1 TIMOTHY L. MCCANDLESS, ESQ.

SBN 147715
2 LAW OFFICES OF TIMOTHY L. MCCANDLESS
1881 Business Center Drive, Ste. 8A
3 San Bernardino, CA 92408
4 Tel: (909) 890-9102
Fax: (909) 382-9956
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6 Attorney for Plaintiff (s)

ERIC SHOCKLEY and CHARLES FETTERS
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8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF CONTRA COSTA
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11
ERIC SHOCKLEY and CHARLES Case No.: C11-00865
12 FETTERS,
13 Plaintiff,
EX PARTE APPLICATION FOR
14 TEMPORARY RESTRAINING ORDER AND
15 V. ORDER TO SHOW CAUSE RE
PRELIMINARY INJUNCTION;
16 MORTGAGE ELECTRONIC SUPPORTING MEMORANDUM OF POINTS
17 REGISTRATION SYSTEMS, AND AUTHORITIES AND SUPPORTING
INC.;ALEXANDER ZAN HAMILTON, DECLARATION OF ERIC SHOCKLEY;
18 dba EAGLE HOME MORTGAGE; CHARLES FETTERS; CERTIFICATE OF EX
19 AMERITECH MORTGAGE INC., IRINA PARTE; DECLARATION OF TIMOTHY
PETROVNA TRAJANOVICH, President of MCCANDLESS; [PROPOSED] ORDER
20 AMERITECH; ZORAN TRAJANOVICH,
21 Chairman of Ameritech, CITIGROUP DATE: May 11, 2011
GLOBAL MARKETS REALTY CORP., TIME: 1:30 p.m.
22 HSBC MORTGAGE SERVICES, NDEX DEPT: 60
23 WEST LLC, and DOES 1 through 50
inclusive,
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25 Defendants.

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28 EX PARTE APPLICATION

This matter cannot wait to be heard on a regular notice because a non-judicial foreclosure

– trustee sale has been scheduled for May 16, 2011 Plaintiffs ERIC SHOCKLEY and

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 1 CHARLES FETTERS [hereinafter PLAINTIFFS] hereby applies for a restraining order and
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order to show cause why a preliminary injunction should not be issued, restraining and enjoining
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4 defendants MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; AMERITECH

5 MORTGAGE INC., CITIGROUP GLOBAL MARKETS REALTY CORP., HSBC

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MORTGAGE SERVICES, NDEX WEST LLC their agents, employees and all persons
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8 associated with them and/or acting in concert with them, from taking any action whatsoever to

9 foreclose on PLAINTIFFS’ home. Plaintiffs’ home is that certain real property commonly
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known as. 203 S. 13th Street, Richmond, CA 94084. The Legal descriptions are as follows: APN:
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12 544120002; NYSTROMS ADD N LOTS 34 TO 37 BLK.

13 Plaintiffs will apply for an Order to Show Cause (“OSC”) why a preliminary injunction
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should not be granted enjoining defendants MORTGAGE ELECTRONIC REGISTRATION
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16 SYSTEMS, INC.; AMERITECH MORTGAGE INC., CITIGROUP GLOBAL MARKETS

17 REALTY CORP., HSBC MORTGAGE SERVICES, NDEX WEST LLC [“Foreclosing

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Defendants”], their agents, employees, representatives, attorneys, and all persons acting in
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20 concert or participating with them from foreclosing and/or selling Plaintiffs’ property located at

21 203 S. 13th Street, Richmond, CA 94084.

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Concurrently, plaintiffs hereby apply for a hearing date to obtain a preliminary
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24 injunction. To be certain, loss of the Plaintiffs’ property would constitute irreparable harm,

25 whereas, if the court issues the Temporary Restraining Order, there will be no prejudice to the
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Defendants whatsoever.
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28 This application is made, because pecuniary compensation would not afford adequate

relief for the loss of Plaintiffs' Home, that Defendants are seeking to foreclose on Plaintiffs'

Home in violation of the rights of Plaintiffs and that great and irreparable injury will result to

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 1 Plaintiffs before the matter can be heard on notice. Defendants’ action to proceed with the sales
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in violation of the rights of plaintiffs. Plaintiffs have previously obtained an order for similar
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4 relief in this case but with a different lawsuit and most of these parties, have been dismissed.

