda County Records, described as
follows:

Beginning at the point of intersection of the Southwestern line of Suter, formerly


Main Street; with the Northwestern line of Curran Avenue, as said street and
avenue are shown on the map herein referred to; running thence Northwesterly
along said line of Suter, formerly Main Street, 40 feet; thence at right angles
Southwesterly 100 feet; thence at right angles Southeasterly 40 feet to the
Northwester line of Curran Avenue; thence Northeasterly along said line of
Curran Avenue, 100 feet to the point of the beginning. (Being APN 218-927-6)

Dated: May 1, 2007

Leslie Marks, In Pro Se

ORDER

The Complaint in this action has been read and on its face contains a claim with would
-
affect title to real property. By approving the recording of this Lis Pendens, this Court does not

determine the probable validity of the claim or whether the claim has merit. This claim may be

subject to expungement as provided by law. Recording ofthis Lis Pendens is Approved, CCP

405.21.

Dated: May r, 2007

-- ---'------------,---,------ -'---,-----

2
LIS PENDENS
Marh v OC:W€Tl,. et al,
USDC NDC Case No.: C07 2133 SI

PROOF OF SERVICE via CERTIFIED MAIL

Ideclare that:

I am a citizen of the United States, employed in the County of Alameda, California, over

the age of eighteen years, and not a party to the within cause. Iam reside in Alameda County,

California, 94602. I am not a certified process server. On May 8, 2007, I served the within:

NOTICE OF PENDENCY OF ACTION

To the following parties and/or interested. parties:

Agent for Service of Process for DB Structured Agent for Service of Process for OCWEN:
Products, Inc.: CERT# 7006 2760 0004 0865 8393
CERT # 7006 2760 0004 08658386 CSC Lawyers Incorporating
CT Corporation System 2730 Gateway Oaks Drive # 100
818 W 7th Street Sacramento, CA 95833
Los Angeles, CA 90017

CERT# 7006 2760 00040865 8409 CERT # 7006 2760 000408658416


US Trustee Mark D. Collins
United States Trustee ChunL Jang
844 King Street, Room 2207 Michael Joseph Merchant
Lockbox#35 Richards, Layton & Finger, P.A.
Wilmington, DE 19899-0035 920 North King Street
Wilmington, DE 19899

CERT# 7006 2760 0004 0865 8423 CERT# 7006 2760 0004 08658430
Timothy P. Carins BenH. Logan
Pachulski Stang Ziehl Young Jones Suzanne S. Uhland
919 N. Market Street, 17th Floor Austin K. Baron
Wilmington, DE 19801 Emily R. Culler
O'Melveny & Meyers LLP
275 Battery Street
San Francisco, California 94111

CERT# 7006 2760 0004 0866 0174 CERT# 7006 2760 0004 0865 8157
Brian H. Gunn Clerk of the Court
WOLFE & WYMAN LLP United States Bankruptcy Court
2175 N. California Blvd., Suite 415 District of Delaware
Walnut-Creek, California 94596-3579 824 North Market Street, 3rd Floor
Wilmington, Delaware, 19801

--------
·'
."
Marks v Ocwen, et al.
..
, USDC NDC Case No.: C07 2133 SI

X BY CERTIFIED MAIL RETURN RECEIPT REQUESTED: on the parties in said


cause, by placing a true and correct copy thereof enclosed in a sealed envelope with postage
thereon fully prepaid, in the United States mail at San Francisco, California, addressed as
follows:

I certify and declare under penalty of perjury that the foregoing is true and correct and

th~t this declaration was executed on May'~ 2007, at San Francisco, California.
f1J NEW CENTURY~ New Century Liquidating Trust
575 Anton Boulevard, 3rd Floor, Suite 46
Costa Mesa. CA 92616
(714) 432./'i57/'i • Fax (714) 432-0490

August 24, 2010

Experian
Attn: Experian Consumer Assistance
701 ExperianParkway
Allen, TX 75013
(888) 397-3742

Equifax Credit Information Services, Inc


PO Box 740241
Atlanta, GA 30374
(800) 888-4213

TransUnion
Attn: TransUnion Consumer Solutions
PO Box 2000
Chester, PA 19022-2000
(800) 916-8800

Innovis
Attn: Consumer Assistance
PO Box 1534
Columbus, Ohio 43216-1534
(800) 540-2505

RE: LeslieBarnes Marks - Debt previously reported by HomeU3


Corporation- Loan Number 1006788513 ~
l\
Dear SirlMadam: _

This letter is sent in regard to consumer, Leslie Bames Marks, regarding an


obligation previously reported as owing by Homel23 Corporation in 2006-07, which
requires correction.

Please be advised that on April 2, 2007 (the "Petition Date"), New Century TRS
Holdings, Inc., and certain of its affiliated entities, including Homel23 Corporation
(collectively, the "Debtors"), filed chapter 11 bankruptcy petitions in the United States
Bankruptcy Court for the District of Delaware (the "Bankruptcy Court"), which cases are
jointly administered as Case No. 07-10416.

On November 20, 2009 the Bankruptcy Court entered an Order Confirming the
Modified Plan of Liquidation (the "Plan"). Pursuant to the Plan's terms, the New
Century Liquidating Trust (the "Trust") was created and Alan M. Jacobs was appointed as
Liquidating Trustee.

871230/003·19146J 5.1
·.
Guarantee No. 05802497

EXHIBIT "A"

All that certain real property situated in the County of Alameda, State of California, described as
follows:

(City of Oakland)

Portion of Lots 10, 11 and 12, in 610ck K, of nOakland Highlands, 1512", filed April 12, 1912, in Map
Book 26, Page 79, Alameda County Records, described as follows:

Beginning at the point of intersection of the Southwestern line of Suter, formerly Maine Street, with
the Northwestern line of Curran Avenue, as said street and avenue are shown on the Map herein
referred to; running thence Northwesterly along said line of Suter, formerly Maine Street, 60 feet;
thence at right angles Southwesterly 100 feet; thence at right angles Southeasterly 40 feet to the
Northwestern line of Curran Avenue; thence Northeasterly along said line of Curran Avenue 100 feet
to the pint of beginning.

Note: For information purposes only, the purported street address of said land as determined from
the latest County Assessor's Roll Is:

3099 Suter Street, oakland, California

The Assessor's Parcel Number, as determined from the latest County Assessor's Roll is:

028-0927-006
••• + "iff 9,:=18
An inspection of said land has not been made", and no assurances are hereby given or implied as to
the location of the land herein described.

ClTA Guarantee Form No. 22 (ReVised 05-27-09) Page 2


!ZECORDING REQUESTED BY
~orth American Tide Company
Recording Requested By:
Bome123 Corporation

Return To:

Hcme123 Coxporation
3351 Micllel.son Dnve ,

11~lllllllln
Ste 400
Irvine, CA 92612
21 OOS
Prepared By:
Bome123 Corporation
3351 Michelson Drive,
Ste 400
Irvine! CA 92612 J~
-----------{SpIlCle Above1'b1s LlDe For ReeordlDg Dacal-----------
5CDColo tfCo I
DEED OF TRUST

DEFINITIONS
Words used in multiple sections of this document are defined below and other words are defined in
Sections 3, 11, 13, 18, 20 and 21. Certain roles regarding the usage of words used in 1his docurm:nt are
also provided in Section 16.

(A) "Security Instrument" means this document, which is dated March 24, 2006
together with all Riders to this document
(B) ''Borrower" is Leslie Barnes Marks t An 'Onmarri.ed Woman

Borrower's address is 3099 su.ter Street r Oakland, CA 94602


. Borrower is the trustor under this Security Instrument.
(C) "Lender" is Home123 Co:porat~on

Lender is a Co:pcn:ati.on
crgenized and e.'Cistingunder the laws of Cal.i.£ol:Ida

~ 1006788513 ~

CAUFORNIA...slngle Famlly-Fannte Mae/Freddie Mac UNifORM INSTRUMENT Form 31105 1101

_ -6{CA) (0207)'--fi t4 1_.n


P8gQ;Ol15 !1'J~f7L
VIAP 1lORrGAGE FORMS - (IIDO)521-7281

IT
24, 201 0
AUeCTUSt
Page Two
Re: Leslie Barnes Marks

The Trust's records reveal that during 2006, Leslie Barnes Marks obtained Loan
Number 1006788513 ("Loan") from Horne123 Corporation. The Trust has learned that
the Loan was reported to one or more credit reporting agencies as being in default during
the time that the Debtors owned and/or serviced the Loan. However, the Trust's records
indicate that the Debtors no longer own this Loan as the Loan was transferred to a third

._*
party as of March 30, 2007 .

Accordingly, Leslie Barnes Marks does not owe the Debtors, including Home123
- Corporation, or the Trust any monies on account of the Loan. Please delete any entry in
Ms. Marks's credit report indicating otherwise.

Very truly yours,

Diane Denney

CC: Ms. Leslie Marks


3099 Suter Street
Oakland, CA 94602-2840

Mark S. Indelicato, Esq.


Hahn & Hessen
488 Madison Avenue
New York, NY 10022

".• , 71. 1

------------~.----- .~------------- ----


ReCORDtNG REQUESTED BY
,. WHEN ~CO~DEO PAAIL TO 'AND MAIL TO
and
MAIL TAX STATEMENTS TO:

TRA PARTNERS LLe


360 GRAND AVE 1fJ47
OAKLAND. CA 94610

1f.:
rJf:

Trustee Sale No. 10-09236--6. Loan No. 89655256 TItle Order No. 5802497

TRUSTEE'S DEED UPON SALE


APN 028-0927-006

The undersigned grantor declares:


1) The Grantee herein was not the foreclosing beneficiary.
2) The 'amount of the unpaid debt together with costs was $682,632.76
3) The amount paid by the grantee at the trustee sale was $193,000.00
4) The documentary transfer tax is ,$ £1;}". 10
5) Said property is in the City of OAKLAND, Alameda. County CTtJ -fuA 1fJ..,~5.~
Fidelity National Title Company (herein called Trustee), as the duly appointed Trustee under the
Deed of Trust hereinafter described, does hereby grant and convey, but without covenant or
. warranty. express or implied, to TRA PARTNERS LLC (herein 'called Grantee), all of its right, title
and interest in and to that certain property situated in the County of Alameda, State of California,
described as follows:

See Property Description Attached Hereto $~ (~l.L:..+ P\


This conveyance is made pursuant to the powers conferred upon Trustee by that certain Deed of
Trust dated March 24, 2006 and executed by LESLIE BARNES MARKS, AN UNMARRIED
WOMAN, as Trustor, and recorded on March 30, 2006 as Instrument 2006122537 of official records
of Alameda County, California, and after fulfillment of the conditions specified in said Deed of Trust
authorizing this conveyance.

Default occurred as set forth in a Notice of Default and Election to Sell which was recorded in the
Office of the Recorder of said County, and such default still existed at the time of sale.

All requirements of law regarding the mailing of copies of notices or the publication of a copy of the
Notice of Default or the personal delivery of the copy of the Notice of Default and the posting and
publication of copies of the Notice of a Sale have been complied with. .

Trustee, in compliance with said Notice of Trustee's Sale and in exercise of its powers under said
Deed of Trust, sold the herein described property at public auction on October 20, 2010. Grantee,
being the highest bidder at said sale. became the purchaser of said oronertv for the amount hiri
" being $ t.93;060.00 in lawful money of the United States, or by credit bid if the Grantee was the
beneficiary of said Deed of Trust at the time of said Trustee's Sale.

Dated: October 20,2010

Fidelity National Title Company

fu-~-~-
Marcy Axelrod, Authorized Signature

State of California }ss.


County' of Orange }ss

On October 22, 2010, before me, Shena Marie La Rue, Notary Public, personally appeared MARCY
AXELROD, who proved to me on the basis of satisfactory evidence to be the person{s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that he/shelthey
executed the same in hislherltheir authorized capacity(ies), and that by his/herltheir signature{s) on
.the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.

I certify under PENALTV 'OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and cor.ect. '

SHENA MARIE LA AUE


commission #18~7664 2:

Notary Public - Cahlornla !


Orange County
My Comm.ExpiresJul 27,2012

(Seal) .
TRUSTEE SALE ( vi
TRUSTOR PAYMENT ( )

PDSTING AND PU.LI6HINB

\t
\\'
\ T.S.NO.

ADDRESS
'-,
Li ~1l
--~~-----------------------------------------------------------
4\ -~,r-A
CITY hi dl(?'1 STATE L ; ZIP

PHONE NO. _t_k-:.., ,z; ._r_'_Z_v-r)_L __ ~_\-e__k_)~_,.._)<;;'..,... CONTACT __ a....:..1~t.)_C1_! _-_It..::...· _0.....;:· D:..........'S~J -.....:..1-..;;3......;0:;...· _

CHECK NO. AMOUNT


CD I D ?JCfJ C6~~ $ {;_f~[_)i~(j7_!J_O_' .._l......;.:u _

$-------------------
$-------------------
$------------------
$-------------------
$-------------------
TOTAL OF ANY CASH RECEIVED $ _
~f·f. - ,TI'l n i';1'. JT!<"i' 'if-.,
SUCCESSFUL BID $ __.~_~.:....I ••'"-).:;....•.••.•.t p:....;.:I'-'-}_·_&_
4.-
v' __ TOTAL RECEIVED $ __Y_"'_iJ_U",,-,! _u_i{......;}iVI"-I-'-._(j-'-'u:......--:........; _

TRANSFER TAX $ ~
--"- _ AMOUNT REQUIRED $ \ q, i i}llf) . lfD
0.
RECORDINGFEES$ __ ----'~~/ _ REFUND AMOUNT $ .....l"1~:..:....1twr];::....!:ru:......'· _' ---,Vl~? _

REFUND PAYABLE TO '1--12 fl; 11LA ~r { \.


