We wish this story was an April Fool’s joke, but sadly it is not. Several borrowers who have filed challenges to nonjudicial foreclosures in Northern California and sought a Temporary Restraining Order to cancel a Trustee’s Sale were denied such relief by a “clerk” or “law clerk” who “appeared” at the hearing in lieu of the presiding Judge, who never even appeared in court. The “clerks”, obviously not attuned to foreclosure defense litigation and not understanding the legal arguments being made, simply denied the TRO requests without even the issuance of an Order (as Clerks cannot sign court orders), so the borrower has no Order to take to an appeals court! The borrowers were left with having to file Bankruptcy and thus litigate their issues in the Bankruptcy Court.
Which is not necessarily a bad thing. Many of the decisions which support borrower’s concerns such as legal standing, real party in interest, and chain of title defenses have emanated from the Bankruptcy Courts, including two decisions from the Bankruptcy Court for the District of Idaho and one from the Bankruptcy Court for the District of Nevada (which we previously discussed on this website which said NO to MERS on multiple fronts).
As such, expect more and more filings in Bankruptcy Court, and more and more adversary proceedings inside of the borrower bankruptcies challenging the foreclosure attempts.
Jeff Barnes, Esq.,
Filed under: foreclosure |
OUR GREAT NATION IS BEING HIJACKED BY JERRY AL-QUEDA BROWN THE ATTORNEY GENERAL OF THE GREAT STATE OF CALIFORNIA THAT USES MOTHER TERESA’S NAME FOR HIS PROPOGANDA MACHINE. JERRY BROWN YOU ARE NO MOTHER TERESA DECIPLE. YOU ARE A STALIN PROPOGANDA DESCIPLE.
http://www.zimbio.com/Cuba/articles/L6Y4NbtPior/10+02+13+English+y+Castellano+Galdjie+v+Darwish
BANK OF AMERIFRAUD OWNS CALIFORNIA
THE JUDGE OR HIS STAFF SHOULD REMOVE HIMSELF/HERSELF FROM THIS CASE IF HE/SHE HAS RECEIVED A LOAN, CONTRIBUTIONS OR DONE ANY BUSINESS, OR ARE RELATED TO ANYONE WHO WORKS WITH BANK OF AMERICA, COUNTRYWIDE, US BANK OR WELLS FARGO OR ANY OF THEIR AFFILIATES.
ESPECIALLY IF JUDGES OR HIS STAFF RECEIVES IOU’S (IN THE PAST 25 YEARS) FROM BANK OF AMERICA OR ITS AFFILIATES.
If these are the minimum requirements to go on a Game Show than what about our Economic Lives are at stake.
You are not eligible to be a contestant on Wheel of Fortune if you work for, or are related to, anyone who works for Sony Pictures Entertainment Inc., Sony Pictures Television Inc., Sony Pictures Television International, Quadra Productions, Inc., CBS Television Distribution Group, game show prize suppliers, or any TV station (including its advertisers and affiliated radio stations), or networks broadcasting Wheel of Fortune or Jeopardy!.
Sunday 4 April 2010
No court is a joke, if one is serious in fighting his/her cause. The truth is if one wants to attempt to get justice, all ducks must be aligned properly, and even then, judges will do what they can to knock them out. Knowing procedure and law are crucial for even coming close to getting a chance to win. Too many enter the frey with emotional, instead of legal arguments. Never works.
Two points; Ask any judge if you can expect a fair and imartial hearing, and if the judge will act as a witness or an advocate for the other side.? Quite often, after all
arguments are in, the judge will render a verdict based upon his/her own version of the other side’s cause, always agfainst your own. Learn to pose questions, not make statements. questions before the court have to be answered.
“Judge, can I expect fairness and impartiality from you?”
What will any judge say, no? You are creating a record for appeal, so make objections early and often. The ONLY issue(s) an appellate court will review are objections made on the record to determine if ther is any errot. No objection…argument waived, for forever.
Object!!!! Dol not let any judge get away with it,as best as one can. Also, making objections requries a specific format. Know what irt is in all instances, or your objections will be ignored.
Secondly, in Californnia, ALL attorneys and judges are required to take a VERY SPECIFIC OATH PRIOR TO ASSUMING OFFICE. Read that until it sinks in, for it
is really simple.
