PLAINTIFF'S OPPOSITION TO DEUTSCHE BANK DEMMURRER TO FOURTH AMENDED COMPLAINT RIVERSIDE SUPERIOR COURT JUDGE WHITEOpp-dbntc 4ac - Dem STR RJN BK Ind Mers 04052011

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PLAINTIFF'S OPPOSITION DE1JTSCHE BANKNATIONAL TR1JST COMPANY, DEMURRER. MOTION TO STRIKE AND REQUEST FOR J1JDJCIAL NOTICE FILED CONCURRENTLY WITH PLAINTIFF'S RJN MERS SUBPOENA, RJN CENTRAL DISTRICT OF CALIFORNI.<\ RIVERSIDE DIVISION CASE NO. 6:10-BK-37900, RJN IND 08884 .. ORDER 11-14-2006

1 BRIAN W DAVIES

43277 SENTIERO DRIVE

2 INDIO, CALIFORNIA 92203 760-898-8516

3 FAX 949-891-0148 B.DAV1ESMO@GMAJL.COl\f.

Attorney for Self, Brian W. Davies

SUPERIOR COURT OF CALIFORNIA COUNTY OF RIVERSIDE INDIO DIVISION

) CASE NO. INC. 090697 )

)

)

----------------------------)

) PLAINTIFF'S OPPOSITlON TO DEUTSCHE

) BANKNATIONAL TRUST COMPANY, AS

) TRUSTEE OF THE RESIDENTIAL ASSET

~ ~~~~~l~: 11~~sT~~~1 t08~-A5,

) CERTIFICATES, SERIES 2007-E UNDER THE POOLING AND SERVICING

» AGREEMENT DATED 3-1-07 DEMURRER

TO PLAINTIFF'S FOURTH AMENDED

) COMPLAINT WITH OBJECTION TO THEIR ) CONCURRENTLY FILED REQUEST FOR

) JUDICIAL NOTICE

)

) HEARING APRIL 28, 2011 )

) TIME 8:30 AM )

~ HON. RANDAL D. WHITE

~ [FILED CONCURRENTLY: 1) PLAINTIFF'S RJN OF ) ORDER IN INDIO CASE IND 088844 ON 11-14-2006 ) CASE NO. 0888444, 2) MOTION TO STRIKE, 3) RJN ) MORTGAGE ELECTRONIC REGISTRATION

) SYSTEMS, INC. "MERS" FEDERAL SUBPOENA 4) ) RJN OF RE: DAVIES CENTRAL DISTRICT OF

) CALIFORNIA, RIVERSIDE DIVISION BANKRUPTCY ) CASE NO. 6:10-bk-37900 (DOCKETS 29, 29, 64)

)

