2014-08-29 Richard Shelley V Quality Loan Service Corp, Et Al (09-56133) in The US Court of Appeals, 9th Circuit - False and Deliberately Misleading NDA in A Case Involving A Financial Institution
Appellant Shelley received a false and misleading October 22, 2009 NDA for the Order Denying Stay (Dkt #7 in his case). The order linked to it was not an order in his case, but in an unrelated prisoner's petition William Meador v J Alvidrez, et al (09-16508) (Dkt #5 in that case). When Shelley asked the US Court of Appeals, 9th Circuit, to correct the invalid NDA, his request was not addressed.
One should notice Appellant Shelley's claims in his Appeal Brief, regarding denying of access to the US District Court in his case.
The conduct of the US Court of Appeals, 9th Circuit, can be deemed as more of the same.
The case demonstrates the invalidity of service through the NDA (and likewise, the NEF in the district courts), where the judicial records are not served at all, only a link is provided. The practice of providing links instead of records is insecure, and should be prohibited in court process.
Original Title
2014-08-29 Richard Shelley v Quality Loan Service Corp, et al (09-56133) in the US Court of Appeals, 9th Circuit - false and deliberately misleading NDA in a case involving a financial institution
Appellant Shelley received a false and misleading October 22, 2009 NDA for the Order Denying Stay (Dkt #7 in his case). The order linked to it was not an order in his case, but in an unrelated prisoner's petition William Meador v J Alvidrez, et al (09-16508) (Dkt #5 in that case). When Shelley asked the US Court of Appeals, 9th Circuit, to correct the invalid NDA, his request was not addressed.
One should notice Appellant Shelley's claims in his Appeal Brief, regarding denying of access to the US District Court in his case.
The conduct of the US Court of Appeals, 9th Circuit, can be deemed as more of the same.
The case demonstrates the invalidity of service through the NDA (and likewise, the NEF in the district courts), where the judicial records are not served at all, only a link is provided. The practice of providing links instead of records is insecure, and should be prohibited in court process.
2014-08-29 Richard Shelley V Quality Loan Service Corp, Et Al (09-56133) in The US Court of Appeals, 9th Circuit - False and Deliberately Misleading NDA in A Case Involving A Financial Institution
Appellant Shelley received a false and misleading October 22, 2009 NDA for the Order Denying Stay (Dkt #7 in his case). The order linked to it was not an order in his case, but in an unrelated prisoner's petition William Meador v J Alvidrez, et al (09-16508) (Dkt #5 in that case). When Shelley asked the US Court of Appeals, 9th Circuit, to correct the invalid NDA, his request was not addressed.
One should notice Appellant Shelley's claims in his Appeal Brief, regarding denying of access to the US District Court in his case.
The conduct of the US Court of Appeals, 9th Circuit, can be deemed as more of the same.
The case demonstrates the invalidity of service through the NDA (and likewise, the NEF in the district courts), where the judicial records are not served at all, only a link is provided. The practice of providing links instead of records is insecure, and should be prohibited in court process.
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Dr Z Dr Z Dr Z Dr Z Joseph Zernik, PhD PO Box 526, La Verne, CA 91750; Fax: 323.488.9697; Email: jz12345@earthlink.net Blog: http://inproperinla.blogspot.com/ Scribd: http://www.scribd.com/Free_the_Rampart_FIPs 10-03-26 NDA (Notice of Docket Activity) from the US Court of Appeals, 9 th Circuit, in Shelly v Quality Loan Service, Inc.