{\-( {:I L-L- C -"'~' "--...,
RECEIVED BylLD n ~.rV\ ch-eJ V1 BUYERS SIGNATURE ~../~....::.- c=:::;=.

BUYERS NAME l\~V\D\' l~:</t(..o/:IJ DRIVERS LICENSE N~ ~3L} (p(~114


TITLE TO PROPERTY TO BE VESTED AS FOLLOWS 1Q A Po. (+ (;t· 0( S. L l,... C

ADDRESS .2 ,r'
1·"")(J •.- (, /' ["
{ , ",-.
~~/~/~·,----'~/-~-=._=/~/'~~_.,~,-~*_~.'_- ~<~.:......ll·-l.!..-'------~--------------------------~
CITY
LAW OFFICE OF

KEVIN S. EIKEl\1J3ERRY
1470 l'vIARL..••.LANt, SUITE 440
W~l\'1jT CREEK, C.~IFORi\JL'" 94596
TELEPHONE 925·933·2161
FACSiMILE 925·933-2673

February 10, 2011

Leslie B. Marks
3099 Suter Street
Oakiand, CaL 94602

Re: TRA Partners v. Marks


Case # RG10545629

Dear Ms. Marks:

I have received numerous documents from you over the past few days which, among other things, advise that
you are not available to appear for the 2-25-2011 trial in the above action set for 8:45 a.m. in Dept. 1 of the Superior
Court located at 1225 Fallo,nStreet, Oakland, Cal. You have stated that you will be in Delaware on 2-23-2011 through 2-
25-2011 in connection with the 2-24-2011 continued hearing in the Adversary Proceeding that you filed in the Delaware
Bankruptcy Court.

In the event that you are not yet aware of same, the Delaware Bankruptcy court hearing has again been
continued. The 2-24-2011 hearing has been continued to 3-23-2011. I checked the court docket yesterday and
discovered a new filing dated 2-8-2011 that advises of the continuance. Thus you will not need to travel to Delaware
since there is no hearing set for 2-24-2011. You can appear at the trial in the eviction lawsuit on 2-25-2011. I will appear
in court on that date with my client and will not agree to any continuance of the trial. A decision in the eviction lawsuit
needs to.be rendered so that you and my client can proceed beyond the current standoff that exists.

V~J truly yours,

h~~
Kevin S. Eikenberry
Leslie (Barnes:Mar~
3099 Suter Street
oaRland; CJI 94602
fJ'e{:510/434-9748 Ce{f: 510/393-3893 p~. 866-814-8313
February 14, 2011
BY CERTIFIED MAIL RETURN RECEIPT REQUESTED
Receipt No.: 7009 2820 0002 4900 6542
Kevin Eikenberry, Esq.
1470 Marina Lane #440
Walnut Creek, CA 94596

Re: TRA v Marks ACSC Case NO.RG10546852


Marks v Askew and TRA Partners LLC, ACSC Case No: RG10546852

Dear Mr. Eikenberry:

Last time I checked, you are not a judge. I am curious why you are notifying me of a
change of the date for the Evidentiary Hearing and I did not get this notification from the attorneys
at Hahn & Hesson, nor given the opportunity to object to any change, Furthermore, if such an
order exists, why did you NOT download same and present it to the California court as evidence.
To the best of my know/edge Judge Carey's order STANDS, I have paid for airfare and other travel
related expenses, and had to make special arrangements for my disabled son. That said, should
Judge Carey issue an order making such a change, you can collude with Hahn & Hesson to pay
for any costs lam forced incur to that end. Please provide evidence you have that changes the
orders of a Federal Bankruptcy Chief Justice.

Enclosed find courtesy copies of Objection to ANY Continuance; and the Motion to Compel
discovery responses from your clients.

Again, your clients have the burden of proof that they PERFECTED title PRIOR to bringing
the unlawful detainer action. While you are checking other cases to which you are NOT
representing any party in those actions, I FAIL to see any evidence whatsoever that confirms your
clients have PERFECTED title PRIOR TO BRINGING THE UNLAWFUL DETAINER ACTION.
You and your clients continue to present matters at bar to which the court has NO subject matter
jurisdiction over your clients failing to provide evidence of PERFECT title, and you LOST your
motion for summary judgment - NOT based on my response, based on DEFECTS in YOUR
motion. I will ask the court for costs of defending the frivolous action/motions brought by you and
your clients, sanctions and any other relief the courts deem fair just and proper.
r-.
i Very)truly yours,
<; L/ r " \t''') ii ')) t:,--
.>
___..-~
LEStlE
11 /1 \,/L[J
MARKS'
/((jt)cJc_
v L-.......
./ !

/ /
\~._//
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE

lure CHAPTER 11
(Jointly Administered) --
NEW CENTURY TRS HOLDINGS, rsc,
et al. Case No. 07-10416 (KJC)
Debt01'S

LESLIE MARKS, Adv. Pro. No. 09-50244 (KJC)


Plaintiff,

NEW CENTURYTRS HOLDINGS~lNC~:


ei al. Re: docket nos. 53, 56, 62

Defendants

... .-~
OlIDER

AN!) NOW. this 21st day of December, 201 O~it appearing that plaintiff Leslie Marks has

filed the following motions in this adversary proceeding:

(i) the request of Leslie Marks for a stay of dismissal of this adversary proceeding

(D.l. 53)(fue "Requestto Stay Dismissal");and

(ii) the-request of Leslie Marks fur a Temporary Restraining Order (D~ 56)(tb.e

"Request for TRO"); and

it further appearing that this adversary proceeding was closed on September 2. 2010. and

it further appearing that the plaintiff has requested an adjournment of the hearing

scheduled for January 4~2011; it is hereby

ORDERED as follows:
1. The hearing scheduled for January 4, 2011 is rescheduled for Thursday, February 24,

2011 at 10 a.m. (ET) in CourtroomNo. 5, United States Bankruptcy Court for the

District of Delaware, Wilmington, DE 19801, at which time the Court will consider:

(i) whether this adversary proceeding should be reopened,

(ii) the Request to Stay Dismissal and the response thereto by the New Century

Liquidating Trust CDl. 54), and

(ill) the Request for TRO and the response thereto by the New Century Liquidating

Trust (D.L 63).

At the February 24, 201i hearing, the parties should be prepared to address whether the

this COUlt has jurisdiction to consider a challenge to a state court foreclosure judgment

and sheriffs sale based upon the Rooker-Feldman Doctrine (See Edwards v. New

Century NEon-gageCorp. (In re New Century TRS Holdings, Inc.), 423 B.R. 467

(Bankr.D.DeL2010).

3. .Any party who intends to present evidence or make extensive legal argument must appear

in person at the February 24~2011hearing.

4. On or before February 17, 2011, the parties should exchange copies of all exhibits they

will use and a list of all witnesses they will present at the February 24, 2011 hearing .
.---

GE
[
cc: MarkS. Indelicato, Esquire! I.
'Counsel shall serve a copy of this Order upon all interested parties and file a Certificate of
Service with the Court. I
!
I
HAHN&HESSEN LLP
ATIORNEYS

Mark S. Indelicato Direct Dial: (212) 478-7320


Managing Partner Email: minde/icato@hahnhessen.com

February 1~, 2011

VIA FED EX OVERNIGHT MAIL

The Honorable Kevin J. Carey


United States Bankruptcy Court
District of Delaware
824 North Market Street, 5th Floor
Wilmington, DE 19801

Ms. Leslie Marks


3099 Suter Street
Oakland, California 94602
Mr. Kevin S. Eikenberry, Esq.
1470 Maria Lane, Suite 440
Walnut Creek, California 94596

Re: In re New Century TRS Holdings, Inc. et al. (the "Debtors")


Case No. 07-10416 (KJC); and
Marks v. New Century TRS Holdings, Inc. et al.
Adv. Proc. No. 09-50244 (KJC)

Dear The Honorable Kevin J. Carey, Ms. Marks and Mr. Eikenberry:

This firm represents Alan M. Jacobs, as Liquidating Trustee of the New Century
Liquidating Trust appointed pursuant to the Second Amended Joint Chapter 11 Plan of
Liquidation of the Debtors and the Official Committee of Unsecured Creditors Dated as of April
23,2008, which became effective on August 1,2008 and reaffirmed pursuant to the Modified
Second Amended Joint Chapter 11 Plan of Liquidation Dated as of September 30, 2009, which
became effective on December 1, 2009.

We are in receipt of the Objection Continuation of Evidentiary Hearing to March 23,


2011. The Notice of Agenda of Matters Scheduledfor Hearing on February 8,2011 at 10:00
a.m., which was filed on February 4,2011, states that the Request for Stay of Dismissal and
Status Conference Statement (the "Request"), and Leslie Marks' Ex Parte Application for
Temporary Restraining Order and Preliminary Injunctions (the "TRO") were being continued to

488 Madison Avenue - New York, NY 10022 - (212) 478-7200


Fax (212) 478-7400 «Email: thefirm@hahnhessen.com
February 14,2011
Page 2

the hearing scheduled for March 23,2011. We write to advise you that the foregoing was an
error. As per the Order entered by the Honorable Judge Carey's Order on or around December
22,2010 both the Request and the TRO will be heard at the February 24,2011 hearing.

871230/009·2264197.1
i
I

IN THE UNITED STA IS BANKRUPTCY COURT


FOR THE DIS~T OF DELAWARE
------~~------------------~!
In re

NEW CENTURY TRS HOLDINGS, -Chapter 11


INC.• et aI., Case No. 07~10416-KJC,~

Debtors.

AMENDED ORDER TERMINATING THE AUTOMATIC


STAY UNDER SECTION 362(a) OF THE BANKRUPTCY CODE
TO PERMIT THE COMMENCEMENT OR CONTINUATION OF ANY ACT TO
EXERCISE ANY RIGHTS AND REMEDmS UPON INTERESTS IN REAL PROPERTY
(relates to Docket No. 8595)

UPON CONSIDERATION OF variousmotions for reconsideration (Docket Nos. 8631.

8632, 8633, 8634, 8635, 8636, 8637, 8638, 8639, and 8640) (collectively, the "Motions") filed

by various parties (collectively, "Movants") in connection with the Order Providing that the

Automatic Stay Under Section 362(a) of the Bankruptcy Code Is Terminated To Permit the

Commencement or Continuation of Any Action To Foreclose Upon or Extinguish an Interest

Listed in the Name of a Debtor (Docket N~. 8595) (the "Blanket Relief Order"). and the

omnibus response to the Motions (Docket No~ 8735) filed by The New Century Liquidating

Trust and Reorganized New Century Warehouse Corporation (together, the "Trust"), by and

through Alan M. Jacobs, as their Bankruptcy: Court appointed Liquidating Trustee and Plan

Administrator; the Court having determined that the relief requested in the Motions is

appropriate under the circumstances to the extent more fully set forth herein; and it appearing

that no other or further notice is required; and after due notice and sufficient cause appearing

therefor; IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:

G-
t. The Motions are GRANTED in rt and DENIED in part as set forth more fully

hereinbelow. All capitalized terms not othe ise defined herein shall have the respective

meanings set forth in the Motions. The Blanke Relief Order is hereby RECONSIDERED and
!
AMENDED AND SUPERSEDED by this order as described hereinbelow.

2. Pursuant to 11 D.S.C. § 362(d), to the extent that the automatic stay and/or any

injunctjon(s) may otherwise be applicable, any party is hereby granted relief from the automatic

stay and such injunctioms), and the automatic stay and, such injunction(s) are terminated, with

respect to any interest in real property which may now be or some time in the past have been

deemed. to be property of one or more of the Debtors or the Trust ("Real Property"). Any party

is hereby permitted to exercise its rights, if an~. under applicable non-bankruptcy law against

any Real Property. including but not limited to the foreclosure of any mortgage, deed of trust. or

other interest or encumbrance thereupon. JI

3. Nothing in this order (i) shall co ,stitute a determination that any of the Debtors
I

holds any interest in Real Property, (ii) shall estep the Debtors from denying that they hold any

interest in Real Property. or (iii) shall constitute a determination as to the validity, priority, or

amount of any claim secured by Real Property asserted by any party.

4. The relief granted in this order shall not affect any substantive or procedural

requirements for the exercise of rights and remedies against Real Property under applicable non-

bankruptcy law.

5. To the extent that this order is inconsistent with the Confirmation Order and/or

any other order of the Court. this order shall be deemed to supersede such orders in all respects

insofar as such orders extend the automatic stay and/or any injunction(s) with respect to any

interest in Real Property.