)

~~~--------~--~------~)

BRIAN W. DAVIES, an Individual.

Plaintiff,

-vs.-

NDEX WEST LLC; DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE OF THE RESIDENTIAL ASSET SECURITIZATION TRUST 2007-A5, MORTGAGE PASS THROUGH CERTIFICATES,

SERIES 2007-E UNDER THE

POOLING AND SERVICING AGREEMENT DATED 3-1-07; INDYMAC MORTGAGE SERVICING;

A DIVISION OF ONEWEST BANK, OPTEUM; UNIVERSAL AMERICAN MORTGAGE COMPANY OF CALIFORNIA; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; UAMC LLC; DOES 1-20

Defendants.

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PLAINTIFF'S OPPOSITION DEUTSCHE BANKNATIONAL TRUST COMPANY, DEMURRER, MOTION TO STRIKE AND REQUEST FOR JUDICIAL NOTICE FILED CONCURRENTLY WITH PLAINTIFF'S RJN MERS SUBPOENA, RJN CENTRAL DISTRICT OF CALIFORNIA RIVERSIDE DIVISION CASE NO. 6:IO-BK-37900, RJN IND 088844 ORDER 11-14-2006

1 =I. __ ~I~NT~R~O~O~U~C~T~IO~N

2 Plaintiff Brian Davies "Plaintiff" filed this action on October 23, 2009 after

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Defendants violated California Code Section 2923.5 and to protect his interest in the reat property located at 43277 Sentiero Drive Indio, California. Defendant DEUTSCHE BANK NATIONAL TRUST COMPANY, (hereinafter "Deutsche Bank") AS TRUSTEE OF THE RESIDENTIAL ASSET SECURITIZATION TRUST 2007-A5, MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2007-E UNDER THE POOLING AND SERVICING

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7 AGREEMENT DATED 3-1-07 ("hereinafter "RAST 2007-A5") has purposely and

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maliciously has caused to be filed and consciously participated in serious misdeeds that have caused great harm and damages which include but are not limited to the filing of a bankruptcy case with resultant permanent damages to reputation and credit,

Plaintiff's Central District of California Riverside Division Bankruptcy Case No. 6:10-bk-37900 is filed herewith and concurrently. Included for this Demurrer are Motions for Relief from Automatic Stay (hereinafter "MFRS") filed by "Onewest" both under its name [Docket 29] and as an agent for Defendant Deutsche Bank National Trust Company (hereinafter "Deutsche Bank") as the alleged assignee and purported Beneficiary of Plaintiff's assignment of the Deed of Trust along with the note.

The Honorable Thomas B. Donovan heard a the contested MFRS and concluded that Onewest Bank FSB and Onewest Bank FSB as agent for Deutsche Bank LACK STANDING AND MOVANT'S DECLARATION LACK CREDIBILITY, HAVING SIGNE BOTH AS AN EMPLOYEE OF MOVANT ANO"AS AN AGENT FOR "MERS".

The charade that Defendant Deutsche Bank and other Defendants play in Plaintiff's property without "Standing" needs to be stopped and them held accountable. Therefore this Demurrer should be overruled and force this Defendant to answer the Fourth Amended Complaint.

/I

II.

THE COURT MUST OVERRULE DEUTSCHE BANK'S DEMURRER

A. JUDICIAL ESTOPPEL

The Supreme Court has fashioned a three pronged test for whether judicial estoppel should apply: (1) whether a party's later position is clearly inconsistent with its position i~ a prior case; (2) whether the party succeeded in persuading the first court to accept itJ position, creating "the perception that either the first or the second court was

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misled;"and (3) whether the party espousing the inconsistency has gained an unfair advantage or imposed an unfair detriment on an opposing party by that means. City of Arlington v. Reed, slip op., p. 5, discussing New Hampshire v. Maine, 532 U.S. 742 (2001).

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In the case at bar the Honorable Thomas B. Donovan was presented with two Motions for Relief from Automatic Stay (hereinafter "MFRS") and debtors complete objections thereto. On January 7,2010 the Court filed an Order [Docket 64]1 that Denied the Movants "Onewest" and "0newest as servicing agent for Deutsche Bank" "MFRS". The findings of fact included that Movants Onewest Bank, and Movant Onewest Bank as agent for Deutsche Bank 1) "Lack Standing", and 2) Movant's Declaration lacks credibility, having signed both as an employee of Movant and as an agent for MERS.

The Movants' MFRS were fully opposed with supplemental authorities and there were no timely: 1) reply oppositions thereto, 2) Motion for reconsideration, 3) Appeal of the decision to the "District Court" or the "Ninth Circuit Bankruptcy Appeals Court", therefore the Honorable Thomas B. Donovan's decision is Res Judicata.

In Re: Kang Jin Hwang, the District court in reviewed an appeal of a MFRS and pointed to 28 U.S.C. § 158(a) (1) and reasoned that because the denial of MFRS is a final order of the bankruptcy court, they would review the decision denying a MFRS against fndymac Federal Bank FSB." See also In re: Conejo Enters., 96 F.3d 346, 351 (9th Cir. 1996). Accordingly, the Court may affirm, reverse, or modify the bankruptcy judge's order, or remand the case with instructions for further proceedings. See Fed. R. Bankr. P. 8013."

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Three weeks after the filing of Plaintiff's Chapter 7 petition and on 9 20/2010, Such Assignment of the Deed of Trust represents that Mortgage Electronic Registration Systems, Inc.("MERS") as an agent for Universal American Mortgage Company of California (hereinafter "UAMCC") transferred the Deed of Trust interest along with the Note to Defendant Deutsche Bank and occurred at a time when UAMCC: 1) had no ownership interest to assign, and 2) was not a MERS member as outlined in Plaintiff's

.- .

1 See Plaintiff's RJN Central District California Bankruptcy Case No. 6:10-bk-37900 [Docket 64] Oder Denying MFRS BY "ONEWEST" AND "ONEWEST AS AGENT FOR DEUTSCHE BANK" filed concurrently with Plaintiff's Opposition to Indymac Mortgage Services, a Division of Onewest Bank's demurrer to Plaintiff's Fourth Amended Complaint

PLAINTIFF'S OPPOSITION DEUfSCIIE BANKNA TIONAL TRUST COMPANY, DEMURRER, MOTION TO STRIKE AND REQUEST FOR JUDICIAL NOTICE FILED CONCURRENTLY WITH PLAINTIFF'S R.JN MERS SUBPOENA, RJN CENTRAL DISTRICT OF CALIFORNIA RIVERSIDE DIVISION CASE NO. 6:JO-BK..J7900, RJN IND 088844 ORDER 11-14-2006

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0... RJN, MERS Subpoena, and Response", and 3) after Plaintiff's petition was filed.

B. COLLATERAL ESTOPPEL

The collateral estoppel doctrine bars re-litigation of a previously resolved factuat issue in a subsequent proceeding. A prior finding is conclusive in all subsequent proceedings if it meets five requirements: (1) the party sought to be precluded was a party, or in privity with a party, to the previous proceeding; (2) the current issue is identical to that involved in the prior proceeding; (3) the issue was actually litigated; (4) the issue was determined by a valid and final judgment; and (5) the determination was essential to the judgment. Anderson v. Genuine Parts Co., ~nc., 128 F.3d 1267, 1272-73 (8th Cir. 1997); Sells v. Porter (In re Porter), B.R, 2007 WL 2736541, at *2 (Sept. 21, 2007).

At bar "Movant Onewest" and again as "Movant Onewest as the agent of Deutsche Bank" was in "Privity", the issue of "Standing" was litigated, the "Order" was an "Appealable Judgment", and the "Determination of Standing" was essential to the Judgment. The Defendant Deutsche Bank is collaterally stopped and the lien should be determined to be invalid.

C. DEMURRER STANDARDS

Demurrers are authorized by Code of Civil Procedure §430.1 0 (hereinafter "CCP"), which provides that a party may demur to a complaint on several grounds, including failure to state facts sufficient to constitute a cause of action and uncertainty, i.e. the pleading is ambiguous and unintelligible, CCP §430.10, subd. (e) and (f). The complaint will be construed liberally with an eye to substantial justice between the parties, CCP §452. A complaint is adequate if its factual allegations are sufficient to support a cause of action on any available legal theory (specifically Pled or not). (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 90S.).'Where the complaint is defective, '[i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his complaint It ordinarily constitutes an abuse of discretion to sustain a demurrer without leave to amend jf there is a reasonable possibility that the defect can be cured by amendment. [Citations.],,' (Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 549.)

Special demurrers for uncertainty are strictly construed, even when the complaint

2 See Plaintiff's RJN MERS Subpoena request and response filed concurrently with Plaintiff's Opposition to Indymac Mortgage Services, a Division of Onewest Bank Demurrer to Plaintiff's Fourth Amended Complaint

PLAINTIFF'S OPPOSITION DEUTSCHE BAl"lKNATIONAL TRUST COMPAl"lY, DEMURRER, MOTION TO STRIKE AND REQUEST FOR JUDICIAL NOTICE FILED CONCURRENTLY WITH PLAINTIFF'S RJN MERS SUBPOENA, RJN O:NTRAL DISTRICt' OF CALIFORNIA RIVERSIDE DIVISION CASE NO. 6:10-BK-37900, RJN INn 088844 ORDER 11-14-2006

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0... is uncertain in some respects, because ambiguities may be cleared up in the ordinary course of discovery. (Khoury v. Mary's of California, Inc.(1993) 14 Cal.App.4th 612, 616 (see also Rutter, Civ. Proc. Before Trial, §7:85 (citing Khoury, supra, for the proposition that a demurrer for uncertainty will only be sustained when the complaint is so poorly written that the defendant cannot reasonably respond, (i.e. what issues must be admitted or denied, or what counts or claims are directed towards him).)

Plaintiff's Fourth amended complaint alleges seven causes of actions against "Deutsche Bank", both jointly and severally, if anyone of them or any of the multiple counts survives then the general demurrer must be denied (CCP 430.10(e». As indicated below the causes of action should survive the special demurrers as to uncertainty (CCP §430.1 o (f) , and so it is believed and respectfully concluded that the general demurrer and special demurrer should be denied. Alternatively, Plaintiff requests to be allow to amend as there is a reasonable possibility that amendment can be achieved.

UI. THE VALIDITY OF SECOND AMENDED COMPLAINT

A. MERS AND THE MERS SYSTEM

Traditionally, when a loan was executed, the beneficiary of the loan on the Deed of Trust was the lender. Once the loan was funded, the Deed of Trust and the Note would be recorded with the local County Recorders office. The recording of the Deed and the Note created a Public Record of the transaction. All future Assignments of the Note and Deed of Trust were expected to be recorded as ownership changes occurred. The recording of the assignments should have created a "Perfected Chain of Title" of ownership of the Note and the Deed of Trust. This would have allowed interested or affected parties to be able to view the lien holders and if necessary, be able to contact the parties. The recording of the document also set the "priority" of the Hen. The creation of "MERS" changed the process. Under California law, to perfect the transfer of mortgage paper as collateral the owner should physically deliver the note to the transferee. Bear v. Golden Plan of California, Inc., 829 F.2d 705,709 (9th Cir. 1986).

II

II

II

PLAINTIFF'S OPPOSITION DEUTSCHE BANKNATIONAL TRUST COMPANY, DEMURRER, MOTION TO STRIKE AND REQUEST FOR JUDICIAL NOTICE FILED CONCURRENTLY WITH PLAINTIFF'S RJN MERS SUBPOENA, RJN CENTRAL DISTRICT OF CALIFORNIA RIVERSIDE DIVISION CASE NO. 6:10-BK-37900, RJN IND 088844 ORDER 11-14-2006

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PLAINTIFF'S OPPOSITION DEUTSCHE BANKNA TIONAL TRUST COMPANY, DEMURRER, MOTION TO STRIKE AND REQUEST FOR JUDICIAL NOTICE FILED CONCURRENTLY WIlli PLAINTIFF'S RJN MERS SUBPOENA, RJN CENTRAL DISTRICT OF CALIFORNIA RIVERSIDE DIVISION CASE NO. 6:10-BK-37900, RJN INn 088844 ORDER 11-14-2006

1 B. THE PERATA MORTGAGE RELIEF ACT IS BINDING ON THIS COURT

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Mabry v. Orange Superior Court (2010),185 Cal. App.4th 208

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"The Perata Mortgage Relief Act", California Code §2923.5 became effective in September 2008. The California 4th Court of Appeals decision on California Code § 2923.5 is Stare Decisis. The Court's published opinion interprets the legislative intent o-f California Code §§2923.5 as follows: 1 )"May section §2923.5 be enforced by a private right of action?" "Yes." "Otherwise the statute would be a dead letter."2) "Must a borrower tender the full amount of the mortgage indebtedness due as a prerequisite to bringing an action under section §2923.5?" "No." "To hold otherwise would defeat the purpose of the statute."3)"ls §2923.5 preempted by federal law?" "No.". California Code §. 2923.5 compliance is prerequisite to Cal. Code §2924.

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C.

PLAINTIFF HAS STATED CAUSES OF ACTION AGAINST "DEUTSCHE BANK" AND HAS PUT "DEUTSCHE BANK" ON NOTICE.

Plaintiff has properly alleged violation of California Civil Code § 2923.5. Plaintiff is eligible for the protection under this code. If this code has been violated then California Civil Code § 2924 would be violated.

Plaintiff has properly alleged that the assignments of the deed of trust and proper chain of title and that Defendant do not own or not entitled to enforce the power of sale clause in the purported Deed of Trust. This issue of Standing has been adjudicated and Onewest and Onewest as agent of "Deutsche Bank" do not have standing.

This decision would support Plaintiffs claims of fraudulent conveyance. Such violations of California Law would support Plaintiff's claims of Violation of the Business and Professional Code § 17200. Defendant Deutsche Bank's Demurrer should be overruled and Deutsche Bank made to answer the complaint.

Respectfully Submitted

APRIL 3,2011

BRIANW DAVIES, Plaintiff for Self

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0... SUPERIOR COURT OF CALIFORNIA COUNTY OF RIVERSIDE INDIO DIVISION

) CASE NO. INC. 090697 )

)

)

----------------------------)

)

) PLAINTIFF'S OPPOSITION TO DEUTSCHE

~ BANK NATIONAL TRUST COMPANYfS

) MOTION TO STRIKE PORTIONS OF

) PLAINTIFF'S FOURTH AMENDED

) COMPLAINT WITH OBJECTIONS TO

~ THEIR CONCURRENTLY FILED REQUEST ) FORJUDICIAL NOTICE

)

) HEARING APRIL 28, 2011 )

~ TIME 8:30 AM

~ HON. RANDAL D. WHITE

) [FILED CONCURRENTLY WITH PLAINTIFF'S: 1)

) PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE OF ) ORDER IN INDIO FAMILY LAW CASE ENTERED ON ) 11-14-2006 CASE NO. 0888444,2) DEMURRER TO

) PLAINTIFF', 3} REQUEST FOR JUDICIAL NOTICE

) OF MORTGAGE ELECTRONIC REGISTRATION

) SYSTEMS, INC. "MERS~ FEDERAL SUBPOENA

) RESPONSE, 4) PLAINTIFF'S REQUEST FOR ) JUDICIAL NOTICE OF RE: DAVIES CENTRAL

) DISTRICT OF CALIFORNIA, RIVERSIDE DIVISION ) BANKRUPTCY CASE NO. 6:10-bk-37900 AND

) ATTACHED [DOCKETS 29,29,64]

)

PLAINTIFF'S OPPOSITION TO DEUTSCHE BANK NATIONAL TRUST COMPANY'S DEMURRER, MOTION TO STRIKE AND REQUEST FOR .JUDICIAL NOTICE FILED CONCUREENTL Y WITH PLAINTIFF'S RJN MERS SUBPOENA, RJN CENTRU DISTRICT OF CALIFORNIA RIVERSIDE DIVISION CASE NO. 6:10·BK-37900, RJN IND 088844 ORDER

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Defendants.

1 BRIAN W DAVIES



3 FAX 949-891-0148 B.DAV1ESMD@GMArLJ~OM


5


Plaintiff,

-vs.-


SERIES 2007-E UNDER THE



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0... I. CONTROLLING LAW

In the context of a motion to strike, as with a demurrer, the Court must treat as true the material facts alleged in the complaint, as well as any facts which may be implied or . inferred from those expressly alleged. Washington Intern. Ins. Co. v. Superior Court (G. K Backlund, inc.)(1998) 62 Cal.App.4th 981, 984. In order to survive a motion to strike an attegation of punitive damages, the ultimate facts showing an entitlement to such retief must be pled by a plaintiff Grieves v. Superior Court (1984) 157 CaLApp.3d 159, 166; Blegen v. Superior Court (1981) 125 CaLApp.3d 959,962-963.)

In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. Courtesy Ambulance Service v. Superior Court (1992) 8 Cal.App.4th 1504, 1519; Dawes v. Superior Court (1980) 111 CaLApp.3d 82, 91; see California Judges Bench book, Civil Proceedings Before Trial (1995) 1P.94, p. 611.) In ruling on a motion to strike, courts do not read allegations in isolation. Perkins v. Superior Court (1981) 117 Cal.App.3d 1,6.).

II. ARGUMENT

Plaintiff hereby respectfully oppose the Defendants' Deutsche Bank National Trust Company (hereinafter "Deutsche Bank") Motion to Strike on the basis that Plaintiff is entitled to special, exemplary or punitive and treble damages as pled in his Fourth Amended Complaint (Fourth Amended Complaint)( hereinafter "FAC").

In their motion to Strike by Defendants state that they are seeking to strike Plaintiffs' prayer for special damages as a remedy. However, Defendants' Memorandum of Points and Authorities offers no statutory cites, case law or argument about the issue of special damages, except that Special damages are recoverable if the special or particular circumstances from which they arise were actually communicated to or known by the breaching party (a subjective test) or were matters of which the breaching party should have been aware at the time of contracting (an objective test)" Lewis Jorge Construction Management. Inc. v. Pomona Unified School Dis1. (2004) 34 Cal. 4th 960, 968-969. As special damages are not specifically addressed, the Plaintiffs respectfully request the Court not to Strike any Special

Damages from the Fourth Amended Complaint. "Courts award exemplary [punitive] damages to discourage oppression, fraud, or malice by punishing wrongdoer.

PLAINTIFF'S OPPOSITION TO DEUTSCHE BANK NATIONAL TRUST COMPANY'S DEMURRER, MOTION TO STRIKE Ai'lD REQUEST FOR JUDICIAL NOTICE FILED CONCUREENTLY WITH PLAThTTFF'S RJN MERS SUBPOENA, RJN CEl\'TRAL DISTRICT OF CALIFORNIA RIVERSIDE DIVISION CASE NO. 6:10-BK-37900, RJN IND 088844 ORDER

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P... Southern California Disinfecting Co. v. Lamkin (1960) 183 Cal App.2d 431," cited in the annotations to Civil Code § 3294. It is believed, that Plaintiff has sufficiently pleaded allegations entitling them to punitive damages in the Second Amended Complaint (SAC).

The Third Cause of Action is supported by case law: Compensatory Damages (see Seeley v. Seymour, 190 Cal. App. 3d 844, 865, 237 Cal. Rptr. 282, 290 (1987) (plaintiff was entitled to damages for financial loss resulting from impairment of vendibility of property and entitled to recover for the time and inconvenience suffered in removing the doubt cast upon his property). General Damages (Gudger v. Manton, 21 Cat. 2d 537, 554, 134 P.2d 217,221 (1943), disapproved on other grounds, Albertson v. Raboff, 46 Cal. 2d 375, 295 P.2d 405 (1956). Punitive Damages (Cal. Civ. Code §3294(a); Seeley v. Seymour, 190 Cal. App. 3d 844, 865, 237 Cal. Rptr. 282, 290 (1987) ($2.6 minion punitive damage award in consolidated actions for slander of title, quiet title, and negligence.». Costs (Seeley v. Seymour, 190 Cal. App. 3d 844, 865, 237 Cal. Rptr. 282, 290 (1987) (plaintiff may recover expense of legal proceedings necessary to remove doubt cast by disparagement)

Plaintiff's Sixth Cause of Action for FRAUD allows punitive damages. Punitive Damages (Cal. Civ. Code §3294(a) (punitive damages may be recovered where fraud is proven by "clear and convincing" evidence)). Punitive damages are not limited to affirmative misrepresentations. Intentional concealment of material fact provides an evidentiary basis upon which punitive damages may be awarded. Cal. Civ. Code §3294(b)(3). As alleged the action of the Defendant "Universal" is alleged to have acted without regards to Plaintiffs rights. Not only the Plaintiff, but thousands of others who have been vexed annoyed and injured.

Additionally, allowance for Plaintiffs other claims in the Sixth Cause of Action are supported by case law: Rescission claims are supported (Bank of America Nat'l Trust & Savings Assn. v. Greenback, 98 Cal. App. 2d 220, 238, 219 P. 814 (1950) (upon discovery of fraud plaintiff may have contract rescinded and recover damages incurred); see also Karoutas v. HomeFed Bank, 232 Cal. App. 3d 767, 773, 283 Cal. Rptr. 809 (1991); Earl v. Saks & Co., 36 Cal. 2d 602, 612, 226 P.2d 340 (1951) (in certain circumstances no economic injury at all is required). Consequential Damages, (Stout v. Turney, 22 Cal. 3d 718, 725, 150 Cal. Rptr. 637 (1978) (Civil Code §3343 does not require plaintiff to show "out-of-pocket" loss to be entitled to consequential, or additional

PLAINTIFF'S OPPOSITION TO DEUTSCHE BANK NATIONAL TRUST COMPANY'S DEMURRER, MOTION TO STRIKE AND REQUEST FOR JUDICIAL NOTICE FILED CONCITREENTLY WITH PLAINTIFF'S RJN MERS SUBPOENA, RJN CENTRAL DISTRICT OF CALIFORNIA RIVERSIDE DIVISION CASE NO. 6:1j)...BK-37900, RJN IND 088844 ORDER

9 and just.
10 Respectfully Submitted,
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1 damages of the type prescribed by the statute».

2 Emotional Distress Damages, (O'Hara v. Western Seven Trees Corp., 75 Cal.

3 App. 3d 798,804-06, 142 Cal. Rptr. 487 (1977»).

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III. CONCLUSION

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For the reasons stated above, Defendants' Motion to Strike must be denied in its entirety. To the extent that this Court does grant any portion of the Motion to Strike, Plaintiff respectfully request that this Court grant Plaintiff leave to amend to conform his pleading to the law. Plaintiff also requests any further relief this Court deem fair, equitable

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BRIAN W DAVIES Plaintiff for Self

PLAINTIFF'S OPPOSITION TO DEUTSCHE BANK NATIONAL TRUST COMPANY'S DEMURRER, MOTIO]\" TO STRIKE AND REQUEST FOR JUDlCIAL NOTICE FILED CONCUREENTLY WITH PLAINTIFF'S RJN MERS SUBPOENA, RJN CENTRAL DISTRICT O}' CALIFORNIA RIVERSIDE DIVISION CASE NO. 6:10-BK-37900, R.IN lND 088844 ORDER

'1


) CASE NO. INC. 090697 )

)

)

------------------------------)

)

) PLAINTIFF'S REQUEST FOR JUDICIAL

) NOTICE OF RE: DAVIES CENTRAL

~ DISTRICT OF CALIFORNIA, RIVERSIDE

) DIVISION BANKRUPTCY CASE NO. 6:10- ~ bk-37900 AND ATTACHED [DOCKETS 29, ) 29,64]

~ HEARING APRIL 28, 2011 )

) TIME 8:30 AM )

j HON. RANDAL D. WHITE

) [FILED CONCURRENTLY WITH PLAINTIFF'S: 1) ) OPPOSITION TO DEUTSCHE BANK NATIONAL

) TRUST COMPANY'S DEMURRER, 2) MOTION TO ) STRIKE, 3) REQUEST FOR JUDICIAL NOTICE OF ) MORTGAGE ELECTRONIC REGISTRATION

) SYSTEMS, INC. "MERS" FEDERAL SUBPOENA

) RESPONSE,4) REQUEST FOR JUDICIAL NOTICE ) OF ORDER DATED 11114120061ND 088844.)

~----------~--------------)

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Defendants.

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27 Plaintiff, Brian W. Davies, pursuant Federal Rules of Evidence, Rule 201, and

1 BRIAN W DAVIES

43277 SENTIERQ DRIVE


3 FAX 949-891-0148 B.DAVIESMD@GMAIL.\:OM


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Plaintiff,

-vs.-

28 California Evidence Code §§ 452,453 hereby requests that the Court take "Judicial

PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE OF RE; DAVIES CENTRAL DISTRICT OF CALIFORNIA, RIVERSIDE DIVISION BANKRlTPTCY CASE NO. 6:10-bk-37900 AND ATTACHED IDOCKETS 29, 29, 64]

NDEX WEST LLC; DEUTSCHE BANK 17 NATIONAL TRUST COMPANY, AS TRUSTEE OF THE RESIDENTIAL 18 ASSET SECURITIZATION TRUST 2007 -A5, MORTGAGE PASS

19 THROUGH CERTIFICATES, SERIES 2007-E UNDER THE POOLING AND SERVICING

20 AGREEMENT DATED 3-1-07; INDYMAC MORTGAGE SERVICING; 21 A DIVISION OF ONEWEST BANK, OPTEUM; UNIVERSAL AMERICAN

22 MORTGAGE COMPANY OF CALIFORNIA; MORTGAGE ELECTRONIC

23 REGISTRATION SYSTEMS, INC.; UAMC LLC; DOES 1-20

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PLAINTlFF'S REQUEST FOR JUDICIAL NOTICE OF RE: DAVIES CE:-ITRAL DISTRICT OF CALIFORNIA, RIVERSIDE DIVISION BANKRUPTCY CASE NO. 6:10-bk-37900 AND ATTACHED [DOCKETS 29, 29, 64J

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Notice" Federal Bankruptcy Case Re: Davies Central District of California, Riverside Division Case NO.6: 1 0-bk-37900 as it applies directly to standing of Defendants in the case at bar.

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In connection with Plaintiff Fourth Amended Complaint opposition to Defendants DEUTSCHE BANK NATIONAL TRUST COMPANY'S, Demurrer, Motion to Strike and Request for Judicial Notice Plaintiff, Brian W. Davies, pursuant Federal Rules of Evidence, Rule 201, and California Evidence Code Sections 452, and 453 hereby requests that the Court take "Judicial Notice" of [Docket 29]; [Docket 49]; and [Docket 64]; filed under Debtor's Chapter 7 Bankruptcy Case.

[Docket 29] is entitled "Notice of Motion and Motion for Relief from the Automatic Stay under 11 U.S.C. § 362 (with supporting declarations) Movant: OneWest Bank, FSB." The document includes 1 0 pages of the mandatory form F 4001-1 M .RP (including a real property declaration of Assistant Vice President Brian Burnett on September 20, 2010), exhibit #1 a deed of trust (19 pages), exhibit #2 promissory note (5 pages), an assignment of the deed of trust dated 9/20/2010 (2 pages), and an un-amended copy of Debtor's Schedule 0 and attached as Exhibit "A"

[Docket 49] is entitled "Notice of Motion and Motion for Relief from the Automatic Stay under 11 U.S.C. § 362 (with supporting declarations) Movant: OneWest Bank, FSB as servicing agent for Deutsche Bank." The document includes 1 0 pages of the mandatory form F 4001-1 MRP (including a real property declaration of Assistant Vice President Brian Burnett on September 20,2010) and attached as Exhibit "B".

[Docket 64] is entitled "Order Denying Motion for Relief from the Automatic Stay under 11 U.S.C. § 362 (Movants: ONEWEST BANK [29] ONEWEST BANK AS AGENT OF DEUTSCHE BANK [49]." This document includes 6 pages of the mandatory form F 4001-10 DENY and attached as Exhibit "C".

7

Wherefore the Pfaintiff respectfufly requests the aforementioned Documents to be

~ 28

rn 0...

'l Judicially Noticed.

5
6
Respectfully Submitted,
7
APRIL 5,2011
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
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'f')
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bIl
ro
P.. 1 2 3 4

PLAINTIFF'S REQUEST FOR JUDICIAL NonCE OF RE: DAVIES CENTRAL DISTRICT OF CALIFORNIA, RIVERSIDE DIVISION BANKRUPTCY CASE NO. 6:10-bk-37900 AND ATTACHED [DOCKETS 29,29,641

Wherefore the Plaintiff Debtor respectfully requests the aforementioned Documents to be Judicially Noticed.

BRIAN W DAVIES Plaintiff for Self

Case 6: 1 O-bk-37900-TD Doc 64 Filed 01/07/11 Entered 01/07/1117:33:47 Desc

M~in nnrllmpnt P;:)nI 1 nf R
Attorney or Party Name, Address, Telephone & Fax Numbers, and California State Bar Number FOR COURT USE ONLY
ROBERT L. FIRTH, ESQ. (BAR NO. 231432) FILED & ENTERED
30877 DATE PALM DRIVE, STE B-3
CATHERAL CITY, CA 92234 JAN 072011
TELEPHONE: (760) 770-4066
FACSIMILE: (760) 770-4006
CLERK U.S. BANKRUPTCY COURT
Central District of CaHfornil<
BY penning DEPUTY CLERK
o Individual appearing without counsel
1S Attomey for Oebtor CHANGES MADE BY COURT
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
In re: CHAPTER: 7
BRIAN W. DAVIES
CASE NO.: 6:10-bk-37900-TD
Debtor.
DATE: 11-18-10
TIME: 11 am
CTRM: 225
PATRICIA J ZIMMERMAN Trustee. FLOOR: SECOND ORDER DENYING MOTION FOR RELIEF FROM THE AUTOMATIC STAY UNDER 11 U.S.C. § 362

(MOVANT: ONEWEST BANK [291. ONEWEST BANK AS AGENT OF DEUTSCHE BANK (491 )

1. The Motion was:

Contested

D Uncontested

D Not Prosecuted