X-MSK: CML=0.001000 From: "Philip J. Shelley" <philipjs@verizon.net> To: "joseph zernik" <jz12345@earthlink.net> Subject: Fw: 09-56133 Richard Shelley v. Quality Loan Service Corp., et al "Order Filed" Here's one you might not have been able to open that I thought was FISHY Date: Fri, 26 Mar 2010 11:19:20 -0700 X-Mailer: Microsoft Windows Mail 6.0.6002.18005 X-ELNK-AV: 0 X-ELNK-Info: sbv=0; sbrc=.0; sbf=00; sbw=000;
----- Original Message ----- From: ca9_ecfnoticing@ca9.uscourts.gov To: pippy52@verizon.net Sent: Thursday, October 22, 2009 12:51 PM Subject: 09-56133 Richard Shelley v. Quality Loan Service Corp., et al "Order Filed"
***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. United States Court of Appeals for the Ninth Circuit
Notice of Docket Activity
The following transaction was entered on 10/22/2009 at 12:51:29 PM PDT and filed on 10/22/2009 Case Name: Richard Shelley v. Quality Loan Service Corp., et al Case Number: 09-56133 Document(s): Document(s)
Docket Text: Filed order (STEPHEN S. TROTT and JOHNNIE B. RAWLINSON) Appellants emergency motion for stay pending appeal is denied. The briefing schedule previously established shall remain in effect.[7104315] (KD)
The following document(s) are associated with this transaction: Document Description:Main Document Original Filename:09-16508.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1106763461 [Date=10/22/2009] [FileNumber=7104315-0] [44f5dfe29c6bb6a5f60484cf7e90148975bab9b25d1765202c56e66166b84144c26f92479dfc08a67a4a 4d5506ff90d6ebde58d5dea90e66ed2a2efc50b55e81]]
Page 2/2 March 26, 2010 Notice will be electronically mailed to:
Mr. Bivin, Chaise R. Honorable Carney, Cormac J., U.S. District Judge Mr. Shelley, Richard, pro se USDC, Santa Ana
Notice will be mailed to:
Scott, David C. MCCARTHY & HOLTHUS 1770 Fourth Ave. San Diego, CA 92101
The following information is for the use of court personnel:
DOCKET ENTRY ID: 7104315 RELIEF(S) DOCKETED: to stay further action DOCKET PART(S) ADDED: 6597966, 6570242, 6570243, 6597967
ec/MOATT UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RICHARD SHELLEY, Plaintiff - Appellant, v. QUALITY LOAN SERVICE CORP.; et al., Defendants - Appellees, and FREMONT INVESTMENT & LOAN, Defendant. No. 09-56133 D.C. No. 8:09-cv-00291-CJC Central District of California, Santa Ana ORDER Before: TROTT and RAWLINSON, Circuit Judges. Appellants emergency motion for stay pending appeal is denied. The briefing schedule previously established shall remain in effect. FILED OCT 22 2009 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS Case: 09-56133 10/22/2009 Page: 1 of 1 ID: 7104315 DktEntry: 7
Dr Z Dr Z Dr Z Dr Z Joseph Zernik, PhD PO Box 526, La Verne, CA 91750; Fax: 323.488.9697; Email: jz12345@earthlink.net Blog: http://inproperinla.blogspot.com/ Scribd: http://www.scribd.com/Free_the_Rampart_FIPs 10-03-26 Richard Shelley Email Note Regarding Dubious October 22, 2009 Order & NDA (Notice of Docket Activity)
NDA was originally possibly linked to order in case of William Meador v. J. Alvidrez, et al (09-16508)
On March 26, 2010 18:58 Joseph Zernik wrote: Date: Fri, 26 Mar 2010 18:58:28 -0700 To: "Philip J. Shelley" <philipjs@verizon.net> From: joseph zernik <jz12345@earthlink.net> Subject: Re: here's the document that comes up now when you click the document link
When you first opened it, was it by chance the following?
Filed order (STEPHEN S. TROTT and JOHNNIE B. RAWLINSON) Appellants motion to proceed in forma pauperis is denied because appellant has had three or more prior actions or appeals dismissed as frivolous or for failure to state a claim and because appellant has not alleged any imminent danger of serious injury in this appeal. See 28 U.S.C. 1915(g). Docket fee due..Summary affirmance order to show cause..If appellant fails to comply with this order, the Clerk shall dismiss this appeal for failure to prosecute..Briefing is suspended pending further order of this court. (see order for full text) [7104338] (KD)
On March 26, 2010 11:47 Richard Shelley wrote: X-MSK: CML=1.001000 From: "Philip J. Shelley" <philipjs@verizon.net> To: "joseph zernik" <jz12345@earthlink.net> Subject: here's the document that comes up now when you click the document link Date: Fri, 26 Mar 2010 11:47:51 -0700 X-Mailer: Microsoft Windows Mail 6.0.6002.18005 X-ELNK-AV: 0 X-ELNK-Info: sbv=0; sbrc=.0; sbf=00; sbw=000;
but when I first got it and clicked on the free look link, it showed me a denial of motion to stay in a criminal case. check the date of docket activity and see if matches any dates with richard fine's case.