Get a certified copy of any attorney’s oath, and any judge’s oath of office and see if the oath on file matches the one REQUIRED to be sworn. If they do not match, and most likely they will not, proceed to disqualify that personn PRIOR to answering any complaint. Lacking the constitutionally required oath of office, that person failed to meet the first step in assuming the duties of said office, and thy are acting in a de facto capacity for as long as they go unchallenged.
Emphasis: the challenge MUST be made prior to giving thaq perosn any offical recognition. The means, for a judge,who is not really a judge, you issue a disquallfication for not qualifying for the pretend roll he/she is acting. If a judge is not properly qualified, never call him/her a judge, waiving your argument.
Do not expect anyone ti just lie down on a challenge and not fight it. This is why it is imperative that you KNOW the law and are willing to see if enforced.
Many ways to skin a cat.
Good job Jeff Barnes !!! Please keep us informed of your cases here.
Could you please give me the 2 cases in Bankruptcy court from Idaho
dave, that is exactly what i am doing with the BK judge assigned to my case, and granted a motion for relief from stay with all my properties to pretender lenders. and you what I FOUND OUT THAT THE JUDGE”S WIFE IS ALSO AN ACTIVE REAL ESTATE BROKER IN CA. i am pretty much busy with all these lawsuit i filed in federal court against aurora, litton , quality loan services and their attorneys but my strategy is to let them admit their “FRAUD” through their pleadings and documents submitted as a matter of judicial notices.and i have my own documents to dispute all the pleading and notices. there are a Dispute of FACT and i don’t know if they defendants could survive that if i have an evidentiary hearing in order for me to conduct discovery, i know it was tough for a pro-se like to me to battled against the court and their lawyers but like Neil said challenge everything, the lies that was plead by their attorneys accumulate until these lawyers cannot recognize their lies. about the judge who mishandle my case, i will allow him to continue to make more mistakes and be a sucker for those attorneys who took advantage for a judge like him who didn’t even read my opposition for motion for relief from stay. if the court will not respect a PRO SE litigant, then abolish it it doesn’t serve any purpose at all because judges do not RESPECT A PRO SE right to represent themselves. even the clerk of the court will not respect us.
It is sad that you have to resort to “tanking out” financially to get these judges to pay attention. And it seems like they took an oath of office to protect and defend our rights.
I for one am recommending that we start “backgrounding” judges instead of forum shopping. Once enough private investigations have been done, we may find out half of the judges in the system received better than favorable treatment from the lenders because they are “judges”. Talk about influence peddling?
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 09-00291-CJC(ANx) Date: March 10, 2009
Title: RICHARD SHELLEY v. QUALITY LOAN SERVICE CORP., FREMONT
INVESTMENT & LOAN, LITTON LOAN SERVICING LLP
PRESENT:
HONORABLE CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE
Michelle Urie N/A
Deputy Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT:
None Present None Present
PROCEEDINGS: (IN CHAMBERS) ORDER DENYING PLAINTIFF’S EX
PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND
ORDER TO SHOW CAUSE REGARDING A PRELIMINARY INJUNCTION
[filed 03/09/09]
This action arises from a dispute over the refinancing of and attempted foreclosure
upon the home of Plaintiff Richard Shelley by Defendants Quality Loan Service Corp.
(“Quality”), Fremont Investment & Loan (“Fremont”), and Litton Loan Servicing LLP
(“Litton”) (collectively “Defendants”). Mr. Shelley entered into a loan agreement with
Fremont on May 26, 2006, for a mortgage on his property at 6721 Tillamook Ave.,
Westminster, CA 92683 (the “Property”). (Compl. ¶¶ 9, 11.) In July of 2008, Fremont
assigned the loan to Litton. (Compl. ¶ 14.) On February 20, 2009 Quality posted a
notice of Trustee’s sale for the Property to be held on March 11, at noon. On March 9,
2009 Mr. Shelley filed a Complaint in this Court alleging that Defendants violated the
federal Truth in Lending Act, 15 U.S.C. §§ 1601 et seq., by failing to deliver a proper
notice of Mr. Shelley’s right of rescission, failing to include more than $6,000 of fees in
its disclosure statement, by improperly neglecting to include those fees when calculating
the annual percentage rate, and by failing to rescind the loan as requested by Mr. Shelley
in November, 2008. (Compl. ¶ 26.)