2. The description of the property (the "Property") to which this Order applies is as follows (specify common description or street address): 43277 SENTIERO DRIVE INDIO, CALIFORNIA 92203 (SEE ATTACHED LEGAL DESCRIPTION)

3. The Motion is denied: ~ without prejudice 0 with prejudice

D on the following grounds:

x X

o o D

Based upon the findings and conclusions made on the record at the hearing Unexcused non-appearance by Movant

Lack of proper service

Lack of good cause shown for relief from stay

The automatic stay is no longer in effect under: D 11 U_S.C. § 362{c){2)(A) 0 11 U.S_C_ § 362(c)(2)(B) D 11 U.S_C_ § 362(c)(3)(A) D 11 U.S.C_ § 362(c)(4)(A)

January 2009

ThiS form is mandatory by Order of the United States Bankruptcy Court for the Central District of California.

F 4001-1 O.DENY

Exhibit C

Case 6:10-bk-37900-TO Doc 64 Filed 01107/11 Entered 01107/11 17:33:47 Desc Main Document Page 2 of 6

l5. Other (specify);

1. ONEWEST BANK [29], AND ONEWEST BANK AS AGENT FOR DEUTSCHE BANK [491 LACK STANDING.

2. MOVANT'S DECLARATION LACKS CREDIBILITY, HAVING SIGNED BOTH AS AN EMPLOYEE OF MOVANT AND AS AN AGENT FOR MERS.

###

DATED: January 7,2011

Jenusry 2009

This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California.

F 4001-10.DENY Exhibit C

Case 6:10-bk-37900-TD Doc 64 Filed 01/07/11 Entered 01/07/11 17:33:47 Desc Main Document Page 3 of 6

Order Denying Motion for Relief from Automatic Stay - Page 2 of 6 F 4001-10. DENY

In re: BRIAN W. DAVIES CHAPTER 7

Debtor. CASE NUMBER 6:10-bk<37900-TD

NOTE: When using this form to indicate service of a proposed order, DO NOT list any person or entity in Category I.

Proposed orders do not generate an NEF because only orders that have been entered are placed on the CM/ECF docket.

PROOF OF SERVICE OF DOCUMENT

I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business address is: 30877 Date Palm Dr. Suite B-3 Cathedral City, CA 92234

A true and correct copy of the foregoing document described ORDER DENYING MOTION FOR RELIEF FROM

AUTOMATIC STAY ONEWEST BANK 129J, AND ONEWEST BANK AS AGENT FOR DEUTSCHE BANK [49]

_ will be served or was served (a) on the judge in chambers in the form and manner required by LBR 5005-2(d); and (b) in the manner indicated below:

I. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING ("NEF") - Pursuant to controlling General Order(s) and Local Bankruptcy Rule(s) ("LBR"), the foregoing document will be served by the court via NEF and hyperlink

to the document. On I checked the CMfECF docket for this bankruptcy case or adversary

proceeding and determined that the following person(s) are on the Electronic Mail Notice List to receive NEF transmission at the email addressees) indicated below:

o Service information continued on attached page

II. SERVED BY U.S. MAIL OR OVERNIGHT MAll(indicate method for each person or entity served):

On 12/10/2010 I served the following person(s) and/or entity(ies) at the last known addressees) in this bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope in the United States Mail, first class, postage prepaid, and/or with an overnight mail service addressed as follows. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed.

Honorable Thomas B. Donovan

Edward R. Roybal Federal Building and Courthouse 255 E. Temple Street, Suite 13521Courtroom 1345 Los Angeles, CA 90012

Patricia J. Zimmermann 31566 Railroad Canyon Road Suite 306

Canyon lake, CA 92587

[gJ Service information contin ued on attached page

III. SERVED BY PERSONAL DELIVERY, FACSIMILE TRANSMISSION OR EMAIL (indicate method for each person or

entity served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on I served the following

person(s) and/or entity(ies) by personal delivery, or (for those who consented in writing to such service method), by facsimile transmission and/or email as follows. Listing the judge here constitutes a declaration that personal delivery on the judge will be completed no later than 24 hours after the document is filed.

D Service information continued on attached page

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

12/09/2010 Date

Michelle Mason Name

lsi Michelle Mason Signature

January 2009


F 4001-1 O.DENY

Exhibit C

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

Case 6:10-bk-37900-TD Doc 64 Filed 01/07/11 Entered 01/07/11 17:33:47 Desc Main Document Page 4 of 6

Order Denying Motion for Relief from Automatic Stay - Page 30f6 F 4001-1 O.DENY

In re: BRIAN W DAVIES CHAPTER 7

Debtor. CASE NUMBER 6:10-bk-37900- TO

ADDITIONAL SERVICE LIST

Brian William Davies 43277 Sentiero Dr. Indio, CA 92203

Christopher J. Woo

Randall Miller & Associates 15165 Ventura Blvd. #330 Sherman Oaks, CA 91403

Universal American Mortgage K&L Gates, LLP

10100 Santa Monica Blvd. 7th Floor

Los Angeles, CA 90067

Specialized Loan Servicing 8742 Lucent Blvd. , Suite 300 Littleton, CO 80129

Bimini Capital

Formerly Known as Opteum Financial Services 3305 Flamingo Dr.

Vero Beach, FL 32963

Mortgage Electronic Registration Systems, Inc. 3300 South West 34th Ave, Suite 101

Ocala, Florida 34474-7748

Deutsche Bank National Trust Company Jennifer Van Dyne - Trust Administrator 1761 East Street Andrew Place

Santa Ana, CA 92705

January 2009


F 4001-1 OaDENY

Exhibit C

Case 6:10-bk-37900-TD Doc 64 Filed 01/07/11 Entered 01/07/11 17:33:47 Oesc Main Document Page 5 of 6

Order Denying Motion for Relief from Automatic Stay - Page 4 of 6 F 4001-10.0 ENY


Debtor. CASE NUMBER 6:10-bk-37900-TD

NOTE TO USERS OF THIS FORM:

1) Attach this form to the last page of a proposed Order or Judgment. Do not file as a separate document.

2} The title of the judgment or order and alJ service information must be filled in by the party lodging the order.

3) Category I. below: The United States trustee and case trustee (if any) will always be in this category.

4) Category II. below: List ONLY addresses for debtor (and attorney), movant (or attorney) and person/entity (or attorney) who filed an opposition to the requested relief. DO NOT list an address if person/entity is listed in category I.

NOTICE OF ENTERED ORDER AND SERVICE LIST

Notice is given by the court that a judgment or order entitled ORDER DENYING MOTION FOR RELIEF FROM THE AUTOMATIC STAY

UNDER 11 U.S.C. § 362

(specify) was entered on the date indicated as "Entered" on the first page of this judgment or order and will be served in the manner indicated below:

I. SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FlUNG ("NEFU) - Pursuant to controlling General Order(s) and Local Bankruptcy Rule(s), the foregoing document was served on the following person(s) by the court via NEF and hyperlink to the judgment or order. As of , the following person(s) are currently on the Electronic Mail Notice list for this bankruptcy case or adversary proceeding to receive NEF transmission at the email addressees) indicated below.


II, SERVED BY THE COURT VIA U.S. MAIL: A copy of this notice and a true copy of this judgment or order was sent by United States Mail, first class, postage prepaid, to the following person(s) and/or entity(ies) at the addressees) indicated below:


III. TO BE SERVED BY THE LODGING PARTY: Within 72 hours after receipt of a copy of this judgment or order which bears an "Entered" stamp, the party lodging the judgment or order will serve a complete copy bearing an "Entered" stamp by U.S. Mail, overnight mail, facsimile transmission or email and file a proof of service of the entered order on the following person(s) and/or entity(ies) at the address(es), facsimile transmission number(s), and/or email addressees) indicated below:

[gJ Service information continued on attached page

January 20ag

This form is mandatory by Order of the United Slates Bankruptcy Court for the Central District of California.

F 4001-10.DENY

Exhibit C

Case6:10-bk-37900-TD Doc64 Filed 01/07/11 Entered 01/07/1117:33:47 Desc Main Document Page 6 of 6

Order Denying Motion for Relief from Automatic Stay - Page 5 of 6 F 4001-1 O.DENY


Debtor. CASE NUMBER 6:10-bk-37900-TD

ADDITIONAL SERVICE LIST

Brian William Davies 43277 Sentiero Dr. Indio, CA 92203

Christopher J. Woo

Randall Miller & Associates 15165 Ventura Blvd. #330 Sherman Oaks, CA 9]403

Universal American Mortgage K&L Gates, LLP

10100 Santa Monica Blvd. 7th Floor

Los Angeles, CA 90067

Specialized Loan Servicing 8742 Lucent Blvd. , Suite 300 Littleton, CO 80129

Bimini Capital

Formerly Known as Opteum Financial Services 3305 Flamingo Dr.

Vero Beach, FL 32963

Mortgage Electronic Registration Systems, Inc. 3300 South West 34th Ave, Suite 101

Ocala, Florida 34474-7748

Deutsche Bank National Trust Company Jennifer Van Dyne - Trust Administrator 1761 East Street Andrew Place

Santa Ana, CA 92705

January 2009

This form is mandatory by Order of the United States Bankruptcy Court for Ihe Central District of California.

F 4001-10.DENY

Exhibit C

Case 6:10-bk-37900-SC Doc 49 Filed 10/19/10 Entered 10/19/10 12-35-23 Oesc

M.qin Document P:::mp- nf 11

Atiomeyor Party N;'lmeo Addross. Telephone & FAX Numbers, and C;;,ljiom;" Slate Bar Number Christopher J. Hoo 256166

Randall S. Miller & Associates, PoCo 15165 Ventura Blvd., Suite 330 Sherman Oaks, CA 91403 (818)574-3139

o individual appearing without counsel @ Arromey for: onewsst Bank. FSB

UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA

FOR COURT USE ONLY

In re:

Brian William Davies

Debtor(s).

CHAPTER: 7

CASE NO .. 10-37900

DATE; 11/18/2010

TIME: 11:00 am

CTRM: 225 FLOOR:

NOTICE OF MOTION AND MOTION FOR RELIEF FROM THE AUTOMATIC STAY UNDER 11 U.S-C. § 362 (with supporting declarations)

{MOVANT: OneWest Bank FSB ,as servicing agent for Deutsche B~k

(Real Property)

10 NOTICE IS HEREBY GIVEN to the Debtor(s) and Trustee (it any)(HResponding Parties"), their attorneys (if any), and other interested parties that on the above date and time and in the indicated courtroom, Movan! in the above-captioned malter will move this Court for an Order granting relief from the automatic stay as to Oebtor(s) and Debtor's/s') bankruptcy estate on the grounds set forth in the attached Motion

2. Hearing location: 0 255 East Temple Street, Los Angeles

o 21041 Burbank Boulevard, Woodland Hills [81 3420 Twelfth Street, Riverside

o 411 West Fourth Street, Santa Ana

o 1415 State Street, Santa Barbara

3. a. IEl This Motion is being heard on REGULAR NOTICE pursuant to Local Bankruptcy Rule 9013-1. If you wish to oppose this Motion, you must fife a written response to this Motioo with the Bankruptcy Court and serve a copy of it upon the Movant's attorney (or upon Movant, if the Motion was filed by an unrepresented individual) at the address set forth above no less than 14 days before the above hearing and appear at the hearing of this MotioR

b. 0 This Motion is being heard on SHORTENED NOTICE. If you wish to oppose this Motion, you must appear at the hearlnq.

Any written response or evidence may be filed and served:

o at the hearing 0 at least court days before the hearing.

(1) 0 A Motion for Order Shortening Time was not required (according to the calendaring procedures of the assiqned judge). (2) 0 A Motion for Order Shortening Time was filed per Local Bankruptcy Rule 9075-1 (b) and was granted by the Court and such motion and order have been or are being served upon the debtor and trustee, if any.

(3) 0 A Motion for Order Shortening Time has been filed and remains pending. Once the Court has ruled on that Motion, you will be served with another notice or an order that will specify the date. time aod place of the hearing on the attached MoHon and the deadline for filing and serving a written opposition to the Motion.

4. You may contact the Bankruptcy Clerk's Office to obtam a copy of an approved court form for use in preparing your response (Optional Court Form F 4001-1 MRES), or you may prepare your response using the format required by Local Bankruptcy Rule 9004·1 and the Court Manual.

December 2009

This form is mandatory by Order of the United States Sank(uptcy Court for the Central District of Califomia.

F 4001-1M~RP

Exhibit B

Case 6:10-bk-37900-SC

Doc 49 Filed 10/19/10 Entered 10/19/10 12:35:23

Main Document Page 2 of 11

Desc

Motion for Relief from Stay (Real Property)- Page 2 of 11

F 4001·1M.RP

In re


(SHORT TITLE) CHAPTER: 7

Debtor(s) CASE NO_: 10-37900

5. If you fail to fife a written response to the Motion or fail to appear at the hearing, the Court may treat such failure as a waiver of your

fight to oppose the Motion and may grant the requested relief. .

Dated: 9/23/10

Law Offices of Randall S- Miller & Associates. PC

Print Law Finn Name (ifappHcabJe)

Christopher Hoo (P-256166)

/s/Chris1opher J. Hoc

Signature of Individual Movant or Attorney for Movant

Print Name of (ndividual Movant Of Attomey for Movant

December 2009

This form is mandatory by Order of Ihe United States Bankruptcy Court for the Central District of California.

F 4001-1M.RP

Exhibit B

Case 6:10-bk-37900-SC Doc 49 Filed 10/19/10 Entered 10/19/10 12:35:23 Desc


Motion for Relief from Stay (Real Property) ~ Page 3 of 11 F 4001-1 M.RP

In re

Brian Wil!fam Davies


Debtor(s). CASE NO.: 10·37900

MOTION FOR RELIEF FROM THE AUTOMATIC STAY

(MOVANT: . OneWest Bank, FSB )

1. The Property at Issue: Movanl moves for relief from the automatic stay with respect to fotlowing real property (the 'Property"):

Street Address.' 43277 Sentiero Drive Apartmen!JSuite No.:

City, State, Zip Code: Indio. CA 92203

Legal descriptton or document recording number (including county of recording):

Riverside County, Instrument Number 2006·0853245 o See attached connnuatlon page,

2, Case History:

a. ~ A voluntary 0 An involuntary petition under Chapter

was filed on (specify date); 8/31110

b. 0 An Order of Conversion to Chapter 0 7 0 11 0 12 0 13 was entered on (specify date)

c. 0 Plan was confirmed on (specify date):

d. 0 Other bankruptcy cases affecting this Property have been pending within the past two yeats. See attached Declaration.

IRI 7 0 11 0 12 0 13

3. Grounds far Relieffram Stay:

a. IKl Pursuant t011 US.C. § 362(d)(1), cause exists to grant Movant the requested relief from stay as foUows (1) lKl Movant's interest in the Property IS not adequately protected.

(a) 00 Movant's interest in the collateral is not protected byan adequate equity cushion.

(b) 0 The fair market value of the Property is declining and payments are not being made to Movant sufficient to protect Movant's interest against that decline,

(c) 0 No proof of insurance re Movant's collateral has been provided to Movant, despite borrower(s)'s obligation to insure the collateral under the terms of Movant's contract with Oebtor(s).

(d) 0 Payments have not been made as required by an Adequate Protection Order previously granted in this case,

(2) 0 The bankruptcy case was filed In bad faith to delay, hinder or defraud Movant.

(a) 0 Movant is the only credifor or one of very few creditors listed on the master mailing matrix.

(b) 0 Non·individual entity was created just prior to bankruptcy filing for the sole purpose of filing bankruptcy, (c) 0 The Deblor(s) filed \vhat is commonly referred to as a ''face sheet" filing of only a few pages conSisting of

the Petition and a few other documents No other Schedules or statement of Affairs (or Chapter 13 Plan, if appropriate) have been filed.

(d} 0 Other (See attached continuation page),

(Contml.led on next page)

December 2009

This form is mandatory by Order of the United states Bankruptcy Court tor the Cenlral District of Califomia.

F 4001-1 M.RP

Exhibit B



Motion for Relief from Stay (Real Property) - Page 4 of 11 F 4001-1 M.RP

In re



Debtorts). CASE NO.: 10-37900

(3) 0 (Chapter 12 or 13 cases only)

(a) 0 Postconnrmation plan payments have not been made 10 the Standing Trustee.

(b) 0 Postconfirmetion payments required by the confirmed plan have not been rnede to Movant (4) 0 For other cause for relief from stay, see attached continuation page.

b. !!I Pursuant to 11 U.S.C. § 362(d)(2)(A). Oebtor(s) has/have no equity in the Property; and pursuant to § 362(d)(2)(B), the Property is not necessary for an effective reorganization.

c. 0 Pursuant to 11 U.S.C. § 362(d)(3), Oebtor(s) has/have failed within the later of 90 days after the petition or 30 days after the court determined that the Property qualifies as single asset real estate to file a reasonable plan of reorganization or to commence monthly payments.

d. 0 Pursuant to 11 U.S.C. § 362{d)(4), Debtor's(s) filingofthe petition was part of a scheme to delay, hinder, and defraud creditors that involved'

(1) 0 The transfer of aU or part ownership of, or other interest in, the Property ..... itnout the consent of Movant or court approval; or

(2) 0 MUltiple bankruptcy filings affecting the Property.

o Movant also seeks annulment of the stay so that the flilng of the bankruptcy petition does not affect postpetilion acts, as specified In the attached Declaration{s).

5.

Evidence in Support of Motion; (Important Note: Dec'aration(s) in support of the Motion MUST be attached hereto.} a. lEi

Movant submits the attached Declarationts) on the Court's approved forms (if applicable) to provide evidence in support of this Motion pursuant to local Bankruptcy Rules.

o Other Oeclaration(s) are also attached in support of this Molion.

fi]

Movant requests that the Court consider as admissions the statements made by Debtor{s) unoer penalty of perjury concerning Movant's claims and the Property set forth in Oebtor(s)'s Schedules. Authenticated copies of the retevant portions of the Schedules are attached as Exhibit _4'--_-

b.

c.

d. 0 Other evidence (specify):

6. 0 An optional Memorandum of Points and Authorities is attached to this Motion,

WHEREFORE, Movant prays that this Court issue an Order tennin",fing or modifying the stay and granting the following (specify forms of relief requested):

1. Relief from the stay allowing Movant (and any successors or assigns) to proceed under applicable non-bankruptcy law to enforce its remedies to foreclose upon and obtain possession of !he Property.

2. 0 Annulment of the stay so that the filing of the bankruptcy petition does not affect postpetition ads, as specified in the attached Declarationts).

3. ~ Additional provisions requested,

a, ~ Th at the Order be binding and effective despite any conversion of this bankruptcy case to a case under any other chapter ofTitte 11 of the United States Code.

b. [i! That the 14.day stay described by Bankruptcy Rule 4001(a)(3) be waived

c. 0 That Extraordinary Relief be granted as set forth in the Attachment (attach Optional Court Form F 4001-1MER)

December 2009

This form is mandatory by Order of the United Slates 8ankruptcy Court for the Central District of CalifornIa.

F 4001-1M.RP

Exhibit B



Motion for Relief from Stay {Real Property) - Page 5 of 11 F 4001 .. 1 M.RP



Oebtor(s). CASE NO.: 10-37900

In re

d. 0 For other relief requested, see attached conunuenon page.

4. If relief from stay is not granted. Movant respectfully requests Ihe Court to order adequate protection.

Dated: 9/23/10

Respectfully submitted,

OneWest Bank, FSB

Movant Name

Law Offices Randall S. Miller & Associates, P.C.

Firm Name of Attorney for Movant (if applicable)

By __

Signature

Name: Christopher Hoo (P-256166) Is/Christopher J. Hoo

Typed Name of Individual Movant or Attorney for Movant

December 2009


F 4001 ... 1 M.RP

Exhibit 8

Case 6:10-bk-37900-SC Doc 49 Filed 10/19/10 Entered 10/19/1012:35:23 MotIon f~P.eRPocnY'S\~~tRear~~Ry?f i!dge 6 of 11

Desc

F 4001-1M.RP

In re

Brian Wifliam Davies

(SHORT TITLE) CHAPTER 7

Debtor(s). CASE NO.: 10-37900

REAL PROPERTY DECLARA nON

(MOVANT: OneWest 8ank. FSB )

Brian Bum~1t

I, ~ " declare as fOllOWS:

(Print Name of Declarant)

1. I have personal knowledge of the matters set forth in this declaration and, if called upon 10 testify. I CQuid and would competent! y testify thereto. I am over 18 years or age. ! have knowiedge regardil19 Movant's interest in the real property that is the subject of this Motion

(,"Property") because (specify): .

o I am the Movant and owner of 1l1e Property.

o I manage the Property as the authorized agent for the Movant.

IE i am emplOyed by Movant as (state titfe and capacity): Assistant Vice Presi.

o OthQr (speCify):

2. I am one of the custodians of th~ books, records and fltes of Movant that pertain to loans and extensions of credit given to Oeblor(s) concerning the Property. 1 have PefsonaUy worked on books, records and files, and as to the following facts. I know them to be lrue of my own knowledge Of I have gained knowleQge of them from the business records of Movant on behalf or Movant, which were made at or about the time of the events recorded, and which are maintained in the ordinary' course ot Movant's business at or near the time of the acts, co!1dltions Or events to which they relate. Any such document was prepared in the ordinary course of business of Movant by a person who had personal knowledge or Ihe event being recorded and had or has a business duty to record accurately such event. The business records are available for inspection and copies can be submitted to the Court if required,

3 a. The address of the Property that is the subject of this Motion is:

Sfreer Address: 43277 Senljero Drive Apartment/Suite No.:

City, State, Zip Code: Indio. CA 92203

b. The k!gal description or document recording number (ioclu<;fing county of recording) set forth in Movant" s Deed ofTrust is attached

as Exhibit .,1 .

o See attached page.

4, Type of property (check all appJicabfe boxes):

a. [BI Deblor's(s') prmcipel residence b. @

c. 0 Multi-unit residential d.

e. 0 Industrial L

g. 0 Other (specify):

other single famlly residence

o Commercial

o Vacanlland

(Conlin(J(Jd 011 next page)

Oecembor 2009

This form is mandatory by Order of the United Stoles Bankruptcy Court for the Central District of California.

F 4001 .. 1M.RP

Exhibit B

... -".-.--.- .. - .... - .. -- ..... ------~---

Case 6:10·bk·3790Q·SC Doc 49 Filed 10/19/10 Entered 10/19/10 12:35:23 Motion foMfJfil:rAf6%,ffi~rfReal~Jyp! pJge 7 of 11

Desc

F 4001 .. 1M.RP

In re


(SHORT TfTLE)

CHAPTER: 1 Debtorts), CASE NO,: 10·37900

S, Nature of Det>tor's(s'} interest in thc Property:

a. riI Sole OWOer

b. 0 Co-ownerts] (specify):

c. 0 lien holder (specify):

d. 0 Other (specify):

e. @ Debtor(s) I:iJ did 0 did not list Iha Property in the Schedules med in this case.

f, lil Debtor(s} acquired Ihe inleresl in the Property by 0 grant deed 0 quitclaim deed (i trust deed

The deed was recorded on: 1111'T!00

G. Amount of Movant's claim with respect to the Property:

eREPETlnON

POSTPETITION

a Principal: $.~ _

b. Accrued Interest $. _

c. Late Charges $

d. Costs (AUorney's Fees, Other Costs}: $. _

f. Advances (Property Taxes, Insurance): $, .~._~_

g. TOTAL CLAIM as of 911G11Q $ _

o loan is all due and payable because it matured on (specify date}:

$-~--$,~---$._---$,----$_------

$:.... -----

$,_--,440E::t.J1~3..,,~..,9c...3 .... 6 s 53222,85 $'-~-1 ,!)""'Z ..... ;M""''?

$.~ __ 7'-"O=Q,=OO $, __ -,1-,-,7,..."14:<-1"",9",,,,6 $ 514087.59

h.

7 Movanl holds a [i} deed of trust that encumbers the Property.

o judgment lien

o other (specify)

a. A true and correct copy of the document as recorded is attached as Exhibil-,- __

b. A !rue and correct copy of the promissory note or other document that eVidences the Movant's claim is attached as Exhibit -"2'--_-'

C. [i1 A true and correct copy of the ass[gnmeot(s} transferring the beneficial interest under the note and deed of trust to Movant is attached as EXhibit .2 __ '

8. Status of Movant's claim relating to the Prop~rty (fill in all appficable information requ~sted below);

a. Current interest rate: 6,5000%

b. Contractual maturity date: 12/1/36

c. Amount of current monthly payment: $ 2.390.64

d. Number of PREPETITlON payments thai have come due and were not made: ..l1._.. Total amount: $ 50,203.44

e. Nltmber of POSTPETJTION payments Ihal have come due and were not made: _1 __ , Total amount: S 2,390.64

f. Dale of POSTPETITION default 12/1108

g. last payment received on the following date: 11/1108

h. Notice of default recorded on the following date:

i. Notice of safe recorded on the following date:

j. Foreclosure sale originally scheduled for the (oHolNing date:

k. Foreclosure sale currently scheduled for the fonowmg date:

I. Foreclosure sale already held on the following dale:

rn, Trustee's deed on sale already recorded on the following dale;

n. Future payments due by time of anticipated hearing dale (if applicable):

An additional payment of $ will come due on , and on the __ ~_ day of

each month thereafter. If the payment is not received by the _,_,, day of the month, a tate charge of $ __ . will

be charged to the loan.

9, Attached hereto as Exhibit is a true and correct copy of a POSTPETlTION stalement of account that accurately reflects the

dates and amounts of all charges assessed to and payments made by the Debtor(s) since the petition date,

December 2009

T his form is mandatory by Order of the United Starns 8311kruplcy Court (or the Central District Qf California.

F 4001-1M.RP

Exhibit B



Motion for Relief from Stay (Real Property) ~ Page 8 of 11 F 4001-1 M.RP


In re (SHORT TITLE) CHAPTER: 7

Debtons). CASE NO.; 1O~37900

10. @
a.
b.
c.
d.
11. 0
12. IRl
a. (Chapter 7 and 11 cases only): The fair market value of the entire Property ts $._2_5_1_.9_7_6_.0_0 ~. established by:

o Appraiser's declaration wJth appralsslettached herewith as Exhibit _

o A real estate broker or other expert'S declaration raQardino value attached as Exhibit _ .. _~._.

I&J A true and correct copy of relevant portlon{s) of Debtor'sfs') Schedules attached as Exhibil_4:;..._. __ o Other (specify): Total V~jue pursuant to BPO Value, Exhrbit 4

The fair market value of the Property is declining based on/due to: ... .~ . . _

Calculation of equity in Property:

8ased upon 0 preliminary title report I&J Debtor'sis') admissions in the schedules filed in this case, the Property is

subject to !hc following doed{s) of trust Orliel1(5) in the ornounts specified securing the debt against the Property

1 sl Deed of Trust: 2nd Deed of Trust: 3rd Deed of Trust Judgment Liens:

Ta)(8S; Other:

N~me of Holder

Universal American Mortgape Universal American MorlQaq-e

Amount as Scheduled by DQbtor(s) (if any) $510.000.00 $110,000.00

Amount Known to Declarant ~nd Source $514,08759 $110,000,00

TOTAL DEBT: $ 620,000.00

b. Evidence estabUshing the existence of !he above deed(s) of trust and IIBn(s) is attached as EXhibit JL _, and consists of: o Preliminary title report

[8] Relevant portions of OOOtor's(s') Scheduiesas filed in this case o Other (specify):

c. Subtracting lhe deed{s) 'Of trust and 'Other lien(s} settorth above from the value ofthe Property as set forth in Paragraph 10 above,

the Deblor's{s') equity in the Property is $ -368_,024.00 _~ (§ 362(d)(2)(An.

d. The value of the "equity cushion" in Ihe Property exceeding Movant's debt and any fien{s) senior to Movant is

$,-372,111.59 (§ 362(<1)(1 ).

e. Estimated costs of sale: $

(Estimate based upon ~ __ % of estimated gross sales price)

13. 0 (Chapter 12 and 13 cases only) Chapter 12 or 13 case status information;

a, 341(a) Meeting currently scheduled for (or concluded on) the following date:

Confirmation hcoring currently scheduled for (or concluded on} the foliDwing date:

Plan confirmed on the following dale (if applicable):

b. Postpe!rtion/preconflrmation payments due BUr REMAINl NG UNPAI D since the firing 'Of the case:

(Number of) _ payment(s) due at $ each

(Number of) __ ._ payment(s) due at $ ' .. ~ __ each

(Number of) fate charge(s} at $ each

(Number of) c .. _late charge(s) at $_~_ .. .... __ ~_-.~ each