oh and here's a little tip if you want to cut back on pacer fees download firefox, install it, open it up and do a search for "recap turning pacer around". after you find it read about it's cool it allows all recap users to automatically upload the files they view on pacer to the recap server, making it free for anyone else with a pacer account to view it for free. download and install restart browser. Emergency Motion Denied.pdf
Court Home Case Search Orders/Judgments Briefs Billing History Court Information XML TXT Logout Help General Docket United States Court of Appeals for the inth Circuit Court of Appeals Docket #: 09-56133 Docketed: 07/21/2009 ature of Suit: 3480 Consumer Credit Richard Shelley v. Quality Loan Service Corp., et al Appeal From: U.S. District Court for Central California, Santa Ana Fee Status: Paid Case Type Information: 1) civil 2) private 3) null Originating Court Information: District: 0973-8 : 8:09-cv-00291-CJC-MLG Court Reporter: Blanca Aguilar, Official Court Reporter Trial Judge: Cormac J. Carney, U.S. District Judge Date Filed: 03/09/2009 Date Order/Judgment: Date Order/Judgment EOD: Date OA Filed: Date Rec'd COA: 06/17/2009 06/18/2009 07/16/2009 07/21/2009 Prior Cases: None Current Cases: None RICHARD SHELLEY, pro se Terminated: 08/11/2009 Plaintiff - Appellant, RICHARD SHELLEY, pro se Plaintiff - Appellant, Richard Shelley, pro se Direct: 714-379-4876 [NTC Pro Se] 6721 Tillamook Westminster, CA 92683 v. QUALITY LOAN SERVICE CORP. Defendant - Appellee, David C. Scott Direct: 619-685-4800 3/26/2010 09-56133 Docket ecf.ca9.uscourts.gov//TransportRoom 1/6 [COR LD NTC Retained] MCCARTHY & HOLTHUS 1770 Fourth Ave. San Diego, CA 92101 LITTON LOAN SERVICING, LLP Defendant - Appellee, Chaise R. Bivin, Esquire Direct: 949-442-7110 [COR LD NTC Retained] SEVERSON & WERSON Atrium Building 700 19100 Von Karman Avenue Irvine, CA 92612 FREMONT INVESTMENT & LOAN Defendant, 3/26/2010 09-56133 Docket ecf.ca9.uscourts.gov//TransportRoom 2/6 RICHARD SHELLEY, pro se, Plaintiff - Appellant, v. QUALITY LOAN SERVICE CORP.; LITTON LOAN SERVICING, LLP, Defendants - Appellees, and FREMONT INVESTMENT & LOAN, Defendant. 3/26/2010 09-56133 Docket ecf.ca9.uscourts.gov//TransportRoom 3/6 07/21/2009 1 14 pg, 386.79 KB DOCKETED CAUSE AND ENTERED APPEARANCES OF APPELLANT IN PRO SE AND COUNSEL FOR APPELLEES SEND CADS: No. The schedule is set as follows: Fee due from Appellant Richard Shelley on 07/16/2009. Transcript order for Appellant Richard Shelley due 08/17/2009. Transcript due for Orig Clerk USDC, Santa Ana on 11/16/2009. Certificate of record due 11/23/2009. Appellant Richard Shelley opening brief due 01/04/2010. Appellee Litton Loan Servicing, LLP and Appellee Quality Loan Service Corp. answering brief due 02/03/2010. Appellant's optional reply brief is due 14 days after service of the answering brief. [6999040] (BG) 07/27/2009 2 1 pg, 61.29 KB Received notification from District Court re: payment of docket fee. Amount Paid: USD 455.00 Date paid: 07/23/2009. [7006625] (CW) 10/07/2009 3 1 pg, 25.88 KB Received Appellant Mr. Richard Shelley emergency motion for stay pending appeal. served on - no svc. [7087939] (CW) 10/13/2009 4 11 pg, 296.68 KB Filed (ECF) Appellee Litton Loan Servicing, LLP response opposing motion (Emergency Motion , to stay further action). Date of service: 10/13/2009. [7093347] (CRB) 10/21/2009 5 COURT DELETED ENTRY (duplicate of [6]. Original text: Filed (ECF) Appellant Mr. Richard Shelley reply to response (Response to Motion (ECF Filing) ). Date of service: 10/21/2009. [7103520] (RS) 10/22/2009 6 43 pg, 2.43 MB Filed (ECF) Appellant Mr. Richard Shelley response to motion (Response to Motion (ECF Filing) , Reply to Response to Motion (ECF Filing) ). Date of service: 10/21/2009. [7104243] (RS) 10/22/2009 7 1 pg, 25.79 KB Filed order (STEPHEN S. TROTT and JOHNNIE B. RAWLINSON) Appellants emergency motion for stay pending appeal is denied. The briefing schedule previously established shall remain in effect.