6. The relief granted in this order shall apply without further order of the Court.

Any party seeking to exercise its non-bankruptc rights and remedies against Real Property shall

not file a motion for relief from the automatic !stay and shall not serve any documents related

thereto upon the Debtors, the Committee, the Liquidating Trustee/Plan Administrator or their

respective counsel in these cases. Such professionals are hereby authorized to dispose of and

discard all such foreclosure/extinguishment pleadings and documents served upon them prior to

or following the entry of this order. In the event a party nevertheless flies a motion for relief

from the stay in these chapter 11 cases, such a motion shall be deemed moot and will not be

granted or otherwise entertained by this Court.

7. Movants' request in the Motions for a mechanism to obtain an order specific to a

particular property or particular properties is denied.

8. The Clerk of the Court shall place a notation on the docket for these Chapter 11

cases providing that: "The Court has granted relief from the aut9P'atic stay for ,. parties to
~~~ tltu& Yn Itrl::v
exercise any applicable rights and remedie"lInder applicable DO~ptCY law. Partie,

seeking to exercise their non-bankruptcy rights and remedies against Real Property are ordered

not to file motions for relief from the automatic stay. Parties are directed to Docket No. for

a copy of such order."

9. To the extent any other order of the Court., including but not Jimited to the Order

Confirming the Second Amended Joint Chapter 11 Plan of Liquidation of the Debtors and the

Official Committee of Unsecured Creditors Dated as of April 23, 2008 (Docket No. 8596), as

amended by the Order Amending Order Confirming the Second Amended Joint Chapter II Plan

of Liquidation of the Debtors and the Official Committee of Unsecured Creditors Dated as of

April 23, 2008 (Docket No. 8626). purport to incorporate any provisions of the Blanket Relief

-3·
•. . I .•'
I
I

j
I

Order by reference, such orders shall be deemt to incorporate the terms of this order in lieu

thereof. .

10. This Court shall retain jurisdiction over any and all issues arising from or related

to the implementation and interpretation of this order.

Date: ~"3 ~.;


Wilmmgton( Delaware

-4-
2011 U.S. Dist. LEXIS 33629, *

EUSTAQUIO N. UY, Plaintiff, v. WELLS FARGO BANK, N.A., AS TRUSTEE FOR


CARRINGTON MORTGAGE LOAN TRUST, SERIES 2006-NC2 ASSET-BACKED PASS-THROUGH
CERTIFICATES; NEW CENTURY MORTGAGE CORPORATION; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.; DOES 1-20, Defendants.

Civ. No. 10-00204 ACK-RLP

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

2011 U.S. Dist. LEXIS 33629

March 28, 2011, Decided


March 28, 2011, Filed

CORE TERMS: mortgage, summary judgment, disclosure, declaration, discovery, matter of


law, rescission, foreclosure, genuine issue', material fact, citations omitted, borrower,
statute of limitations, equitable estoppel, emotional distress, equitable, requisite, loan
application, time-barred, nonmoving, notice, lender, reply, good faith, probative evidence,
outrageous, consumer, assignee, tolling, common law

COUNSEL: [*1] For Eustaquio N. Uy, Plaintiff: Robin R. Horner, LEAD ATTORNEY, RRH &
Associates, Attorneys at Law LLLC, Honolulu, HI.

For Wells Fargo Bank, N.A., as Trustee for Carrington Mortgage Loan Trust, Series 2006-
NC2 Asset-Backed Pass-Through Certificates, Defendant: David E. McAllister, LEAD
ATTORNEY, Pite Duncan, LLP, San Diego, CA; David B. Rosen, LEAD ATTORNEY, The Law
Office of David B. Rosen, ALC, Honolulu, HI.

JUDGES: Alan C. Kay, Sr. United States District Judge.

OPINION BY: Alan C. Kay

OPINION

ORDER GRANTING WELLS FARGO'S MOTION FOR SUMMARY JUDGMENT


PROCEDURAL BACKGROUND

On April 7, 2010, Eustaquio N. Uy ("Plaintiff") filed a complaint ("Complaint") in this Court


against Wells Fargo Bank N.A. as Trustee for Carrington Mortgage Loan Trust, Series 2006-
NC2 Asset-Backed Pass-Through Certificates ("Wells Fargo"), New Century Mortgage
Corporation ("New Century"), and Mortgage Electronic Registration Systems, Inc. ("MERS").
Doc. No. 1. On December 22, 2010, Wells Fargo filed the instant Motion for Summary
Judgment, or in the Alternative, Summary Adjudication ("Motion"). Doc. No. 13. The Motion
was supported by a memorandum, a separate concise statement of facts ("Def.'s CSF"), and
declarations and supporting exhibits [*2] from Wells Fargo and Carrington Mortgage
Services, LLC ("Carrington"). Doc. Nos. 14-17. On February 28, 2011, Plaintiff filed a
memorandum in opposition to the Motion ("Opp'n"), a concise statement of facts ("PI.'s

1
CSF"), a declaration from Plaintiff, and an exhibit. Doc. No. 24.1 On March 7, 2011, Wells
Fargo filed a reply memorandum in support of the Motion ("Reply"), a supplemental
declaration from Carrington, and evidentiary objections to Plaintiff's declaration. Doc. Nos.
27-29. The Court held a hearing on Wells Fargo's Motion on March 21, 2011. 2

FOOTNOTES

1 In violation of LR83.6(b), Robin R. Horner filed Plaintiff's opposition and supporting

documents on February 28, 2011, even though (1) Dexter K. Kaiama and Keoni K. Agard,

Plaintiff's attorneys of record, had not moved to withdraw for good cause and (2) the

Court had not granted leave for Horner to be substituted as attorney of record. Ultimately,

on March 3, 2011, Horner filed a proposed order allowing for the withdrawal of Plaintiff's

initial counsel and the appearance of Horner as substitute counsel. Doc. No. 25. Judge

Kobayashi signed the proposed order on March 7, 2011. Doc. No 26.

2 The docket indicates that New Century and MERS [*3] have not been served with a

summons and a copy of the Complaint. The Court will issue a separate Order To Show

Cause why the claims against these defendants should not be dismissed without prejudice

pursuant to Fed. R. Civ. P. 4(m).

At the March 21 hearing, the Court pointed out that New Century appears to be in

bankruptcy, and it invited supplemental briefing as to whether such bankruptcy affects the

Court's ability to now rule on the instant motion. See 11 U.S.c. § 362(a) (providing that a

Chapter 11 bankruptcy petition stays "commencement or continuation, including the

issuance or employment of process" of an action against a debtor based on prepetition

claims). Plaintiff thereafter filed a supplemental brief arguing that the Court cannot now

rule on the Motion, and should instead stay the instant matter in its entirety, because New

Century is a required party under Fed. R. Civ. P. 19(a)(l) that is and has been absent

from this case. Doc. No. 38. Wells Fargo filed a supplemental brief arguing that the Court

can now rule on the Motion because (1) New Century no longer has any interest in the

Note, Mortgage, or Property, (2) the Motion does not seek judgment of any kind against

New [*4] Century, and (3) on September 3, 2008, the court overseeing New Century's

bankruptcy filed an order terminating the automatic stay with respect to any interest in

2
real property that is, or in the past has been, deemed to be property of New Century

("9/3/08 Termination Order"). Doc. No. 36; see also Doc. No. 35 (9/3/08 Termination

Order and request for judicial notice of that order).

In light of the 9/3/08 Termination Order, which the Court takes judicial notice of, and

which was filed before Plaintiff filed his Complaint, New Century's bankruptcy clearly does

not preclude the Court from now ruling on the instant motion. In particular, the 9/3/08

Termination Order provides that the automatic stay and/or any injunction(s) triggered by

New Century's bankruptcy "are terminated[] with respect to any interest in real property

which may now be or some time in the past have been deemed to be property of [New

Century] ('Real Property'). Any party is hereby permitted to exercise its rights, if any,

under applicable non-bankruptcy law against any Real Property .... " 9/3/08 Termination

Order at 2. It also provides that "[t]he relief granted in this order shall apply without

further order of [*5] the Court. Any party seeking to exercise its non-bankruptcy rights

and remedies against Real Property shall not file a motion for relief from the automatic

stay .... " Id. at 3. Accordingly, New Century's bankruptcy has not prevented Plaintiff

from serving New Century with the Complaint or otherwise pursuing its claims against this

defendant. The Court will now rule on the instant motion; it is unnecessary for the Court

to reach Plaintiff's argument that New Century - a named defendant who has not been

served - is a required party under Fed. R. Civ. P. 19 or Wells Fargo's alternative

arguments.

FACTUAL BACKGROUND3

FOOTNOTES

3 The facts as recited in this Order are for the purpose of disposing of the instant motion,

and are not to be construed as findings of fact that the parties may rely on in future

proceedings in this case.

On April 4, 2006, Plaintiff purchased real property located at 8 Magnolia Street, Wallace,
Hawai'i, 96793 ("Property"), executing and delivering an Adjustable Rate Balloon Note

Exf-t (61 t 6-lu


3
J
j
Case 10-17456-MM13 Filed 04/11/11 Doc 48 Pg. 1 of 16

1 WRITTEN DECISION - FOR PUBLICATION

2 ENTERED~
~~~
3

4 APR 11 2011
5

8 UNITED STATES BANKRUPTCY COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10

11

12

13 Inre: ) BANKRUPTCY NO: 10-17456-MM13


)
14
ELEAZAR SALAZAR, ) CHAPTER: 13
15 )
) MEMORANDUM DECISION RE MOTION
16 Debtor, ) FOR RELIEF FROM AUTOMATIC STAY
)
17 ) RS #RVP-l
U.S. BANK NATIONAL ASSOCIATION, as )
18
Trustee for the C-BASS Mortgage Loan Asset- ) DATE: 1125/11
19 Backed Certificates, Series 2006-CB2, its ) TIME: 11:00 a.m.
assignees and/or successors, ) CRTRM: 1
20 )
Movant, ) mDGE: Margaret M. Mann
21 )
ELEAZAR SALAZAR, Debtor; DAVID L. )
22
SKELTON, Chapter 13 Trustee, )
23 )
Respondents, )
24 )
)
25

26

27

28
1
MEMORANDUM DECISION
Case 10-17456-MM13 Filed 04/11/11 Doc 48 Pg. 2 of 16

1 US Bank National Association ("US Bank"), Trustee for the C-BASS Mortgage Loan Asset-

2 Backed Certificates, Series 2006-CB2, nonjudicially foreclosed on the residence of Debtor Eleazar

3 Salazar ("Salazar"), by exercising the power of sale under the deed of trust. At the time it foreclosed,

4 US Bank was not the original beneficiary of record, and it had not recorded an assignment of the deed

5 of trust conveying to it an interest in the deed of trust.

6 After the foreclosure, two lawsuits were filed in state court: Salazar filed to invalidate the

7 foreclosure sale and to seek damages against US Bank and other parties,' and US Bank filed to regain

8 possession of the residence through an unlawful detainer action against Salazar. The unlawful detainer

9 suit was on the verge of trial when Salazar filed his chapter 13 bankruptcy case.

10 In his bankruptcy, Salazar seeks to reinstate US Bank's loan against his residence and cure the

11 default, and US Bank seeks relief from stay in the bankruptcy to proceed with its unlawful detainer

12 action.i Salazar opposes stay relief, arguing US Bank does not have standing to seek relief from stay

13 because the foreclosure sale was defective, due to US Bank's failure to record an assignment of its

14 interest before foreclosures as required by California Civil Code section 2932.5.3 US Bank responds

15 that Civil Code section 2932.5 is not applicable to its deed of trust, and MERS' status as the original

16 beneficiary of the deed of trust obviated the recording of the assignment to US Bank.

17 While US Bank meets the minimal test for standing to seek relief from stay, Salazar's

18 foreclosure sale challenge must still be addressed to resolve the merits of US Bank's relief from stay

19 motion. Relying upon controlling California statutory and decisional authority, the Court concludes

20 MERS' original involvement in this loan does not provide talismanic protection against US Bank's

21 foreclosure deficiencies. US Bank's failure to record its beneficiary status before foreclosure left

22 Salazar with equitable title to his residence. Although this equitable title must be finally established in

23
24 The foreclosure suit was removed to district court, which was remanded to state court after the
federal claims were dismissed.
25 2
The Court has subject matter jurisdiction over this proceeding pursuant to 28 U.S.C. § 1334 (2010).
26 This is a core proceeding under 28 U.S.C. § lS7(bX2)(G) (2010).