Mr. Shelley now moves the Court for a temporary restraining order and order to
show cause regarding a preliminary injunction to enjoin the trustee’s sale from going
forward on March 11, 2009. Mr. Shelley has not provided proof of service to Defendants
of his ex parte application, nor has he stated that Defendants have received any notice of
his application. Instead, Mr. Shelley’s counsel states that he does not know who
Case 8:09-cv-00291-CJC-MLG Document 3 Filed 03/10/2009 Page 1 of 4
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 09-00291-CJC(ANx) Date: March 10, 2009
Page 2
Defendants’ counsel are, and that he has sent Defendants a one-page letter via facsimile
machine informing them of his intent to file a lawsuit and an ex parte application for a
temporary restraining order. (Decl. of Steven Dial, March 6, 2009.)
LEGAL STANDARD
To obtain preliminary injunctive relief, the moving party must establish the
existence of serious questions going to the merits and that the balance of hardships tips
sharply in his favor. Brookfield Communications, Inc. v. West Coast Entm’t Corp., 174
F.3d 1036, 1046 (9th Cir. 1999). The greater the balance of hardships tips in favor of the
moving party the less of a showing of serious questions the moving part must make.
Apple Computer, Inc. v. Formula Int’l, Inc., 562 F. Supp. 775, 783 (C.D. Cal. 1983),
aff’d, 725 F.2d 521 (9th Cir. 1984) (citing Los Angeles Mem’l Coliseum Comm’n v. Nat’l
Football League, 634 F.2d 1197, 1201 (9th Cir. 1980). R. Shelley has failed to meet his
burden of showing serious questions going to the merits or that the balance of hardships
tip in his favor.
ANALYSIS
A. No Serious Questions Going to the Merits
Mr. Shelley’s claim for damages under TILA is time barred. Actions by private
individuals to collect damages under TILA must be brought within a year of the lender’s
alleged violation of the law. 15 U.S.C. § 1640(e). “Any action under this section may be
brought in any United States district court, or in any other court of competent jurisdiction,
within one year from the date of the occurrence of the violation.” Id. Mr. Shelley has not
submitted any evidence of equitable tolling. Mr. Shelley entered into this mortage in
May, 2006. He filed suit in March, 2009, more than one year later. His claims for
damages under TILA that stem from his initial mortgage transaction are, therefore, timebarred.
Additionally, Mr. Shelley also has not stated a claim for rescission under TILA
because he has failed to allege that he has tendered the borrowed funds back to
Defendants, and he has not provided any evidence that he has the means or intent to
tender the funds back to Defendants. Rescission is an equitable doctrine. A claim for
rescission requires a plaintiff to allege that the plaintiff can or will tender the borrowed
Case 8:09-cv-00291-CJC-MLG Document 3 Filed 03/10/2009 Page 2 of 4
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 09-00291-CJC(ANx) Date: March 10, 2009
Page 3
funds back to the lender. See Yamamoto v. Bank of New York, 339 F.3d 1167 (9th Cir.
2003) (“rescission should be conditioned on repayment of the amounts advanced by the
lender.”) See also Am. Mortgage Network v. Shelton, 486 F.3d 815, 821 (4th Cir. 2007)
(“The equitable goal of rescission under TILA is to restore the parties to the status quo
ante.”) (citations omitted). Mr. Shelley has not alleged that he has made such an offer or
contemplates making such an offer.
Even if Mr. Shelley were able to state a valid claim under the Truth in Lending
Act for any violations not barred by the statute of limitations, the likely remedy for that
claim would be damages, not a bar on the foreclosure on the Property.
B. The Balance of the Hardships
Mr. Shelley has also failed to show that the balance of the hardships tips sharply in
his favor and that a temporary restraining order is warranted without giving Defendants
notice and an opportunity to be heard. Federal Rule of Civil Procedure 65(b) states that a
court may grant a temporary restraining order without notice to the adverse party only if:
(A) specific facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition; and
(B) the movant’s attorney certifies in writing any efforts made to give notice
and the reasons why it should not be required.
