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MR. HOMEOWNER MRS. HOMEOWNER XXXXXXXXXXXXXXXXXX ANY CITY, CALIFORNIA 99999

DEFENDANT IN PRO PER SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO SAN BERNARDINO CENTRAL DISTRICT

) U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF ) ) THE ADJUSTABLE RATE MORTGAGE ) TRUST 2007-1, ADJUSTABLE RATE ) MORTGAGE-BACKED PASS-THROUGH ) CERTIFICATES, SERIES 2007-1, its successors ) and/or assigns, )

) ) ) Plaintiff, ) ) ) v. ) ) MR. HOMEOWNER AND MRS. HOMEOWNER, and DOES 1 through X, inclusive ) ) ) Defendant, )

Case No. DEFENDANTS NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
Date: Time: Ctrm:

TO THIS HONORABLE COURT AND TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on _____________, ________________________, at 8:30a.m., in Department ______________, at the above entitled court, Defendants MR. HOMEOWNER AND MRS. HOMEOWNER will and hereby does move the court to dismiss Plaintiff, U.S. Bank Association, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE
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ADJUSTABLE RATE MORTGAGE TRUST 2007-1, ADJUSTABLE RATE MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2007-1, its successors and/or assigns, herein referred to

as U.S. Bank, complaint with prejudice. The entire complaint should be dismissed in its entirety pursuant to California Code of Civil Procedure section 430.10(d). Plaintiff has the burden to prove all facts set forth in Plaintiffs Complaint that would allow relief under their allegations, they have failed to do so. The complaint against Defendant is defective, and based on the facts, there appears to be a misjoinder and a lack of standing on behalf of the Plaintiff. Plaintiffs complaint hereby does not state a claim upon which relief can be granted.

Dated:

Respectfully submitted,

______________________________ MR. HOMEOWNER ______________________________ MRS. HOMEOWNER

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MEMORANDUM OF POINTS AND AUTHORITIES Bank of America, N.A. v. LaJolla Group II, 129 Cal.App. 4th 706, 15710, 717 (5th Dist. 2005)(void foreclosure sale required rescission of trustees deed returning title to the status quo prior to the foreclosure sale). THE COURT MUST STRICTLY ENFORCE THE TECHNICAL REQUIREMENTS FOR A FORECLOSURE. The harshness of non-judicial foreclosure has been recognized. The exercise of the power of sale is a harsh method of foreclosing the rights of the grantor. Anderson v. Heart Federal Savings (1989) 208 Cal.App.3d 202, 6 215, citing to System Inv. Corporation v. Union Bank (1971) 21 Cal.App.3d 137, 153. The statutory requirements are intended to protect the trustor from a wrongful or unfair loss of his property, Moeller v. Lien (1994) 25 Cal.App.4th 822, 830; accord, Hicks v. E.T. Legg & Associates (2001) 89 Cal.App.4th 496, 503; Lo Nguyen v. Calhoun (6th District 2003) 105 Cal.App.4th 428, 440, and a valid foreclosure by the private power of sale requires strict compliance with the requirements of the statute. Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and Mortgages, Chapter 10 10.179; Anderson v. Heart Federal Sav. & Loan Assn., 208 Cal. App. 3d 202, 211 (3d Dist. 1989), rehg denied and opinion modified, (Mar. 28, 1989); Miller v. Cote (4th Dist. 1982) 127 Cal. App. 3d 888, 894; System Inv. Corp. v. Union Bank (2d Dist. 1971) 21 Cal. App. 3d 137, 152-153; Bisno v. Sax (2d Dist. 1959) 175 Cal. App. 2d 714, 720. It has been a cornerstone of foreclosure law that the statutory requirements, intending to protect the Trustor and or Grantor from a wrongful or unfair loss of the property, must be complied with strictly. Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and Mortgages,
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Chapter 10 10.182. Close compliance does not count. As a result, any trustees sale based on a statutorily deficient Notice of Default is invalid (emphasis added). Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and Mortgages, Chapter 10 10.182; Anderson v. Heart Federal Sav. & Loan Assn. (3dDist. 1989) 208 Cal. App. 3d 202, 211, rehg denied and opinion modified, (Mar. 28, 1989); Miller v. Cote (4th Dist. 1982) 127 Cal. App. 3d 888, 894; System Inv. Corp. v. Union Bank (2d Dist. 1971) 21 Cal. App. 3d 137, 152-153; Saterstrom v. Glick Bros. Sash, Door & Mill Co.(3d Dist. 1931) 118 Cal. App. 379. Additionally, any Trustees Sale based on a statutorily deficient Notice of Trustee Sale is invalid. Anderson v. Heart Federal Sav. & Loan Assn. (3d Dist. 1989) 11 208 Cal.App. 3d 202, 211, rehg denied and opinion modified, (Mar. 28, 1989). The California Sixth District Court of Appeal observed, Pursuing that policy [of judicial interpretation], the courts have fashioned rules to protect the debtor, one of them being that the notice of default will be strictly construed and must correctly set forth the amounts required to cure the default. Sweatt v. The Foreclosure Co., Inc. (1985 6th District) 166 Cal.App.3d 273 at 278, citing to Miller v. Cote (1982) 127 Cal.App.3d 888, 894 and SystemInv. Corp. v. Union Bank (1971) 21 Cal.App.3d 137, 152-153. The same reasoning applies even to a Notice of Trustees Sale. Courts will set aside a foreclosure sale when there has been fraud, when the sale has been improperly, unfairly, or unlawfully conducted, or when there has been such a mistake that it would be inequitable to let it stand. Bank of America Nat. Trust & Savings Assn v. Reidy (1940) 15 Cal. 2d 243, 248; Whitman v. Transtate Title Co.(4th Dist. 1985) 165 Cal. App. 3d 312, 322-323; In re Worcester (9th Cir. 1987) 811 F.2d 1224, 1228. See also Smith v. Williams (1961) 55 Cal. 2d 617, 621;