[7104315]--[COURT UPDATE: Attached correct file. 10/22/2009 by MA] (KD) 02/03/2010 8 86 pg, 3.23 MB Submitted (ECF) Opening brief for review. Submitted by Appellant Mr. Richard Shelley. Date of service: 02/03/2010. [7219387]--[COURT UPDATE: Added certificate of service, 02/11/2010 by AWM] (RS) 02/10/2010 9 3 pg, 247.46 KB Filed (ECF) Appellant Mr. Richard Shelley Motion to file a late brief. Date of service: 02/10/2010. [7226506]--[COURT UPDATE: Replaced PDF of motion with complete version, added certificate of service, resent NDA, 02/11/2010 by AWM] (RS) 02/11/2010 10 COURT DELETED ENTRY. Duplicate filing, filed in [9]. Original text: Filed (ECF) Appellant Mr. Richard Shelley Motion to file a late brief. Date of service: 02/11/2010. [7228079] (RS) 02/23/2010 11 2 pg, 25.09 KB Filed clerk order (Deputy Clerk:LKK`): Appellant's motion for leave to file a late opening brief is granted. The Clerk shall file the opening brief received February 2, 2010. The answering brief is now due 30 days after the date of this order. 3/26/2010 09-56133 Docket ecf.ca9.uscourts.gov//TransportRoom 4/6 [7240638] (SC) 02/23/2010 12 2 pg, 82.85 KB Filed clerk order: The opening brief [8] submitted by Mr. Richard Shelley is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a blue cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7241071] (PK) 03/02/2010 13 Received 7 paper copies of Opening brief [8] filed by Mr. Richard Shelley. [7250984] (SD) 03/23/2010 14 14 day oral extension by phone of time to file Appellees Litton Loan Servicing, LLP and Quality Loan Service Corp. brief. Appellee Litton Loan Servicing, LLP and Appellee Quality Loan Service Corp. answering brief due 04/08/2010. The optional reply brief is due 14 days after service of the appellee brief. [7275723] (LN) 3/26/2010 09-56133 Docket ecf.ca9.uscourts.gov//TransportRoom 5/6 Clear All Documents and Docket Summary Documents Only Include page numbers Selected Pages: 0 Selected Size: 0 KB View Selected PACER Service Center Transaction Receipt 03/26/2010 18:32:21 PACER Login: dr2600 Client Code: Description: Docket Report (filtered) Search Criteria: 09-56133 Billable Pages: 2 Cost: 0.16 3/26/2010 09-56133 Docket ecf.ca9.uscourts.gov//TransportRoom 6/6 Court Home Case Search Orders/Judgments Briefs Billing History Court Information XML TXT Logout Help If you view the Full Docket you will be charged for 1 Pages $0.08 General Docket United States Court of Appeals for the inth Circuit Court of Appeals Docket #: 09-16508 Docketed: 07/20/2009 Termed: 01/08/2010 ature of Suit: 2550 Prisoner-Civil Rights William Meador v. J. Alvidrez, et al Appeal From: U.S. District Court for Eastern California, Fresno Fee Status: IFP Pending In COA Case Type Information: 1) prisoner 2) federal 3) civil rights Originating Court Information: District: 0972-1 : 1:09-cv-01058-LJO-GSA Trial Judge: Lawrence J. O'Neill, U.S. District Judge Date Filed: 06/16/2009 Date Order/Judgment: Date Order/Judgment EOD: Date OA Filed: Date Rec'd COA: 07/02/2009 07/02/2009 07/16/2009 07/17/2009 3/26/2010 09-16508 Summary ecf.ca9.uscourts.gov//TransportRoom? 1/3 07/20/2009 1 DOCKETED CAUSE AND ENTERED APPEARANCE OF PRO SE APPELLANT (no appearance for appellees). SEND CADS: No. The schedule is set as follows: Appellant William Langston Meador opening brief due 11/02/2009. [6996618] (HC) 07/27/2009 2 Filed Appellant William Langston Meador motion for extensions of time. Served on 07/23/2009. [7004884] (EL) 07/31/2009 3 Filed clerk order (Deputy Clerk:CKP): A review of the district court docket reflects that appellant has not paid the docketing and filing fees for this appeal. Within 21 days from the date of entry of this order, appellant shall: (1) file a motion with this court to proceed in forma pauperis; (2) pay $455.00 to the district court as the docketing and filing fees for this appeal and provide proof of payment to this court; or (3) otherwise show cause why the appeal should not be dismissed for failure to prosecute. If appellant fails to comply with this order, the appeal will be dismissed automatically by the Clerk under Ninth Circuit Rule 42- 1. [7011484] (CKP) 08/04/2009 4 Filed Appellant William Langston Meador's form 4 affidavit accompanying motion for permission to appeal in Forma Pauperis. Served on 08/02/2009. [7015648] (EL) 10/22/2009 5 Filed order (STEPHEN S. TROTT and JOHNNIE B. RAWLINSON) Appellants motion to proceed in forma pauperis is