5 The application is based upon this notice; the Complaint on file; the attached memorandum of
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points and authorities; and any oral argument, which may be heard at the time of the hearing of
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8 this matter.

9 Dated: May 10, 2011

THE LAW OFFICES OF TIMOTHY MCCANDLESS
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By _____________________________
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Timothy McCandless, Attorney for
13 Plaintiffs
ERIC SHOCKLEY AND
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CHARLES FETTERS
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 1 I.
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INTRODUCTION/BACKGROUND
3 All of these facts are established are in the complaint filed on April 11, 2011 which is on
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file in this matter and plaintiffs respectfully requested on their declaration that the courts take
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judicial notice of said complaint.
6

7 On or about June 7, 2006 financed their purchase through LIME FINANCIAL by virtue
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of a Trust Deed and Notes securing the Loans. [See Exhibit “A” to plaintiffs’ complaint]. When
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plaintiffs chose to refinance this loan, BRENDA FRASIER, a broker, represented defendant
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11 AMERITECH assisted them with the paperwork. On June 13, 2006, the Deed of Trust [“DOT”]
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was recorded at Contra Costa Recorder’s office. Plaintiffs chose to execute this DOT in 2006
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and refinanced their home in 2006. Brenda Frasier, the broker, suggested Ameritech for a 30-
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15 year note to pay this debt. They were advised that they could not obtain the 30-year note but
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were able to obtain a new first with a prepayment penalty due in two years. At her suggestion,
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they obtained a second loan which had a balloon payment.
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19 Plaintiffs were also instructed by Frasier, broker for defendant AMERITECH that the
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loan had to be only under plaintiff ERIC SHOCKLEY’S name. Reluctantly, plaintiffs followed
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AMERITECH’s advice. Plaintiffs discovered later that their broker did not execute the required
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23 Mortgage Loan Origination with the borrower. There is no evidence of one being executed and
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under California law, a broker is required to execute this document because it establishes the
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relationship between the broker and client and the services be provided. Thus, plaintiffs allege
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27 that defendant AMERITECH violated California Business and Professions Code 10240-10248.3,
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10241. Moreover, plaintiffs allege that the underwriting for this loan was flawed. There was no

determination whatsoever of plaintiffs’ ability to repay the loan with complete disregard for the

Guidance Letters issued by Federal Agencies and even Federal and State Laws. Another
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 1 important factor was, at the time the loan was being executed, it stated that plaintiffs’ income
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was $9,380.00 per month. Plaintiffs’ income was purposely inflated.
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4 Plaintiff alleges, there were no initial disclosures for either interest rate. Defendant

5 AMERITECH violated California Civil Code Civil Section 1916.7 10(c). Plaintiffs were not
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given full disclosure about the adjustable payment and adjustable rate loan. Plaintiffs did not
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8 know that their monthly payments could go substantially up. Plaintiffs eventually discovered

9 that DEFENDANT LIME was a wholesaler of loans and sold their loan to .J.P. CHASE and
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HSBC.
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12 Because the two-year prepayment was coming due, plaintiffs immediately contacted

13 CHASE to do a loan modification. CHASE did modify the loan but never reduced the principal.
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They lowered the interest rate which was not helpful since they increased the payment by finally
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16 setting up the impound account. Because of this, plaintiffs defaulted on the loan. Plaintiffs

17 allege that on June 15, 2009 Defendants NDEX and CHASE HOME FINANCE allege that
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Plaintiffs became in default of their loan. On June 17, 2009, defendant NDEX caused the
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20 Notice of Default [NOD] to be recorded and on this NOD, instructions were to contact CHASE

21 HOME FINANCE for payment arrangements. CHASE and NDEX are not on the Deed of Trust.
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. Plaintiffs, on August 17, 2009, arranged to have a Forensic Loan Audit Examination.
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24 This report shows the glaring deficiencies of what has transpired regarding the loan and loan

25 modification. The report speaks for itself and plaintiffs allege that the defendants, all of them,
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did not comply with foreclosure laws and more importantly, blatantly provided a loan that was
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28 set up to fail. [See Exhibit 1 to plaintiffs’ Declaration re Ex parte and Exhibit D to their

complaint].