27 3 All statutory references hereafter are to California Codes unless otherwise specified.
28
~~~
MEMORANDUM DECISION
__ 2 __ EX_· _H~I
Case10-17456-MM13 Filed 04/11/11 Doc48 Pg.30f16

1 an adversary proceeding rather than a relief from stay motion, Salazar has demonstrated a prima facie

2 case that the foreclosure sale was void. Salazar thus has a significant property interest entitled to

3 protection by the automatic stay, and the Court denies relief at this time.

4 I. BACKGROUND

5 Accredited Home Lenders, Inc. ("Accredited") made a loan ("Loan") to Salazar in October 2005

6 secured by his residence located at 1268 Emerald Way, Calexico, California ("Property"). Salazar

7 executed a promissory note ("Note") to Accredited to document the Loan. To secure the Loan, Salazar

8 executed a four party deed of trust ("DOT") among Salazar as "Borrower", Accredited as "Lender,"

9 Chicago Title Company as trustee, and MERS as beneficiary.

10 Under the DOT, the Lender's rights regarding the Loan are pervasive. The Lender is entitled to

11 receive all payments under the Note and to enforce the DOT, including the exclusive right to conduct a

12 nonjudicial foreclosure."

13 MERS has none of these rights under the DOT,s and is not even mentioned in the Note. MERS

14 is not given any independent authority to enforce the DOT under its terms and MERS' status as

15 beneficiary under the DOT is only "nominal." While the Borrower acknowledges in the DOT that
.1
16 MERS can exercise Lender's rights as "necessary to comply with law or custom, ,,6 this
17

18
4 Under the DOT, the Lender has the exclusive right to: "(i) the repayment of the Loan, and all
19 renewals, extensions and modifications of the Note; and (ii) the performance of Borrower's covenants
and agreements under this Security Instrument and the Note." In addition, under the covenants executed
20 between Lender and Salazar, Lender is granted exclusive authority to accelerate repayment, "give notice
21 to Borrower prior to acceleration," and "invoke the power of sale" through written notice to the Trustee
in the event of default, and appoint successor trustees. DOT at pp. 3, 13.
22
5 The DOT defines MERS as a "separate corporation that is acting solely as a nominee for Lender
23 and Lender's successors and assigns. The DOT states, "MERS is the beneficiary under this Security
II

Instrument." DOT at p. 2.
24
6
The DOT on page three in the description of collateral section, provides that "Borrower understands and
25 agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if
necessary to comply with law or custom, MERS (as nominee of Lender and Lender's successors and assigns) has
26 the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the
Property; and to take any action required of Lender including, but not limited to, releasing or cancelling this
27 Security Instrument." DOT at p. 3 (emphasis added).
28

MEMORANDUM DECISION
3 H-~
Case 10-17456-MM 13 Filed 04/11/11 Doc 48 Pg. 4 of 16

1 acknowledgement is not accompanied by any actual allocation of authority to nonjudicially foreclose

2 on the DOT; nor is such authority allocated in any other document in the record.

3 After Salazar defaulted under the Loan, foreclosure proceedings were instituted. In June 2009,

4 MERS signed a substitution of trustee. Whether MERS retained any interest in the Loan after this time

5 is not clear. Both Litton Loan Servicing, LP ("Litton") and Quality Loan Service Corp. ("Quality")

6 were at different times identified as the party that Salazar should contact with questions about the

7 foreclosure. MERS had no apparent role in the foreclosure sale held on December 7, 2009, which was

8 largely run by Litton and Quality based upon the documents in the record. When the Trustee's Deed

9 Upon Sale ("Trustee's Deed") was recorded on December 14,2009, US Bank was identified as the

10 "foreclosing beneficiary," not MERS. While US Bank has presented evidence that the Note was
11 endorsed in blank, no evidence was offered as to when US Bank was assigned Accredited's interests as

12 Lender in the Note and DOT, and no assignment to US Bank of the beneficial interest in the DOT

13 appears in the public records.


While some of the foreclosure claims were pending in district court, the unlawful detainer
14
15 action came on for trial in state court on September 1,2010, and was continued to October 1,2010.

16 This bankruptcy case was filed the day before the continued trial, which stayed the unlawful detainer

17 action. US Bank then filed this relief from stay motion ("Motion") on October 26, 2010, which was

18 heard on November 23,2010, continued to January 11,2011, and continued again to January 25,2011

to allow for the submission of evidence and additional briefmg.


19
II. ANALYSIS
20
To determine whether to grant US Bank's Motion, the Court must first decide whether US Bank
21
has standing to bring it. The Court must then address the merits of the Motion, which will require
22
consideration of whether Salazar retains any interest in the Property that is necessary for an effective
23
reorganization, and whether allowing the unlawful detainer action to proceed in state court will promote
24
the efficient administration of the bankruptcy and limit prejudice to the parties.
25
A. Standing
26
Due to the limited scope and expedited nature of a relief from stay proceeding, the standing
27
requirement is not difficult to meet. Section 362(d) of the Bankruptcy Code provides that stay relief
28

MEMORANDUM DECISION
4 tx
Case 10-17456-MM13 Filed 04/11/11 Doc 48 Pg. 5 of 16

111may be granted to a "party in interest," and any party affected by the stay should be entitled to seek

211relief. 3 Collier on Bankruptcy ~ 362.07[2] (3d ed. rev. 2010). In the Ninth Circuit, challenges to

311secured claims are typically resolved in plenary proceedings. Johnson v. Righetti (In re Johnson), 756

411F.2d 738, 740 (9th Cir. 1985) (liThe validity of the claim or contract underlying the claim is not

511litigated during the hearing."), overruled on other grounds by Travelers Cas. & Sur. Co. v. Pac. Gas &

611Elec. Co., 549 U.S. 443 (2007); Biggs v. Stovin (In re Luz Int'!), 219 B.R. 837,841-42 (B.A.P. 9th Cir.

7111998). Even so, the moving party must establish a prima facie case of its claim or rights against a

811debtor or its estate to seek relief from stay. In re Bialac, 694 F.2d 625, 627 (9th Cir. 1982); In re Aniel,

911427 B.R. 811, 816 (Bankr. N.D. Cal. 2010).

1011 A prima facie case of standing requires the moving party demonstrate an undisputed interest in

1111the bankruptcy case that is hindered by the automatic stay. Standing is lacking where a secured creditor

1211cannot present the rudimentary elements of its claim. In re Gavin, 319 B.R. 27, 32 (B.A.P. 1st Cir.

13112004) (holding the moving party could not trace the chain oftitle through valid endorsements); In re

1411Wilhelm, 407 B.R. 392, 398 (Bankr. D. Idaho 2009)("each Movant must show that it has an interest in

1511the relevant note, and that it has been injured by debtor's conduct"). If the moving party has a right to

1611assert a claim, even though the claim is disputed, standing to seek stay relief may be found. Brown

1711Transp. Truckload v. Humboldt Express, 118 B.R. 889, 893 (Bankr. N.D. Ga. 1990) (finding the non-

1811creditor had standing for stay relief to pursue action against debtor in another forum); In re Vieland,41

19 B.R. 134, 139 (Bankr. N.D. Ohio 1984) (purchaser at ajudicial foreclosure sale acquired some interest

20 in debtor's property and was a party in interest).

2111 US Bank is the record title owner of the Property under the recorded Trustee's Deed, even if the

2211foreclosure sale was invalid. US Bank therefore has standing to seek relief from stay. Even though US

2311Bank has established a prima facie case of standing, however, the Court must still determine if US

2411Bank's foreclosure sale was valid to rule on the merits of the Motion.

2511 B. Salazar's Property Interest in the Residence

2611 Whether Salazar may retain valuable equitable title in the Property despite the foreclosure sale

2711is critical to the Motion. McCarthy, Johnson & Miller v. North Bay Plumbing, Inc. (In re Pettit), 217

~x H~4
28
5
MEMOAANDDM DECISION
Case10-17456-MM13 Filed 04/11/11 Doc 48 Pg.6of16

1 F.3d 1072, 1077 (9th Cir. 2000) (whether debtor retained a property interest in registry funds

2 determined whether stay applied). To decide the Motion, the Court must evaluate whether Salazar has

3 equity in the Property necessary for an effective reorganization and whether cause exists to grant relief

4 to US Bank. Bialac, 694 F.2d at 627 (nit was within the bankruptcy court's discretion to consider the

5 construction of the note's payment terms in the § 362(d) proceeding if they were important to the issue

6 of valuation"); In re Bebensee-Wong, 248 B.R. 820,823 (B.A.P. 9th Cir. 2000) (court first determined

7 whether the trustee's deed after foreclosure was timely recorded; since foreclosure sale was valid, relief

8 from stay was granted to allow unlawful detainer action to proceed); cf In re Hoopai, No. 04-02511,

9 2005 U.S. Dist. LEXIS 42760, at *11-* 15 (D. Haw. 2005) (relief from stay denied to foreclosing

10 creditor because the property might have value to the estate).

11 If US Bank's foreclosure sale was invalid, Salazar has an interest in the Property which militates

12 in favor of continuing the stay. If US Bank was not authorized to foreclose the DOT under Civil Code

13 section 2932.5, the foreclosure sale may be void, and Salazar would not need to tender the full amount

14 of the Loan to set aside the sale. Bank of America, N.A. v. La Jolla Group II, 129 Cal. App. 4th 706,

15 710, 717 (5th Dist. 2005) (void foreclosure sale required rescission of trustee's deed returning title to

16 the status quo prior to the foreclosure sale); Dimockv. Emerald Properties, 81 Cal. App. 4th 868,874

17 (4th Dist. 2000) (sale under deed of trust by former trustee void, and tender of the amount due is

18 unnecessary). In this event, Salazar could potentially restructure the Loan and reorganize his financial

19 affairs in his chapter 13 case. The Court emphasizes however, that US Bank's defenses to Salazar's

20 Civil Code section 2932.5 claim must be resolved either in state court or in another proper proceeding

21 as these defenses are not before the Court.

22 1. Assignments Must be Recorded Before Foreclosure

23 US Bank, as the foreclosing beneficiary and assignee of Accredited's interest in the Loan, had to

24 meet both requirements of Civil Code section 2932.57 for the foreclosure to be valid. Under that

25
11---------------------
7
26 Civil Code section 2932.5 provides:
Where a power to sell real property is given to a mortgagee,or other encumbrancer,in
27 an instrumentintendedto securethe payment of money, the power is part of the security
and vests in any person who by assignmentbecomes entitledto payment of the money
28

MEMORANDUM DECISION
6 EX
Case 10-17456-MM13 Filed 04/11/11 Doc48 Pg. 7 of 16

111statute. First, US Bank had to be entitled to payment of the secured debt. Civ. Code § 2932.5; see also

211Civ. Code § 2936 (Deering 2010); Comm. Code § 9203(a), (g) (Deering 2011); Carpenter v. Longan,

31183 U.S. 271,274 (1872) (the assignment of the note carries the mortgage with it); Polhemus v. Trainer,

4//30 Cal. 686, 688 (1866) (the mortgage always abides with the debt). US Bank claims to be the holder

511of the Note, which was endorsed in blank by Accredited, and US Bank's status as holder of the Note

6 meets the first requirement of Civil Code section 2932.5.

7 Second, Civil Code section 2932.5 also requires that US Bank's status as foreclosing beneficiary

8 appear before the sale in the public record title for the Property. This second requirement was not met.

9 US Bank offers two primary reasons why a recorded assignment of the DOT is unnecessary: (1) Civil

10 Code section 2932.5 applies to mortgages, and not to its DOT; and (2) MERS' recorded interest as the

11 nominal beneficiary was sufficient to satisfy Civil Code section 2932.5, particularly since the transfer

12 by Accredited to US Bank could be tracked in the publicly accessible MERS system.


The Court's analysis leads it to conclude that Civil Code section 2932.5 requires US Bank's
13
1411assigned beneficial interest be recorded despite MERS' initial role under the DOT, and that the statutory

15 foreclosure scheme trumps MERS' proposed alternative system.

2. Civil Code Section 2932.5 Applies to Deeds of Trust