denied because appellant has had three or more prior actions or appeals dismissed as frivolous or for failure to state a claim and because appellant has not alleged any imminent danger of serious injury in this appeal. See 28 U.S.C. 1915(g). Docket fee due..Summary affirmance order to show cause..If appellant fails to comply with this order, the Clerk shall dismiss this appeal for failure to prosecute..Briefing is suspended pending further order of this court. (see order for full text) [7104338] (KD) 11/10/2009 6 Filed Appellant William Langston Meador response to order to show cause. Served on 11/08/2009. [7126472] (JFF) 01/08/2010 7 Order filed (Deputy Clerk: EC): On October 22, 2009, this court ordered appellant, within 21 days, to pay the filing fees and show cause why the judgment in this appeal should not be summarily affirmed. The order warned appellant that failure to pay the fees and to show cause would result in the automatic dismissal of the appeal by the Clerk of the Court. To date, appellant has not paid the filing fees for this appeal. Accordingly, this appeal is dismissed for failure to prosecute. This order served on the district court shall act as and for the mandate of this court. [7187999] (AF) PACER Service Center Transaction Receipt 03/26/2010 18:56:59 PACER Login: dr2600 Client Code: Description: Case Summary Search Criteria: 09-16508 3/26/2010 09-16508 Summary ecf.ca9.uscourts.gov//TransportRoom? 2/3 Billable Pages: 1 Cost: 0.08 3/26/2010 09-16508 Summary ecf.ca9.uscourts.gov//TransportRoom? 3/3 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RICHARD SHELLEY 9th Cir. Case No. 09-56133 Plaintiff-Appellant District Court Case No. 8:09-cv-00291-CJC-MLG vs. QUALITY LOAN SERVICE CORP.; LITTON LOAN SERVICING, LLP, Defendants- Appellees and FREMONT INVESTMENT & LOAN Defendant APPELLANTS INFORMAL BRIEF 1. Jurisdiction a. Timeliness of Appeal: (I) Date of entry of judgment or order of lower court: 6/18/2009 (ii) Date of service of any motion made after judgment (other than for fees and costs):__________________________ (iii)Date of entry of order deciding motion ____________________ (iv) Date notice of appeal filed 7/16/2009 (v) For prisoners, date you gave notice of appeal to prison authorities ______________________________ b. IF POSSIBLE, PLEASE ATTACH ONE COPY OF EACH OF THE FOLLOWING: 1. The order fromwhich you are appealing 2. The district courts entry of judgment 3. The district court docket sheet
Case No. 09-56133 2.What are the facts of your case? PARTIES Plaintiff/Appellant Richard Shelley(hereinafter Appellant) is a natural person whomat all relevant times referred to resided at and held all Legal Title to a parcel of Single Family Residential Real Property located in the City of Westminster, County of Orange, CA commonly known as 6721 Tillamook Ave. ZipCode 92683 Defendant/Appellee Quality Loan Service, Corp.(hereinafter Quality) license ID 01244892 which expired 10/22/02 whos mailing address as of record is 1650 E. 4 th St., Santa Ana, CA 92701 allegedly doing business out of San Diego County address 2141 5 th Ave., San Diego, CA 92101 Defendant/Appellee Litton Loan Servicing LP(hereafter Litton) a Delaware Corporation license #4130234 actively licensed with the California Department of Corporations as a Mortgage Banker engaging in Interstate Commerce with no branches in the state of California with its main office address of record 4828 Loop Central Drive; P.O. Box 570848, Houston, TX 77257 Defendant FGC Commercial Mortgage Finance, dba Fremont Investment & Loan FDIC insured(hereinafter Fremont) license #6032063 no longer licensed after finally consenting to an FDIC Cease and Desist order in 2007(see FDIC-07-035b ) after multiple warnings to stop its unsatisfactory lending practices last known address of record 2727 E. Imperial Highway, Brea, CA 92821 3.On May 17, 2006, Appellant entered into a consumer credit transaction (hereinafter "the transaction") with Fremont in which the extended consumer credit was subject to a finance charge and which was initially payable to Fremont secured by the Principal Dwelling at 6721 Tillamook Ave. Westminster CA 92683 (hereinafter the Property) of Appellant. During the course of the transaction Fremont failed to provide Appellant two clear and conspicuous Notices of his Right to Rescind as well as failed to properly include in the finance charge the Brokers fee of $5,460, The application fee of $500 which was not a "bona fide and reasonable" fee and the Processing fee $525 within the tolerance limits as specified by the Truth In Lending Act(hereinafter TILA). Sometime in May or June 2008 the loan was allegedly assigned to Defendant Litton Loan Servicing, L.L.P.