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 1 Foreclosure laws were not complied with. No proper assignment has taken place. Thus,
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the Notice of Default and all subsequent actions are unlawful because The Notice of Default was
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4 recorded on June 17, 2009. The Substitution of Trustee was executed after the Notice of Default

5 was filed, thus rendering the Notice of Default voidable. The Assignment Deed of Trust was
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also executed after the Notice of Default was recorded, which was July 10, 2009. How then
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8 can these defendants claim they are proper foreclosers? Defendants did not comply with the new

9 foreclosure laws – Civil Code 2923.5 et seq, 2934(a) et seq. They were not contacted by the
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lender even though they submitted a Declaration of Due Diligence on their Notice of Default.
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12 The Notice of Default is defective in that there is no declaration under penalty of perjury.

13 Plaintiffs were not given alternatives to foreclosure as mandated by the law.

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Real property is unique, and plaintiff’s injury will be uncompensable in damages if
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16 defendants are allowed to proceed. Demarist v. Quickloan Funding Inc., 2009 WL 940377 at 9

17 (C.D. Cal.2009).
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In contrast, foreclosing defendants will suffer no hardship if the instant motion is granted.
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20 They will retain whatever security interest they have in the property and will be able to seek

21 liquidation of the assets protecting their interest if they prevail. If the subject property is sold
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plaintiffs' injury will be uncompensable.
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24 Statistics show that defendants are not even marketing the properties upon which they

25 foreclose but rather are sitting on them so foreclosure gains defendants nothing. Indeed, an
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unoccupied home is subject to damages and resulting loss, while an occupied home will be
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28 maintained and preserved. Because the balance of hardship tips heavily in plaintiffs’ favor,

plaintiff needs only to establish a serious question going to the merits upon which plaintiffs has a

better than fair chance of prevailing.

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 1 Here, plaintiffs alleged and can establish prima facie violations of law and at the very
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least have a fair chance of prevailing on the merits. Defendants are not only guilty of wrongful
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4 foreclosure and predatory lending, they have also committed fraud and violated a host of statutes.

5 This Court should exercise its authority and enter the requested injunctive relief.
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II.
7 ARGUMENT
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A. The Standard for Preliminary Injunctive Relief
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10 The standard for granting a preliminary injunction requires balancing plaintiffs’

11 likelihood of success on the merits against the relative hardship to the parties. Here, the balance
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of hardships tips sharply in support of plaintiffs –they will lose their home if an injunction does
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14 not issue. In contrast, defendants will suffer no serious hardship as their security in their home

15 will remain (Demarest v Quick Loan Funding, Inc. 2009 WL 940377 at 9 (C.D. Cal 2009) and it
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seems likely they will not immediately sell the property even if they do foreclose.
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18 California Code of Civil Procedure Section 526(a)(1)-(5) states:

19 (a) An injunction may be granted in the following cases:
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(1) When it appears by the complaint that the plaintiff is entitled to the relief demanded,
21 and the relief, or any part thereof, consists in restraining the commission or continuance of
the act complained of, either for a limited period or perpetually.
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(2) When it appears by the complaint or affidavits that the commission or continuance of
23 some act during the litigation would produce waste, or great or irreparable injury, to a party
to the action.
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(3) When it appears, during the litigation, that a party to the action is doing, or threatens, or
25 is about to do, or is procuring or suffering to be done, some act in violation of the rights of
another party to the action respecting the subject of the action, and tending to render the
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judgment ineffectual.
27 (4) When pecuniary compensation would not afford adequate relief.
(5) Where it would be extremely difficult to ascertain the amount of compensation which
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would afford adequate relief.

A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

SHOULD BE ISSUED IF PLAINTIFF’S RIGHT TO RELIEF IS APPARENT FROM

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 1 THE COMPLAINT AND THE RELIEF CONSISTS IN RESTRAINING THE
2 COMMISSION OR CONTINUANCE OF THE ACT COMPLAINED OF.
Code of Civil Procedure § 526(a) (1)
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4 In this case, the complaint demonstrates that, unless restrained, defendants will proceed

5 with a non-judicial foreclosure against plaintiffs’ real property without justification and in
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violation of California Civil Code section 2924(c). As set forth in the complaint and as
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8 evidenced by the Notices of Default and Trustee’s Sale recorded by one or more of the