16
In claiming Civil Code section 2932.5 does not apply to its DOT, US Bank relies on Caballero
17
18 v. Bank of America, No. IO-CV-02973, 2010 U.S. Dist. LEXIS 122847, at *8 (N.D. Cal. 2010) (citing

19 Stockwell v. Barnum, 7 Cal. App. 413, 416-17 (2d Dist. 1908)), Roque v. Suntrust Mortg., Inc., No. C-
20 09-00040,2010 U.S. Dist. LEXIS 11546, at *7 (N.D. Cal. 2010), and Parcray v. Shea Mortg., Inc., No.

2111CV-F-09-1942, 2010 U.S. Dist. LEXIS 40377, at*32 (E.D. Cal. 2010).8 These cases note that Civil

22
secured by the instrument. The power of sale may be exercised by the assignee if the
assignment is duly acknowledged and recorded.
23
2411Civ. Code § 2932.5 (Deering2011) (emphasis added).

25118 Despite its respect for these decisions,this Court is not bound by them. State Compensation Ins.
Fund v. Zamora (In re Silverman), 616 F.3d 1001, 1005(9th Cir. 2010). While the Ninth Circuit reserved the
2611issue of whether bankruptcycourts are bound by district court decisionswithin the district where the
II bankruptcy court sits, it recognized that such a requirement "could create the same problem of subjecting
27 bankruptcycourts to a non-uniformbody of law." Id.
28

MEMORANDUM DECISION
7 £K H-'0
Case 10-17456-MM13 Filed 04/11/11 Doc48 Pg. 8 of 16

111Code section 2932.5 mentions only assignees of mortgage interests, whereas in those cases, and here,

2 the instrument foreclosed upon was a deed of trust.

3 Historically, a technical distinction existed between deeds oftrust and mortgages. For deeds of

411trust, title vested in the trustee. For mortgages, title remained with the mortgagors. This distinction,

5 however, has been determined to be obsolete. Bank of Italy Nat. Trust & Sav. Assn. v. Bentley, 217

6 Cal. 644, 656 (1933) (legal title under a deed of trust, though held by the trustee to the extent necessary

711for execution of the trust, does not carry any "incidents of ownership of the property"); Yulaeva v,

8 Greenpoint Mortg. Funding, Inc., No. S-09-l504, 2009 U.S. Dist. LEXIS 79094, at *4 (E.D. Cal. Sept.

9 3,2009) (citing 4 B.E. Witkin, Summary of California Law, ch. VIII, § 5 (10th ed. 2005»; N Brand

10 Partners v. Colony GFP Partners, L.P. (In re 240 N Brand Partners), 200 B.R. 653, 658 (B.A.P. 9th

1111Cir. 1996) (liThe terminology creates a difference without distinction."); see also 1 Roger Bernhardt,

1211 California Mortgages, Deeds of Trust, and Foreclosure Litigation, § 1.35 (4th ed. 2009); 4 Harry D.

1311Miller & Marvin B. Starr, Miller and Starr California Real Estate, § 10:1 n. 9 (3d 2010) (citing

1411 Domarad v. Fisher & Burke, Inc., 270 Cal. App. 2d 543,553 (1st Dist. 1969» (mortgages and deeds of
1511trust have the same effect and economic function and are "subject to the same procedures and

1611limitations on judicial and nonjudicial foreclosure")."

17 The outdated distinction between mortgages and deeds of trust is especially moribund in the

18 context of borrower's rights in the nonjudicial foreclosure context, such as the borrower rights protected

1911by Civil Code section 2932.5. Bank of Italy, 217 Cal. at 658 ("[I]mportant rights and duties of the

2011parties should not be made to depend on the more or less accidental form of the security."); Dimock, 81

2111Cal. App. 4th at 877 ("[The title distinction] has been ignored in order to afford borrowers with the

2211protection provided to mortgagors. "). Civil Code section 2932.5 protects borrowers from confusion as

2311to the ownership of their loans. Stockwell, 7 Cal. App. at 416-17; Bank of America, 129 Cal. App. 4th

24
9 The two other historical distinctionsbetween mortgages and deeds of trust identified in Bank of Italy,
2511217Cal. at 656, are also defunct. Both mortgages and deeds of trusts are now subjectto time limitations on
enforcementunder sections 880.020-887.09of the MarketableRecord Title Act. Civ. Code §§ 880.020-887.09
2611(Deering 2011). Bernhardt,supra, § 1.35. In addition, Code of Civil Procedure section 729.010 now provides
II for a right of redemption following a judicial sale under either a mortgage or a deed of trust. Civ. Proc. §
27 729.010(Deering 2011).

Ex H-7
28
8
MEMORANDUM DECISION
Case 10-174S6-MM13 Filed 04/11/11 Doc 48 Pg. 9 of 16

1 at 712 (citing 4 Harry D. Miller & Marvin B. Starr, Miller and Starr California Real Estate, § 10:123

2 (3d ed. 2003)) ("Statutory provisions regarding the exercise ofthe power of sale provide substantive

3 rights to the trustor and limit the power of sale for the protection of the trustor. "); see also Civ. Code§§

4 2935-2937 (Deering 2010) (providing requirements for the transfer of interests of indebtedness on

5 residential real property that put borrower on notice). Civil Code section 2932.5 must therefore be

6 applied to deeds of trust to ensure trustors are provided the same protection as mortgagors under

7 California law.

8 The borrower concern addressed by Civil Code section 2932.5-that it be able to identify the

9 assignee of its loan-is more exigent, not less, than it was during the Great Depression, when Bank of

10 Italy was decided. Problems with the residential mortgage foreclosure process have been widely

11 chronicled. See Katherine Porter, Misbehavior and Mistake in Bankruptcy Mortgage Claims, 87 Tex.

12 L. Rev. 121, 148-49 (2008), cited in Ameriquest Mortg. Co. v. Nosek (In re Nosek), 609 F.3d 6,9 (1st

13 Cir. 2010) (noting mortgage holders and servicer's "(c)onfusion and lack of knowledge, or perhaps

14 sloppiness, as to their roles is not unique in the residential mortgage industry"); Andrew J. Kazakes,

15 Developments in the Law: the Home Mortgage Crisis, 43 Loy. L.A. L. Rev. 1383, 1430 (2010) (citing

16 David Streitfeld, Bank of America to Freeze Foreclosure Cases, N.Y. Times, Oct. 2, 2010, at B1)

17 (explaining that after publication of Katherine Porter's study several Banks froze foreclosures); Eric

18 Dash, A Paperwork Fiasco, N.Y. Times, Oct. 23,2010, at WK5 (reporting the repeal of the initial

19 freeze and the problems banks faced in clearing up foreclosure paperwork); Office of the Special

20 Inspector General for the Troubled Asset Relief Program, Quarterly Report to Congress 12 (Jan. 26,

21 2011), available at http://www.sigtarp.gov/ (follow link for "Quarterly Report to Congress").

22 Specifically in the context of loan assignments, there are "serious distributional consequences to all

23 parties in a bankruptcy if a mortgagee cannot prove it holds a valid security interest." See Porter,

24 supra, at 148-49.

25 Because controlling Supreme Court authority requires this Court to enforce statutory borrower

26 protections regardless of whether nonjudicial foreclosure is sought under a mortgage or a deed of trust,

27 the Court must conclude Civil Code section 2932.5 applies to US Bank's DOT here.

28
9
MEMORANDUM DECISION·
Case10-17456-MM13 Filed 04/11/11 Doc48 Pg.10of16

1 3. Recorded Assignment Necessary Despite MERS' Role

211 US Bank also claims MERS' status as nominal beneficiary under the DOT obviated the

311recording of the assignment of the DOT under Civil Code section 2932.5. This claim fails because

411MERS was not the beneficiary at the time of the foreclosure here, even if it was initially the nominal

511beneficiary under the DOT. The DOT also does not grant MERS any authority apart from the nominal

611role.

711 The recitals in the Trustee's Deed identify US Bank alone as the foreclosing beneficiary, and

811this recital provides "prima facie evidence of the truth of the statements." DOT at ~ 22.10 See also

911Bank of America, 129 Cal. App. 4th at 831-32 (recitals in a trustee's deed create a presumption of the

1011truth of the statements); Dimock, 81 Cal. App. 4th at 877 (deed of trust may authorize that recitals shall

1111be conclusive proof of the truthfulness of the fact). Even though MERS was the beneficiary at the time

1211of inception, it was not so at the time of the foreclosure. In part due to this factual distinction, this

1311Court is not bound by Gomes v. Countrywide Home Loans, Inc., 192 Cal. App. 4th 1149, 1151-58 (4th

1411Dist. 2011), or Pantoja v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 1177, 1188 (N.D. Cal.

15112009).

1611 In Gomes, the Court of Appeal held Civil Code section 2924(a)(1) does not establish a cause of

1711action to permit a borrower to test MERS' authority to initiate a nonjudicial foreclosure, where there is

1811no specific factual basis to challenge this authority. Civil Code section 2924( a)(l) permits an array of

1911authorized parties to take the steps to initiate foreclosure, including the trustee, beneficiary and their

2011authorized agents. Gomes, 192 Cal. App. 4th at 1156. Neither Gomes nor Civil Code section

21112924( a)(I), applies to the questions here: Whether US Bank as Accredited's assignee has authority to

2211foreclose. This issue is instead addressed by Civil Code section 2932.5. In fact, Gomes specifically

2311declined to decide the outcome where the facts demonstrated "the wrong party initiated the foreclosure

2411process." Id. at 1155 (distinguishing Weingartner v. Chase Home Finance, LLC, 702 F.Supp.2d 1276

25

261110 Paragraph 22 of the DOT, which providesfor the Lender's Acceleration and Remedies, includes
IIthe following: 'The recitals in the Trustee's deed shall be prima facie evidence of the truth ofthe
27 statementsmade therein." DOT at p. 13.

2811
10
EX B-Cl1
.
MEMORANDUM DECISION
Case10-17456-MM13 Filed 04/11/11 Doc48 Pg.11of16

1 (D. Nev. 2010) (trustee was not the trustee at the time of the nonjudicial foreclosure); Castro v.

2 Executive Trustee Services, LLC, No. CV-08-2156-PHX-LOA, 2009 U.S. Dist. Lexis 14134 (D. Ariz.

3 Feb. 23, 2009) (foreclosing party was not the holder of the note); Ohlendorfv. American Home

4 Mortgage Servicing, No. CIV. S-09-2081 LKKlEFB, 2010 U.S. Dist. Lexis 31098 (E.D. Cal. Mar. 31,

5 2010) (recordation of assignments with backdated effective dates may taint the notice of defaultj)."

6 Gomes thus left open the situation here, where US Bank conducted the nonjudicial foreclosure as

7 beneficiary, but a different party, MERS, was the beneficiary of record.

8 Gomes also relied upon the borrower's acknowledgement ofMERS' authority to foreclose as

9 nominal beneficiary. Gomes, 192 Cal. App. 4th at 1157-58; see also Pantoja, 640 F. Supp. 2d at 1189-

10 90. Even if US Bank had not replaced MERS as the foreclosing beneficiary by the time of the

11 foreclosure here, MERS still had no authority to nonjudicially foreclose under Salazar's DOT under its

12 express terms. The Lender, not MERS, had the right to "invoke the power of sale" under the DOT, ~

13 22, here. This acknowledgement ofMERS' authority also did not extend so far as to permit it to

14 foreclose. Salazar's acknowledgement was limited to the situation where MERS' enforcement actions

15 were "necessary to comply with law or custom" (emphasis added). Whatever "necessary to comply

16 with law or custom" means, and there is no evidence in the record to explain it, it should not mean that

17 US Bank or MERS can contract away their obligations to comply with the foreclosure statutes.V

18 Salazar's acknowledgment could also not be interpreted as an enforceable waiver of his right as

19 borrower under Civil Code section 2932.5 to be informed of the identity of the assignee. The

20 acknowledgement fails to meet the stringent test for waivers of residential borrower protections in the

21
22 11 This Court is, in any event, not bound by the Gomes decision because it believes the California
Supreme Court would have followed its decision in Polhemus v. Trainer, 30 Cal. at 688, as well as the
23 statutoryrequirementsof Civil Code sections 2932.5, 2936, and CommercialCode sections 9203(a)-(g),
and found that Civil Code section 2932.5 must be compliedwith despite any designation ofMERS as a
24 nominal beneficiary in the DOT. See Vestar Dev. Il, LLC v, Gen. Dynamics Corp., 249 F.3d 958, 960
(9th Cir. 2001) (a federal court, in determininghow the high court would rule, must consider
25 "intermediateappellate court decisions, decisionsfrom otherjurisdictions, statutes,treatises, and
restatementsas guidance,"and follow an appellate decision only if there is no convincingevidencethat
26 the state supremecourt would decide differently).
27 12 MERS was not the payee of the secured debt, and thus could not satisfy the first requirementof
28 Civil Code section 2932.5 in any event.

11
EX t-t--.( D
MEMORANDUM DECISION
Case 10-17456-MM13 Filed 04/11/11 Doc 48 Pg. 12 of 16