:::

$-----------------$_-----

$-----------------$---------_.-

(Continued on nex! pfigij)

Decemtre« 2009

This form is mandatory by Order of 1M United Stales Bankruptcy Court for (he Central District of CaJifomia.

F 4001-1M.RP

Exhibit B

Case 6:10-bk-37900-SC Doc 49 Filed 10/19/10 Entered 10/19/1012:35:23 Desc


r .. totion for Relief from S1ay (Real Property) - Page 9 of 11 F 4001 .. 1 M~RP

ln re (SHORT TITLE) CHAPTER: 7


Debtor{s}, CASE NO.: 10-37900

C. Postpeli1ionJpreconfirmation advances or other charges due but unpaid: (See attachment for detalls of type and amount>

$

TOTAL POSTPETITIONIPRECONFIRMATJON DELINQUENCY: $ .. ~ ~_. .

d. Postconfirmation payments due BUT REMAINING UNPAID since plan conflrmalion (if applicable):

(Number of) __ ~_ payment{s) due at $. ~ _

(Number of) payment(s) due at $ __

(Number of) tale chatge(s) at $, ~ _

(Number of) late charge(s) at $_.~. __ ~_._~ __

each =
each =
each ==
each == $,----------------$.-~---

$.-----------------$.-----------------

$----_ .. - --_-

e. Postconflrmatlon advances or other charges due bul unpaid: (See attachment for details of type and amount.)

TOTAL POSTCONFIRMATJON DELINOUENCY;

$------------------

f< 0 The claimis provided for in the Chapter 12 or 13 Plart Plan payment history is attached as Exhibit _

g. 0 See attached Declaralion(s) of Chapter 12 or 13 Trustee regarding receipt of payments under the plan (attach Court Form F 4001-1M.13).

14. 0 Movant has not boon provided With evidence that the Property is currently insured, as require<! under the terms of the loan.

15. 0 The court determined that the Property quaHftes as single asset real estate on . More then 90 days have

passed since the filing of the petition, more than 30 days have passed since the court determined that the Property qualifies as single asset real estate, Ihe Debtorts) has/have not flied a plan of reorganization that has a reasonable possibility of being confirmed within a reasonable lime or the Debtor(s} hasihave not commenced monthly payments to Movant as required by 1.1 U.S.C. § 362(d)(3).

16. 0 See attached continuation page for facts establishing that the bankruptcy case was fired in bad faith to delay, hinder or defraud Movant.

17 0 The fifing of the pEltifion was part of a scheme to delay, hinder and defraud creditors that involved:

<l. 0 Tho transfer of all or part ownership of, or other interest in, the Property without the consent of MOllant or court approval. See attached continuation page for tacts establishing Iha scheme.

b. 0 Multiple bankruptcy firings affecting the Property. The multiple bankruptcy filings include the follOwing cases:

1. Case Name:

Case Number: Chapter:

Date Filed: Dale Dismissed: Date Discharged:

Rellef from stay re this property 0 was 0 was not granted.

Z. Case Name:

Case Number: Chapter:

Date Filed: Date Dismissed: Date Discharged:

Rulief from stay re this property 0 was 0 was not granted,

3. 0 See attached continuation page for more informaiion about other bankruptcy cases affecling the Property.

OSee al!ached continuation page for facts establishing that the multiple bankruplcy cases were part of a scheme to delay, hinder, and defraud creditors.

December 2009

This form is mandatory by Oroer of the United States Bankruptcy Court for the Cenlral District of California.

F 4001·1M.RP

Exhibit B

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

Case 6:10-bk-37900-SC Doc 49 Filed 10/19/10 Entered 10/19/10 12:35:23

. Main Document P_aae 10 of11

Mohon for Reliel from stay {Real Prtlperty) - Page 10 of 11

Desc

F 4001-1M.RP

(SHORT TiTlE)

In re


CHAPTER 7

Debtor(s). CASE NO.: 10-37900

18. 0 Movant seeks annulment of the autornatic stay so that the filing of the bankruptcy petition does not affect any and an of the enforcement actions set forth fn paragraph 8 above that were taken after the filing of the bankruptcy petition in this case.

a. 0 These actions were taken by Movant without knowledge of the bankruptcy firing, and Movant would have been entiUed to relief from staoy In pr~rl with thesli' actions

b. 0 Although Movant knew about the bankruptcy filing, Movanl had previously obtained ralief from stay to proceed with these enrorcernent actions in prior bankruptcy cases affecting this Property as set forth in paragraph 17(b) above.

c. 0 For other facts justifying annulment, see attached C()nt1nl..lation page.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and that

this Declaration was executed 011 ~ 20 , ..2m£_, at Austin Iexa:; _ . __ (Ci,y, state).

Brian Burnett

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

Plint Declarant's Name

~

~- ?"I

Signalurectirl0

Brian Burnett . . .

ASSIstant Vice President

DecemiJer 2009

This form is mandatory by Order of the United Stales 8ankruptcy Court for the Central District of CaHfomia

F 4001-1M.RP

Exhibit B

Case 6:10-bk-37900-SC Doc49 Filed,10/19/10 Entered 10/19/1012:35:2'3

Main Document Page 11 of 11· .

Motion for Relief from Stay (Real PropertyJ· Page 11 of!2._ F 4Q01~1M.RP

.J

Desc

Inre

{SHORT TITLE} CHAPTER: 7


Debtor{s). CASE NO.: 10-3790(}

NOTE: When using thrs form to indicate service of a proposed order, DO NOT list any person or entity in Category I. ., Proposed orders do not generate an NEF because only orders that have been entered are placed on a CMJeCF docket.


I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business address is: 42352 Woodward Avenue, SUite HID, Bloomfield Hills, MI 48302

A true and correct copy of the foregoing document described as Notice of Motion and Motion fot Relief from the

Automatic Stay will be served or was served (a) on the judge

in chambers in the form and manner required by LBR 5005-2(d), and (h) in the manner indicated below:

Regufar mail

I. TO BE SERVED BY THE COURT VIA NOncE OF ELECTRONIC FlUNG C"NEPl - Pursuant to controlling General Order(s) and Local Bankruptcy Rule(s) (OILBR"), the foregOing dooument will be served by the court via NEF and hyperJink to the document. On I checked the CMlECF docket for this bankruptcy case or adversary proceeding and determined that the following person(s) are on the Electronic Mail Notice List to receive NEF transmission at the email addressed indicated below:

o Service infrnmation continued on attached page

II. SERVED BY U.S. MAIL OR OVERNIGHT MAIL (indicate method for each person or entity served):

On 10119QQ1Q I served the following person{s) and/or entity(ies) at the last known addressees) in this bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope in the United States Mail, first class, postage prepaid, andlorwith an ovemightmail service addressed as follow. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed.

Brian WYJiam Davies ·Robert L Firth Patricia J Zirrrnem1aon (TR)

43277 Sentiero Dr. 30877 Date Palm Dr., Ste B-3 31566 Rai1road Canyon Rd. Ste 306

Indio, CA 92203 Cathedral City, CA 92234 Canyon Lake, CA 92587

o Service infonnatioo continued on attacf1ed page

III. SERVED BY PERSONAL DElIVERY, FACSIMILE TRANSMISSION OR EMAIL (indicate method for each person or entitY served): Pursuant to F_R-eiv.p. 5 and/or controlling LBR, on 'served the following person{s) andlorentity(ies) by personal delivery, or"{forthose who consented in writing to such service method) by facsrmiletransmission and/or email as follows. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed.

o Service information contin ued on attached page <, I declare under penalty of perjury under the laws of the United States of Amerk:a that the foregoing is true an

Date

TyPe Name

10/19/2010

Angela Milliman

This form is mandatory by Order of the United states Bankrupley Court tot !he Central Oistri~ of Callfumfa.

F 4001-1M.RP

Exhibit B

~y:&PBrty~,~T~iii#AJ{~aii'd6aiiiomIaSllltek~Umber . C~r J. Hoo 256166

Randall S. Miller & Associates. p"c.

15165 Ventura Btvd., Suite 330

Sherman Oaks,. CA 91403

(818)514-.St39

o Individual appearing without aaunset I:l AItOm&y for. 0neWest Bank. FSS

UNl1t:D STATES BANKRUPTCY COURT CENTRAL OtSTRICT OF CALIFORNIA

fn re:

Brian WUliarn Davies

C.HAPTER:7 CASENO.: 1{}379{lO

DATE: 10J21!10 TIME: 11:00 am CtRM: 225 FLOOR:;

NOTICE OF MOTION AND MOTION FOR REUEFFROM THE AUTOMATIC STAY UNDER 11 U.S~C. § 362 (with supporting declarations)

(MOVANT: 0ne1Jllest BaQk. FSB ._)

(Real Property)

1. NOTICE !$ HEREBY GIVEN to (he Oebtof(s) and Trustee (if ooy){"Rasponding Partfes"), their attorneys (If any), and other Interested parties thai on the above date and tfrrre and in tile indicated ooUltroclm, Movant in the above-captioned ~ will move this Court for an Order granting relief from thaal.llorria1ic stay as to Oebtor{s) and Debtors($'} bankruptcy estate on the grounds set forth in the attached Motioo,

2. Hearing LQCation~ 0 255 East Temple street. Los Angde$

o 21041 Burbank Boulevard, Woodland Hills ffiJ 3420 Twelfth stre~ RivefSid:e

o 411 West Fourth ~ Santa Ana D 1415 state Street. Santa Barbara

3.. a; I&i, ·Tbl$MQUdniSbeiftgneaidO!lREOO~NPTlpE~nt_LOOaf~~ RUleW13"LIf y9U~,foo~this"

·=~~~~=::rt:a-!~m~~~={·· =et~.e:=

14 days b$lbre the above hearing aoo appear at ttre hearing oftl'its Motion.· .. .

b. 0 This Motion is being heard on SHORTENED NOTICE, If you wish to oppose this Mofion,. you ·mwt ~ar at the healing.

My written response or ~ may be filed and senred::

o at the hearing 0 at lea$t court days before the healing,

{1} 0 A MotiOn for Order Shortening Time was not required (aeoortling to the· calendaring procedlireS Of the assigned jm:lge). (2) 0 A Motion for order Shortening Tlme was filed perlOciil.l3i3~ RJle,@r5-t{bl~·lPi8sgra~bythftCoWt~M;·

$UCh motion and order have been or are being 5elVed~ ~ ~an6~.ifah'.' . . .. . .

(S) 0 A. Motion for Order Shortening Tlme has beM filed ~ti9[~rnams pen£iitlg, ,OfJCe.'UW~ha$ful¢don.fha1~j~' will be served with another notice Of an order that will speci:tyffiedaie, tii'Tie ri p!aceof:the h~ oo'llie~ ':

Motion and the deadline fOr 1!fiog and serving a written opposition to the Motion,

4. Yoo: may contact the Bankruptcy cterk's Office to obtain a ropy of an approved oourtform for use In preparing your response (Optlon~ Court Form F 4001-1MRESJ, or you may prepare your res;ponS'e usmg the fermat reqUired by Local· Ba\'ll<nJptey Rute 9004-1 and the Court Manual.

· F 4001~1 M.RP

(SHORT Tm.E)

1~1

OebIDr(sl, CASE NO,: 11l-31900

Dated: 9123110

mre

Brian WlIiiam Davies

(SHORT TITLE)

CHAPTER: 7 Oebtor(s), CASE NO..: 10-37900

~0'11Q.N-fOflREt·EFfROM1HE~UTO.AtJCSTAY.:

(MOVANT::O~~&n&FSS ... .. ..1

't "..·~o~at~: ~tnQ\ieSfor.~·~~~QtRati:~Witfi·~ec:trG~\\4hg'~~ •• ~··~y'1:

·~~jf7~~~

City,Siaie,zlp Ccx:re: Indio, CA 92203

Legal description Of document recording number (mc!udl!'lg OOWlty:ofr~oot~'}"

Rlverside County~ Instrument Number ~3245 .. ..

o see _ched ¢otl1:inu<ittion ~,

2. ca~ Hi$tory:

a iii A VQluntary 0 An ifl'ilOlooUlry petition under ChaPtf¥r (~l7 O. 110 1,2 [']1$,

was flied on (specify dam): $l31f10 ...

b. 0 .AnOrderotConversklntoChapter 0 1 0 110 12 [] 13 was entered on (specify date):

c. 0 Pfan was ~ 01'1 ($ptlCify date):

d. 0 Oller baIlilnJpfuy cases affecting lhts Properly have been pending 'lNithin ihe past iwo yeaf$. See atlached Declaration,

3. G,@~~foiRellet~mstaJ; a(iil·~u.httbn.t)i$.C.~l62{d~t1h·~~ts,'fbgrj;nt~@l~~r~~d~'~~.1~;,

.. (1}@~$we~i1nthe '~~IlQ1;:~iYlI~eq; ~J!l)Jif~$;miet.tUiO.f1e~isnQt]tit~by,an~~e~~QtI. .

. (b)O"==~:r~~if;~~gaM.~:~i'$~~~~to~nt~m

(Co) 0'" No proof'm insurancere Mavanfs ccaaterai has been provided to Movant, despite borrowef{s )'sobligatio.n to iOsure the co!!a~ UI'Ider the terms of Movanf$ CQIltrad with Oebt«{s).

(d) IJ Payments: have not been made as reqUired by an AdequateProtootlon Order previously granted m 1bis

ease,

(2) 0 The banJcroptey cas~ was ftted in bad faith to del?¥,~br~~~ot.

(a) 0 Movant jsthe oniy credi10r or OM otveryfew creditors listed on tile master mailing matrix.

{tI} 0 NOJNndMduai entity was created just prtor to bankruproy filing for the sole pUrpose offiUng bankruptcy. (0) 0 The ~s) filed what is commoI'l\' refenOO to as a; "face sh.eet" filinQ of only a few page$ coo$iStting of

the Pe1it~oo and a few other documer!1$. No. ollier ~uIe$ O£ etaternent of Afi'ain; {or Chapter 13 Pfan, if appropriate} have been flied.

(d) 0 other (See :attached oonttnuatlon page),

Thl$ fonn is ~ by Otder of the Unlted~$ BankruptCy C¢Ul't fOr th$ Cftntml W!tt of CaHfomia.

F 4001 ... 1M.RP

... .. ..

MOtiOOfOrRefieffrOfu$tay~aaI·flfOpertYj~·Pa~·4·dt 11

Inre

Brian William Davle$

(SHORT TITLE)

CHAPTER: 7 Debtor(s}. CASE NO.; 1()..379QO

tf3X:D'~l~pi 1~ ~~l

(ai .•• q~~~f!~~~I1a~·nQ(~~lo.·tM~f-~., (b)'OPoSfeofJtlrmaoonpayfflerlfS ~uifed bythebOrlflrmedpianhavehOtbeen mad$t(fMovarn. (4) 0 For olhef C8w;e W !'elief from stay, see: attached contl.nuafiion page.

b. ~ PUrsuant to 11 U.S.C .. § $62(cI){2}(A), Oebtor{s) ilasli1aV€t 110 equity In the Property: and pursuant to § 362(d)(2xa), the Property is notnecessaJy for aneffedlve reorganization.

c. 0 Ptu'Wam fQ 11 U.S.C, § 362(dX3). Debtor($} hasJbave failed wlffljfl the fater of 90 days after the petition Qf 30 days after the oourt determined tIlat the ~ qualifies as single asset reaf estate to file a ~ 1'100 of r~ization or to eomrnenee m:onthly paymetlls,

d. 0 PUrsuantto 11 U.S.C. § 362{d)(4), Debtofs(s)fifIl190flle~h~~tlfa§c;b¥lI~;iP~~~;.a~~~ that ifwol¥ed:

(1) 0 The trariIDer of ~ or part ownership of, or othSf:~~ In, f!e~y:~ili1$eo~tof~bfco~~'

appro~;or .

(2.) 0 Multipte bankruptcy filings affedlflg the PropertY,

4. 0 I\11ovant also seeks armtIlmefit of the slay so that the llIing of~;abMki'IlP~~tlt~ ¢~~~Jre#~~~ias~~tJ

In the attached ~n(s). ..' .. .. .. .'. ." '.'

5. Evidenee in Support Of Motion: (Impot1ant Nate: ~n(tpHtiM,i~afth.~MtJsTbe~~j

a. [81 Movant submits: the attached Oeclafafion(s) on the Court's ap~vM.~S(if;~~j~~~iil$Upp~#

this Motion ptJ!SUlInt to t!.":lCat Bankruptcy RuleS. ..' .. . . . . .. ..' .. ' . . .. .

b. 0 Other Declaration(s) are also attached In support of thiS~lf,"

c. rg] ==~:=::~::ns:~~=$ri .~~~Jr'

Schedules are attached as Exhibit <4 . .. . ..

d. 0 Other evidence ($fXWify);

.. ~~Rt;fO~~oV<mtp~&~~bili.CouJt~£lnom:ertemi~Dg~r~;tb't.$~mtd·9~~ruJtbefP~ms(~qffy '~$I;ifrefkilro~.

~fromtht)stttran~gl\l1Qva~(M¥itany~~a~9ns)t6~,.~app!i~l'I!ih:ban~faW~'enJom$·ll$ remedies toforec:loSe upon and obtain possession of the Property.

2. 0 Annuiment of the stay so fiat the filing of the bankruptcy petltfoo does not affect posl:petil:ion acts, as spe<:med in the attacl1ed Oeciaration{S).

l: tiI.~ct~~PJ:OVi~~~:

.. &. ".1il •• ·'~iYuj~(h~~U~~te~.¢6~rl'of!6I$~~~t6~~unCJere.nyA~~~er

b. [i1 That the 14-day sWy described by ~ Rule ~1taX~l ~~~;

e. 0 That Extraordinary Relief be granted as set forttIlll1be ~t{~ORtfimCl1¢ourtFMn;f4QQ1~1U.E81 .

. ih!$ romiis mandatory byOrtlet iJf thEl· united'statn B~ Coolt to. the Ce:ntraf OIstnct of Callfurnla

F 4001 .. 1 M"RP

IDre

Brian Mliam Davies

(SHORT TITLE)

CHAPTER: 7 ~r(s}. CASE NO.: 10-31900

.4,Jl.fQr~.~~~~~;~~~, 4o.~"~Ief~~Yi~ijqt9f~ea~:M~.~ ~ ~~rttqPr~~e~~.p~"

ThiS form 1$ mandaiotv by!:JrW;r oIlhe Unit~ ~ BanlU'uplcy court for the Centra! ~ of Califoffila.

F 4001-1M .. RP

Motion fbrReliefirom Stay {Real property)~page 6of.1L F 4001-1 M .. RP

REALPROPERJYDECLARATION

(MOVANT: o~est Bank, FSB )

I. ~ __ ~."",...,.B~n..,...·nfi,._B-uroc......_,:_::tt:__:-_,,_-------, OtKWo as follOW&:'

. . (Print NSriie of l1eclarant)

1. f have personal knowl!iildge orh maUers set forth in 1biadeclaration and, Jfcatled upon to testifY. I eoutd an4 would competently testilY ~reto. I am 0Iltat' , B years of ege. I haVe ~ge regatdfng Movant's inIerest in 1he rest properly that. is lOO~ of this Motioll

(,Properly"') beoatl$l!l (sp«:ify}: .

o I am the Movant and QW!'iGI' of lhe ?roperty,

o I manage ~ Pl:Op$~ as the authorized agent for the 1\Ifov$rlt,

li.! t am empIQyed by Movant as (state tJffe and s:;apacit.y): o Other (specffy):

Z, f am one 0{ the cl.fS.tadlans of 1M ~ reco~ and fks of Movant tIlal perlam 10 foens ;md. exteos,iQns of credit given to OeiJIQr(s) ~ the Property. {ha~ ~!M')I'kUd on bOt'Iks, record$ and 1l1~ and as 10 the ~ facts. I know them to b~ true· ofrnyQwn know!edge or t have~d~ of them from ilia business re<::ordsofMovam on betlalf of Movant. whidl were made at or about the time tithe events recorded, and which am msfntained In the orr::IiMry ~ of Movant's business at or near t.'le time of tOO (I:!.B, conditions or events w whk;h ~ rofaf&. Afvt such doeu~ was prepared in Ute ooIIl'lSf'Y ~ of business: of Movant by aptalSCln who had ~aI t<n~ of the ~ being recorded and had arhas a buslheSS duty to moord ~tety such avent. The busIness records are avaifat>le' for inspection and oopie$ can be $Ubmltted to the Court if reqwat

S. a. The ad([ies$ofth& Propedylh'Blis the subjedaftlllsMotioo is:

St~t Addf~: 43277.sentWo Drive ~ireNc.:

City. StIJt,e, Zip Code.: Indio. CA 92203

b. The '. ~ ardoowl'loot r800ftitlg J'I\Imber(l'ooll:ldirlg coomyof reoor<l:ing) sstforth In ~ Deed of Trust lsatiached as~1 .•

o Seaa~ page.

4. Type of ~ (dteCk an applfcabki O0Jl'8S):

a. [i Oebtof"s(s') prlrlelpal res!denqe b, i1 Other single farm1y resldanc$

c. 0 MullMmll ,esidemtal d, 0 Comm€IroIal

e, 0 lnd'ustJiat f. 0 Vacant land

g. 0 Other (specify):

This fomI is ~ by Ofdet of 1M ~ StatQ aMlt~ Coort fQr !he&ilifalOlstJj(:t of caIifomia:' ..

F 4001-1M.RP

.Motion for ReJi&ffrom Stay (Real Property) - Page 7 of 11 F 4001 .. 1 M~RP

Inm

Brian WIlliam Davies

(SHORT TITlE) CHAPTER: 1

Oebtor(s}. CASE NO.: 10.31900

5. Nature of ~S(sl ~st in the: ~fIy:.

a. Ga $Ql& owner

b. 0 ~r(ii}(speciM:

Co 0 lien bofder (spe<:ifyJ: d. 0 Other (speaify):

a fit ~r{$) G.J did Cl did not lim too Propei1y in the $dl$OOle$ filed in this: case.

f. iii Oebtor(a) acquired 1fIe interest jn thE! ~ by o grant deeQ' 0 quitctairn deed [i trust deed·

1M deOO was recorded on; 11117106

~

e. Principal; $

D, Accrued Interest $:~~---

c, late Charges $.

d. Costs fAtklmey's Fe_, Other Costs): $'--'-----~

r. Advances (Property Taxes, \rnrura!'K:e.): $:.- _

g, TOTAl ClAIM as of 9116t10 ;: $ __ ~ __

o. 0 loan is aJI due and payable ~e It matured 00 (spea;;ry daW):

PQSTPgftJ1QM

$';.-.: ---;$

$:......_---

:rm.eb

$ ... fW.3A9ati

$. .• 61222.aS

$ .1.0ns

$ 7@.Q9

$ 11.141.00

$. 514.o.Bl 59

$._----

$"-.-.-._---

$._._---

7, ~l~'f! (il deeQoftnl$t that e~rs the PrOperty.

a, A true and oon'&Ct GOPY of the document as ~ is atmched as exhibit j ,

b. A Iiru$ and eo;mct OOPY of the promissory note or other document that evidera:es. th.& Movant's daim l5 a:ttached as

Exhibit ? .. . '

G. Ii A true and ~ copy of !he asstgnment(i'Ji) itansfooffig the beI1efl.Giai i~ l.IDder the !lOte ai'ld ~ of trust to Movanf

is a1taC'hed as Exhibit-'l<..3.,._ _

8. Status of Movant's Glaim reIaIiog: to the Property (fiR in ali appficabIB inl'orln8t/Qn requetriIXI beloW);

a. Current int$f$St f;lfiil: 6.5000%

b. ContradtlaJ maturlly date: 1211/36

c. Amount of CUtTent ~ paymerd: $ 2,390.64

d. Number of PREPETfTfON paymentslhat have come: dve and ~e not made: .5L,_. Total amount:; $: s. Number of POsTPETmON pa:ynmnw fbat have COOl([!: due and were not made: j__. Totat amount: $ 2 1, Data of POSTPETmoN deW': 12f1fOO

g. last payment ~ 00 1M foIfowing date: 1111108

h. Notice of trefal.l!t I'eOOtded on l'Ie f~ date: t NoliOe of' sale r~ on the folf~ ds.te:

[, F~ sale originally schedukId for the fotlowing date: k, F~~sale (:Urrentty ~ for~ ~ dale: t Foredosur~ $8le already I1eld 00 the following date;

ffi. Tl'U6tee'S' deed on sate already recorded on the foifowingdale:

n. Future p~nls due by 6me of antlclpaled hearing date (if app1k.;abte);

AA addltionaf ~ of $. will ~ Queen . and 00 !he day of

aacn month thereafter. It tile payment is not received by the day of the month, a Iat& charge of $ will

be charged to the 108J'l.

9. Attached hereto as Exhibit is 8 true andoorrect copy of a POSTPETmON s~ Of account that aoourateiy ~ tna

dales and IiII'OOOOl$. of all d1arges ~. to and payments made by the Debtm(s) since tne· petition date. .

Motion for Retimfrom Stay (Reat Property)~PegB 8ot11 F 4001 .. 1M.RP

(SHORT TlTI.E)

m i1 (Chept.er 7 and 1'1 C8$tIt$ tm/y): ~ fair market vaWe of lhaentire p~ is. SIi.::2~51.;.:.,9:;.;1,..;;;6;;.:;;'OO.;;._ . • established by;

3. a Appraiser's dedataflon wah appmisat a!tadled herewith as Elthibil __ .....

b. 0 A real estate broker or other e>q)$lfa declaratiOtl ~rdlng value attached as ExhIbi __ --,

c. fiI A true and correa oopy Qf relevant pOfiion(S) ofOElbtor'${s,) Schedvfes. attached as Exhlbil: ,.;;:;4 __

d. 0 OtfIer (specify}! Tota~ ValU$ ~t 10 gpo Val!$ - Emlbit 4

11. 0 The fair market wiueI:"4 the Property is: ~ based ooIdtie to: ~ _ _'_ __

i2. r&l Catculatioil of equity in PtopMty:

8. Based upoo 0 preliminary title report fil· Def>tor's(s'} admi$$ions in the schedofes fled in ttm;. case, the Properly is

~to the ~ ~$.)OftR.l$1or Ik;m(s) in the amounts specified securing the debt again$ltOeProperty;

1St Deed of Trust 2nd. Peed of Trust 3rd Deed of Trust:

Judgment Liens::

Taxes: 00l~

Amount Known to .~!!!9hvq $514,037.59 $110,OOtMlO

. iL : 2)

:z

b. Evidence estabUstHng the extstem;e of the above deed($) of trust and iien($) is ~ as ExhibIt ..:;1:...:..4_-,. andpOflSlsts at o ~l'YtltIe report

I&l Relevant portions of Debtor's(s') SchedWes as filed in this case o 0U\er (8pedfy}:

c. S~gbde&d(s)oflrustandother lian(s}$elfurth abovaffom thsvaiooofthe ~yas.SEltforth in Paragrapb 10 above,

the Oebtor's{s') equity in ·Ihe Property is " ~3t'l8 • .o24.00 (§ 362(d)(2){A)l.

is. 0 (Chapter 121Jnd 13 cases QnIy) ~ 12",. 13 case &tatus ~rt;

e. 341(a) Meeting ~ scheWied fOr (or concluded on) the foI!owlng date:

Cortlitmatkmhem:ing ~tly $clloduled for (or ~ on) the ~ ~:

Ptan Gonfirm.oo on the fo!~ date (if~f.

b, Postpetition/p(~tlM paymenw due aUT REMAINING UNPAID sklc& tlm fillng of 1M e¥O:

$~--~-----------

$.

$~' ----------------

Thls fotril·1$ ~ byOfdW of tI\e u~ SIaIa$ ~y Court tor the CenWI· DIliItrict 01 ~

F 4001-1 M .. RP

F 4001 ... 1 M.RP

fnre

&ian WHim DeMes

(SHORT TiTlE)

CHAPTER: 7 Debtor{s). CASE NO.~ 1{)'-379OO

c. i"O$1petillonlpreoon'fifmaUQo adva!'l(:eS or other ~ due but unpaid; (See at:Iacll:ment fOr detaifs of ~ and arnoont.)

TOTAL POSTPETmOWPRECONFUVtlATlON DELINQUENCY: $!..._.._~ ~

d. Postoo~OI'I paymems due BUT REMAlN.fNG UNPAiD since· plan oonfirrrtation (if~;'

(NumblKof} paym&nt(s) due at $ each = $:

(Numberat') payment{s}due at $ each 0: $ ....... --------

(Numbfffof) .. latl;}chatge(s)~ $: each'" $~ ~~ __

(NfImb«of) late cl1arge($} $I $ each;; $.c,....,. ~ _

G. Postoonlirrna!ionadvances orolher·chargesOOe but unpaid: $~ ~_

($EIe aHachment for details of type and amount.)

$~----------~---

t 0 The d$im i$ proYidB(j for m the Chapter 12 Of' 13 Plan. Plan payment history f& ~ as Exhibit _

g. 0 ~ attached Oet;:tarationfs) of Chapter 12 or 13 Trustoo regarding receipt of payment$' under the plan (8fl;3Ch Cowt Farm F 4OOf-1M.13).

14, 0 M~t ha$ not Peen provided With evklenoo that the property ~ curreoUy inSUfW. as required Uflder dle terms of tJe !9an.

15. [J The court dstermined 1bst the p~ quaUhs as singlE asset real estate on , More tban 90 days haw

pasaed mce thE!: fifing of h petilkm, more than 30 days have .pa$$ed s!noe the court ~ that Ute Property qtl~ as singfe asset t$aI ~~ the tlebtof\$} OOsIhave not fIIe::f a planef ~i.tatkm thai has a reasonable ~ of being confirmed wUhIr; a teasOMble time or the Oebfor(s) ha$/have not commenoed manfhly payments to Movant as requftd by 1 i usc, § 362{d}{31.

16. 0 Se(;t ~ continuation page tbr fads e$fablishing that ihe banMJpW)' t:a$~ ~ filed in bad faith to <ielQY. hinder or defraud Mowmt.

11 0 The filing of !be petition was part. of a sclloole to oolay. htJder and ~ creditors that involved;

a. 0 The transfer 01 aU or part ownership of, Of other frltarest In, th$ Propertywith.Qut the consent of Movant Q£court approvaJ. See attached continuation page fur fads establi$l'!ing Ihescl1em&.

b. 0 MuRipte bankru:ptcy flImgs affecting the Property. The mtJ1tiple bankruptcy filings fndUde the fotIowing cases; 1. case Name:

Case Number:

Oal~ Fried:

Ralfef from stay re tht$ propMy

2. Case Nama:

Case Number:: Cbapter;

Date Aled; Oafe Dismissed:

RaW from stay I'$ti;f$ PltlPetl)I 0 was 0 was not granted. 3. 0 See a~ ~on page.for l1lQTe ~ about otbar ballknJpk;ycases aHeding tfw. Properly.

c!laptm':

Date~se¢

o was· 0 was not ~led.

o See a~~page b fads~ thai !he multpkl ~ cases were part ofa:SChetne to_yo tmdet~ and defmud creditors.

'nre

Brian William Oe_

(StIDm TrrlE) I ... . CHAPTER: 7

DeblOr(s). CASE NO.: 10.37900

1& 0 Movant seeD annulment of the automatic stay so that thO' filing of the bankruptcy petition ~ not atfect sny and sit at 1M enforoomant adions set forlh in parngmph 8 above that were UOOm after {be fi'!ifIg of the bankruptcy peOOon In this <:aSe.

8. 0 T~ actioll$ ~ tak«l by Movant wlthout~ ofUlaballkruptcy fUing. and Movant would haw *Il enntfad to. mltef from $lay to' pr~ with 1M'se Cldfl)fi$,

b. 0 A!t.tlough Movant knew about ~ bankruptcy filing, Movant had pr~viousty obtained n*ief from stay to ~ willi ittese ~ootiOMin pOOr. ~ oa&e$ aftOO!ng tis property as am fOOh m paragraph 11{b} abov6.

e. 0 FurotMf fads 1ustifying ~ soo ~ oontinuatian page.

I declare·under penally of parJury under th$ Jaws of the UniW $tat,s O'f America ~ the foregoing m true and ~ and that

thIs Declaration was executed Oft ~ '2a J ~ at ... Austin TexJi· ~ (city. state).

Printed: 7{212009 7:13:01 AM PST Searched: 7/2120097:15:00 AM

T_t~*~j

Tax Search Riverside, California Assessor's PMC<>1601-710-020-5 Tax Year- 2008-2009 Payment as of 0612612009

Order: Non-Order Search Co: Lender Processing Services Default Title Dept: Irvine CRN: 0006100005 TO: 01 Created By: Aidan Leedom

Printed By: aldan

APN:

Described As:

Address:

City:

Billing Address:

Assessed Owner(s):

Maiiing Name(s):

601-710-020-5

.21 ACRES MIL IN LOT 75 MB 391/(135 TR 43277 SENTIERO INDIO 92203

INDIO

43277 SENTIERO DR INDIO CA 92203 DAVIES BRIAN W

DAVIES, BRIAN W

Tax Rate Area: 007-094 Value Conveyance Date: NOV 2006
Land: 134,000.00 Conveying Instrument: 853244
Use Code: Rl Improvements; 248,000.00 Date Transfer Acquired:
Single family residential Personal Property: Vesting: 8M
Region Code: Fixtures: Year Built:
Flood Zone: Inventory: Year Last Modified:
Zoning Code:
Taxability Code: 0-00 Exemptions
Homeowner: Square Footage
Tax Rate: 1.13985 % Inventory: Land:
Personal Property: Improvements:
Religious:
Bill #: 0408082 All Other. Tax Defaulted:
Issue Date: Net Taxable Value: 382,000.00 Total Tax: 8,855.04 4,427.52

473.72

04/10/2009

PAIDW! PENALTY

05/3112009

2nd

Account

Special Lien Description

Amount

INDIO CFD 2004-3 TERRA LAGO

MELLO-ROOS

389.69 3,688.90 140.64 10.54 9.32 259.00 2.79

68-8500 68-8503 68-2454 68-4556 68-4614 68-4682 68-8458

INDIO CFD 2004-1

MELLO-ROOS

CITY OF INDIO SOLID WASTE CHG COACHELLA VALLEY MOSQffiTO AND RIFA COACHELLA VAL. RECIPK AS 01-1

VALLEY SANITARY SEWER SERVICE

INDIO WASTE RECYCLE SURCHARGE

Underlying Parcels: 601-290-040

Future Parcels:

Related Parcels:

** MELLO-ROOS DISTRICT LIENS INCLUDED IN TAX BILL ANNUALLY **

ALL CURRENT & DELINQUENT TAXES MUST BE PAID REFORE BOND PAYOFF IS ACCEPTED ..,

*** END OF REPORT ***

Page 1 of 1

NORTH AMERICAN TITLE GO.

DOC # 2006-0853245 11/17/28BS DB:00A Fee:69.e0 Page 1 of UI

Reeorded in Officiel Records County of Riverside

Larry IL LIard

IliiiiHiiilli ii'l~il

Recording Requested By:

UNIVERSAL AMERICAN MORTGAGE COMPANY OF CALIFORNIA

<I'

1

11'1

~ And Aller Recordiug Relum To:

~ UNIVERSAL AMERICAN MORTGAGE J.. COMPANY, LLC

~ 311 PARK PLACE BOULEVARD, SUITE ~ 500 - SECONDARY MARKETING OPS