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Stirton v. Pastor (4th Dist. 1960) 177 Cal. App. 2d 232, 234; Brown v. Busch (3d Dist. 1957) 152 Cal.App. 2d 200, 203-204. DEED OF TRUST IS DEFECTIVE Pursuant to local ordinance, all Deeds, Quitclaim Deeds, or Deeds of Trust must contain the Assessors Parcel Number. In the case at bar, the Deed of Trust does NOT have an Assessors Parcel Number on it. Pursuant to California Code of Civil Procedure section 2924f(b), the description of the property must be identical in your Promissory Note, Deed of Trust, Notice of Default, and Notice of Trustees Sale. In the case at bar, the legal description are Not identical in the Grant Deed and the Deed of Trust. Please see Exhibit A for the Deed of Trust and Exhibit B for the Grant Deed. Furthermore, the loan number referenced on the Deed of Trust does NOT match the loan number on the Notice of Default. According to California Law, a trustees sale may be set aside on the ground that the security instrument under the sale was conducted was itself invalid, Stirton v. Pastor (1960, 4th Dist.) 177 Cal App. 2d 232, 2 Cal. Rptr 135, that there was no actual default (Hauger v. Gates (1954) 42 Cal 2d 752, 269 P2d 609), or that the sale proceedings themselves failed to comply with requirements set forth in the statutes or the security instrument (Whitman v. Transtate Title Co. (1985, 4th Dist.) 165 Cal App. 3d 312, 211 Cal. Rptr 582). Pursuant to C.C.P. Section 2924f(b), the description of the property must be identical, perfectly correct, in your Note, Deed of Trust, Grant Deed, and Notice of Default in order to obtain a non judicial foreclosure. Since the Deed of Trust does not describe the right property