Fed. R. Civ. P. 65(b)(1). Furthermore, when a party moves for emergency relief, Local
Rules require that “before the filing of the motion, the movant shall make every
practicable effort to notify and serve, using the quickest method available, both the clerk
of the district court and opposing counsel.” Local Rule 6.3.3.1. The moving party is also
required to state “when and how counsel for the other parties were notified and whether
they have been served, or if not notified and served, why that was not done.” Local Rule
6.3.3.3. Here, the sole explanation provided for Mr. Shelley’s failure to serve opposing
counsel is that Mr. Shelley does not know the identities of Defendants’ counsel. Mr.
Shelley has not put forth any evidence of the efforts he made to determine the identities
of these individuals or the reason why he did not, at the very least, serve Defendants with
his application for emergency relief.
Case 8:09-cv-00291-CJC-MLG Document 3 Filed 03/10/2009 Page 3 of 4
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 09-00291-CJC(ANx) Date: March 10, 2009
Page 4
Because Mr. Shelley has not provided a copy of the notice of default, it is unclear
how long ago Mr. Shelley received notice of his alleged default. In his memorandum of
points and authorities, however, Mr. Shelley argues that Defendants originally attempted
to foreclose in June, 2008. That means that Mr. Shelley has been engaged in this dispute
for at least nine months. Yet Mr. Shelley waited until 4 p.m. on March 9, 2009, less than
48 hours before the scheduled trustee’s sale, to file this Complaint and ex parte
application, without the courtesy of proper notice to Defendants. Mr. Shelley has had
ample time to bring this suit, but chose to wait until the eve of foreclosure, when
Defendants could not practicably be noticed of this proceeding. Granting the ex parte
application in light of Mr. Shelley’s dilatory behavior would be unjust and amount to a
denial of Defendants’ due process.
Delaying this process further will cause harm to Defendants. Defendants loaned
Mr. Shelley $440,000, performing their part of the lending agreement. Their loan was
guaranteed by a security interest on the Property. Mr. Shelley has presented no evidence
that Defendants do not have a right to foreclose on this property, nor has Mr. Shelley
provided evidence that he has complied with his end of the agreement by making timely
payments on the mortgage. The more time elapses in the current market, the more the
value of the Property, and the associated security interest, depreciate. At some point,
Defendants must be permitted to exercise their right to foreclose on the property.
Granting this temporary restraining order to Mr. Shelley would damage Defendants,
tipping the balance of hardships in Defendants’ favor, and not in favor of Mr. Shelley.
CONCLUSION
For the foregoing reasons, Mr. Shelley’s ex parte application is DENIED.
jls
MINUTES FORM 11
CIVIL-GEN Initials of Deputy Clerk mu
Case 8:09-cv-00291-CJC-MLG Document 3 Filed 03/10/2009 Page 4 of 4
Steve, are you kidding? Where do think Superior Court judges go when they’ve earned enough credit perverting the Law and have graduated? The same place that Superior Court judge Cormac J Carney went(USDC), the California District Court. & let me tell you that in hearing my case this guy was not bashful at all when it came down to maintaining the appearance of impartiality, on my ex parte application for TRO, prelim inj and complaint demanding enforcement of my notice of rescission 2 days before the trustee’s sale this was his reply…
The problem with bankruptcy, however, is the fact that given the dirty tricks played by mortgage servicers, not to mention the title issues, people who are not insolvent may still find themselves on the wrong side of a foreclosure.
Saturday 3 April 2010
Not being a lawyer, but I would not try for an appeals. Instead, I would motion the court for the right to be heard on the matter, challenging denial of due process rights.
Due process is about the right to be heard and in a meaningful manner. The use of some clerk, who has NO judicial authority to issue orders regarding the taking of one’s property…[even the Califonia Constitution protects one against such a taking of property.], amounts to a denial of due process, and THAT will fly in appeals.
It is not so much being creative as it is knowing what one’s rights are and demanding them. There are procedures that must be followed, and a review of court cases that deal with denial of due process may be helpful to anyone refusing to cave in to the judicial runaround. Get thee familar with court cases in a law library.
Know the law, then use it!
California Superior Court system is a JOKE !! Much better off in Federal Court.
Steve
99Libra@gmail.com