9 defendants without right or privilege, defendants and their predecessors or successors in interest
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have commenced a non-judicial foreclosures against plaintiffs’ property despite their attempts to
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12 negotiate terms with the lender through NACA and on their own with Chase. More importantly,

13 despite the apparent fact the Deed of Trust defendants hold and which is alleged by defendants to
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be a valid lien against plaintiffs’ home, is void and does not constitute a valid lien against their
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16 home. It is clear SHOCKLEY and FETTERS are the true and rightful owners of the real

17 property and did not enter into an enforceable loan transaction with defendants as evidenced both
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by the allegations set forth in their Complaint, the exhibits thereto and the fact defendants knew
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20 or should have known the terms contained in various loan documents they prepared and tendered

21 to plaintiffs were not, in view of the facts then known to defendants, capable of being performed
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by plaintiffs and were, in fact, impossible, were therefore void and otherwise unenforceable as
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24 shown by the documents themselves.

25 A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

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

waste, or great or irreparable injury to a party to the action (Code Civ. Proc. § 526(a)(2), 2015.5;

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 1 Volpicelli v. Jared Sydney Torrance Memorial Hosp. (1980) 109 Cal. App. 3d 242 ; Smith v.
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Smith (1942) 49 Cal. App. 2d 716 ). The term ''irreparable injury'' means that species of
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4 damages, whether great or small, that ought not to be submitted to on the one hand or inflicted on

5 the other (Wind v. Herbert (1960) 186 Cal. App. 2d 276). This definition warrants the use of the
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injunctive power of the court against a wrong that a trial judge deems insufferable because it
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8 constitutes an overbearing assumption by one person of superiority and domination over the

9 rights and property of others (Fretz v. Burke (1967) 247 Cal. App. 2d 741). It is plain that
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defendants’ recording a Notice of Default and Assignment Deed of Trust and the Substitution of
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12 Trustee is not justified, particularly where, as here, such Notice of Default l was filed improperly

13 and that, specifically, NDEX– the servicer was NOT the Trustee of Record at the time such
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Notice was filed nor did NDEX know, as evidenced by documents contained in the public
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16 records of the Contra Costa County Recorder, who the actual beneficiary of the Deed of Trust

17 pursuant to which the Notice was filed actually was. Further, defendants know or should have
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known they have no presently cognizable interest in the property and that pursuance of
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20 foreclosure would result in loss of plaintiffs’ home at worst or so cloud his title as to make it

21 impossible for him to continue to reside in his home without incurring enormous legal expense.
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Such a loss ought not to be submitted to by plaintiffs, nor suffered to be inflicted by the
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24 defendants.

25 A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

26 SHOULD BE ISSUED IF AN ACT WOULD RENDER THE JUDGMENT
INEFFECTUAL
27 An injunction may be granted when it appears, during the litigation, that a party to the
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action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in

violation of the rights of another party to the action respecting the subject of the action, and

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 1 tending to render the judgment ineffectual ( Code Civ. Proc. § 526(a)(3) ; Heckman v.
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Ahmanson (1985) 168 Cal. App. 3d 119; Lenard v. Edmonds (1957) 151 Cal. App. 2d 764;
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4 Rossi v. Rossi (1955) 134 Cal. App. 2d 639). While the conduct alleged in the complaint is

5 outrageous, and may justify an award of monetary damages, the principal relief sought herein is
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to prevent defendants from foreclosing on plaintiff’s property. Thus, if defendants were
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8 permitted to proceed with their non-judicial foreclosure, any subsequent judgment relative to

9 such an action would be ineffectual.

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California Code of Civil Procedure Section 527 states:
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(a) A preliminary injunction may be granted at any time before judgment upon a
verified complaint, or upon affidavits if the complaint in the one case, or the
13 affidavits in the other, show satisfactorily that sufficient grounds exist therefor.
No preliminary injunction shall be granted without notice to the opposing party.
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15
With the pending trustee sale of plaintiffs’ home impending April 15, 2011, they face a
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17 real, imminent, and severe harm that cannot be adequately compensated with a monetary award.