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lack of Assessors Parcel Number and an imperfect legal description, it is void against the Defendants property. INVALID SUBSTITUTION OF TRUSTEE In Miller v. Cote, 179 Cal.Rptr. 753, (Ct of App. Fourth Dist. Div. 2 1982), the Court, in calling the notice of default fatally defective stated: The procedure for foreclosing on security by a trustees sale pursuant to a deed of trust is set forth in Civil Code section 2924, et seq. The statutory requirements must be strictly complied with, and a trustees sale based on a statutorily deficient notice of default is invalid. (System Inv. Corp. v. Union Bank (1971) 21 Cal.App.3d 137, 152-153, 98 Cal.Rptr. 735; see California Mortgage and Deed of Trust Practice (Cont.Ed. Bar 1979) s 6.40, p. 295; see also Bisno v. Sax (1959) 175 Cal.App.2d 714, 720, 346 P.2d. (ii) 2934a(1)(A) says all beneficiaries must execute the Substitution of Trustee (the applicable California law when a lender seeks to substitute the trustee and pursue a foreclosure sale), and the substitution of trustee document must be RECORDED to be effective, if not, the resulting sale is VOID. (a) Only the beneficiary can substitute a Trustee under California Civil Code Section 2934a(a)(1), and such document must be recorded: In the case at bar, all beneficiaries and/or the proper legal beneficiary did NOT execute the Substitution of Trustee violating C.C.P 2934(1)(A). The Substitution of Trustee was not recorded until more than a year after the Notice of Default was filed. The Substitution of Trustee is also invalid because it was signed by Robo-signers. Topako Love is NOT an authorized signer for Select Portfolio nor does the signature of Notary Public, Matthew Allan Banaszewski appear to
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match legal documentation obtained from the Minnesota Secretary of State, please see Exhibit C. If the Substitution of Trustee was not properly signed and/or notarized, the whole foreclosure sale is void. NAME OF BENEFICIARY; EFFECT OF AN ASSIGNMENT OF THE NOTE The Notice of Default must include the name, mailing address, and telephone number of the beneficiary, not the servicer, pursuant to Code of Civil Procedure 2924c(b)(1). When the beneficiary assigns the note after the Notice of Default has been recorded, the information identifying the beneficiary is no longer accurate. No Assignment of Note was ever perfected or recorded. In the case at bar, a Corporate Assignment of Deed of Trust was recorded on May 1, 2009, granting all beneficial interest under the Deed of Trust to Select Portfolio Servicing, Inc., F/K/A Fairbanks Capital Corp., as servicing agent for U.S. Bank National Association, as trustee, on behalf of the holders of the Adjustable Rate Mortgage Trust 2007-1, Adjustable Rate MortgageBacked Pass-Through Certificates, Series 2007-1, in violation of C.C.P 2936. The Notice of Default was filed and recorded on April 11, 2008 whereas the Corporate Assignment of Deed of Trust was not executed until June 12, 2008, please see attached Exhibit D. Pursuant to C.C.P 2924-2924i, if the Notice of Default was not recorded or improperly recorded, the foreclosure sale is invalid and thus Plaintiffs title is NOT duly perfected. U.S. Supreme Court decision, Carpenter v. Longan (Carpenter v. Longan, 83 U.S. 271, 21 L.E.d. 313 [1873]): The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity. Case law in virtually every state follows Carpenter.
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The parties that must be joined are those that are named in the Deed of Trust, or their successors in interest pursuant to validly executed and recorded assignments. The harm to the Defendant is that if they pay U.S. Bank, and later, someone else comes up with the Note and says that they are the Holder in Due Course of the Note, then they would have to pay that person on the Note. Notes are negotiable instruments pursuant to Uniform Commercial Code, and the bearer is entitled to payment. Only the person or entity entitled to payment can enforce a foreclosure. C.C.P. section 389 provides that if the Plaintiff knows the name of the other persons with an interest, it must bring them in this action. Those names are known in the Deed of Trust and they were not named in this action, in violation of C.C.P. 389. The Deed of Trust names BrooksAmerica Mortgage, not U.S. Bank. No Assignment of Note has been provided by the Plaintiff to evidence they were ever entitled to payment. As previously mentioned, any Assignment of Mortgage without an Assignment of Note is a nullity. (C.C.P. 2936) Pursuant to C.C.P. 2924, when the beneficiary changes (or is stated in error) after the Notice of Default is filed, an amended Notice of Default must be filed and recorded. The recorded amended notice does not start a new period, but it must be recorded within a reasonable time prior to the sale. In re Tome, 113 B.R. 626, 20 Bankr. Ct. Dec. (CRR) 684, 23 Collier Bankr. Cas. 2d (MB) 1587, Bankr. L. Rep. (CCH) 73343 (Bankr. C.D. Cal. 1990), 636, the court found that a 21day period was reasonable. The amended Notice of Default was never completed, mailed out, or recorded. CONCLUSION For the foregoing reasons, Defendant respectfully request that the complaint be dismissed without prejudice in its entirety.
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Respectfully submitted,

Dated:

_____________________________________ MR. HOMEOWNER _____________________________________ MRS. HOMEOWNER

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