~ CLEARWATER, -3999

ri2 Loan Number: o

S R U PAGE SIZE DA MIse LONG RFO COPY
I 1% 1
M A L 4S!> 426 PCOR NCQR SMF NCHG EXAM
01,7
. ---------- ISpace Above This L

DEED OF TRUST

MIN: 100059600080428639 DEFINITIONS

Words used in mUltiple sections of this document are defIned below and olber wtris are defmed in Secuons 3. 11. 13. UI. 20 and 21. Certain roles regarding 100 usage of words used In this docwneot are also provided In SeClion ]6.

(A) "Security InstrumeatU means this document. which Is dared NOVEMBER 16, 2006

with all Riders to this document V. DAVIKS

(8) ~BoITtlWeJ'R is BRIAN '/fHII!IJr.JJ lY Wlnl-ffl m¥! m 1I1~' if/iF} ,"}lP

'l""NfflllII'JflfIIIJ.'1'11 A SINGLE !fAN t;'l) \ t, I b f 0 6

Borrower is the trustor under this Securily lnstrulDenl.

(C) "Leuder" is UNIVERSAL AMERICAN MORTGAGE COMPANY OF CALIFORNIA

• together

Lender !sa CALIFORNIA CORPORATION organized

and existing WIder the laws of CALIFORNIA

Lender's address is 391 N _ MAIN STREET, SUITE 200, CORONA, CALIFORNIA

92880

(0) "Trustee- is UNIVERSAL AMERICAN MORTGAGE COMPANY, LLC

700 NW 107TH AVENUE1 3RD FLOOR, MIAMI, FLORIDA 33172-3139

(E) ~MERS" is Mortgage Electronic Registratioa Syslems. Inc, MERS ~ a separate COIpOndioa thai is acting solely as a nominee for Lender and Lemler's sutceSSOlS and assIgns_ MERS is the beneficiary UDder this Security Instrument. MERS is mganized and existing under the laws of De1aware. and has an address and telephone number of P . O. Box 2026, Flint. MI 485fH -2026. Icl. (888) 619~MERS.

(II) "NoteR means tbe promJssory Dote signed by Borrower and dated NOVEMBER 16, 2006 TheNoteSlalesthat~rowesLender FOUR HUNDRED FORTY-ONE THOUSAND THREE

HUNDRED n FTY AND 00/100 Dollars (US. $ 441, 350 .00 ) plus hlterest.

CALlfORNIA-SingJe famUy-Farmie MaelFll!ddia Mac. UNIFORM INSTRUMENT· MERS

Form 3005 011O~ Page' of 14

ColIlUJ '''''.L._

Public Record

Order: Non-Order Search Doc: RV:Z006 00853245

Page 1 of 18

Created By: aidan Printed: 7}2/2009 7:14:51 AM PST

Borrower has promised to pay this debt in regular Periodic Payments and to' pay the cle&I in rldl nOt later tban DECEMBER 1, 2036

(G) "Property" means the property that is described below under lbe headJng "Transfer of RlgIrts in the Property. " (H) "Lean" meallS the debt evidencal by the Note. plus interest. any prepayment charges and late charges due under the Note. and all SIllJlS due under thh Securily InslrumenC, plus interest.

fI) "Riders" means aU- Riders to this Securny JnslrumeJlt thai: are executed by Borrower. The following IDders are to 00 executed by Borrower [check bnx as applcable]:

o Adjustable R;ile Rider

o Balloon Rider

o 1-4 Family Rider

o C{)Jldominium Rider

!Xl Planned Unil Development Rider

o Biweekly Payment Rider

o SecOBd Home Rider

o Other(5) [specify]

m a Applicable Law" means all controlling appllahle federal. state and local statutes, regulations. ordinaaces and administrative rules and orders (that have the effect of law) as well as all applicable rmal. non-appealable Judicial opinions_

IK) ~Ccmlmuafty Ass«iation Dues, Fees, aDd ~" means all dues, fees, assessments and other c:barges that are imposed on Borrower or the Property by a condominium assoelatlon, homeowners association or similar organization.

{L) "Elwronk Funds Tr.msferH meiUIS any transfer of funds, OthCl than a transactiOtl ()Jiginated by check. drafi, or similar paper Instrument. which Is initiated thrQugh an electronic termlnal, teJephonic in&tnlmelll. computer, or magnetic tape so as to order. instruct, or authorize a financial instituUon to debit or credil an account. Such term includes, but is nOC limited to. pawl-of-sale transfers, antoma1ed teller machine transactions, lransfers initialed by telephone. wire tJansfers. and automated clearinghouse IraDsfers.

lM) "Escrow Items- means those items that are desoibed In SectIon 3.

- (N) "MisceI1aneous Proceeds- means any compensation. settlement. iWaTd of damages. Of proceeds paid by any third party (other than hlsurance proceeds paid lIIIlIer the covenges described In Sedion 5) for: (0 damage to. ur destruction of. the Properly: {iiI condemnation or {llber takiDg of all or !lIlY part of tile Property; (iii) conveyance in lieu of oondemnathm; or (iv) misrepresentations of. or omissions lIS to. the value and/or conditloD of the Property. (0) WMort~ lnSuranre" means insurance protecting Lender againsl the mmpayment nf. or default Oil. the Loan. (P) "Periodic Payment" means the reguJarly Scheduled alDOunt due for (i) pril1clpal and interest under the Note, plus (it) any arooullts under Secticm 3 of this Serurily Instrument,

(Q) -RESPA" means the Rea] Estate Settlement Procedures Ad (12 U.S.C. §2601 et seq.] and its impli!ID.enting regulation. Regulation X (24 C.F.R. Part 3500). as they might be amended from time to time. or any additional or successor leglslatinn or regulalion thai governs Ihe same subject matter, A~ IJSI!d m this Security Instrument, "RESPA" refers to allrequirement:; and restrictions that are impOsed in regardtoa "federally relate4mongage loan" even if the Loan does not quaIilY as a fffederaUy related mortgage Joan" UDder- RESPA.

(R) "Successor 111 Interest uf B(HTOWerB means any party that has taken !lUe to the Property. whether or not thai party has assumed Borrower's obligations under the Note iIIld/O£ this Security Instrument.

TRANSFER OF RIGHtS IN THE PROPERTY

The becldlchuy ofthis security btstrument is MERS (solely as nominee for Lender and Lender's successors and assigns) and the successors and assigns of MERS. This Seaml)' Instrument secures te Lender: (J) the repayment of the Loan. and all .reuewa1s, extenslens and modifications of the NoIe; and (it) the performance of Borrower's

(:AUFORNIA-SII1g1e Family-Fannie MaalFreddie Mac UNIFORM INSTRUMENT· MERS

Form 3005 01101 Page 2 of 14

Public Record

Order: Non-Order Search Doc: RV:2006 00853245

Page 2 of1S

Created By: aldan Printed: 7/2/2009 7:14:51 AM PSi

covenanlS and agreements under tbis Securily Instrument and the NOIe. For this purpose, Borrower irrevocably grants and conveys to Trustee, in trust. willi power of sale, the following desaibed property located in the

COUNTY of RIVERS! DE

[Type of Reamfing.flu'Js4k:1lol1} (Name of ~ jurb41t11ClllI

A.P.N.: TBD

SEE AnACHED EXHIBIT DA"

which t:utreotly luis the address of 43-277 SENTIERO DRIVE iSUeetl

INDIO ICiIyI

• CaHfomia

92203 ("Property Address"):

[ZlpCodel

TOGE1'HER WITH all the bnpmvl'.meDts now or hf:reafler erected DR the property, ami all easements. appurtenances, and rooures now Of be~er a pari of the property_ AI replacements and additions shall ;ilio be covered by this Security IRstrumeot. AD of the foregoing is referred to in this Security Instrument as die "Property. n Borrower understands and agrees that MERS holds only legal dtle to the mleres5 granted by Borrower In this Securlcy Instrument. but, if n«essary to comply with law Of custom. MERS (as nominee for Lender and Lender's successors and OI5Signs) has Che right: to exerdseany or all of those imterests, Including, but not limiIed to. the right 10 foreclose ilDd sell the Property; and to take any action required ofLtnder including. but not limited to. releasing and canceling tins Security £oslnunent

BORROWER COVENANTS chat Borrower is lawfully seised of the estate hereby conveyed and has the light to grant and convey the Property and lhat the Property is unencumbered. except for eacumhrances of recnrd, Borrower warrants atld wiD defend generally the title to the Property against all claim!: and demands. subject to any encumbrances of record_

!HIS SECURITY INSTItUMENT corohines uniform covenants for national use and non-uniform covenants with limited variations by jurisdictlon to conslltute a uniform security instrument covering real property.

UNIFORM COVENANTS. Borrower and Lender covenanl and agree as follows:

1. PaymenfofPrludpal, Interest. Escnw ItelD5. PrepaymeotCharges. and Late Charges. Borrowersbal1 pay when due the principal or, and interest OIl, (be debt evllUnceG by !he Note and any prepayment charges and late marge:; due uader the Note. Borrower shall a1so pay fuPds f(lr Escrow Items pursuant to Section 3. Payments due under !he Note and this Security Instrument shaU be made in U.S. currency_ However. if any check or ether w_..trument received by Lender as pilyment under the Note or this Security Instrument is returned 1.0 lender unpaid, Lender may require that any or all subsequent payments due under the Note and 1bis Seoori£Y Instrument be made in one or more of the following forms, as selected by Lender: (a) cash; (b) moneyordu; (e) ce:rlified meek. bank-check. treasurer's check or cashier's check. provided any StIch check is drawn upon an insulntlou wbose deposits an insured by a federal agency. iDStrumentality. or entity; or (d) Electronic Foods Transfer.

P,,},lOents are deemed recelyed by Lender when received at the location designated In !he Note or at such other locadon as may be designated by Lender in accordance with die notke provlsi.om in Section IS. Lender may return any payment or ~ payment if the payment Of partial payments are msuffioenl to bring the Loan current. Lender may accept any paymeat or partial payment insuffldent to bring the Loan current. without waiver of any righls hereunder or pnjlldice to its rights to refuse such pilyml!Dt or partial paymeols in the future, but Lender Is lIot

CALiFOIlNlA-Singie FamOy-Fannie MaeJFreddie Mac UNIFORM INSTRUMENT· MERS

Form 3005 01101 Page 3 of 14

Public Record


Page 3 of 18

Created By: aidan Printed: 7/2/20097:14:51 AM PST

oblig<lled 10 apply such p-aymeols at the Ihne such payments are aocepted. If each Periodic Payment is appHed as of lIS schedtded due date, then Lender need not pay interest on unapplied funds. Leeder may hold such unapplied foods until Borrower makes payment to brklg the Loan cutrelli. If Borrower does not do so within a reasonable ptriod of time, Lemler sball eidler app1y such funds or return them to BDn'OWeI'. If not applied earlier, such fWids will be applied 10 tile outstanding prinCipal balance under lhe Note immediately prior to foreclosure. No offset or cblim which Borrower might have ROW OJ in the future against Lender shall relieve Borrower from making payments due. UDder the Note and tills Sewrity Instrument or performing Ihe covenants aud agreements secured by diis Security Instnunent.

2. AppUcation of Payments or Proceeds. Except as otherwise described in this Section 2, aD payments accepled and applied by Lender shall be applied in the following order of priority: (3) Jalerest due under the Note: (b) principal dae under the Note; (e) amounts due under Sedion 3. Such paymenls shall be applied to each Periodic Payment in tile onIer in which it became due. ABy nmaining amounts shall be applied ftrst to late dlarges. second 10 any olher~ounts due under this Security Instrument, and then to reduce tile principal balance oftbe Note.

If Lender receives a ptymelll £rom: BotroWer for a deliruprent Periodic Payment whlch includes a sufficienl amount 10 pay ;my late charge due, the payment may be applied to the de1l.nquent payment and the late charge. If more dwJ one Periodic Payment is outstanding, Lender may app1y any payment recdved from Borrower to the repayment of the Periodic Payments If. and to the extent tbal. each payment call be paid in fuU. To the exjent that allY excess exists: after !he payment is applied to the full payment of one or more Periodic Payments, Sllch excess may be applied to any late charges dae, Voluntary prepayments shaU be applied first to any prepayment thaTges and then as described in tlJe Note.

Any application of payments. iIlsurance proceeds, or Miscellaneous Proceeds to principal due under the NUle sllaH nne extend or postpone thf, due date, or r;hange the amount, of the Periodic Payments.

3. Funds fur Escrow Items. Borrower shall pay to Lender on fhe day Periodic Payments are due under the Note. JltItiI the Note Is paid in full, a sum (the "Fsnds") to provide for paymen! of amounts due for: (a} taxes and assessments and otber Items which can attain priority OVl!!" this Security Instrulllf':ll! as a lien or encmnbl'llnce on the Property; (b) leastbold payments or ground rents on the Property. if lilly; (c) premiums for any and all Insurance required by Lender under Section 5: and (d) Mortgage Insurance premiums. if any, or any sums payable by Borrower lfl Lender in lieu of the payment of Mortgage Insurance premiums in accordance with the provislollll of Section 10. Theseitems are called "Escrow Items. U At origination or alany time dllriAg the term of the Lcaa.Leader may require thcIt Cmmmmity Association Dues. Fees, and Assessments, if <my. be escrowed by BOITOWN. and such dues, feesand asse.ssmufS shall be 3ft Esaow rt_. Borrower sball promptly furnish to Lender all notices of amounts to be paid under this S«tion. Borrower shall pay Lender the Fnnds for Escrow Items unless Lender waives Berrower's obligation to pay the Funlb for any or all Escrow Items. Lender lIIlIy waive Bon-ower's obligation to pay to Lender Funds for any or all Escrow Items at any time. Any saeb waiver may only be In writing. In the event (If such waiver. Borrowersball pay dired1y, wbm and where payable, the amounts due for any Escrow Items forwbicb paymtmtnf Funds has been waived by Lender and. If Lender requires, sbaJi furnish to Lender receipts evidenc!~ Stich payment within such time period as Lender may require. Borrower'sobligaliDJI to make such paylllfnlS and 10 provide receipts. shall for aU purposes be deemed to be a tove~t and agreement coolained In thls Secttrlty Instrument as the phrase "covenant and agreement" is used In Secu.on 9. If Bon-ower is obligated to pay Escrow Uerns lfirectly. pursuant to a waiver, and Borrower fails to pay the amount due for an Escrow lIero, Lender may exercise its rlghlS uader Section 9 and pay such ammml and Borrower shall then be obligated CInder Sectlon 9 to repay to Lender any such arnounl_ Lender may revoke the waiver as to any or aU Escrnw Items at allY time by a notice giwn In accordance with Section 15 and. upon such reYOOIllon, Borrower shall pay to Lender all Funds. and in such amounts, Ihat are then reqUired under- this Section 3.

Lellder may, at any ti.me, collect aDd hold Funds in an amount (a) suffiCi.enllO permil Lender to apply the Funds at the time speclfied under RESPA. and (b) not to exceed the maximwn amoulJI a leader can require under RESPA. Lender shaU estimate the amount of Funds due all the basis of current data and reasonable estimates of expenditures of future Escrow Items or ntherwise in accordance Wilh Applicable Law.

The Funds shall be held in au institution whose deposits are insured by OJ federal agency. instrumentality. or I!Jllity (including Lender. If Lender is an inlilitution whose deposits are so insured) or In i1Dy Federal Home Loan Bank. Lender shall apply the Funds 10 pay the Escrow Items no later than the time specified under RESP A. Lender

CAUFI;)RNIA-Single J'amUy··Fannie MaelfrGddie Mac UNIFORM INSTRUMENT _ MERS

Form 3005 01/01 Paglt 4 of 14

Public Record


Page 4 of 18

Created By: aidan Printed: 7/2120097;14:51 AM PST

shall not charge Borrower fur bDJdlng and applying (he Fllllds, anmtally analyzing the escrow account, or verifYing tire Escrow Jfems, unless Lender pays Borrower iDteresl 011 ~ Funds and Applicable Law permits Lender to make sud! a charge. Unless an ~ is made in writlDg or ApplkabJe Law requires illteresl to be paid 00 the Funds, Lender shaD not be .-equh-ed 10 pay Borrower any interest or earnings 011 the Funds. Borrower and Lendercan agree ill wrlting, however, !hat interest shall be paid OD the Funds. Lender shall give to Borrower. without cbarge, an annual <tCoounting of lIIe Funds as required by RESPA.

H there is a surplus ofFullds held in escrow, as defined under RESPA, Lender sball accounllo Borrower fDr the excess funds in accordance with RESPA. If there is a shortage of Funds .held in escrow, as defined onder RESPA, Lender shaD Ilotlfy Borrower lIS required by RESPA. and Borrower shall pay 10 Lender the amount necessary to make up the shorlage In accordance with RESPA, bul in no more than 12 monthly payments. If there is a deficiency of FIlPds held in escrow. as defined undlll" RESPA, Lender shaH notify Borrower as required by RESPA, and Borrower shall pay to Lender the amount necessary to make up the defidency in accordance with RESPA, but In 00 more Ihan 12 monthly paymtmlS.

Upoo payml!Dt in fallofallsmns secured by lhisSecurity Instrument. Lendersballpromptl.yrefundkJ BomJwer any Funds held by Lender.

4. Charges; Liens. Borrower sbalI pay aU taxes, assessments, charges. fines, and impositions attributable to the Prijperly which can attain priorily over Ibis Security Instrument, leasellOld p.ay!Delrts or groWld rents on Ihe Property. if any. and Cunununity Association Dues, Fees, and Assessmems, if any. Te the ~xlent iliaC Ihese Items arc Escrow Uems, Borrower sbI1 pay Ihem in tbe manner provided in Section 3.

Borrower shall prompdy disclmge any lien which has priority over this Security Instrument onless Borrower: (a) agrees in writing to the payment of tbe obllgallon secnred by the lien in a manner acceptable to Lender. but only 50 long as Borrower is perfotming such agreemeat; (b) contests the lieu in good faith by. or defends ag<liml enforcement of the lien in. legal proceedings which In Lender's.opiniOil operate to prevent the enforceme¢ orlbe nen while !hose proceedings are pending, but oaly until such procwtings are coneladed: or (c) secures from the holder of the lien an agreement satlsfactory to Lender subordinatiJJg the lien to thls Security lnstrumenc. [f Lender determines !bat any part of the Property is subject to a lien which can at1a1n priority over this Seruri!y Instrument, Lender may give Bcrrower a noote ideotifying the lieD. Withln 10 days of the date 00 which that llOIice is given. Borrower shan satisfy the lien or lake om, or more of the actlous set forth above in tIUs Sedlon 4.

Lender may require Borrower1o pay a oae-ume charge for a real estate lax veriflcalion andfor reporting service used by Lender JD connection willt this Loan.

S. Property InsuraDCe. Borrower sball keep the imprcwements now existing OJ" hereafter erected on the Property insured against loss by fire. hazards included within the lerm "C'C1ended cover.lge, ~ and any o&ber lazards indudillg. but not limited to, earthquakes and floods. fot which Lender requires Insurance, This insuramce sfIall be maintained iD !he amounts Ondudlng deductible levels) and for the periods tbat Lender requires. What Lender requires pursuant to the preceding sentences can change during the term of tbe Lean, Too insurance carrier provIding the Insurance shall be chosen by Borrower suhjetl to Lender's right to disapprove Borrower's choice, which right sbaII nOl be exercised unreasonably. Lender may require BolTOWerio pay. in tOlmeclion with this L03Il. ei1her: (a) a eeelime charge for flood zoe detemtination, certifiutlon anil tracking services; or (b) a one-time charge for flood zone determination and ter1ifi~alion servicesand subsequent charges each time rel1l3ppiDgs 01" similar changes occur which reasonably migb1 affect such de&enninatioD ur certifif:ll.liotl. Borrower shall also be responsible for fhe payment of any fees imposed by the Federal Emergency Management ABency in cooncction with the review of any flood zone determination resulting from an objec.inll by Borrower.

[[ Borrower fails to maintain any tlf!he i:overages described above, Lender may oblain iPSUIUCecoverage, at Lender's option and Borrower's eJ(ptnse. Lender is under no obligation to PIJOC_ any particular type or amount of coverage. nerefore. such CQv':I<Ige shall cover Lender, hue might or might not protect Borrower, BornMer·s equity in the Property. or the rontenlSof!he Property. against any risk. hiWiI'd or liability and might: provide greater or lesser coverage than was previl)IJsly in elfoct. Borrower acknowledges that the cost of the inSW'il1lce coverage so obtained mlght significantly exceed the cost of insurance tIJat Borrower coo1d have nbtUned. Any amounts disbursed by Lender under this Section 5 shall become additional debl of Borrower secured by this Security Instrument. These amounts shall bear interesj at the Note rate from the date of disbursement and shall be payable, with such interest, upon notice from Lender to Borrower requesting payment.

CAliFORNIA •• Slngle family-Fannie MHII'reddie Mac UNIFORM INSTRUMENT. MERS

Form 3005 01/01 Paga5 of 14

Co3mI5 __ .s .....

Pul:llicRecord

Order: Non-Grder Search Doc: RV:2006 00853245

Page 5 of 18

Created By: aldan Printed: 7/2/2009 7:14:51 AM PST

AU insurance polities required by Lender and reoewaJs of sucb policies shall be subject to Lender's right to disapprove such pOlicies, shall include a standard mortgage clause, and shall name Lender iIS mortgagee aJ1d1lW as an additional loss payee ud Borrower further agrees to generaDy assign rights to illsurance proceeds to the holder of die Note up to the amounl of the outslllflding loan balance. Lender shall have the right to hold Iht policies and renewal certificates. If Lender requires. Borrower shall promptly give to Lender an receipts of paid premiums and renewal noliteS. If Bon'tlWeI' obtains any form of Insurance roverage. noc OIherwl5e required by Lender. for damage 10, or deskUcliOll of. the Property, s.Jch polley shall iuclude a srandaol mor1gage c1aDSellnd sOOll name Lemler as m0r18agee and/or as iIlI addilionalloS$ payee and BoJTOWel" further agrees to generally assign rights to Insurance proceeds to the holder of the Nme up to the amDllQt of the outstanding loan balmce.

In the event of loss, Borrower shall give pmmpt notice to the Insurance carrier and Lender. Lender ImY make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree in writing, any insmance proceeds, whether or not tile UIIderlylng Iasurance was required by Lender, shall be applied to restoration or repair of the Property, if the nstoration or repair is economkally feasible and Lender's security is 801 lessened. During suclJ repair and restoration period, Lender shall have the right 10 Imid such insuram:e pC9COOds unlil Lender has had an oppartWlily 10 inspect such Property to ensure the work. bas been completed to Lender's sallsfaction. provided dIat sud inspection shal1 be undertaken promptly. Lender may disb~ proceeds for the repairs and restwalion in a siJlg!e payment or ill a series or progress payments as the work is completed. Unless 311 agreement is made in wrlling or Applicable Law requires interest 10 be paid (In sm:h iDsurance proceeds, Lender shall not be reqllired to pay Borrower any 11lolerest or earnings on such proceeds. Fees for pubUc a-!justers. or other third parties, retiiDed by BD!TO'IVer shall not be paid out of the insurance proceeds and shaD be the sole obligldioo or Borrower, If the restoralioo or repair Is not economk:ally feasible or Lender's $emrily would be lessened, Cbe insurance proceeds sball be applied to tile sums secured by this Securily Instrument, whether or not fhen due, wilh !he excess, if;my. paid to Borrower. Such lnsnrance proceeds shall be applied in the order provided for in Section 2.

If Borrower abandons the Property. Lender may file, negotiate and settle any available insurance claim and related matters, IT Borrower does ROt respond within 30 days to a notice from Lender fbat the Iasnrance carrier has offered to settle a claim, fhell Lender may negotiale and settle tlJe cIahn. The 3O-day period will begin when the notice is 8iven. In eUher event. or if Lender acquires the Property under Section 22 or otherwise, Borrower hereby assigns to Lender fa) Borrower's tights 10 any Insurance proceeds In an amOllld not ill exceed tbe amounls unpaid under the Note or this Security imlrument, and (b) any otller of Borrower's rigblS (other than the right to lIny refund of unearned premiums paid by Borrower) U/uter all instmmce policies covering the Property, insofar as such righf$ are applicable to the coverage of the Property. Lender may use !he insnrance proceeds eillter to tqJair or restore tbe

Property or to pay amounts unpaid WIder the Note or this Security Instrument, whflher or not then due. .

ti. o«up;tncy. Borrower shall OCCIIPY, establish. and use tbe Property as BOl1"ower's principal residence wilbin 60 days aRer the execution oflhis Security Instrument ;rod shall continue to occupy the Property as Borrower's principal residence for alleasl one yearafterthe date of occupancy. unless Lender otherwise agrees in writing, which consent shall not be unreasonably withheld. or unless exteouatiJlg circumstances exist which are beyond BOlT{)Wer'S controL

7. Preservation, Malntenalltt and Protectioa of the Property; Inspediom. Borrower shall nol destroy, damage or impair the Property, allow the Property to deteriorate Dr commit waste on the Property. Whelher or not Borrower b residing in the Property. Borrower shall maintain the Property in order to prevent the Property from deteriorating or decreasmg in value due to ils condition. Unless it is determined pursuant to Section 5 that repair or restoration is not econOmically fea$ib1e, Borrower shall promptly repair the Property if damaged 10 avoid further delerioration or damage. If Insurance m- condemnation proceeds M) paid in connection with damage to, or the laking of, the Property. Borrower shall be respOJl5ible for repairing or restoring the Property only if Lender has released proceeds for sud! purposes. Lender may disburse proceeds for the repairs aud restoratiun in a single payment or in a series of progress payments <IS the work is compleled. IHhe insurance or coodemnatiOD proceeds are not sufficient to repair or restorejhe Property, Borrower is not relieved of Borrower's oWigatiOO for the completion of such repair or restoration.

Lender or its agent may make reasonableeatrlesupea and inspectiom of lite Property. [fit has reasonable caese, Lender may jnsped the interior of tbe iruprovemenls on the Property. Lender shallgive BolTtIWU notice allbe lime of or prior to such an Interior inspection specifying such reascnable cause.

CALIFORNIA-Single Family-FolI1IIie Mae/freddie Mac UNIfORM INSTRUMENT· MERS

Fanr1 3005 01101 Page 6 of 14

~."'.u . ...,

Public Record

Order: Non-Drder Search Doc: RV:2006 00853245

Page 6 of 18

Created By: aidan Printed: 7/2/2009 7:14:51 AM PST

8. BolTOwer's Loan Application. Borrower shall be ift default if, during the Loan application process, Borrower or any persons or entities acting at the direction of Bonowet Of with Borrower's knowledge or censent gave malerial_y 1'aIse. misleading, or illlH:Wlate informatklft or statemenrs to Lender (or failed to provide Lender with material information) in connection wilh the Loan. Material npresenlations iDclude, but art: no1 limited to, representations conceNliPg BorrDWel"'s 0CCtljl3IK:y of the Property as Borrower's principal resideof.:e.