18 Once this home is sold, no amount of money can compensate them for the loss of their home.
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CCP 526(a)(2), (4)-(5). This fact is also recognized under California law in the context of a
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21 home purchase. California law recognizes that both irreparable injury and inadequacy of money

22 damages are presumed to be present where real property is involved. California law further
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recognizes that where a single-family residence is involved, the presumption of the inadequacy
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25 of money damages is conclusive. Civil Code Section 3387 states:

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

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

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 1 Defendants in granting the injunction than to the Plaintiff in refusing it. Continental Baking Co.
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v. Katz (1968) 68 Cal.2d 512, 528, 67 Cal.Rptr. 761, 771. Similarly, in Robbins v. Superior
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4 Court of Sacramento County (1985) 38 Cal.3d 199, 211 Cal.Rptr. 398, the California Supreme

5 Court explained the trial court’s proper balancing of hardships in determining whether a
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preliminary injunction should issue:
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8 “The trial courts consider two interrelated questions in deciding whether to issue a
preliminary injunction:
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10 Are the plaintiffs likely to suffer greater injury from a denial of the injunction than the
defendants are likely to suffer from its grant; and
11 Is there a reasonable probability that the plaintiffs will prevail on the merits.”
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13 In applying the first prong of this two-prong test, Defendants are wealthy individuals and
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institutions sophisticated in financial matters and will not be harmed by the issuance of the
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preliminary injunction. However, if the temporary restraining order and preliminary injunction
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17 are denied, Plaintiffs will be rendered homeless.

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In applying the second prong of the aforementioned two-prong test, Plaintiff has more than a
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reasonable probability of success on their complaint. The Complaint and declaration submitted
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21 in support of this application clearly demonstrate that Plaintiffs are victims of fraudulent and
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oppressive business practices by people regulated by State and Federal law and who have taken
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undue advantage of many numerous persons in the general public such as Plaintiff, for huge
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25 profit and gain. Defendants are clearly in violation of law set forth in Wyatt v. Union Mortgage
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Co. (1979) 24 Cal.3d 773, 157 Cal.Rptr. 392 in that their agent, Brenda Frasier, broker for
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defendant AMERITECH, a fiduciary, had “duties which extended beyond bare written disclosure
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or terms of the transaction to duties of oral disclosure and counseling, which applies to

transactions with “mortgage loan brokers.” AMERITECH failed to disclose or counsel Plaintiffs

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 1 as to the disastrous loan she was offering them in a market that Defendants knew was about to
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collapse. It was not until plaintiffs received the forensic analysis did they see the glaring
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4 discrepancies and non-compliance with the law.

5 Finally, no undertaking should be required because if the Deed of Trust is valid, the
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Defendants are fully secured and, in fact, may NOT obtain any relief against Plaintiffs except for
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8 that they receive from a trustee's sale. If the Deed of Trust is void then Defendants are NOT

9 entitled to the property in any fashion. In contrast, Plaintiffs are without resources as a result of
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Defendants’ wrongful actions and unable to raise additional funds to post a bond and still seek
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12 legal redress against Defendants. Restraining the foreclosure will not materially affect the

13 Defendants in the same way a foreclosure will harm Plaintiffs.

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Foreclosure is a drastic sanction. Baypoint Mortgage Corp. v. Crest Premium Real Estate
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16 etc. Trust, (1985) 168 Cal.App.3d 818, 837. Irreparable injury will almost always be involved in

17 a home foreclosure, especially if the grounds for invalidating the foreclosure rest on the
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voidability rather than the voidness of the transaction. Furthermore, courts presume in a
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20 foreclosure context that the property is unique, that its loss is irreparable and that money

21 damages are inadequate unless the property is being openly marketed and has no special value to
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the owner than its market price. Jessen v. Keystone Sav. & Other Loa Assn. 142 Cal.App.3d
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24 454, 457-58.

25 III.
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CONCLUSION
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28 Based on the foregoing, Plaintiffs SHOCKLEY and FETTERS respectfully requests a

temporary restraining order and an order requiring foreclosing Defendants to show cause why a

preliminary injunction should not issue pending trial in this action, enjoining Defendants and

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 1 their employees, agents, and persons acting with them or on their behalf, from selling, attempting
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to sell, or causing to be sold the trust property described in the second on file in this action either
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4 under the power of sale in the deeds of trust or by foreclosure action.

5 DATED: May 10, 2011

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THE LAW OFFICES OF TIMOTHY MCCANDLESS
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8 By _____________________________
9
Timothy McCandless, Attorney for
10 Plaintiffs
CHARLES FETTERS AND
11 ERIC SHOCKLEY
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