111foreclosure context. Under Cathay Bank v. Lee, 14 Cal. App. 4th 1533, 1539 (4th Dist. 1993), a waiver

211of borrower protections must be specific and explain the substance of the statutory rights at issue. In

311 Cathay Bank, id., the court refused to enforce language of a deed of trust authorizing the lender to
411exercise the power of sale, because it served to waive the guarantor's defense to the deficiency claim. 13

511 See also Miller v. United States, 363 F. 3d 999, 1006 (9th Cir. 2004); Hoffman v. Blum, No. C06-2416
611MHP, 2008 U.S. Dist. LEXIS 7643, at *8 (N.D. Cal. 2008) ("any waiver of an important statutory right

711must be knowing and intelligent"); DeBerard Properties v. Lim., 20 Cal. 4th 659,670 (1999) (borrower

811protection foreclosure provision in Code of Civil Procedure section 580(b) cannot be waived even

911though it is not included in the list of non-waivable foreclosure provisions detailed in Civil Code

1011section 2953).

1111 As a matter of fact, US Bank did not rely on MERS to nonjudicially foreclose on Salazar's

1211residence here. As a matter oflaw, Salazar's acknowledgment cannot be read as a waiver of his right to

1311be informed of a change in beneficiary status. For both of these reasons, Gomes, 192 Cal. App. 4th at

14111157-58, is distinguishable.

15 4. MERS System is not an Alternative to Statutory Foreclosure Law

1611 The Court also rejects US Bank's invitation to overlook the statutory foreclosure mandates of

1711California law, and rely upon MERS as an extra-judicial commercial alternative. 14 The full scope of

1811California's nonjudicial foreclosure law, found at Civil Code sections 2020-2955, exhaustively covers

1911every aspect of the real estate foreclosure process and must be respected. f E. Associates v. Safeco

2011 Title Ins. Co., 39 Cal. 3d 281,285 (1985) (refusing to supplement the notice requirements found in
2111Civil Code section 2924); Dimock, 81 Cal. App. 4th at 874 (holding a sale under a deed of trust by

221Iformer trustee void as failing to comply with Civil Code section 2934); Moeller v. Lien, 25 Cal. App.

23 .. 13
Cathay Bank's holding, 14 Cal. App. 4th at 1539,was later limited by legislationto commercial
2411transactions.Civ. Code § 2856(e). However, it is still relevant for consumertransactions involving
borrowers'residences such as the one before the Court.
25
14
The Court notes that circumventingthe public recordation system is, in fact, the purpose for which the
2611MERS system was created. Merscorp, Inc. v. Romaine, No. 179, 2006 NY Slip Op. 9500, slip op. 6 (Ct. of
II Appeals 2006). Creation of a private system,however, is not enforceableto the extent it departs from
27 California law.
28

MEMORANDUM DECISION
12 Ex H -II
Case 10-17456-MM13 Filed 04/11/11 Doc48 Pg. 13 of 16

1 4th 822, 834 (1994) (holding Civil Code section 2924 includes a myriad of rules relating to notice and

2 right to cure, but no relief from forfeiture under Civil Code section 3275). To overlook statutory

3 foreclosure requirements would require legislative action, of which the Court is not capable. Westside

4 Apts., LLC v. Butler (In re Butler), 271 B.R. 867, 873 (Bankr. C.D. Cal. 2002). This Court instead

5 joins the courts in other states that have rejected MERS' offer of an alternative to the public recording

6 system. In re Agard, No. 1O-77338-reg, 2011 Bankr. LEXIS 488, at *58-*59 (Bankr. E.D.N.Y. Feb.

7 10,2011); In re McCoy, No. 10-63814-fra13, 2011 Bankr. LEXIS 534, at *10 (Bankr. Or. Feb. 7,

8 2011); MERS v. Saunders, 2 A.3d 289, 295 (Me. 2010); LaSalle Bank NaI'l Ass Inv. Lamy, No.

9 03004912005,2006 NY Slip Op 51534U, slip op. 2 (N.Y. Sup. Ct. 2006).

10 US Bank as the foreclosing assignee was obligated to record its interest before the sale despite

11 MERS' initial role under the DOT, and this role cannot be used to bypass Civil Code section 2932.5.

12 Since US Bank failed to record its interest, Salazar has a valid property interest in his residence that is

13 entitled to protection through the automatic stay.

14 c. Cause Does Not Exist to Grant Relief from Stay

15 US Bank seeks relief from stay on two statutory grounds: 11 U.S.c. § 362(d)(I) (2011) (cause,
16 including-Iack of adequate protection of an interest in property), and 11 U.S.C. § 362(d)(2) (2011) (lack

17 of equity and property not necessary for an effective reorganization). Whether the stay should be lifted

18 to permit the unlawful detainer litigation to proceed in state court under 11 U.S.C. §§ 362(d)(I) and (2)

19 requires consideration of the following factors: effective administration of the estate, avoiding

20 prejudice to the parties, and promoting judicial economy. Benedor Corp. v. Conejo Enters. (In re

21 Conejo Enters.), 96 F.3d 346, 352 (9th Cir. 1996) (affirming the bankruptcy court's refusal to lift the

22 stay to allow state court litigation to proceed because maintenance of the stay promoted judicial

23 economy by minimizing duplicative litigation and advanced the efficient administration of the estate);"

24 In re Kronemyer, 405 B.R. 915, 921 (B.A.P. 9th Cir. 2009).

25 IS Whether the bankruptcy court should abstain from deciding state law issues pending in an
imminent state.court trial was previouslydeterminative in the stay relief context. In re TucsonEstates,
26 Inc., 912 F.2d 1162, 1166 (9th Cir. 1990). After the statutory changes in 28 U.S.C. § 1334(c)(2) and 28
US.C. § 1334(d), the Ninth Circuit in Conejo, 96 F.3d at 352 clarified that so long as the record supports
27 discretion exercised by the bankruptcy court in denying relief from stay, this factor is no longer
determinative.
28

MEMORANDUM DECISION
13 Ex
Case 10-17456-MM 13 Filed 04/11/11 Doc 48 Pg. 14 of 16

1 1. Effective Administration of the Estate


2 Maximizing the opportunities for reorganization of the estate is the most important factor in

3 determining whether to grant relief from stay to permit litigation in another forum to proceed. Conejo,

4 96 F.3d at 353. Salazar, in his chapter 13 case, seeks to regain title to the Property by invalidating the

5 foreclosure sale and curing the default on the Loan to US Bank. Salazar's reorganization could be

6 thwarted if the Court allows the foreclosure issues to proceed before it determines whether there is

7 equity in the Property, or whether Salazar can restructure US Bank's debt in his reorganization.

8 2. Prejudice to the Parties

9 Denying relief from stay at this time is the least prejudicial option for both parties. Even if the

10 stay prohibits US Bank from regaining possession of the Property in the near term, that inconvenience

11 is appropriate because the foreclosure process was flawed. The Court has scheduled a further hearing

12 on relief from stay to determine the economic feasibility of Salazar's plan, and also to order that

13 adequate protection payments be made to US Bank to prevent diminution of the value of its collateral.

14 11 U.S.C. §§ 361, 363(e) (2011); United Sav. Ass'n of Texas v. Timbers of Inwood Forest Assocs., Ltd.,

15 484 U.S. 365, 370 (1988) (adequate protection payments can protect valid interests of creditors).
In contrast, Salazar could be substantially prejudiced by loss of his property interest if the
16
unlawful detainer action proceeded even though the foreclosure sale may be void. Salazar has
17
established a prima facie case of ownership of the Property, subject to whatever defenses US Bank
18
might bring in the state court proceeding. These rights should be protected by the automatic stay,
19
assuming US Bank's economic interests in the Loan are adequately protected.
20
3. Considerations of Judicial Economy.
21
Challenges to US Bank's foreclosure sale are simultaneously pending in state and bankruptcy
22
court, creating the potential for confusion and a waste of judicial resources. Even if not specifically
23
raised in the unlawful detainer proceeding, the validity of the foreclosure sale could be decided by
24
default. Cheney v. Trauzette, 9 Cal. 2d 158 (1937); Seidell v. Anglo-California Trust Co., 55 Cal. App.
25
2d 913,920 (3d Dist. 1942) (challenges to foreclosure sales are barred if not raised in unlawful detainer
26
action). Maintaining the automatic stay until the Court can hear US Bank defenses, and can assess
27
Salazar's reorganization prospects, preserves judicial resources.
28

MEMORANDUM DECISION
14 EX H-13
Case 10-17456-MM 13 Filed 04/11/11 Doc 48 Pg. 15 of 16

1 ID. CONCLUSION

2 Even though US Bank has standing to seek relief from stay as the record title owner of the

3 Property, Salazar currently has an equitable title interest for the automatic stay to protect. The Court

4 rejects the claim that MERS' limited role in the DOT provides it carte blanche authority over the

5 nonjudicial foreclosure process. To enable the bankruptcy and foreclosure issues between the parties to

6 be efficaciously addressed, the Court denies the Motion without prejudice. A status conference will be

7 held on this matter on April 21, 2011 at 2:00 p.m. in this Court to determine the amount of the adequate

8 protection payments to be provided to US Bank and to schedule necessary future proceedings

9 consistent with this ruling.

10 This Memorandum Decision will constitute the Court's findings of fact and conclusions of law.

11 Counsel for Salazar is directed to prepare an order in accordance with this Memorandum Decision

12 within ten (10) days of the date of entry.

13 IT IS SO ORDERED.

14

15

16
Dated: April 11, 2011
,/1!.)JJ'JD&J ilIA ~V'-'~-----+
MARGARE~ MANN, JUDGE
United States Bankruptcy Court
17

18

19

20

21

22

23

24

25

26

27

28

MEMORANDUM DECISION
15 Ex H-I~
Case: 10-16799 01/10/2011 Page: 28 of 78 ID: 7606770 DktEntry: 17

Case3:10-cv-00203-WHA Document2~Uflflf~~~/10 Page69 of 149.t\9~~


"
LA W OFFICES OF LES ZIEVE ~;o:~~~:Jl~~~L~';~:RKp.
I.,F.8ZIEVE, ESQ. #123319 NoRTHERN DISlRICT OFCAUFORNIA ~
2 18377 Beach Blvd. Suite 210 .
Huntington Beach, CA 92648 Signed: January 26, 2010
3 (714) 848-7920
(714) 848·7650 Fax
4
5 Counsel for Movant

1
8
UNITED STATES ~ANKRUPTCY COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10

11
In re ) BK. No. 09-46608
12 )
Leslie Barnes Marks, ) R.S. #LZ93001
13 )
Debtor(s).
)
14 CHAPTER 13
)
Home 123 Corporation, its assignees and/or
successors in interest,
1>~ )
ORDER VACATING AUTOMATIC
STAY
16 )
Movant, ) Date: January 8, 2010
17 ) Time: 11:00 AM
VS. ) Place: Courtroom 20 J
18 ) l300 Clay Street
. Leslie Barnes Marks. ) Oakland, CA
19 )
Martha G. Bronitsky, Trustee,
)
20 )
Respondents.
)
2t
)
)
22
)

23
Movant's Motion For Relief From the Automatic Slay came on for hearing at
24
the above-referenced time and place, the HONORABLE LESLIE TCHAIKOVSKY,
25
presiding. Movant appeared through its counsel. The debtor appeared on her own behalf. All
26 OIh<.7appearance. s, if any, were duly noted on the record ..
27 The Court, having considered the pleadings including the evidence attached
28 thereto and the arguments presented, makes its Order as follows:

930000001.0RD/ALM

03229;1 Case: 09-04307 Doc# 52 Filed: S>!~W2:fllj6¥t9: 02/09/10 16:27:25 Page 3 of 5


EOR26

'l~
Case: 10-16799 01/10/2011 Page: 29 of 78 10: 7606770 OktEntry: 17

Case3:10-cv-00203-WHA Document24-1 FiledOS/14/10 Page70 of 146


"

IT IS HEREBY ORpElmD that the Autom~tic Stay in the above-entitled


2 Bankruptcy case is vacated and extinguished effective tmmediateJy for all purposes as to

3 Movant's interest in the subject property generally described as 3099 Suter Street, Oakland,

4 CaUforrua
. and speeifleally. described in document number 2006122.~37t recorded Marcb 3D,

5 2~6, Alameda Coupty. California, Movan; may proceed with foreclosure of the subject

6 property in accordance with applicable state law. Movant may thereafter take any action

7 allowed by state law to obtain complete possession of the supject property.

8 IT IS FUltTHER ORDERED. Ulat with respect to the Chapter 13 Trustee.


the Automatic Stay in this case is vacated effective immediately regarding Movanfs interest in
9
- 10 the subject.property described.above, .. . ..... .-
IT IS FURTHEQ O~ERED that the 14 day stay set forth in FRBP 4001
11
(a)(3) is waived.
12

13 *** ~ND OF ORDER *"'*


14

15

16

17
18
19
20
21
22
23
24
25
26
27
28

93000000l.0RDIALM

03.2293 cJs2e~~~~&SOj!)~C#
52 Filed: 02/08110 Entered: 02/09/10 16:27:25 pag~~~ ~7
relationships that WOIII

green tree
PO Box 6172
Rapid City. South Oakota 57709-6172

Tel 1-800-643-0202
GTservlclng.com

. Leslie Barnes Marks


3099 Suter Street
Oakland, CA 94602

D~ Valued Customer:

Re: DB Structured Products, Inc. Mortgage Loan Account Number: 805904414)h.

On September 29! 2009, the creditor that is the owner of your above-referenced mortgage loan changed
from DB Structured Products, Inc. to Green Tree SerVertis Acquisition LLC, and then immediately
changed to U.S. Bank National Association ("U.S. Bank"), not in its individual capacity, but solely as
trustee for SerVertis REO Pass-Through Trust I ("the Creditor). U.S. Bank may be reached at -1-800-934-
6802, or write them at U.S. Bank Corporate Trust Services, 60 Livingston Avenue, EP-MN- WS3D. St.
Paul, Minnesota, 55107-2292.. .

The transfer of the ownership of your loan will be formally recorded in the real property records of the
~ ..
county in which your mortgage was originally recorded. A copy of the agreement pursuant to which the
'loan was transferred to the new owner is maintained at Green Tree Servicing LLC ("Green Tree"), 300
Landmark Towers. 345 St. Peter Street, St. Paul, MN 55102-1637 .

. This notice docs not change the address where you send your mortgage loan payments.

If you have any questions or desire to reach an agent or someone with authority to act on behalf of the
Creditor, contact your loan servicer, Green Tree at 1-866-270-3285, from 6:00 a.m. to 7:00 p.m, MST,
Monday through Thursday, or 6:00 am. to 12:00 p.m. MST, Friday and Saturday, or write them in regard
to your loan at Customer Service, PO Box 6172, Rapid City, South Dakota 57709-6172.

Sincerely,

Green Tree

TInS INFORMATIONAL NOTICE IS NOT AN AITEMPT TO COLLECT A DEBT. IF YOU ARE IN


BANKRUPTCY OR YOUR LOAN WAS DISCHARGED IN BANKRUPTCY WITHOUT A
REAl'rIRMATION, GREEN TREE IS NOT ATrEMPTING TO COLLECT .ORRECOVER ANY
DEBT AS YOUR PERSONAL OBLIGAnON. . .

------~~~. ~.~.~-
Green Tree Servicing LLC and. related entities, including. for certain loans, in Alabama, Green Tree-AL
LLC; in Minnesota, Green Tree Loan Company; and in Pennsylvania, Green Tree Consumer Discount
Company.

3 '. "J ,~!


relationships tnat work

green tree
PO Box 6172
Rapid City, SD 57709-6172
GTServicing.com

NOTICE OF ASSIGNMENT, SALE, OR TRAl"\JSFER OF SERVICING RIGHTS


December 4, 2009

LESLIE B MARKS
3099 SUTER STREET
OAKLAND CA 94602

Ocwen Account Number: 80590441


New Green Tree Account Number: 896552569 ~
Dear Valued Customer:

You are hereby notified that the servicing of your mortgage loan, that is, the right to collect payments from you, is being
assigned, sold or transferred from Ocwen Loan Servicing, LLC ("Ocwen") to Green Tree Servicing LLC ("Green Tree")"
effective December 4,2009.

The assignment, sale, or transfer ofthe servicing of the mortgage loan does not affect any term or condition of the mortgage
instruments, other than the terms directly related to the servicing of your loan.

Except in limited circumstances, the law requires that your present servicer send you this notice at least 15 days before the
effective date of transfer, or at closing. Your new servicer must also send you this notice no later than 15 days after this
effective date or at closing.

Your present servicer is Ocwen. If you have any questions relating to the transfer of servicing from your present servicer, call
Customer Service toll-free at 1-800-746-2936 ,9:00 a.m. and 9:00 p.m. EST, Monday through Thursday and 9:00 a.m to 6:30
p.m EST on Friday ..

Your new servicer will be Green Tree. The business address for your new servicer is: PO Box 6172, Rapid City, SD 57709-
6172. To ensure timely posting of your payments, please send payments to the address indicated below.

If you have any questions relating to the transfer of servicing to your new servicer, call Customer Service toll free at 1-800-643-
0202 between 7:00 a.m. and 8:00 p.m. CST, Monday through Friday or between 7:00 a.m. and 1:00 p.m. CST, on Saturday.

The date that your present servicer will stop accepting payments from you is December 3, 2009. The date that your new servicer
will start accepting payments from you is December 4, 2009. SEI\Tl) ALL PAYMENTS DUE ON OR AFTER DECEMBltR
4,2009 TO YOlJR NEW SERVICER:

GREEN TREE
PO BOX 94710
PALATlJ."m, IL 60094-4710.

Please be advised that any optional insurance (i.e., mortgage life, disability insurance, etc.) or other optional product that you
may have on the loan being transferred is billed directly by the company providing the insurance or other product and this
transfer of servicing will not affect your coverage.

r-:z
Northern District of California
Claims Register
09-46608 Leslie Patrice Barnes Marks Debtor dismissed 01/20/2010
Judge: Roger L. Efremsky Chapter: 13
Office: Oakland Last Date to file claims: 12/16/2009
Trustee: Martha G. Bronitsky Last Date to file (Govt):
Creditor: (J0214389) iClaim No: } .Status:
'Ocwen Loan Servicing, LLC Original Filed Filed by: CR
1661 Worthington Rd 'Date: 08/03/2009 Entered by: Zieve, Les
Suite 100 Original Entered Modified:
West Palm Beach, FL .Date: 08/03/2009
,33409

Secured claimed: $644734.30


, Total claimed: $644734.30
History:
! Details L.L 08103/2009 Claim # 1 filed by Ocwen Loan Servicing, LLC, total amount claimed: $644734.3 (Zieve, 1

Les )
Description:
Remarks:

f NEVER appeared before Judge Roger L. Efremsky. I only appeared before Judge Leslie Tchaikosky.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

UNITED STATES OF AMERICA,

Plaintiff,

v. Case No. 1O-CR-22

THOMAS P. CHICOINE,

Defendant.

ORDER

The defendant has filed a motion to relocate from Wausau, Wisconsin to Chicago, lllinois,

so that he will be able to accept an offer of employment as a tennis coach. The defendant seeks

permission to travel to the Chicago area on March 7, 2011 in an attempt to locate housing in

advance of the start date for his new employment.

The motion will be denied. Defendant is due to be sentenced on March 22, 2011 on

convictions for wire fraud and aggravated identity theft.

Wire fraud carries a penalty of up to 20 years in prison and aggravated identity theft carries

a mandatory minimum imprisonment of 2 years consecutive to the sentence imposed on the wire

fraud count. Given the potential sentences the defendant is facing, it makes no sease to establish

a new home in Chicago less than 2 weeks before his sentencing date. In the event a prison sentence

is not imposed, the defendant will be free at that time-to arrange employment in Chicago or any

other location. At this time, and given the history of the case, the motion is denied.

SO ORDERED this 3rd day of March, 2011.

sf William C. Griesbach
WILLIAM C. GRIESBACH
United States District Judge

EX-I-f) eX, I -Lf


Case 1:10-cr-00022-WCG Filed 03/03/11 Page 1 of 1 Document 94
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fl:u.
OPR Index S~,rch Report Number.: 448851 Requested By : LESLIE MARKS Party Begins with TRA PARTNERS Page 1 of 7
Run: 011181201111:59 AM
Date Mo", Morc
Received Names? Name Narnl!s? Associated Name Document Type
Instrument # Image Book Page PCOR Status

2009320848 1010912009 E TRA PARTNERS R .; CALIFORNIA RECONVEYANCE CO TR TRUSTEE'S DEED .;


2010108786 0412t12010 TRA PARTNERS E TRA LENDING LLC SUBSTITUTION OF TRUSTEE 0/
R
2010108788 04/2112010 E TRA PARTNERS R RECONVEYANCE .;
4 2010341568 1111912010 R TRA PARTNERS E LAMP MICHAEL DEED 0/ .;
2008340975 12/0112008 E TRA PARTNERS LLC R .; OLD REPUBLIC DEFAULT MANAGEMENT SERVICES TRUSTEE'S DEED 0/
DIVISION OLD REPUBLIC NATIONAL TITLE
INSURANCE CO TR
2008340976 1210112008 R TRA PARTNERS LLC E .; SHIELLS JOHN DEED OF TRUST 0/
2008347612 1210912008 E TRA PARTNERS LLC R .; CAL WESTERN RECONVEYANCE CORPORATION TR TRUSTEE'S DEED 0/
2008347613 12/0912008 R TRA PARTNERS LLC E .; SHIELLS JOHN DEED OF TRUST 0/
2008357297 1212212008 E TRA PARTNERS LLC R .; CALIFORNIA RECONVEYANCE CO TR TRUSTEE'S DEED 0/
10 2008357298 1212212008 R TRA PARTNERS LLC E SHIELLS JOHN DEED OF TRUST 0/
11 2008357299 12/2212008 E TRA PARTNERS LLC R .; QUALITY LOAN SERVICE CORPORATION TR TRUSTEE'S DEED 0/
12 2008357300 12122/2008 R TRA PARTNERS LLC E .; THALER INVESTMENTS LLC DEED OF TRUST 0/
13 2009003918 01/0712009 R TRA PARTNERS LLC E FRIUELL DAVID DEED .;
14 2009027625 01/2812009 E TRA PARTNERS LLC R .; FIRST AMERICAN LOANSTAR TRUSTEE SERVICES TRUSTEE'S DEED 0/
TR
15 2009027626 0112812009 R TRA PARTNERS LLC E .; SHIELLS JOHN DEED DF TRUST .;
16 2009045033 02/0912009 E TRA PARTNERS LLC R .; QUALITY LOAN SERVICE CORPORATION TR TRUSTEE'S DEED 0/
17 2009045034 0210912009 R TRA PARTNERS LLC E TRA LENDING LLC DEED OF TRUST 0/
18 2009053485 02/1912009 E TRA PARTNERS LLC R RECONVEYANCE 0/
19 2009056n3 0212412009 R TRA PARTNERS LLC E .; STEIN ERIC B DEED .;
20 2009066874 0310512009 E TRA PARTNERS LLC R .; AHMSI DEFAULT SERVICES INC TR TRUSTEE'S DEED 0/
21 2009066875 0310512009 R TRA PARTNERS LLC E TRA LENDING LLC DEED OF TRUST 0/
22 2009067380 0310612009 TRA PARTNERS LLC E 0/ RICHARDSON RONALD M DEED 0/
R
23 2009076834 0311612009 E TRA PARTNERS LLC R .; EXECUTIVE TRUSTEE SERVICES LLC TR TRUSTEE'S DEED 0/
TRA PARTNERS LLC TRA LENDING LLC DEEO OF TRUST
24 2009076835 0311612009 R E
25 2009107762 0411312009 E TRA PARTNERS LLC

TRA PARTNERS LLC


R .; DSL SERVICE CO TR

TRA LENDING LLC


TRUSTEE'S DEED

DEED OF TRUST
"
0/

26 2009107763 0411312009 R E
27 2009113318 0411712009 R TRA PARTNERS LLC E C&J SOUTH TEMPLE LP DEED .;" .;
28 2009113917 0411712009 R TRA PARTNERS LLC E 0/ WOODWORTH BRANDON N DEED 0/ .;

Notation: E Grantee R Grantor


OPR Index Search Report Number: 448851 Requested By : lESLIE MARKS Party Begins with TRA PARTNERS Page 2 of 7
Run: 01118/2011 11 :59 AM
Dale Mor!!
More
Instrument # Received Namos? Name Names? Associated Name Document Type
Image Book Page peOR Status
Z9 2009115073 04120/2009
R TRA PARTNERS llC
E ASKEW TRENOR SUBSTITUTION OF TRUSTEE .;
30 2009115074 04/20/2009
E TRA PARTNERS llC
R RECONVEYANCE .;
31 2009129445 04/24/2009
R TRA PARTNERS u,c E TRA lENDING u,c SUBSTITUTION OF TRUSTEE .;
32 2009129445 04/2412009
E TRA PARTNERS u,c R RECONVEYANCE .;
33 2009129446 04/24/2009 R TRA PARTNERS u,c E .; WU lUCY DEED
V
34 2009134696 04/29/2009
R TRA PARTNERS u,c E SHIELLS JOHN SUBSTITUTION OF TRUSTEE
V
35 2009134696 04/29/2009 TRA PARTNERS lLC RECONVEYANCE
E R V
36 2009136060 04/30/2009
R TRA PARTNERS lLC
E I LEW JUK MON DEED .;
37 2009139421 05/0112009 E TRA PARTNERS LLC
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38 2009139422 05/01/2009 R TRA PARTNERS LLC
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39 2009146464 06/08/2009 R TRA PARTNERS LLC
E
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40 2009149927 05/11/2009 E TRA PARTNERS LLC
R I CAL WESTERN RECONVEYANCE CORPORATION TR TRUSTEE'S DEED .;
41 2009149928 05/11/2009 E TRA PARTNERS LLC
R .; AHMSI DEFAULT SERVICES INC TR TRUSTEE'S DEED

42

43
2009149929

2009152154
05/11/2009

05/13/2009
R TRA PARTNERS LLC

T.RA PARTNERS LLC


E TRA LENDING LLC

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DEED OF TRUST

SUBSTITUTION OF TRUSTEE
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.;
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44 2009152154 05/13/2009 E TRA PARTNERS LLC R RECONVEYANCE .;
45 2009153144 05/13/2009
R TRA PARTNERS LLC
E TRA LENDING LLC DEED OF TRUST .;
46 2009153145 05/13/2009
E TRA PARTNERS LLC
R I FIRST AMERICAN LOANS TAR TRUSTEE SERVICES TRUSTEE'S DEED .;
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47 2009156883 05/19/2009
E TRA PARTNERS LLC
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48 2009159761 05/20/2009 TRA PARTNERS LLC GMAC MORTGAGE LLC DEED
E R I V
49 2009163083 05/2212009 TRA PARTNERS LLC TRA LENDING LLC SUBSTITUTION OF TRUSTEE
R E V
50 2009163083 05/22/2009 TRA PARTNERS LLC RECONVEYANCE
E R
51

52
2009163084

2009167130
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05/27/2009
R TRA PARTNERS LLC

TRA PARTNERS LLC


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.;
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53 2009167131 05/27/2009 R TRA PARTNERS LLC
E TRA LENDING LLC DEED OF TRUST .;
54 2009167134 05/27/2009 R TRA PARTNERS LLC E TRA LENDING LLC DEED OF TRUST ..;
55 2009170461 05/29/2009 TRA PARTNERS LLC QUALITY LOAN SERVICE CORPORATION TR TRUSTEE'S DEED
E R I
56 2009170462 05/29/2009 R TRA PARTNERS LLC E
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57 2009176042 06/03/2009 E TRA PARTNERS LLC R if CAL WESTERN RECONVEYANCE CORPORATION TR TRUSTEE'S DEED .;
Notation: E Grantee R Grantor
OPR Index search Report Number: 448851 Requested 8y ; LESLIE MARKS Party 8eglns with TRA PARTNERS Page 3 of 1
Run: 011181201111:59 AM
Date More More
R.eceived Names? Name Names? Associated Name Document Type
Instrument # Image Book Page PC OR Status