9. Protection of Lender's Intere.'lt in dle Property and Rights Under this Security Instrument. If (a) Borrower fails to perfoim the covenants and agreements contained in Ihli Securuy IIIslrumenl, (b) there is a legal proceediDg!hal: mlght significantly affed Len.der'sinterest in the Property and/or righls uOOm-this Security Imtnunent (sudl as a proceeding in bankruptcy, probate. fur condemnation or forfeiture, for enforcement of a lien which may att.rln priority over !his Security Instrument or to eDfom! laws or regulations). or (c) Borrower bas abandolred the Property. then Lender may do and pay for whatever ls reasonable or appropriate to profed Lender's interest in the Property and right> under this Security Inskumenl, includiog protecting iIDdlGr assessing the value of the Property, and securing andJDl' repairing the Property. Lender's actions can include. but moot limited. to: (a) paying any SUIIIS ~ed by a lien whit:h I:tas priority 0\'eI" tfJis SecuriCy Jnstrumenl; (b) appearing in court; and (c) paying reasonable attorneys' fees to protect Its interest in the Property andfor rights under this Security lnslJUmenl, including its secured pnsilion in a baDkrupl:cy proceeding. Securing tbe Pruperty iocludes. but Is nolJimiled to, entering the Property '0 make repairs. (:bange loc:b. replace Dl' board up doors and windows, drain. water from pipes. eliminate building or oUter code violations Of dangerous conditlcns, and have utllifies turned on or off_ Although Lender may take action under tJJis Sedlon 9. Lender does not have to do. so and is not under any duty or obligation to do so. It is agreed !hat Lender incurs III) Iiabill1y for not taking any or aU actions authorized urmr this Section 9.

Any amounts disbursed by l.eIIdet under this Section 9 shall become addiuonal debt of Borrower secured by this Security Instrument. These amoun3 shan bear interest al the Note nUe from the date of disbursement and sball hi: payable. wHh such Interest, upon notice from Lender to Borrower r~g payment.

H this Sewrily IllStnunent is on a leasehold, Borrower shall comply with all the previslons of the lease.

BorrovrersbaU not surrenderjhe leaseOOld estate and interests herein COlI"IIeyed or tenninate OT caned the ground lease. Borrower shall Dot. without the express wrlUen consent of Lender. aller or ilIIleDd the ground lease. If Borrower acquires fee tide to the Property. the leaselwld and the fee title shaJl Dot rnc,!e uless Lender agrees to the merger in 'Mitlng_

10, Mortgage Insurance. If Lender required Mortgage Insurance as a condition of making the Loan. Borrower shan pay the premiums required to maintain the Mortgage Insurance iD effect. If, for any reason, the Mortgage Insurance coverage requited by Lender ceases to be available from the mortgage insurer that previously provided such insurance and Borrower was required to make separately designated payments laward lhe premium:s for Mortgage Insurance, Bon-ower sJudl pay the premiums required to obtain coverage substantially eCJllivalent to the Mortgage Insurance previously in effect, at a cost substantially equivalent (I) ibe cost to Borrower of the Mortgage Insurance previously in effed. from an alternate mortgage iIlsum" selected by Lender, If substantially equivalent MOr1gage Insusanee coverage is not available, Borrower shall continue to pay to Lemler the amoJUl1 of the separately designated payments that were due when the insurance coverage ceased 10 be In effecl, Leader will accept. use and fetain tht$C payments as a uon-refuadable loss reserve in lieu of Mortgage Insurance. SItCh Joss reserve shall be non-refundable. notwithstanding the fact that the Loan Is ultimately paid in full. and Lender shall_ be required to pay Borrower any Interest or earnIngs on such loss reserve. Lender can DO IDDgef require loss reserve paymtmls if Mortgage Insurance coverage On lbe ~ount and for the period tfIat Lemler requires) provided by an insurer selected by Lender again becomes available, is obtained. and Lender requires separately designated payments toward Ille prelOiUlIl$ for Mortgage Insurance. If Lender required Mortgage Insurance as a condition nf making the Loan and Borrower was required to make separately designated payments toward the premlams for Mortgage w;urance, Borrower shall pay the premiums required to maintain Mongage Insurance in effect. or to provide a Don-refundable loss reserve. until Lender's requirement for Mortgage Insurance ends in acconlance with any written agreement between Borrower and Lender providing for IiiIlch termination or until tennlnaden Is required by Applicable Law. Nothing in this Section 10 affects Borrower's obligation to pay interest at the rate provided In the Note.

Mortgage Insurance reimburses Lender (or any entity that purchases the Note) for certain losses it ID;l)' int:ur if Borrower does not repay the Loan as agreed. BOlTOWf!f is nol a party 10 the Mortgage Insurance,

CALIFORNIA-Single Fil1l"Iily-Fiilnnie MaelFreddJB Mac UNIFORM INSTRUMENT· MERS

form 3005 OHOl Palilt 1 of 14

Public Record

Order: Non-Qrder Search Doc: RV;2006 00853245

Page 7 of 18


Mottgage Insurers evaluate tbek- lotal risk on aU such inswaoce in force from time to time. and may enter into agreements with other parties that share or mudify IheU risk. or reduce J~. These agreemellu are 00 tenus and conrlit!ons thai are sati5fattory to the mortgage lmunr ami die .other party (or partiei) to these. agreemems, These agreements mil}' require the mortgage insurer to make payments using any source offunds !hat the mortgage Insurer may have available (which may indude funds obtained from Mortgage lPsurnnce premlt1ms).

As a result of these agreements. Lender, any purchaser of the Note. another Insurer, any reinsurer, any other fntity. or any affillateof any of the foregoing, may receive {directly or indirectly} amounts Ihal derive from (or might he characterized as) a portion of Borrower's payments for Mortgage Insw-ance. In exchange foe sharing O£ modifying the mortgage insurer's risk, or redllci~ losses. If sud agree-nrenl provides that ill amUate of Lender takes a sbare of !he insurer's risk in exchange for a share of Ihe premiums paid 10 the insurer. the arrangement is often termed • captive reinsurance. • Further;

(a) Jury soch agt'ftllltflts will not affect tbl!! amolDlfs that Borrower bas agrted to pay for Mortgage Insurance. or any "tbee .emu of the Loan. Sud! agreements wiIJ not increase the amoant Borrower wi11 owe for Mortgage 1mW'aDCe, and they will not entitle Borrower Co aqy .-efund.

(b) Any sum agreements wiD not affect the righu Borrower lias - if any - with respect to tire Mortgage Insw-ant:e under the Homeowners Protection Act of 1998 or any other Jaw. These rights may incJulfe tbe right to receive ceJ1ain disdoslQ'e5, to request and obtain caDullation of the Mortgage Insurance. to have the Meng;tg~lnsurancetl:rminatedautumaticaUy.andlortorecelvearefuDdofanyMortgagelmw-ancepcemiums th:al were unearned at the time of such eanceJJation or ltnnination.

11. Assignment ofMbcelJautOUS Proceeds; Forfeiture. AD Miscellaneous Proceeds are IIl!f'I!by assigned 10 and shall be paid to Lendes.

If the Property is damaged. such Misce1hmeons Proceeds shall be applied t6 re5klr.difm or repair of !he Propeny.

If tho resloration or repair is economically feasible and Lender's security is not lessened. During socii repair and resloration period. Lender shall have the right to hold such Misccl1aneous Proceeds nntil Lender has bad an oppol1unity 10 inspect sl1ch Property to ensure the WDrk bas been completed to Lender's salisfattJOd. provided lhill such inspection shall be undertaken promptly. Len4et may pay for the repairund resloralion in aslngle disbursement or in a series of progress payments as the. work Is completed. Unless an agre&nent is made in writIng or Applicable Law requires interesC to be paid OD such Miscellaneous Proceeds. Lender sball not be required to pay Borrower any inleresl or earnings on such Miscellaneous Proceeds. If the restotallon or repair is not economically feasible or Lender's security would be lessened, the MJsceUaneolli Proceeds shall be appUet110 the sums secured by this Seouity Instrument. whether oc nut then due. with ilie excess, if any. paid 10 Harrower. Such Miscellaneous Proceeds shall be applie4 in the order provided Forfu Section 2.

II) the event of a total tlIIting, destruction. Ill" loss ill value of the Property. the Miscellaneous Proceeds shall be applied to the sums secured by this Si:cnrity mslrUmenl:. whether or not thell due. with the excess. if lUly. paid to Borrower.

In !he event of a partial taking. destruction. or IOS$ in value of the Property in which the f.,lr market value of !he Property immediately before the partial taking. destructioo~ or Joss in value is equal 10 or greater than the amount of the sums securd by this Security Instrwnelll inunediate.ly before the partiaI taking. deSImCtiOD. er loss in value, unless Borrower and Lender otherwise agree in wriUng. the sums secured by !hls Security Instrument shall be reduced by lhe amount of the MisceJlaneous Proceeds multiplied by the following fraction: (a) .he rotal amount of the SUJIl5 secured Immediately before the partial taking, destruction, or loss ill value divided by (b) the fujr market vallie of the Property inunediately before the partial taking. destruction. or loss in value. Any balance shall be paid to Borrower.

III the event of a partial taklng, desuuctloa, or loss In value of the Property in which the fair market value of the Property immediately before the pactiallaldng. destruction. or loss m value is less than the amounl of the swns secURd. Immediately before the partial taking, desttnction. or loss In value. unless Borrower and Lender otherwise agree in writiDg, the Mm:eIIaneous Proceeds shaH be appHed to the sums secured by this Security lnstnunenl whether or not the sums are then due.

If lhe Property Is abandoned by Borrower. or if. after notice by Lender to Borrower thaI the Opposing Party (as deflned in the next sentence) offers to make an award to settle a claim for damages. Borrower fails to respond 10 Lender within 30 days after the dale the notice is gtve.n. Lender is authorized 10 collect and apply the Miscellaneous Proceeds either 10 resforaCi.on or repair of the Property or In the sums secured by this Security Instrument. whether

CALIFORNIA-Single Family-Fannie MaelFret:fdle Mac UNIfORM INSTRUMENT· MERS

Fotm 3005 01/01 Page 8 of 14

Public Record


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Created By: aid<in Printed: 7f2J2009 7:14:51 AM PST

0 .. oot then due. "Opposing Panyn means lite third party that 0WfS Borrower Miscellaneous Proceeds'or the party against whom Borrower has a right of actioD in regard to Miscellueol!S Proceeds.

Borrower shall be in de1irult if any adioD or proceeding, whether civil or aiurinal, is begun lllat. 111 Lender's judgment. coultl result in forfeiture of the Property or other materiaIlrPpalnnent of Lender's inferesI in lhe Property or rights under this SOCUJity Inslrument. Bormwer [an CUTe such a defau]t aDd, if accelemlon has occurred, reinstate as provided in Section 19. by causing the action or proceeding to be diSmissed with a ruling that. In Lender's judgment. precludes forfelfure of the PEl.Ip!l1y or other material impatnnent of Lender's inlerest in the Property or rights under 11m Security Instrumem, The proceeds of any award or claim for damages that are atlnlJutaWe to the impairment of Lemler's interest in the Property are bereby assigned and shall be paid to Lender.

All Miscellaneous Proceeds that are tlot applied to restoration or repair of the Property shaIl be applied in the order provided for in Secdon a.

12. Bottower Not Released; Forbearance By Lender Not a Wail'et. Extension orllle time for payment or modifKlltion of amortizalioo of the sums secured by this ~urity Instrument granted by Lender to Borrower or any Successor in IDterest of Borrower shall not operate to release the liabllily of Borrower or any Successors m Interest of Borrowu. Lender shall not be required 10 commente proceedings againsl allY Successer in Interest of Borrower Dr to refuse 10 extend time for paymem or otherwise modify anlQtUzatlon of the sums secured by this Security lnstrumenl by reason of 3II.Y demand made by the orig1n;d Borrower or any Successors in £ntere5t of Borrower_ Any fotbearance by Lender in exercising any rigbt or remedy including. without limitation. Lender's a«eptaDce of payments from third persons, entities 01" Successors in Interest of Borrower or in amounts less than !he amCUll1 then due, shall not be a waiver of or preclude the exerci5i: of any righl or remedy.

13. Joint amd Several Liability; Co-sigDers; SUl!cemtOi and Assigns Bound. Borrower covenants and agrees !hat Borrower'sobligalions and liahUily shall bejolnl alld several, However, any Borrower whD CO-Signs (his Security Instrumem but does not e!lecute the Note (a ., cIHigner'1: (a) is co.signing this Security Instrument only to lIlOrtgage. grant mil convey tile co-signer's interest ill the Property IIDder !he terms of thls Secwity Instrument: (b) is nil! personally obligated to pay the sums ncured by Ibis Seauity Instrument; and (c) agrees thai Lender and any other Borrower om agree to extend, modify, forbear or make IIny accommodatiolls With ~ to the tenus of this Serurity Instrument or die NOIe withoUI the cD-Signer's consent.

Subject to the provisions of Section 18. any Successor in Interest of Borrower wbo assumes BW'tower's obligations under Ihl5 Security Instrument in writing. anti is approved by Lender. shall obtam all ofBolTOWe.r'" rights and benefits uader tlds Serurity lnsttumeat. Borrower shall nol be released from Borrower's obligatiullS and liability under this SeCUrity Instrument unless Lender agrees to such release in wril1ng. The covenants and agreements oftltis Security IDstrwnent shall r,nd (except as provided in Sectlon 20) and benefLl the successors and ilssigns of Lender.

U. Lou Charges. Lender !bay charge Borrower fees for services performed inC<lnnection with Borrower's default, for the purpose of prolecili!g Leader' 5 interest in !he Property aed rights under thls Sec:wily Insuumesu, including. but lID' limited to, attorneys' fees, property lnspection and valuation fees. In regard 10 any other fees, (he absence of apress authority in this Security [nskum~nt to charge !I specific fee to Borrower sbaII not be construed as a prohlbition OB the charging Itf such fee. Lender may Dot charge fees thaI are expressly prohibited by tIlis Security lnstnunent or by App1kable Law.

n the Loan is sutijed to a .... w which sets maximum loan ebarges, and thid law is finally interpreted so thai the mteresl or other loan charges collected or to be collected in COIUJection with the Loan exceed the pcrmiltecl ihnlts, then: (a) any SlICilloan d!aJ:ge slBll be reduced by the llIJI()l1Dt necessary to roluce the charge to !he petmitted limi1; and (b) any sums already ca1lceled from Borrower which exceeded permitted Umits will be refunded te Borrower. Lender may cheese to make this refund by reduciag Che principal owed under the Note or by making a direct payment to Borrower. [f a refWld reduces principal. the reduction will be treated as a parlial prepayment without any prepayment charge (whether or not a I'repaYllll:Dt charge is provided for under the Note). Borrower's aa:eptance of any such rerund made by direct payment to Borrowa' willl:onstitute a waiver of any right of action Borrower might have arising out of sudt oven:harge_

15. Notka. All notices given by Borrower or Lender in cennectlon with this Security lnstrumenl must be ill writing. Any notke to Borrower In connection wilb this SecurlI.y Instrument shall be deemed to have been given to Borrower whet! mailed by nrst class mail Dr wbeI1 actually delivered to BolTQWt!r's notice address if sent by otber means. Notice to anyone Borrower shan c:onstUote nolice to all Borrowers. ualess ApplIcable Law expressly reqUke5

CALIFORNIA-Sinqle Family-Famie Mae/Freddie M1IC UNIfORM INSTRUMfNT • MERS

form 3005 011t1f Page 9 of 14

Public Record

Order: Non-0rder Search Doc: RV:2006 00853245

Page 9 of 18


otherwise. The notice address shall be the Properly Address unless Borrower has designated a substilute notice address by notice to Lellder. Borrower sbaIl promptly notify Lender of Borrower's change of adllress. If Lender specifies a procedure for reporting Borrower's change ofaddres.s. the. Borrower shall only report a ch;mge of address through lhat specified procedure. 'I'here may be only one desptecillOtice address under this Seoorl1y lnstrumenl at anyone Urne. Any notice 10 lender shaH be given bydelive:ring It or by mailillgit by fJrSf c1assmalJ to Lender's addresssiated herein unless Lender has des~ed aBOther address by notice II} Barrower. Any notice ill connection wi& fhis Seanity Instrument shall not be deemed tollaV!! been given to lemler untiI actuaIly received by Lender. If any notice required by this Security Ins.tnunent is also required WIder Applicable Law. lbe Applicable Law requirement will satisfy tfle corre.spondhlg requitemeot under this Seauily lmtnunent.

16. CovemiDg Law; Severabi6ty; Ruie5 of Construction. This Sewrity Instrument shaH be governed by federal1aw and the law of the jurisdiction in whic:h the Property is located. All rights and obligations cuRtained in this Security Instrument are subject to any reqolremenlS and limitations of AppHcable Law. App1iable Law mighl explicilly ()C implidtly allow Ihe parties to agree by contract or it might be silent, but such sUeDce shall not be construed as a prohibition agaiBst agreement by contract. [n the event that any provi-;Ion or clause of this Security Instrument or !he Note confJkrs with AppliCllble Law. such conflict shall nOI affect other provisions of this SeoulI)' Instrument or the Note whidi an be given effect withoot !he conflicting provisiOJl.

As used in this Sec:urily lnsIrument (a) words of the masculine gender shall mean and include corresponding neuter words or WOlds of the feminine gender; (b) words in the 5lngular shall mean and include tile plural and vice versa; and (c) the wott! Mmay" give'> sole disaetfon witbOlit any obligation 10 lake My action.

17. lI0rr0wer's Copy. Borrower sbaII be given one copy of the Note and of this Security Instrument.

lB. Tramfer of the Property ora lIenefidai Inm-est in Borrower. As used in this Section 18, D Jnterest in the Property" means any legal 01" beneficiallnteresl in the Property, inchl(ling, bet nol limited to, thllK beneficial iaterl!S!s transferred In a bond fill' deed, contract for deed. installment sales conlrad or escrow IIgreement, the intent of whim is the transfer of title by Borrower ;It a future cate to a purchaser.

If all or any part of the Property or any Interest in the Property is sold or traesferred (or if Burrower is not a naturnJ person and a benellcia1 interest in Borrower is sold or transferred) ,,1tJrout Lender's prior wrilten consent. Lender may require immediate payment in full of aD SIlIJIll secured by this Security 1nstrument. However. this option shall not be exercised by Leader if such exerd.se is prohibited by Applicable Law.

H Lender exercises this opliOD, Lender shaJ] give Borrower notiu of acc:eJeralion. The natlce shaH provide a period of not less tha!a 30 diI}'S from the date the Dolke Is given in accordancewilh Seetinn 15 within which Borrower mIlSt pay aU sums secured by this SeCW'itylnslrllmm. If Borrower fails to pay these sums prior to the expiradon of thls period. Lender may invoke any remedres permitted by this Security Inslrument wUhoot fitrther notice or demand on Berrower,

19. Borrower's Right to ReiJlstaceAfter AcceletatioD. If Borrower meets certrlncondilions. Borrowersha1! have the right to have enforcement of this Securily lnslrument discontinued at any lime prior to the earliest of: (a) fille days before sale of the Property pursuanllO any power of sale contained in this Securliy Inslrume»t; (b) such other period as Applicable Law might specify for the tenninaliou of Borrower's right to reinstate; Dr (t:) entry of a judgment eoforcing Ibis Security Instrument. Those conditions are that Borrower: (a) pays Lender aU swns which then would be due under rhis Securily lnstrumeut and the Note as if 110 acceleration had occurred; (b) cures any default of any other covenants or agreements; Cc} pays an expenses Incurred in eafordng lhis Security .Instrument, including. but not limited to, reasonableattnmcys' fees. property inspection and valuation fees. and other fees incurred for the purpose of protecting under's interest in the Properly and riglUs llIlder this Security Instrument; and (d) lakes such action as Lender may reasooabIyreqcdre to assure ,hal Lende£'s laterest in 1he Property and rights under this Security Instrument, and Borrower's obllgalkm to paytbe StUnS secered by this Security InsIrunIeot, shall continue unchanged. Lender may require thai Borrower pay such reinstatement suDl.'i and expenses in one or more of the following forms, as selected by Lender: (8) casb; (b) monel' order; (c) certffiedcheck. bank check, treasurer's check or cashier's check, provided any such med: is drnwn upon an In5titulion whose deposits are insured by a federal agl!llC)', iJIsIrumemaiity orentlty; or (d) Electrmlic Funds Transfer. Upon reirlstatement by Borrower, this Security mstrument and obligations secured hereby shaII remain foUy effective DIi if no acceleratiou.had occurred. HDWever,!IIb right 10 reinstate shall not apply in the case of acceleration under SectioIl18.

CAL1FORNiA-Slngie f'lITU1y-·Fannle Mae/Freddie Mac UNIFORM INSTRUMENT· MERS

form 3005 01101 PIIge 10 Of 14

OocM;Jg;t:~ 1J(J(J.(;"·f:Jrft www.d4Cmagic.t:Om

Public Record

Order: Non-Groer Search Doc: RV:2006 00853245

Page 10 of 18

Created By: aidan Ptinted: 7/2/2009 7:14:51 AM PST

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

20. Sale of Note; Change of LoaD Senicer; Notite of Grievance. The NOie or a partial interest In die Note (Iogether with this Security Instrument) can be sold one Dr more times wilhool prior notlce to Borrower. A sale mi8hl result in a change in the entity (known as the "Loan ServiCfl"") that collects Periodic Payments due ander the Note and this Securily histnunent and perfurms oilier mortgilge lean serviciDg obligations under the NOle. this SetUriIy Instrument. and Applicable Law. Dere also might be one or more changes of tbe Ulan Servicer unrelaled 10 a sale of the Nate. Ifth&e is a cbange of the Loan Servicer, BOtTOWer will be given written oolke of the chan8£! which. will sIlI1e the n;tme and address of the new Loan Servlcer. the address 10. which payroems should be madeand uyother infonooUon RESPA requires in connection with a BOike of transfer of senicing. If the Note Is sold and thereafter the Loan is serviced by a Loon Servicer other than the purchas1!rof the Nole, the mortgage loan semcing obligations to Borrower will remaill with the Loan Servicer or be transferred 10 a successor Loan Servicer and are Dot assumed by the Note purchaser lIDless otherwise provided by the Note purchaser_

Neither Borrower nor Lender may commem:c.join, or be jolned 16 any judicial action (as either an mdividual uugant or the memberof a class) !hat arises from the olber pany's actions pursuant to Ibis Security Instrument ar!bal alleges that the other party has breached any provisiDll of. or any duty owed by reason of, this Security Instrument. UDti1 such Borrower or Lender bas notified !he otherparty (with su.ch notice gi'lenin compliance with the requirements of Section IS) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to lake corredive aeuoe, If Applicable Law provides a time periOd which must elapse before certain action can be taken. that time period will be deemed to be reasonable for ptHJllmS of this paragraph. The Dolite of accelemjon and opportunlly to cure given to Borrower pursuant to SecUon 22 and the notia! of aIXeleration given to Borrower pursu.am ro Section 1 B shaD be deemed kI satisfy the notice and opportunily to take corrective action provisions of thls Section Z6.

Zl. Hazardous ~ubstances. As used in this Section 21: (a) "Hazardous Substances" are those substances defined as toxic or hWrdous substances. pollulants. or wastes by EIlvlronmental Law and the following subslallces: gasoline, kerosene. other flammable or toxic petroleum products. toxic pesticides and herbicides, volatile solvents. materials conlainblg asbestos or fonnaldehyde. and radioactive malerillls; (b) "EnvirolUlleala1 Law" m9JIS federal laws and laws oCthe jurisdlcUOD Where the Property is located Ihal retaie to hearth. safety or environmental protection: (c) "Environmental Cleanup" includes any response action. remedial action, or removal action. as defmed in Euvironmenllll Law: and (d) an -Environmental Condiiionu means tI condition that can caw;e. am1rlbute to, Of

othelWiSe tr:Igger an Envirorunenlal C1e3llUp. .

Borrower- shall not cause or peIJllft I:M presence. use. disposal. storage. W' release of any Hazardous Substances. or Ihreaten to release 3D.Y Hazardous Substances, OIl or in the Property. BolTower shan not do, nor allow anyone else 10 do. aoything affecting the Property (a) that is in vio!.atioll of any EnviromnentaI Law. {b} which creates an EnvirOIlIlIentaJ CondUioD, or (c) which. due 10 the presence. use, or release of a Hazardoos Subslallce, creates a COJJdilion that adversely aErem I1w value of the Property. The preceding two sentences sball not lIPply to the presence, UK. OJ storage OD fhe Property of small quantities of Hazardous Substances that are generally recognized to be appropriate 10 IlOrmaIj residential uses and to maintenance of the Property tmc1uding, but not limited to. hazardous substances in co~mer products).

Borrower shaD promptly give Lender written notice of {a} any Investigation, claim, demand. lawsuilor other action by any govfromental qr regulatory agency or plivace party involving the Property and any HazardOlIs Substance or Eovlronmental Law ofwtdch Borrower has actual knowledge. (b) any Environm.en1al Condition, Including but 1101 limiled to, auy spilling. leaking. discharge. release 01 Ihreat of release of allY Hazardous Subst;mce. and (c) any OJnditioo caused by the presence, use or release of a HaurdOll5 Substanee which adversely affects the value of the Property. If Borrower leams, or is oolifJ.ed by any govttJUDental or reguJatory authorily. or any pri\'3lt party. that any removal Of other remediation of any Hazardous Substance affecting the Property is necessary. Borrower shall promptly take all neeessary remedtal actions in ac:cordancewilh EBvirarunental Law. Nolhing bereln shall crealeany obligation on Lender for aD Enviromnenlal Cleaw1p,

NON·UNIFORM COVENANTS, Borrower and Lender further covenant ;aM agree as follows:

22, Acceleration; Remedies. Lender sball give nOOCB to Borrower prior to acceleration following Borrower' s breach of any covenant Dr agreement In this Security Instrument (but net prior to acceleration under Section 18 unless A.ppticable Law provides otherwise). The notice shall specify: (8) the defaIIlt; (b) the action

CAUFORNIA··$jlfQle Ft:llnily .. Fanni", Ma..JFl1!Iltfi& Mac UNIFORM INSTRUMENT - MERS

Form 300S OllOl Page 11 of '4

C&3OO511.1II'd.11-"'"

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required to CW'e tire defOluJt; (e) a date, not Ia5 than 3t da)'5 from lhe date the ..ruce is JIven to Bonowu. by 'll'hil:k the default must be l:ured; and (d) tIW failure to tun! the default on Dr before the date specified in the notice may result io atteleratien of (he sums 5KUI'ed by this Security Imtnunent and sale of the Property. The notice dlall further inform Borrower of the right to reinstate after aa:el.eratioD and the right to bring a court actioo to assert the oon-emtem:e of a default or any other defense of Borrower to attelecation and sale. If the default is DOt cured on or before tile date $pec:ifttd in die ootIce. Lender- at its: option may require imJDediate paymeol jo fuDof an swns ste:Uf"ed by thJs Seruruy Iostnuuent without furtberdemand and may iJ:n'oke tire power of sa1e and any other mnedi.es permitted by App6cabJe Law. Lencler sb;dl be entitled to coDed all upensesin~ In pursuing the remedies provided In this Section Z2. including. but not limited to. re.asonabfe attorneys' fees and aII5ts oftide evidenu.

If Lender invokes the power of sale. Lender sball execute or cause Tmst~ to execute a written notice of the oa:ut'IUft of an event of default and or Lender's election to calISe the Property to be $Old. Trw;t~ shall a.use chis IWdte tv be ret:OI"ded in each county in wb1ch allY part of the Property is louted. Lender or Truske shaD mail HpHs of the DOtice as prescribed by Applicable Law to Borrower ami to the odter persons presaihed by Appliuble Law. Tnastee shall give public nolk:e of sale to the persons and in the manuer prescribed by ApplieabJe Law. After tile lime required by Applicable Law. Trustee. wUhout demand 00 Borrower, shaD seU tbe Property at public llllCtiOO to the higbert bidder at the lime and place and under the tenns designated in the notice of sale in one or more parcels and 10 any order T rustt!l! determina. Trustee may postpone sale of aD Dr any parcel of tbe Propeny by public annoum::e_t at the tleae and place of any profeusly sl'heduIed saJe. Lender or its designee may purchase the Property at any sale.

Trustee shall deliver to the purclJaser Trustee's deed conveying die Property without any covenant Dr WaJTllruy. expl"essed or implied. The recitals in lhe Trustee's deed shall be prima fade evideuce of the (ruth of the statements made therein. Trustee shaD apply the preeeeds ~f t~ sale in ~ followiag order: (a) to aU expenses of die wec. indudiDg. but om limited to. reasonable Trustee's and attorneys' fees; (b) to all sums secured by this Security Instnunem; and (c) any excess to the penoo or persons legalJy entitJed to it.

21. Rtcouveyance. Upon paymentohll Slims secured by !his Security Instnuneot, Lendetshall reque.stTflISlee to ieconvey the Property and sbal1 SUlftJlder this Secncily Instrument and aD notes evidencing debt se<:ured by tbfs Security InstromeJlt 10 Trustee. Trustee shall reconvey !he Property without warranty to lhe person or persons legally entitled to It. Lender may charge such person or persoos a reasonable fee for reconveying the Property. but only if tbe fee is paid to a third party (sucb as lhe Trustee) for servlees rendered and the charging of the fee is permJlled under Applir.:able Law. If the fee charged does not exceed the fee set by Applicable Law, the fee is coocluslvely presumed to be reasonable.

24. Sub5litute Trustee. Lender. al its option. may from time to lime appOint a suceesser trustee to;my Trustee appointed hereulMler by an instnImem executed and admowledged by Lender and recorded In the office of the Recorder of tbe coanty In which the Property is located. Tbe iJl.strument shall conlaiD the name of the original Lender, Trustee and Borrower. the bOGk and page where Ihis Security Instrument is recorded and the name and address oftbe successor trustee. Witb.ollt 4:ODveyance of the Property. the sua;esSor trustee shall 511«eed to all fhe tit1e. powers and dillies cosferred upon the Trustee herein and by Applicable Law. This procedure for substituLion of trustee sIuill govern to the exclusion of all other provisions for substitution.

25:. Statement of Obligation Fee. Lender may colled a I"ee not 10 exceed the maximum amount permitted by Applkable Law for fumi<ihiog the statemenl or obligalion as provided lIy Section 2943 of the Civil Code of California.

CAUfORNIA-SingIa FamUy-Fanni& Mae/Freddie Mac UNIFORM INSTRUMENT· MER$

Form 3005 01101 PagB 12 of 14

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Page 12 of 18


BY SIGNING BELOW, Borrowel"-8cccplS and agrees to the lenns and coveoanlS cootalnerl in this Secnrily Instrument and in any Rider exeaJted by Borrower ad recorded wiili it

~i1Mr W<J)~r --=-(Seal)

BRIAN fI-"'1'n:II V~ DAVIES ~~orrower -Borrower

(Seal.)

-Borrower

(Seal) -Borrower

--------~----------~~o

-Borrower

(Seal) -Borrowcr

Witness:

Witness:

CALWORNlA-Singie Family-Fannie MaelFreddie Mac UNifORM INSTRUMENT - Ml;;RS

Form 3005 01/01 Page 130114

Public Record


Page 13 of 18


State of Ca1lfonlia

County or ~\ Vt{t> { t> <L-

On " - i& -(,lb

)

~~. u, ;;, II Ge "--0VBe·~ (1l(.i'1'ft(t.1:~ c)

!.Iefore me, F,I&'II

personally ap,eanti BRIAN DAV IE 5 v.

.

pelSOnaIJy known to me (or proved to me on the basis of satisfactory evidence) to be the pel'SODJ,sf whose mme(s) W_subscribed to !be wH.hiB instrument and acknowledged to me tb:a.t helsIIeMey elIecuted are same in hislJJefAbeif authorized captcilyw, and .hat by IIWhrIdretr signatarer,J DO the instrument the person~. or the eot.ily upon befIaIf ofwbkh me person~ acted. eseeeted the insmnn.ent.

WITNESS my bnd and officIal seal.

(Typed Name of Notary)

NOTARY SEAL

CALIFORNIA •• Singlll FaJlllly--Fanttia Maelfreddte Mac UNIFORM INSTRUM£NT - ME.RS

Form 3005 01101 Page 14 of 14

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Page 14 of 18

Created By: aidan Printed: 7/2120097:14:51 AM PST

Loan Number:

PLANNED UNIT DEVELOPMENT RIDER

THIS PLANNED UNIT DEVELOPMENT RIDER Is made this 16th day of

NOVEMBER, 2006 , and is illcorpor.tl£d into and shall be deemed la amend and

supplement. the Mortgage. Deed of Trust, or Securily Deed (tbe "Security Inshument"] of !he same d;tle, given by the umlersigned (tile "Borrow~"J (0 secure Borrowe£'s Note 11) UNIVERSAL AMEIUOIN MJRrGAGE: CCMPANY OF CALIFORNIA. A CALIroRNIA CORKlRATlOO

(the "Lender') of !he same date ami covering tile Property desaibed in the Securlly Ins!nuneut and located at~

43-277 SENTIERO DRIVE, INDIO, CALIFORNIA 92203

p'roper1y AddressI

The Property includes, bu1 is not limited 10, a panel of land improved with a dwelling, together with other such p«:e1s;uK!: cel1ain common areas and facilities, as descn"bed in

COVENANTS, CONDITIONS AND RESTRICTIONS OF RECORD

(the "Declaration"]. The Proper1y is a part of a planned Wlit deve1npment known 3S

MARQUE SA

[Name nf Planned Unlt De~dopmenll

(the ·PUD"). The Property also includes Borrower's Interest in the bcmeowners assoclatlon or equivalenl entity owning or managing the common areas ami f3dli1ies of the PUD (the ·Owners Association' and the uses. beoeflfS and proceeds of Borrower's interest.

PUD COVENANTS. In addilioo to !he awenauts and agreements made in the Securily Instrument.

Borrower and Lender furdler covenant and agree as follows:

A. PUD ObligationS. Borrower shall perform all of BoJT6~r's obligations under the PUD's CODSfituent Doalments. The "ColIStituent Dccuments" are the (1) Declaration; (ii) articles of Incorporation. !nISt Instrumenl or any equivalent doonnenl which creates the Owneri Association; and (ill) any by·Jaws or oilier rules or regulations of tbe Owners Association. Borrower shaI.I promptly pay, when due. all dues and assessments impoSed pursuant to tbe Constituent Documents.

B. Property Insurance. So 10llg as the Owners Association mainlalns. with a gl!neI1lny accepted insarance carrier. a "masler" or "blanket" polit:y insuring the Property which is satisfactory to Lender and which provides insurance c:overage in the amounts (including deductible levels). for the periods. and against loss by fire, halanfs included within the term "extended covernge. ~ and any other hazards, iDcludl.ng. but not limit~ to, earthquakes and floods, for whk:h Lender requires inSlIl3Jl(:e, then: (i) Lender waives the provisioo in Section 3 for the PerlOOJc Payment to Lender of the yearly premiIUU im!allments for property iwiUJaDCe on the Property; and (li) Borrower's obllgalion under Seetloe 5 to maintain property Insurance (overage on the Property is deemed satisfied 10 the extellt that the required coverage is provided by the Owners Association polity.

MlILTISTAT.E PUD RIDER-SinQIe Family. Fannie.Maelhedclie Mile UNifORM INS'mUMENT

Fam 31S0 ilO1 Pags , Qf 3

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Created By: aidan Printed: 712/20097:14;51 AM PST

Wbat Lender requires as a condition of this waiver em chuge during tfJe term of the loan.

Borrower shall give Lender prompt notice of any lapse in required property Insurance coverage provided by the ID3S1er or blanket polity.

In the event of a distributlon of propeI1y jnsurance proceeds in lieu of res:loratioo or repair following 3 less to the Propel1y. DC 10 commlMlaI'eU and facilities of the PUD. any proceeds plIyable to Borrower are llcreby assigned and sha1I be paid to Lender. Lender shall apply the proceeds 10 the sums secured by the Secwily Instrument, whether Of nnt then due. with the excess. if any, paid to Borrower.

C. Public liability Insurance. BOlTower shall take snch actions as may be reasonable 10 insure that the Owners Association IJlaUItains a public 6abilliy Insurance polk:y acceptable in form, amounl, and extent of coverage to Lender.

D. Condemnation. The proceeds of any award or claim for damages, direct Dr consequential, payable to Borrower in conoection with .ay condemllali.on or other taking of all or any part of the Property OJ the mmmon areas and facilitles of the PUD, or for aay conveyance in lie .. of condemnation. are hereby assigned and shaD lie paid 10 Lender. Such proceeds shaIJ be applied by Lender 10 the sums secured by the Security Instrument as provided in Section 11.

E. Lender's Prior Consent. Borrower shall. DDt. except after notice to Lender and with Lender' 5 prior written consent, either parCition or subdivide the Prllperty or consent 10: ~) the abandonment or 1ermination of lbe run. except. for abandorunent Of termiDation required by law in the case of subslantial deruuction by fwe or oilier casualty or 1D the case of a taking by condemaauen Dr eminenl domaill; (ll} any amendment to any provi.:sion of the HConstituent Documents" if I~ provisinn is for the express benefit of Lender; (fu1 (ermination of professional management and assumption or :self-management of the Owners Assoclalion; or (IV) any action which would have the effed of rendering the public liability insurance coverage maintained by the Owners Association WlOlCCe(llable to Lender.

F. Remedies. IfBarrower does not pay pun dues and assessments wben due, then Lender may pay tbem. Any amouets dJsbUISed by Lende£ under this paragrapb F shall become additional debt of Borrower secured by tbe Security lnstrument. Unless Borrower and Lender agree tn other terms of paymenl, these amounts shall bear inferes( from the date of disbursement al (he NOh: rate and sIiall be payabk. with interest. upon Dolice from Lender til Borrower requestillg payment .

. MULTISTATE PUD R1DER .. Single Family

Fannie M.,elFreddlll Mac UNIFORM INSTRUMENT

Form 3150 1 f01 Page 2 of 3

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BY SIGNING BELOW. Borrowt!r accepts and agrees 10 the terms and covenants contaiDoo in this PUD Rider.

-- ~ __ _;::_ (Seal)

-Borrower

----------------------~~B~~2

------------------~(~ij

-Borrower

__________ _=__ (Seal) -Borrower

(Seal)

-Berrower

MULllS1ATE PUD mDER-Sinqle Family

Fannie MaalFtoddie Mac UN1FORM INS'"J'R\lMENT

Form 3150 1/01 Page 3 Qf J

Public Record

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Page 17 of 18

Created By: adan Printed: 7/2/2009 7:14:51 AM PST

. ,

EXHIBIT·A" (LEGAL DESCRIPTION)

PAACB. NO.1:

lOT 75 OF TRACT NO. 31601-4, IN THE CITY OF INDIO, COUNTY Of RIvERSIDE, STATE OF CAUfORNIA, AS PER MAP ALED IN BOOK 391. OF MAPS, AT PAGES 35 THROUGH 38, INct~ IN THE OFFICE OF THE COUNlY RECORDER OF RIVERSIDE COUNTY.

PAReR NO.2:

.

AN EXCLUSIVE EASEMENT APPURTENANT TO P~L 1 ABOVE, FOR PEDESTRIAN AND VEHlClAAR ACCESSJ YARD PURPOSES. lANDSCAPING MAINTENANCE, AND lJT1UTY PURPOSES INOOENTAl THERETO IN, ON, OVE~ UNDER.. ACROSS AND THrtouGH THOSE PORTIONS OF LOTS 52 n-IROUGH 59, INClUSIVE, AND LOTS 73 THROUGH 79, INa..u51'Y'E. OF SAID TRACT NO. 31601~4 THAT ARE ADJACENT TO AND UE BETWEEN THE LOT liNE OF THE FOREGOING LOT AND TIlE PRIVATE STREET ADJACENT THERETO, AS SHOWN ON THE TRACT MAP.

, Public Record


P<Jge 18 of 18


1 T

&N: 100059600080428639 Loan Number:

INTEREST .. ONLY PERIOD FIXED RATE NO

NOVEMBER 16, 2006

[0<1001 •

PAk~ SPRINGS !Cily!

CALIFORNIA (Stltej

43-277 SENTIERO DRIVE, INDIO, CALIFORNIA 92203 [PrtJpI!l1y AddrlJssj

1. BORROWER'S PROMISE TO PAY

In return for a loan that I have received. I promise to pay U.S. $ 441, 350 • 00 (this amount is

called "Principal "), plus interest. to the order of the Lender. The Lender is PNI VERSAL AMER I CAN MORTGAGE COMPANY OF CALIFORNIAT A CALIFORNIA CORPORATION

I will make all payments under this Note in the fonn of cash, check or money order.

I understand !hal the Lender may transfer this Note. The Lender or anyone who takes tIlls Note by transfer and who is entitled tn receive payments under this Note is called the "Note Holder. "

z. INTEREST

. Interest will be charged on unpaid principal until the full amount of Principal has been paid. I will pay interest

at a yearly rate of 6.500', %. .

The interest rate required by this Section Z is the rate I will pay both before and after any default described in

Section 6(B) of this Note, .

3: PAYMENTS

(A) Time and Place of Payments

, I will make a payment every month. This payment will be for interest only for the fim 12 0 months. and

then will consist of principal and interest.

I will make my mondlly payment on the 1 s t. day of each month beginning on JANUARY 1 •

2007 . I will make these payments every month until I have paid all of tbe principal and interest and any other charges described below that I may owe under !his Note. Each monthly payment will be applied as of its scheduled due date, and if the payment includes both principal and interest it will be applied to interest before Principal. If. on DECEMBER 1, 20 36 . I sUU owe amounts under this Note, I will pay those amounts in full on that date. which is called the "Maturity Date. "

Iwillmake~monthlypaymentsat 7QO NW 10TH AVENUE, 3RD FLOOR, MIM4I, FLORIDA 33172-3139

or at a different place if required by the Note Holder. (B) Amount of Monthly Payments

My monthly payment will be in the amount of U.S. $ 2,390.65 this Note, and thereafter will be in the amount nfUS. $ 3,290.59 prior to the date of change in monthly payment.

for the flfSt 12 Q months of . The Nate Holder w!ll notify me

4. BORROWER'S RIGHT TO PREPAY

I have the right to make payments of Principal at any time before they are due. A payment of Principal only is known as a "Prepayment." Wben I make a Prepayment. I will tell the Note Holder in writing that I am doing so. fmay not designate a payment as a Prepayment if I ha'ffl Dot made all !be monthly payments due under the Note.

I may make a full Prepayment or partial Prepayments without paying a Prepayment charge. The Note Holder will use my Prepayments to reduce the amount of Principal that I owe under this Note. However, the Note Holder may apply my Prepayment to the accrued and unpaid interest on the Prepayment amount, before applying my Prepayment to reduce the Principal amount of the Note. If I make a partial Prepayment. there will be no changes in the due date of my monthly payment unless the Note Holder agrees in writing to those changes. However, if the partial Prepayment is made during the period when my montbly payments consist only of interest, the amount of the monthly pa.yment will decrease for the remainder or the term when my payments consist only af interest as well as during the time that roy payments consist of principal and interest If the partial Prepayment is made during the period when my payments consist of principal and interest, the amount of roy monthly payment will not decrease; however, the principal and the interest required under this Note wiD be paid prior to the Maturity Date.

MUl1lSTAT£ lIiiTEREST-ONlY PERIOD RXED RATE NOTE SlngIe family - Fannie Mae UNIFORM INSTRUMENT

Foon 3271 1/01 (rev. 09f(6) Page 1 of 4

DOdtftIgic; ~ QOO.64Sor 3&2 www.dtx:magic.com

U<3ZllLoo:.U ...

be required to make immediate payment in full of all amounts lowe under this Note. Some of those conditions are described as follows:

If all or any part of the Property or any Interest in the Property is sold or transferred (or if Borrower is n~ a natural person and a beneficial interest in Borrower is sold 01 transferred) without Lender's prior written consent, Lender may require immediate payment in full of an sums secured by this Security Instrument However. this option shan Dot be exercised by Lender if such exercise is prohibited by

Applicable Law. .

If Lender exercises this option. Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date tIle notice is given in accordance with Section 15 within which Borrower must pay all sums secured by this Security Instrument If Borrower fails to pay these sums prior 10 the expiration of this period. Lender may invoke any remedies permitted by this Security Instrument Without further no lice or demand on Borrower.

MULTISTATE INTEREST-ONlY PERIOD FIXED RATE NOTE Single Family· Fannie Mae UNIFORM INSTIWMENT

him l2711f01 (rev. 09106) ppge 3 of 4

Dot:Magic ~ llO(Uj~I:162 WWW.docm;lgic.com

Case 6:10-bk,.37900-TD

Doc 22 Filed 09/12110 Entered 09/12/10 18:34:20 Desc


B6D (Official Form fill) (12167)

In re

Brian William Oavies

Case No. 6: 1 0-bk-37900

Debtor

SCHEDULE D - CREDITORS HOLDING SECURED CLAIMS

State the name, mailing address. including zip code. and last four digits of any account number of all entitles holding claims secured by property of the- debtor as of the date of filing of die petition. The complete account number of any account the debtor has with the creditor is useful to the trustee and the creditor and may be provided if the debtor chooses 10 do so. List creditors holding all types of secured interests such as judgment liens, garnishments, statutory liens, mortgages, deeds of trust, and other security interests,

List creditors in alphabetical order to the extent practicable. If a minor child is a creditor. the child's initials and the name and address of the child's patent Of guardian, such as "A.B., a minor child, by John Doe, guardian," Do not disclose the child's name. See, 11 U.S,c. § 1 U and Fed. R Bankr. P. lOO7(m)_ If all secured creditors will not fit on this page, use the continuation sheet provided,

If any entity other than a spouse in a joint case may be jointly liable on a claim, place an "X" in the column labeled "Codebtor" ,include the entity on !he appropriate schedule of creditors, and complete Schedule H - Codebtors, If a joint petition is filed, state whether the husband, wife, both of them, or tbe marital community may be liable on each claim by placing an "W, "W", "J", or "C" in the column labeled "Husband, Wife, Joint, or Community".

Ifthe claim is contingent, place an "X" in the column labeled "Contingent". If me claim is unliquidated, place an "X" ill tne column labeled "Unliquidated", If the claim is disputed, place an ''X'' in the column labeled "Disputed". (You may need to place an "X" in more than one of these three columns.)

Total the columns labeled "AmOlmt of Claim Wilhom Deducting Value of CnUatenl" and "Unsecured Portion, if Any" in the boxes labeled "Tojal(s}" on the last sheet of the completed schedule. Report the rota! from the column labeled "Amount cf'Claim" also On the Summary of Schedules and, if the debtor is an individual with primarily consumer debts, report the total from 1he column labeled "Unsecured Portion" on the Statistical Summary of Certain Liabilities and Related Data.

D Check this box if debtor has no creditors holding secured claims to report on this Schedule D.

C Husband Wife Jornt, or Community C 1I D AMOUN"TOF
CREDITOR'S NAME 0 0 1\1 J CLAIM
D H DA TE CLtl.IM WAS INCURRED, N L s UNSECURED
A ... ND 1fAILING ADDRESS E T I p WITHOUT
INCLUDING ZIP CODE, B w NATURE OF LIEN, AND I Q u DEDUCTING PORTION, IF
AND ACCOUNT NUMBER T J DESCRWTION AND V ALUB III u T VALUE OF ANY
0 G OF PROPERTY G ! E
(See instructions above.) R SIJBJECT TO LIEN E D D COLLATERAL
III A
Account N(L 0427 Purchase Money Security T T
E
D
tM. Chait Gallery ArtWork
9330 Civic Center Drive
Beverly Hills, CA 90210 -
Value $ 0.00 31,588.00 31,588.00
Account No. 2863 1 st Mortgage
Universal American Mortgage APN: 601-710-020
43277 Sentiero Dr
K&L Gates, LLP 1 indio, CA 92203
10100 Santa Monica Blvd -Persona! Residence
7th Floor Foreclosure Process
Los Angeles, CA 90067 Value $ 251,976.00 510,000.00 258,024.00
Account No. 4463 2nd Mortgage
Universal American Mortgage APN: 601-710-020
43217 Sentiero Or
K&L Gates, LLP Indio, CA 92203
10100 Santa Monica Blvd - Personal Residence
7th Floor Foreclosure Process
Los Angeles, CA 90067 I Value $ 251,976.00 110,000.00 110,000.00
Account No.
,
I
Value $
Subtotal 651,588.00 399,612.00
0 continuation sheets attached (Total of this page)
--
Total 651,588.00 399.612.00
(Report on Summary of Schedules) SOftware CopyJight (e) 19%·2010 • Best case Solutions - Evanston, IL - www.ooslcas6.oom

RECORDING REQUESTED BY RSM&A Foreclosures Services

WHEN RECORDED MAIL TO:

RSM&A Foreclosures Services Attn: BK Dept

43252 Woodward Avenue, Suite 180 Bloomfield Hills, MJ 48302

Trustee Sale No. lOCA00987~ I

Space above this line for recorder's use only

ASSIGNMENT OF DEED OF TRUST

FOR V AL15E RECEIVED, the undersigned hereby grants, assigns and transfers to Deutsche Bank National Trust Company. as Trustee of the Residential Asset Securitization Trust 2007~A5. Mortgage Pass-Through Certificates, Series 2007 -E under the Pooling and Servicing Agreement dated March 1,2007. all beneficial interest under that certain Deed of Trust dated November 16, 2006, executed by Brian W. Davies a single man, as Trustor; to Universal American Mortgage Company, LLC, as Trustee; and recorded November 17,2006 as Document Number: 2006-0853245 of official records in the office of the Recorder of Riverside County, California.

TOGETHER with the Note or Notes therein described and secured thereby, tile money due and to become due thereon, with interest, and all rights accrued or to accrue under said Deed of Trust including the right to have reconvey ,in whole or in part, the real property described therein.

Mortgage Electronic Registration Systems, Inc. as nominee for Universal American Mortgage Company of California

BY'"

STATE 0

COUNTY OF __ TU ...... IIl!J.I:. _

Autumn BarroW

On before me, , a Notary Public in and for said county,

perso Uy peared Brian Burnett , Agsi&tant Viee Pres:!--~.---

personally known to me (or proved to me on the basis of satisfactory eVidence) tObe tlie person(s) whose

name(s) is/arc subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacityfies), and that by his/her/their signarurets) on the instrument the

persorus), Or the entity upon behalf of which the person(s) a . m nt.

WITN hand and official seal,

_ otary Public in an for said County and State Property Address: 43277 SENTIERO DR, INDIO, CA 92203

Client: OneWest Bank, FSB

..

* *

BK_Doc_Exec

Date Printed: 09/16/2010

Printed From Server: NIMPDF14

PM Ref rd: 276731466 09/16/2010 11: 31 AM

NIE ID: 20976926

(5416349)

F.eferra1 Type: Signatcxe Requi red

Referral Date; 09/16/2010

PM Selected Doc Type; ASSIGNMENT OF DEED OF TRUST

PM Entered Doc Type;

File Name: aSSignment. doc 09/16/2010 11:32 AM Doc rd: 176834"354)

Borrower Name; BRIAN DAVIES

Attorney: RSM&A Foreclosure Services, LLC

Filing State: CA

(Ref Doc Id: 79212433}

Comment: Please execute and return to our office. Thank you.

Loan Number: 3002654055

(Img


) CASE NO. INC. 090697 )

)

)

--~-----------------------}

)

) PLAINTIFF REQUEST FOR JUDICIAL

) NOTICE OF MORTGAGE ELECTRONIC

~ REGISTRATION SYSTEMS, INC. "MERS" ) FEDERAL SUBPOENA RESPONSE

)

)

)

» [FILED CONCURRENTLY WITH PLAINTIFF'S 1) OPPOSITION TO DEUTSCHE BANK NATIONAL

» TRUST COMPANY'S DEMURRER AND 2) MOTION

TO STRIKE, 3) PLAINTIFF'S REQUEST FOR

) JUDICIAL NOTICE OF BANKRUPTCY [DOCKETS

» 29, 29, 64], 4) REQUEST FOR JUDICIAL NOTICE OF ) ORDER DATED 11/14120061ND 088844.]

) HEARING APRIL 28, 2011

)

) ROOM 2H 8:30 AM

~ HONORABLE RANDALL D. WHITE

) )

------------------------------)

Plaintiff, Brian W. Davies, pursuant Federal Rules of Evidence, Rule 201, and

4 5 6 7 8 9

10 11 12 13

Defendants.

1 BRIAN W DAVIES



3 FAX 949-891-0148 B.DAVJESl\1Q@_GMAILCOM


14


15

Plaintiff,

16

-vs.-

17

NDEX WEST LLC; DEUTSCHE BANK 18 NATIOf~AL TRUST COMPANY, AS TRUSTEE OF THE RESIDENTIAL 19 ASSET SECURITIZATION TRUST 2007-A5 MORTGAGE PASS THROUGH CERTIFICATES,

20 SERIES 2007-E UNDER THE


22 A DIVISION OF ONEWEST BANK, OPTEUM; UNIVERSAL AMERICAN MORTGAGE COMPANY OF CALIFORNIA; MORtGAGE ELECTRONIC

24 REGISTRATION SYSTEMS, INC.; UAMC LLC; DOES 1-20

21

23

25 26

27 28

California Evidence Code §§ 452,453 hereby requests that the Court take "Judicial Notice" of a subpoena issued on 11/05/2010 to Mortgage Electronic Registration System

PLAINTIFF REQUEST FOR JUDICIAL NOTICE OF MORTGAGE ELECTRONIC REGTSTRATION SYSTEMS INC "MERS" SUPOENA RESPONSE

1 2 3 4 5 6 7 8 9

10 11 12

13

14

15 16 17 18 19 20 21 22 23 24 25

Inc, "MERS" under Debtor's Chapter 7 filings and the response thereof dated December 2, 2010 and attached as production of documents by Mortgage Electronic Registration System Inc. (hereinafter "MERS") pursuant to the subpoena issued on November 5, 2010, hereby attached as Exhibits A and B.

EXHIBIT A:

Attached herewith is true and correct copy of MERS' responses and audit trail within MERS' records showing its agency relationship with its members and records of beneficial interest transfers since November 27,2006.

The Deed of Trust recorded in the official records of the Riverside County Recorder's Office on November 17, 2006 as Document No. 20060853245 and corresponding purported security interest in the real property by Universal American Mortgage Company of California.

EXHIBIT B:

MERS' records indicated that Universal American Mortgage Company of California was not a member of MERS and there was no agency relationship derived therefrom. Information was obtained via intemet from MERS and available at: https:llwww.merson line.org/merslmbrsearch/mbrsearch.htn"L

Page 1: MERS membership search.

Page 2: Search string of Universal American Mortgage Company of California.

Page 3: Search result

Page 4: Alternate search string of Universal American Mortgage. Page 5: Search result

Dated: APRIL 2, 2011

Wherefore the Plaintiff Debtor respectfully requests the aforementioned Documents to be

Judicially Noticed.

l

0v~w~

26 Respectfully Submitted,

27 APRIL 3, 2011

28

BRIAN W DAVIES

P~TIFF REQUEST FOR JUDICIAL NOTICE OF MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC "MERS" SUPOENA RESPONSE

'~/#Ii 1:.., ®

Process loans, not paperwork.SM

December 2,2010

Via e-mail and US mail

Robert L. Firth

30877 Date Palm Drive, Suite 3B Cathedral City, CA 92234

Re: MERS Subpoena response In re: Brian W. Davies

U.S. Bankruptcy Court Central District of California

Dear Mr. Firth:

This letter is in response to the subpoena in connection With the above referenCed matter served on Mortgage Electronic Registration Systems, Inc. (~MERS") on or about November 5, 2010.

MERS objects to the Subpoena on the grounds that the Subpoena is overty broad, unduly duplicative, and seeks documents not within the possession of MERS and/or information not reasonably calculated to Jead to the discovery of admissible evidence.

I

Subject to the aforementioned objections and without waiving the same, MERS produces the encfosed documents (MIN Summaries and Milestones) relating to the following Mortgage Identification Numbers ("M1Ns·):

1000596-0008042863-9

1000596-0008044463-6

1818 library Street, Suite 300· Reston, VA 20190 • 800-646-MERS {63nJ • www.mersinc.org

1112

Exhibit A

MERS responds that the entities referenced in the enclosed Milestone& were members of MERS during the time toens were tracked on the MERS® System.