58 2009176043 TRA PARTNERS LLC TRA LENDING LLC DEED OF TRUST


06103/2009 R E I
59 2009176044 TRA PARTNERS LLC TF;A LENDING LLC DEED OF TRUST
0610312009 R E I
60 2009185978 TRA PARTNERS LLC TRA LENDING LLC SUBSTITUTION OF TRUSTEE
0611212009 R E I
61 2009185978 0611212009 TRA PARTNERS LLC RECONVEYANCE
E R
62 2009185979 0611212009 TRA PARTNERS LLC E LAL GYANESHWAR DEED
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63 2009202472 TRA PARTNERS LLC NDEX WEST LLC TR TRUSTEE'S DEED
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64 2009202473 0612512009 TRA PARTNERS LLC TRA LENDING LLC DEED OF TRUST
R E
65

66
2009202787

2009202781
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67 2009202188 0612612009 TRA PARTNERS LLC E SACKL BRYCE L DEED
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68 2009230539 0712012009 TRA PARTNERS LLC WOLF FIRM TR TRUSTEE'S DEED

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69 2009230540 0712012009 TRA PARTNERS LLC TRA LENDING LLC DEED OF TRUST
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70 2009233139 TRA PARTNERS LLC TRA LENDING LLC SUBSTITUTION OF TRUSTEE
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71 07/2212009 E R
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72 2009233140 07122/2009 R TRA PARTNERS LLC E V V
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73 2009254851 08107/2009 R E I
74 2009254853 0810712009 TRA PARTNERS LLC TRA LENDING LLC SUBSTITUTION OF TRUSTEE

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75 2009254853 0810712009 E TRA PARTNERS LLC R V
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78 2009274656 0812012009 E TRA PARTNERS LLC R 0/ WOLF FIRM TR TRUSTEE'S DEED 0/
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79 2009215089 0812112009 E
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80 2009275091 0812112009 E
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82 2009278099 0812112009 R TRA PARTNERS LLC E TRA LENDING LLC
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"
83 2009279336 08126/2009 TRA PARTNERS LLC E
R
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84 2009279336 0812612009 E TRA PARTNERS LLC R V
TRA PARTNERS LLC DIMAS RAYMOND JOHN DEED
85 2009279337 0812612009 E
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86 2009289522 0910412009 TRA PARTNERS LLC 0/ AZTEC FORECLOSURE CORPORATION TR TRUSTEE'S DEED
R

Notation: E Grantee R Grantor


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EXHIBlTftH - 9-
OPR Index Search Report Number: 448851 Requested By : LESLIE MARKS Party Begins with TRA PARTNERS Page 4 of 7
Run: 01/18/201111:59 AM
Date More More
Received Namt!,1 Name NiJmes? Associated Name Document Type
Instrument # Image Book Page PCOR Status

87 2009289523 09/04/2009
R TRA PARTNERS LLC E TRA LENDING LLC DEED OF TRUST .;
88 2009292701 09/10/2009 E TRA PARTNERS LLC R .; RECONTRUST CO TR TRUSTEE'S DEED .;
89 2009292702 09/10/2009 R TRA PARTNERS LLC E TRA LENDING LLC DEED DF TRUST .;
90 2009297173 09/16/2009 R TRA PARTNERS LLC E CHINN PERRY DEED .;
91 2009299372 09/18/2009 E TRA PARTNERS LLC R RECONVEYANCE .;
92 2009309873 09/30/2009
R
TRA PARTNERS LLC E TRA LENDING LLC SUBSTITUTION OF TRUSTEE .;
93 2009309873 09/30/2009 E TRA PARTNERS LLC R RECONVEYANCE .;
94 2009309874 09/30/2009 R TRA PARTNERS LLC E GREEN JUSTIN DEED .; .;
95 2009312377 10/0112009 E TRA PARTNERS LLC R .; REGIONAL SERVICE CORPORATION TR TRUSTEE'S DEED .;
96 2009312378 10/01/2009 R TRA PARTNERS LLC E TRA LENDING LLC DEED OF TRUST .;
97 2009320643 10/0912009 E TRA PARTNERS LLC R .; PLM LENDER SERVICES INC TR TRUSTEE'S DEED .;
98 2009320644 10/09/2009 R TRA PARTNERS LLC E TRA LENOING LLC DEED OF TRUST .;
99 2009320649 10/09/2009 R TRA PARTNERS LLC E TRA LENDING LLC DEED OF TRUST .;
100 2009323476 1011412009 E TRA PARTNERS LLC R .; AZTEC FORECLOSURE CORPORATION TR TRUSTEE'S DEED .;
101 2009323477 10/14/2009 R TRA PARTNERS LLC E TRA LENDING LLC DEED OF TRUST .;
102 2009324092 10115/2009 R J TRA PARTNERS LLC E INCORPORATION .;
103 2009334223 10119/2009 TRA PARTNERS LLC GLOBEN ERAN DEED
R E
104 2009336890 10/2112009 TRA PARTNERS LLC E OLD REPUBLIC TITLE CO SUBSTITUTION OF TRUSTEE
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105

106
2009336890

2009352012
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E TRA PARTNERS LLC

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109 2009357062 11112/2009 E TRA PARTNERS LLC R RECONTRUST CO TR TRUSTEE'S DEED .;
110 2009357063 1111212009 R TRA PARTNERS LLC E TRA LENDING LLC DEED OF TRUST .;
111 2009372381 TRA PARTNERS LlC CALIFORNIA RECONVEYANCE CO TR TRUSTEE'S DEED

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112 2009372690 12/01/2009 TRA PARTNERS LLC E HUJIE DEED .;
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114
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OPR Index So.rch Report Number: 448851 Requested By : lESLIE MARKS Party Begins with TRA PARTNERS Page 5 of 7
Run: 011181201111:59 AM
Date Mo re More
Instrument # Received Names? Name Namos? ABBoclated Name Document Type
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116 2009380715 1210912009 TRA PARTNERS llC .j CHEN YONGMIN
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117

118
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119 2009383035 1211112009 TRA PARTNERS lLC .j KANU ASIKEH S
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124 2010009212 0111312010 TRA PARTNERS LLC .j EXECUTIVE TRUSTEE SERVICES LLC TR
E R TRUSTEE'S DEED .j
125 2010009213 0111312010 TRA PARTNERS LlC TRA LENDING LLC
R E DEED OF TRUST
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126 2010010262 01/15/2010 TRA PARTNERS LLC NGUYEN THAN
R E DEED
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127 2010010264 01/15/2010 TRA PARTNERS LLC TRA LENDING LLC
R E SUBSTITUTION OF TRUSTEE
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128 2010010264 0111512010 TRA PARTNERS LLC RECONVEYANCE
E R V
129 2010020004 01127/2010 TRA PARTNERS LLC .j NATIONAL DEFAULT SERVICING CORPORATION TR
E R TRUSTEE'S DEED .j
130 2010020005 01127/2010 TRA PARTNERS LLC TRA LENDING LLC DEED OF TRUST
R E V
131 2010036120 0210812010 TRA PARTNERS LLC BALLEW PETER J DEED
R E V
132 2010037118 02109/2010 TRA PARTNERS LLC TRA LENDING LLC SUBSTITUTION OF TRUSTEE
R E V
133 2010037118 02/0912010 TRA PARTNERS LLC RECONVEYANCE
E R V
134 2010037119 02109/2010 TRA PARTNERS LLC HUYNH MY H
R E V DEED .j .j
135 2010051688 02/25/2010 TRA PARTNERS LLC RECONTRUST CO TR
E R V TRUSTEE'S DEED .j
136 2010051902 02126/2010 TRA PARTNERS LLC .j HEYIHUA DEED
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137

138
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139 2010074255 03/2312010 TRA PARTNERS LLC RECONVEYANCE
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140 2010074256 03123/2010 TRA PARTNERS LLC XU JIE WEN DEED
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141 2010090410 03/3112010 R TRA PARTNERS LLC
E .j HERNANDEZ FRANCES DEED
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142

143
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2010099550
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R

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144 2010107581 04/20/2010 TRA PARTNERS LLC BANK OF COMMERCE DEED OF TRUST
R E V
Notation: E GflJntee R Grantor
OPR Index Search Report Number: 448851 Roquested By : LESLIE MARKS Party Begins with TRA PARTNERS Page 6 of 7
Run: 011181201111:59 AM
Date More Morll
Instrument # Received Names? Name NlIll1tlS? Aesccteteo Name Document Type
Imoge Book Pago PC OR Status
145 2010107581 04/20/2010
R TflA PARTNERS LLC
E BANK OF COMMERCE ASSIGNMENT OF RENTS .;
145 2010108593 04/20/2010
E TRA PARTNERS LLC
R K L HAMTPON GROUP LLC DEED .;
147

148
2010109592

2010112591
04/21/2010
R TRA PARTNERS LLC
E TRA LENDING LLC DEED OF TRUST .; "
04/26/2010 R TRA PARTNERS LLC
E TRA LENDING LLC SUBSTITUTION OF TRUSTEE .;
149 2010112591 04/26/2010 E TRA PARTNERS LLC
R RECONVEYANCE .;
150 2010112593 04/26/2010 TRA PARTNERS LLC DEHARO NOEMA ESTRADA
R E DEED

151

152
2010115096

2010121671
04/28/2010

05/05/2010
R

R
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E
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DEED

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"
.;
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0/
153 2010121672 05/OS/2010
E TRA PARTNERS LLC
R BANK OF COMMERCE RELEASE OF LIEN .;
154 2010122590 05105/2010
R TRA PARTNERS LLC
E .; REDMAN ROBERT J DEED .; 0/
155 2010123340 05/06/2010 TRA PARTNERS LLC
R E TRA LENDING LLC SUBSTITUTION OF TRUSTEE 0/
155 2010123340 05/06/2010
E TRA PARTNERS LLC
R RECONVEYANCE .;
1'7 2010140617 05/17/2010
E TRA PARTNERS LLC
R K L HAMPTON GROUP LLC DEED .;
158 2010140678 05/1712010
R TRA PARTNERS LLC
E BANK OF COMMERCE DEED OF TRUST .;
159 2010140678 05117/2010 R TRA PARTNERS LLC E BANK OF COMMERCE ASSIGNMENT OF RENTS .;
160 2010150048 05/2612010
R V TRA PARTNERS LLC
E DIZON NILDA NOTICE ACTION (LIS PENDENS) .;
161 2010156158 06/03/2010
E TRA PARTNERS LLC
R K L HAMPTON GROUP LLC DEED .;
162 2010156157 06/03/2010 R TRA PARTNERS LLC
E BANK OF COMMERCE DEED OF TRUST .;
163 2010156157 06/03/2010 R TRA PARTNERS LLC E BANK OF COMMERCE ASSIGNMENT OF RENTS .;
164 2010164926 06/1412010 E TRA PARTNERS LLC
R K L HAMPTON GROUP LLC DEED OF TRUST .;
165 2010237898 OBI1812010
R TRA PARTNERS LLC
E .; L1N GENTRY DEED .;
165 2010255952 09/0212010
E .; TRA PARTNERS LLC R DIZON NILDA ORDER .; "
167 2010256121 09/03/2010 E TRA PARTNERS LLC R .; CHOI SIMON DEED .;
168

169
2010256122

2010256122
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09103/2010
R
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E

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DEED OF TRUST

ASSIGNMENT OF RENTS
.;
.;
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170 2010260760 09109/2010 R TRA PARTNERS LLC
E AHMED MIAN M DEED .; .;
171 2010261011 0910912010 R TRA PARTNERS LLC
E ESLICK KATHRYN DEED .; .;
172 2010263245 09/10/2010 E TRA PARTNERS LLC
R .; CAL WESTERN RECONVEYANCE CORPORATION TR TRUSTEE'S DEED .;
173 2010267457 0911512010
R TRA PARTNERS LLC E TRA LENDING LLC DEED OF TRUST .;
NollJtfon: E Grantee R Grantor
OPR Index Sp.arch Report Number: 448851 Requested By : LESLIE MARKS Party Begins with TRA PARTNERS Page 7 of 7
Run: 01/18/201111:59AM
Date M.,. Mora
Received Names? Name Name_? Associated Name Document Type
Instrument # Image Book Page PCOR Status

174 2010275831 09/23/2010 TRA PARTNERS LLC VAVERKA ADAM M DEED

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175 2010277550 09/2412010 R TRA PARTNERS LLC E TRA LENDING LLC SUBSTITUTION OF TRUSTEE
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176 2010277550 09/24/2010 E TRA PARTNERS LLC R RECONVEYANCE
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177

178
2010283819

2010283821
09/3012010

09/30/2010
R TRA PARTNERS LLC

TRA PARTNERS LLC


E
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TRA LENDING LLC


DEED

SUBSTITUTION OF TRUSTEE
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179 2010283821 0913012010 E TRA PARTNERS LLC R RECDNVEYANCE
"
180 2010288748 10/05/2010 TRA PARTNERS LLC R NDEX WEST LLC TR TRUSTEE'S DEED
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181 2010301304 10/15/2010 TRA PARTNERS LLC E " BANK OF COMMERCE DEED OF TRUST

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182 2010301304 1011512010 TRA PARTNERS LLC BANK OF COMMERCE ASSIGNMENT OF RENTS
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183

184
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2010333090
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11/12/2010
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FEDERAL HOME LOAN MORTGAGE CORPORATION


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185 2010341567 1111912010
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186 2010341667 1111912010
R
TRA PARTNERS LLC
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187 2010377206 1211612010 TRA PARTNERS LLC RECONVEYANCE
E R T
188 2010379173 12/1712010 TRA PARTNERS LLC BROWN JOANN AOMR DEED
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189

190
2011001827

2011001827
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0110412011
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R TRA PARTNERS LLC

TRA PARTNERS LLC


R
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191 2011006880 01/07/2011


R
TRA PARTNERS LLC
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TRUJILLO RICHARD A DEED .; " T

192 2011008384 01110/2011


R

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