The MERS® System is an electronic registration and tracking system and is not a vehicle used to create or transfer beneficial interests in mortgage loans. Notes, assets, mortgages, deeds of trust or other security instruments are not electronically transferred using the MERS® System.

The enclosed documents reflect only the MERS Members' tracking of transfers which occur outBids of the MERS® System. Legal or beneficial interests or rights in the subject mortgage Joans tracked on the MERS® System do not modify or supersede any agreements between MERS Members who possess an interest in any mortgage loan registered on the MERS® System. MERS is not a system of record and MERS is not a repository for documents and other records pertaining to mortgage loans registered on the MERS® System.

By responding to this Subpoena MERS is not attesting to the truthfulness or accuracy of the information contained in the enclosed documents. Nothing stated herein (or the documents produced herewith) shall be construed as an admission by MERS as to the relevancy or admissibility at trial of any information provided or the documents produced in response to this Subpoena.

Sincerely,

~~

And raw L. Marmion Counsel

Ene!.

2/12

ExbibitA

121212010

MIN SUMMARY

Summary IOOO596~0008042863~9

43 -277 SENTIERO DRIVE lNDIO, CA 92203

Reg Dare

County

Primary Borrower PoolNurnber Note Amount Servicer Custodian Investor

S ubservicer

Interim Fmder

Originating Organization Property Preservation Co.

Batch N umber Transfer Type No Pending Batches!

Active (Registered)

Foreclosure pending (Option 2), retained on MERS MOM

First Lien

11127/2006

Riverside QR

DA~,BRlAN SSN

N/A Investor Loan Number

$441,3 50.00 Note Date

1008171 - One West Bank, FSB

1000648 - Deutsche Bank National Trust Company

1001425 - Deutsche Bank National Trust Company as Trustee N/A

NJA

NJA

N/A

Pending Batches

Status

TransrerDate

N

N/A 11/]612006

Sale Date

1/1

3 J 12

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

Exhibit A

12/212010

MILESTONES for 1000596-0008042863·9

Description Date

Foreclosure 0711612009 Status

Update

Transfsr 0312912009

Seasoned

Servicing

Rights

Transfsr 1112612007

Beneficial

Rights-

Option 2

Transfer of 06/27/2007 Flow

TOSITOB

Servicing

Right<;

Initiating Organization I User

1008171 OneWest Bank:. FSB Batch

Milestone lnfonnation

MIN Status: Active (Registered) Foreclosure Status: Foreclosure Pending

(option 2), retained on N.lERS

Quality Review: N

1000554 FDIC as Receiver fur IndyMac Federal MIN Status: Active

Bank. FSB (Registered)

Batch NewServicer: 1008171 OneWestBank, FSB Old Servicer.l 0005 54 FDIC as Receiver fur IndyMac Federal Bank, FSB

Batch Number: 6186817 Sale Date: 03(1912009 Transfer Date: 0311912009

1000554 FDIC as Receiver .101' IndyMac Federal MIN Status: Active

Bank, FSB (Registered)

Batch New Investor. 1001425 Deutsche Bank National Trust Company as Trustee Old Investor: 1000554 FDIC as Receiver fur IndyMac Federal Bank, FSB

Batch Number: 5116456 Transfer Date: 1112612007

MIN Status: Active (Registered)

New Investor: 1000554 FDIC as Receiver fur IndyMac Federal Bank, FSB

Old Investor: 1001358 Orchid Island 'IRS, LLC Batch N tunber: 4717391 Transfer Date: 0612712007

1001358 Orchid Island TRS, LLC

Barbara Cogura

1/2

4/12

Exhibit A

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

12/2/2010
Trarsfer of 0612712007 MIN Status: Active
F10w Barbara Cogura (Registered)
ros/roa New Serveer: 1000554
Servicing FDIC as Receiver fOr
RJghts IndyMac Federal Bank,
FSB
Old Servicer: 1001358
Orchid Island 1RS. LLC
Batch Number: 4717391
Sale Dare: 06127/2007
Transfer Date: 0612712007
Warehouse 01104.12007 1000596 Universal American Mortgage :MIN Status: Active
Gestation Company, U.C (Registered)
Lender Batch Old: 1002652 Bank One,
Removed NA (Conduit)
Transfur Date: 0110312007
Transfer of 01/0412007 1000596 Universal American Mortgage MIN Status: Active
Flow Company, ILC (Registered)
TOSIIOB Batch New Investor: 1001358
Servicing Orchid Island 1RS.lLC
Rights Old Investor: 1000596
Universal American
Mortgage Company, LLC
Batch Number: 413111 0
Transfer Date: 01/03/2007
Transfer of 01/0412007 1000596 Universal American Mortgage MlN Status: Active
Flow Company, ILC (Registered)
TOSrrOB Batch New Servicer: 1001358
Servicing Orchid Island TRS. LLC
Rights oa Servicer; 1000596
Universal American
Mortgage Company, UC
Batch Number: 41311 10
Sale Date: Ol/(}3t2007
Registration 11/2712006 1000596 Universal American Mortgage 1v1IN Status.Active
Company, LLC (Registered)
Batch S ervicer: 1000596 Universal
American Mortgage
Company, LLC 2/2

5/12

Exhibit A

~-------.----- . __ ... _-

121212010

MIN SUMMARY

Summary 1000596-0008044463-6

43 -277 SENTIERQ DRIVE INDIO, CA 92203

Reg Date

County

Prsrary Borrower Pool Number Nate Amount Servicer Custod.ian Investor

S uoservieer

Interim Funder

Originating Organization Property Preservation Co.

Batch Number Trans:ler Type No Pending Batches!

Actse (Registered) MOM

Subordinate Lien

1112712006 Riverside

QR

y

DA VIES, BRIAN SSN

NI A Investor Loan Number

$110,300.00 Note Date

1003225 - Specajzed Loan Serv.icing, LLC N/A

1001 065 - U.S. Bank as Trustee NlA

NfA

NJA

N/A

NIA

JIll 612006

Pending Batches

Status

Transfer Date

Sale Date

6/12

Exhibit A

~~-~~-~--- "_" _"_"" -_."_

12/2/2010

MILESTONES for 1000596-0008044463-6

Description Date

Transfer 11/1012009

Seasoned

Servicing

Rjghts

Transfer 1110212009

Beneficial

Rigbts-

Option 2

MIN 07/0612009

lnfunnation

Update

Transfer of 03/0912007 Flow

TOS;TOB

Servicing

Rights

Transfer of 0310912007 Flow

TOSITOB

Servicing

Rights

Initiating Organization j User

1000375 GMAC Mortgage, LLC lVIIN Status: Active (Registered)

Batch New Servicer: 1003225 Specialized Loan Servicing, ILC

Old Servicer: 1000440 Residential Funding Company, LLC

New Subserv.icer: None

Old Subservicer: 1000375 GMAC Mortgage. lLC

Milestone Infommtion

Batch Number: 6795585 Sale Date: 1110312009 Trarsfer Date: 11/0312009

1000375 GMAC Mortgage, LLC MIN Status: Active (Registered)

Batch New Investor: 1001065 Ll.S. Bank as Trustee Old Investor: 1000440 Residential Funding Company. LLC

Batch Number: 6792109 Transfer Date: 11/0212009


New Subservicer: 1000375 GMAC Mortgage, ILC

DId Subservicer: 1000474 HomeCo:tning; Financia~LLC

Quality Review: Y

1001358 Orchid Island 'IRS, lLC MIN Status: Active (Registered)

Barbara Cogura New Investor: 1000440 Residential Funding Company. ILC

Old Investor: 1001358 Orchid Island TRS. LLC

1000440 Residential Fundmg Company, ILC

Batch

Batch Number: 434S593 Transfer Date: 03/0912007

1001358 Orchid Island TRS, LLC MIN Status: Active (Registered)

Barbara Cogura New Servicer: 1000440 Residential Funding Company, LLC

Old Servieer: 1001358 Orchid Is1and TRS. LLC

New Subserveer: 1000474 HomeComings Financial, LLC

Old Subservicer: None

--

1/2

7/12

Exhibit A

12/212010

4348593 Sale Date: 03/0912007



Old: 1002652 Bank One, NA (Conduit) Batch Number:4131111



New Investor: 1001358 Orchid Island TRS, LLC

Old Investor: 1000596 Universal American Mortgage Company, ILC


Transfer Date: 01/0312007


New Servicer: 1001358 Orchid Island 1RS. LLC

Old Serv.icer: 1000596 Universal American Mortgage Company. LLC

Batch Number: 4] 31111

Sale Date: 0110312007 Transfer Date: 0110312007

Registration 11127/2006 1000596 Universal American MIN Statu'>: Active (Registered)

Mortgage Company. Servicer; 1000596 Universal American

LLC Mortgage Company, Ll.C

VVarehouse 01/0412007 Gestation

Lender

Removed

1000596 Universal American Mortgage Company, LLC

Batch

Transfer of 01/0412007 Flow

TOSffOB

Servicing

Rights

1000596 Universal American Mortgage Company, u.c

Batch

Transfer of 01104/2007

1000596 Universal American Mortgage Company, LLC

Flow TOSffOB Servicing Rights

Batch

Batch

~~.-~.

2/2

8/12

Exhibit A

UNITED STATES BANKRUPTCY COURT J'OACOUItTUSeOf'lLY
CENTRAL DISTRICT OF CALIFORNIA -I
In re: .....
Brian W. Davies 0
(.0)
I'<)
c
0
....
N
Debtor SUBPOENA IN A CASE UNDER THE 0
~
BANKRUPTCY CODe
To; Case No. W: 6:1IHJ1t-37000
Mortgage Electronic Registration Systems, Inc Chapter: 7 == - ~

-

-

ill

- ;g;;;

-

e

a

-

!!!

..

]006 USIIC. Ctlltral DIs,,"'t M c.nfornl.

COURTROOM

o YOU ARE COMMANOED to appear in the United States Bankruptcy Court at the place, date, and Ume specified below to testify in the above case,

PlACE OFTESnMON'f Not Applicable

o YOU ARE COMMANDED to appear at the place, date, and lima specified below to testify at the taking of a deposition in the above case.

I Pl"CEOFOEPOSITION Not Applicable

I8l: YOU ARE COMMANDED to. produce and permit Inspection and copying of !he fallowing documents or objects at the place, date, and time specified below (list documents or objects):

"0EE AnA(_+\~~

PlACE

30877 Date Palm Or., Suite 63 Cathedral City, CA 92234

DATE AND TIME 111t2J2(}10 @ t2pm

o YOU ARE COMMANDED to permit inspection of the following premises at the data and time specmed below.

lom,,,,-

Any organization nol a party 10 Ihis proceecMg fual is subpoenaed for the taking of a disposition shall designate one or more Officers, directors, Of managing agents, or other persons who consent to testify on Its behalf, and may set forth. for each person designated, the matters on which the person will testify. Rule 3O{bX6), Federal Rules of Civil Procedure, made applicable in bankruptoycases and edings by Rules 1018, 7030, and 9014, Federal Rules of Bankruptcy ?rocedure.

PATE 1110512010

ISSUIf\IO OFAC~'S NAME. ADORE;Sa AND PHONe NUIiI3ER

law Office of Robert L. Firth 30877 Date Palm Dr., Suite 83 Cathedral City, CA 92234

·lrthe bankruptcy case is psno:llng n a d sll'fClolher lhilll the dJ51riC! in wIllch It1e subpol!lna ~I$gu~d, stallrmdistltctundel'ItI919 rttJmber. _

_ 0 Logol!lol.In<:. !

. _,fOrtnt_._

9/12 Exhibit A

~~_~~ __ ~_ o __ ·o_~~ • _

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. f.

Mortgage Electronic Registration Systems. Inc. ("hereinafter also referred to as MERS")

P. 0.60)( 2026 Flint Michigan 48501-2026Phone number 1-888-697-MERS,

Produce all Mortgage Electronic Registration Systems, Inc. all documents AND THE FULL MERS AUDIT TRAIL for the promissory notes and servicing tracking listed:

1) The mortgage loan transaction involving the real property located at 43277 Sentiero Drive Indio, Ca6fomia 92203, track 31601-4 lot 75, Riverside County. Rrst Deed of Trust as Instrument No. 2006'()853245 on November 17, 2006 referenced as MIN: 100059600080428639. loan number: 0008042863.

2) The mortgage loan transaction for the second mortgage on November 17, 2006 at 43277 Sentiero Drive Indio, California 92203, track 31601-4 lot 75, Riverside County, Second Deed of Trust as Instrument No. 2006..0853246

MIN: 100059600080444636. Second Promissory Note number: 0008044463

Addltionalfy to the documents referenced in 1) and 2) the relationship of each MERS entity.

3) Universal American Mortgage Company of Ca~fornJa, and Universal American Mortgage Company LLC. Include membership status during the time the MERS·System has tracked these two promIssory notes and servicing rights.

4} Colonial Bank in regards to security interest in the promissory notes. The status of Colonial Bank with MERS during the holding of its security Interest in the subject promissory notes.

5) Opteum Financial Services lLC for the note{s) and servicing interesls. The status of Opteum Financial Services with MERS during the holding ofthelr respective interests.

6) Indymac Bank FSB in regards to the security interest and servicing rights during the period tracked by MERS.

7) Indymac Mortgage Services during the period tracked by MERS.

8) Any document(s) used by the beneficiary, MERS to declare !he Notice of Default with the recording instructions to file the nofice of default on: 43277 Sentiero Orive mete, California 92203, track 316014 lot 75, Riverside County. All documents indicating the curren! holder of the promissory notes and their respective servictng rights.

9) The MERS agency agreement with National Default Exchange LLC. to) Deutsche Bank National Trust Company as Trustee.

10/12 Exhibit A

200Ii USBC. Cent",,' DIMrl ... rCalil'omln

PROOF OF SERVICE
DATE PlACe
SERVED 1110512010 3300 South West 341b Ave, Suite W1 Ocala, Frorlda 34474-1748
SERVED ON (PRINT NAME) r.lIINNEROF SERVICE
Mortgage 8eclronlc Registration Systems, Inc. Regular US Mall
8ER11EO 8V IPRlIff NMIE) 111U
MlcheJle Mason Paralegal DECLARATION OF SERVER

I declare under penalty of perjury under the laws of the United States of America thai the foregoing Information conIalned

in the Proof or ServIce is true and correct. /J/J }'/J

8cecuted on 11/0512010 / r I. ~

~ATE ~S!G~NA~TUR~~E~O~F~S~emroR~~~~------------------------

30871 Date Palm Dr. Suite 83

Cathedral City. CA 92234

ADOAEiSS OF SEFIVER

Ie) PROTECTION OF PERSOHli SUBJECT TO SUllPOEIWl.

{I) A party or ~ attot_ ,aapomlble fQ< ilia lnuOf'a art<! $II!1Ilc4 oj ~ .ubpl)Ql'I;! shalll3'ce MOIlonabie S1ep$ to _ in~ """"~ hltdon or ,,_ l1li a !*Son ~ubJ.<I 10 tll<ll.ubjlQen.!l. The court on ostial! er whlcl> Ih~ oubpoona ...as1ssuc4 _ .rIfllra.!his dutY an<Ilmpooe U!)OtI the parlyor sllol1lll~ I. !mo.ocn or 1his dIlty an !Ipp(Opria1e sanctIM. _ may 1ntIude, but I ..... , lmllod ta. Iorrt ... rnnQ" 9nd a "'~ atliltnay" reo>.

t:!)- tlt~ A ,,_.,.,. comm...md let I"'o6loe& 'It16 ~lltapoQlcn. G~ WMfrIg. <It s~fng 01 dMlgn.11d ...... ftoofcalIy _od rnformaUotI, l1ooIIs, paJle<!O. doturmr1tl Q' t.mga>Ie ll'dog s, or I~ <If poeriuIs _ rIOt 3PJltIll' In I""'>f\ .tllla Jl4;Ice of prnd..,,,,,, .,..I",p_ un.n .""..".nded 10 _rfer <l<lf;cIiticn. haorklijortrtol.

(9) Subje<:I b> patiIQ,aph (d](2) or thIo rille. a pensoo OQIllmanded II> p_ and II&IIM In"!""'llOn, coPVfllg. taod"", 1>1l&m1i1no may. wlihin 1~ dol" • fIe<ae""':""tM~orbSontlh<!ollmQ ~mr~~JIOJeh_ Is "b 111M 14 da~altar _. oerw ~ 1M """, or.1tomey doslgNdlld" it» aubpoM1ll wBaen ~ 10 pvcIudI'JQ Iny 01 .. U 01 III!! desIg_ matellals ar ~oIh~-"'1o pl<lducrrw",~_~blle tQnn or ronmr requesIod. WoIlI- Is mMd. ella J>;IItv YIVtlg 1M ~"'" be enGIIs:IlD InspeI:t. copy, lett. or _file IIr-I'IItII=IIiO 01' InsPllClh jlfIOmIoe& -JlfII ptIIIIu.nllo aR DtIIer 01 ."., 0<>UIt by which tho ... 1lpo<in8 .... iHoJed. 11 ~ """ been ~. III!! lJIUIy seM1g fle SIbpoena may. upotI oo1lce lJ) (11& IJOfsGn ~aodod to prootJCil, mav! at any Ima rcr an otd.r b> compo! two productlqn. il1speo1Ioo, copyk1g.lI!sliflg. ill' ~pjlng. SucI1811 order b ~ shan IlfOIII;t any person who "nat ~ fIMI1Y or an <lIbt 01 • pa!ty 110m ot,roilcant ""pense r~ultil!9 from;'. fI'ls~ .. COP)'lI!9. trlslll1~, crumr>11r9 ~nd~d.

(3f (A) On 1ItTMIy moIlon. Ihe court by v.Nch a oubpoan. 'NIlS ... u.~ oh.~ "" .... f1l' n>Odlfy the ~ena ~ It

(I) Iah to slOW rea5OI1i1tJ1l Urne lor cOOllililtlCe:

(i) raqUites a ~SQI'I who 1$ oot • party or .~ otr_ III ~ party 10 tr_l I<) 8 place more than 100 miet; Imm !he ]lI&cIt ""'eta thai person ItISId.s. Is e1t!pIoy<Id or I'IlgWlrly t,",_ busll1eu tn ~mon, lIXCopt 1t1.~ su~ ... 1 III !hot ptOvIsions <I cIOtJsa ("X3Xll1(i~ or tills ne, ~""" " per'Oon may n <JAIer to ~Illond trial be ~ommaroI"" 1<1 tr.w;,I rr.om any ~u<h p_ ..... 1hoI.lalltln ~ 1he If1s1 Ishetd;

(il~ requires ............ of prNIoged <:r _ poaIOOted rn __ no

-J'II<>nor waille, apple!:; ilr

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(i) roqul<u dilrclosur~ 01. ltade _I or _ corIidooUsl teearch.

~lIYeIop<JIent. .... ccm ........ alInfl:Nrli;oUan. or

(I} ..,qulres~" 01 ... um._ exp<>tfs 0"'01100 OI'lnIam.1ion J'IQI. dUCliDII1; .fl'9~mc &/etIIB or oceurrenCIn In <llajHU OIId _g from tho ""POri's tlucI\I mad .. not .. the _~ ct ""y par1y. or

~) rllqrites" potlIOnWho I:J nat_ P""~'" on.- of ~ party 1<> ,""UJ IlUbst.ntllll elIpan~ II> ,.....,. I1'CIlI limn 100 mil .. III aI1end _. !he COllI may. 10 P'(t1ec1 a poo ...... subf!ICI1<l or .ff .... t~ by Ih~ subptl9ll8. q_h 01' mo(flly tile

~ Dr.llrhep1lr1YfnWllosa~fll, .. ubpaenafin.m.llQWulllllsrar!lal nlled fur 111m iostim«ly II, mn.lut lhat .. I1l10l be ot!1eMlso !I1OIl wllhoul o.\'lIlua htud1hlp ¥nd assures that II". J>efSO!'I 10 wh<ltl1 tha ,ltb_n.IJ add",..ad'" b. ,_biyeolllpt!l1 ... te:I, tire = may ~rd8t _'.n~ or producHon onty ~ 'pedled""fldltl.,,",

(n) DUnEiS IN RESPONDING TO SU6f>OENA.

(I) I"') Po petllM 'MpdnIIt"!l1D a ~ Ie) prod .... *"_ s~ rlfllCfu .. 1I1em ulhllyate kopl i~ 1110 ....... 1_afbusill8.,.,..JIlaI ~and llIbeI1hem !o CO<1'eopo<1<l'Ollth Ihe ca1Bgoriu J~ 1M de'n.nd.

(8) If II stIl1poMa does 001 .poefy !he Iron or w"m I", p<od~ ~_Y'lOred WQrrna.1lOn, a _ ""'fIOfl<Ir\II II> a SIJI_fh~ ~ !he Wcrmallan In a form '" _Ir1.o1J!cIt rIIorVlfSlln onlnsfIIyfmllnlal", 110( In a Ig"" or IOrm$ 111«1 ..... 11!-.abI~ us;dJIe .

(C) " "".son taSpJ:lA(j[ll(I 10 a fUII_ ".~ 1'111 p_e. tN aan\~ et~nloa1lV _Into.",.".. In """" lI'IIn _10".,."

(0) A pmtln ~ 10 9 ~ need 001 p_~ iiJJ:0'IMI' '" ~y _d InIor'maIIcrn from _ tllalloe ~ 1d811111e~ sa ~ rIOiS<lfJlillyfItX ... 1IM _u"" of _lMJrdeo1 or coot. On mllllort 10 ~ alOCOlHlly ct b quash. the perwII fIm1. whom ~ Is ""'91IlIIQ5IoMw _!he I~ m.rght I. not fl!!!I9<lnllbi, acceStlti!t ~ of ~bul'llen", cosl. If !hat $howltlg 1$ maa.. 1M COUi1 may ~. ortjer dliIeo.ery fnlrn sucIt $tl16QlS • 1M tBQlJosIll1!l party :shows 90cJd -. ~ 1lle llmililUMs 01 RuIe26(b)(2)(C). Tho ~ ""'Y~ tcmdlllol1S tor the di;Qovery.

(2) VI) When Irtoonallon subject to a aibpoena to withheld on a oIah! tItit • is Pl1~ or aubjeQt 111 proretllon a. trI'~""'J>BI8licn 111lI_ts. Il1e dalm shall be f1'III(ko .J<prosoly and Mart be oupportt!d ~ a cleao::dpllCln '" tho n __ of Ill!!! dor.UnIer1Is..~ or thl<1gJ 1lOt~ tl!al&~10 enable ... demandlnil party to Ot>nlllOf lila dalm,

(S) II infotm&1ic:n f. plt>duGed ,n msponse 10 a S!Jbpoerl. that ~ otlbjac;t tl a ctelm of !>'MI. or af prote<:!kIn as lJ1.t1'reparatiDn malWl. fl!a ~~ mMIng 1h~cls!m may notiIy""l' p'ld~that rec8vad 1luo Irformallon oflhG tIaI11.nd ... ba"" fof II. Mer beI.g _. a P'l1I¥ IllUSL pIOn1PIly ~um. JOICIue~1iK. a' desbOy' "'" "P'idIG1l In(orm$lon and allY copk!s ~ has a<1d <nay OO! us. Qr ~ lh!I irlomoatIQn ""UI tl18e1e;'" io "'""""". II recaMng pMtymay IWff'llIly prB$ID; ilia lfltooNkn to me <01.111 "'r .... fer a _rmll'lllltlon of tho claim. ~ tho ~1r1g party di~ u.. ir1bw1ilO!1 b6foffl ~ ... 1IIted. II mU>t 1aI<. -.able .. to rwIdeoI~ iL nu. _ ""'" pl<ldul:ad rtIoIlnli;vonotloft . .....,_ ~ ........ IIlIIlnIoonation UIIIIt "" 01.,., ;. ,uol\lad,

(a)CONT6>tPT. FaI!o.ftd.alll' __ .~_»C>bey.!ubrloena SOI'<oa "P"" Vial ~,_, mat be ""_ • CO<II~ of !he CCIIJI'I from 'OfllcIt dot sl!bpceoa .,._. An lIdioq .... IJ!l ....... forfallwa to o"*l< """'Is _" osob]JQ"'" purpo~. II> req<ke • IlOf1P8rtv to _ or PrOO!IC& al • "", .. nc>I.lIoIlhI.1he iIn'II> flI'WI"od by olou .. (i) of .ubpe"pph (cl(lKA).

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11/12

_________ ~ • ._~ ~C __

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J~ NOTE: VVhen using this form to indicate service of a proposed order, DO NOT list any person or entity in Category L Proposed orders do not generate an NEF because only orders that have been entered are placed on the CM/ECF docket.


I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business address is:

A true and correct copy of the foregoing document described as _

will be served orwas served (a) on the judge in chambers in the form and manner required by LBR 5005-2(d); and (b) in the manner indicated befow:

I. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING ("NEF") - Pursuant to controffing General Order(s) and Local Bankruptcy Rule(s) ("LBR"), the foregoing document will be served by the court via NEF and hyperlink

to the document. On , I checked the CMIECF docket for this bankruptcy case or

adversary proceeding and determined that the following person(s) are on the Electronic Mail Nofice List to receive NEF transmission at the email address{es) indicated below:


II. SERVED BY U.S. MAIL OR OVERNIGHT MAIL(indicate method for each person or entity served):

On , I served the following person(s) and/or entity(ies) at the last known address(es) in this

bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope in the United States Mail, first class, postage prepaid, and/or with an overnight mail service addressed as follows. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed.


1lI. SERVED BY PERSONAL DEUVERY. FACSIMILE TRANSMISSION OR EMAIL (indicate method for each person or

entity served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on , I served the following

person{s) and/or entity(ies) by personal delivery, or (for those who consented in writing to such service method), by facsimile transmission and/or email as follows. Listing the judge here constitutes a declaration that personal delivery on the judge will be completed no later than 24 hours after the document is filed.


I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Signature

Date

Type Name

AuglJst 2010

This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.

F 9013-3.1.PROOF .SERVICE

--~-~-----~---~-~--- --~-

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---4
~ 28
rtJ
0... BRIAN W DAVIES

43277 SENTIERO DRIVE INDIO, CALIFORNIA 92203 760-898-8516

FAX 949-891-0148 B.DAVIESMO@GMAIL:::OM



) CASE NO. INC. 090697 )

)

)

----------------------------)

)

) PLAINTIFF'S REQUEST FOR JUDICIAL

~ NOTICE OF REQUEST FOR JUDICIAL

) NOTICE INDIO FAMILY LAW CASE NO. ) IND 0888444 AND OF ORDER DATED

~ 11/1412006

~ HEARING APRIL 28, 2011 )

) TIME 8;30 AM

)

) HON. RANDAL D. WHITE )

) [FILED CONCURRENTLY WITH PLAINTIFF'S; 1) ) OPPOSITION TO DEUTSCHE BANK NATIONAL

) TRUST COMPANY'S DEMURRER, 2) MOTION TO ) STRIKE, 3) REQUEST FOR JUDICIAL NOTICE OF ) MORTGAGE ELECTRONIC REGISTRATION

) SYSTEMS, INC. "MERS" FEDERAL SUBPOENA ) RESPONSE,4) 088844RE: DAVIES CENTRAL

) DISTRICT OF CALIFORNIA, RIVERSIDE DIVISION ) BANKRUPTCY CASE NO. 6:10-bk..J7900 AND

___________ ~ ) ATTACHED [DOCKETS 29,29,64].]


Plaintiff,

-vs.-


SERI ES 2007-E UNDER THE



Defendants.

In connection with Plaintiff Fourth Amended Complaint opposition to Defendants DEUTSCHE BANK NATIONAL TRUST COMPANY'S, Demurrer, Motion to Strike and

PLAINTIFF'S REQUEST FOR JL'DIClAL NOTICE OF RE: OAVrES CENTRAL DISTRICT OF CALIFORNIA, RIVERSIDE DIVISION BANKRUPTCY CASE NO. 6:10-hk-37900 AND ATTACHED [DOCKETS 29, 29, 641

15
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Respectfully Submitted,
17
APRIL 5,2011
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PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE OF RE: DAVIES CENTRAL DISTRICT OF CALIFORNIA, RIVERSIDE DIVISION BANKRUPTCY CASE NO. 6:10-bk-37900 AND ATTACHED [DOCKETS 29,29,641

3

Request for Judicial Notice Plaintiff, Brian W. Davies, pursuant Federal Rules of Evidence, Rule 201, and California Evidence Code Sections 452, and 453 hereby requests that the Court take "Judicial Notice" of REQUEST FOR JUDICIAL NOTICE

4 5 6

In connection with Plaintiff's pending Oppositions to Defendant Deutsche Bank National Trust Company do hereby Request Judicial Notice of an Order done 11-14-2006 in the Indio Family Law, Case No. IND 088844 by Honorable Michael J. McCoy denying nullity based on bigamy as a stipulation to a felony was not allowed on this date and was not allowed until after the signing of the security interest to Plaintiff's property. This request is pursuant to Sections 452, and 453 of the California Evidence Code, and Plaintiff Request the Court to take Judicial Notice.

Wherefore the Plaintiff Debtor respectfully requests the aforementioned Documents to be Judicially Noticed.

7

8 9

10

11 12

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BRIAN W DAVI ES Plaintiff for Self

SUPERlOR:.cOURT:OF'CAL1FORNIA.C()IJN'IY'OFmvERSIDE

. - . . . . .

'STlPULA.ttON.ANOORDER'DN,:ORDERTOSHOW;CAUSE

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P05-030

A HORNEY OR PARTY \MTHOUT A TIORNEY (Name, Stale Bar number. and address): FOR COURT USE OIlL Y
BRIAN W DAVIES PLAINTIFF
43277 SENTIERO DR
INDIO, CALIFORNIA 92203
TELEPHONE NO.: 760-904-4928 FAX NO. (Opl1Oilal):949-891-0 148
E-MAIL ADDRESS (OPlionaI)B.DAVIESMD@GMAIL.COM
ATIORNEY FOR (Name): SELF
SUPERIOR COURT OF CALIFORNIA, COUNTY OF RIVERSIDE
STREET ADDRESS:46200 OASIS
MAILING ADDRESS:
CITY AND ZIP CODE INDI 0, CALIFORNIA 92201
BRANCH NAME: LARSEN ruSTIeE CENTER
PETITIONER/PLAINTIFF:IiK....AN VA V I hS

RESPONDENTIDEFENDANT:NDEX WEST ET AL
CASE NUM BER'
PROOF OF SERVICE BY FIRST -CLASS MAIL-CIVIL INC 090697 (Do not use this Proof of Service to show service of a Summons and Complaint.)

1. I am over 18 years of age and not a party to this action. I am a resident of or employed in the county where the mailing took place.

2. My residence or business address is: 8700 WARNER A VENUE

FOUNTAIN VALLEY, CALIFORNIA 92708

3. On (date): 10-05-1 0 I mailed from (city and state): FOUNTAIN VALLEY, CALIFORNIA 92708

the follOwing, documents (sRecify):

PLAINTIFF'S OPPOSITON TO DEUTSCHE BANK NATIONAL TRUST COMPANY'S 1 )DEMURRER

2) MOTION TO STRIKE 3) RJN MERS SUBPOENA 4) RJN IND 088844 ORDER 5) RJN CALIFORNIA

BANKRlWCTY CASE CENTRAL DISTRlCT 6:1O-bk-37900

D The documents are listed in the Attachment to Proof of Service by First-Class MaiF-Civil (Documents Served) (form POS-030{D)}.

4. I served the documents by enclosing them in an envelope and (check one):

a, 0 depositinq the sealed envelope with the United States Postal Service with the postage fully prepaid.

b. 0 placing the envelope for collection and mailing following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid.

5. The envelope was addressed and mailed as follows:

a. Name of person served:

b. Address of person served:

see attached service list-----

o The name and address of each person to whom I mailed the documents' listed in e Attachment 0 Proof Service

by First-Class Mail-Civil (Persons Served) (pOS-030(p)).

Date: 04-06-2011

JAMES CARTER

(TYPE OR PRINT NAME OF PERSON COMPLETING THIS FORM)

Form Approved for Optional Use judicial Council of California POS-030 [New January 1. 20D5]

PROOF OF SERVICE BY FIRST -CLASS MAIL (Proof of Service)

Code at Civil Procedure, §§ 1013.10130 wwwcouronfo,ca.gov

AmeIican LegalNet, Inc. www.USCourtFonns.com

SERVICEUST

MASUMI PATEl---~COUNSEl FOR DEFENDANTS

DEUTSCHE BANK NATIONAL TRUST COMPANY

MORTGAGE ELECTRONIC REGISTRATIONS SYSTEMS INC. INDYMAC MORTGAGE SERVICES A DIVISION OF ONEWEST BANK

NDEX WEST LLC

BARRETT DAFFIN FRAPPIER TREDER a WEISS .. LLP 20955 PATHFINDER ROAD SUITE 300

DIAMOND BAR .. CA 91765

KEVIN ASFOUR-COUNSEl FOR DEFENDANTS

UNIVERSAL AMERICAN MORTGAGE COMPANY LtC

UNIVERSAL AMERICAN MORTGAGE COMPANY OF CALIFORNIA LENNAR HOMES OF CAUFORNJA

K & l GATES, LLP

10100 SANTA MONICA BOULEVARD SEVENTH FLOOR

LOS ANGELES .. CALIFORNIA 90067

MICHAEL KAISER. ESQ COUNSEL FOR Off .. APPRAISER JAMES j SCARCELLA

r \ )

801 E. TAHQUITZ CANYON WAY .. SUITE 101

PALM SPRINGS,. CAUFORNIA 92662

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PLAINTIFF'S OPPOSITION TO DEUTSCHE BANK DEMMURRER TO FOURTH AMENDED COMPLAINT RIVERSIDE SUPERIOR COURT JUDGE WHITEOpp-dbntc 4ac - Dem STR RJN BK Ind Mers 04052011

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PLAINTIFF'S OPPOSITION TO DEUTSCHE BANK DEMMURRER TO FOURTH AMENDED COMPLAINT RIVERSIDE SUPERIOR COURT JUDGE WHITEOpp-dbntc 4ac - Dem STR RJN BK Ind Mers 04052011

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PLAINTIFF'S OPPOSITION TO DEUTSCHE BANK DEMMURRER TO FOURTH AMENDED COMPLAINT RIVERSIDE SUPERIOR COURT JUDGE WHITEOpp-dbntc 4ac - Dem STR RJN BK Ind Mers 04052011

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PLAINTIFF'S OPPOSITION TO DEUTSCHE BANK DEMMURRER TO FOURTH AMENDED COMPLAINT RIVERSIDE SUPERIOR COURT JUDGE WHITEOpp-dbntc 4ac - Dem STR RJN BK Ind Mers 04052011

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