(hereinafter Litton), actual date of Assignment being uncertain due to Defendants failing to file Notice of Assignment with the Orange County Recorders Office. A new loan was obtained on June 4,2008 in the amount of $271,587.04 and applied toward the principle amount due(as can be referenced by copies of both Fremonts and Littons transaction history that was provided to Mr.Shelley). Apparently unsatisfied with the tender received Litton informed Mr.Shelley of their intention to Substitute Defendant Quality Loan Service, Corporation(hereinafter Quality) as Trustee, actual date of Substitution being uncertain due to Defendants failing to file Substitution of Trustee with the Orange County Recorders Office. Quality declared Default November 6, 2008 then recorded November 7, 2008. Confused and displeased with the allegations made by the Defendants concerning the underlying Deed of Trust recorded 5/26/2006, as Instrument No. 2006000359250, in Book xxx, Page xxx of Official Records in the Office of the Recorder of Orange County, CaliforniaMr.Shelley gave Notice of Rescission received by the assumed Trustee on December 23, 2008 as evidenced as Exhibit E of Plaintiffs Discovery Motion, suggesting Judicial mediation as an appropriate resolve to determine the rights, obligations and authorities of all parties involved in the dispute. Defendants refused and proceeded to record on February 19, 2009 a Notice of Trustees Sale forcing Mr.Shelley to file the instant action in the District Court on March 9, 2009 shortly after discovery of the TILA violations giving rise to the cause of action contained in the complaint and then served summons on Litton and Quality. The pending sale was either postponed or cancelled for possible irregularities perhaps, in any case the Defendants made their own decision not to go forward with the sale that was scheduled March 10, 2009. 3 Case No. 09-56133 3. What did you ask the district court to do (for example, award damages, give injunctive relief, etc.)?Applied for a Temporary Restraining Order, asked the District Court to issue a Preliminary Injunction enjoining Defendants fromcommencing the Trustees Sale, sought enforcement of the declaratory right of rescission under TILA return of all profits and payments received and given to anyone in connection with or arising fromthe transaction including but not limited to third parties that was owed to Appellant, fulfillment of the steps required to be taken to reflect that the security interest in Appellants home has been terminated regardless of status as statutorily required by TILA, damages for noncompliance and a determination of any amounts due to Defendants after the TILAs statutory provisions have been complied with by Defendants. State the claimor claims you raised at the district court. A statutorily entitled claimfor Extended Rescission contained in 15 U.S.C. 1635 for violations relating to Defendants failure to properly disclose material disclosures that extends the right of rescission to 3 years, claimfor additional Rescission rights pursuant to 15 U.S.C. 1635(i)(1)(A). A claimfor damages for noncompliance with the statutorily required procedures provided for in 15 U.S.C. 1635(b). Then the District Court suggested a possible requisite of showing that Appellant can or will fulfill his obligation of tender of money or property following rescission, Appellant gave notice to Defendants and to the District Court(filed and entered on the docket 5/15/2009 Docket Entry #22 Attachment #1) declaring an offer of return or surrender of the property secured in exchange for all tender payments received and profits gained in connection with the transaction. The property has been in my family since it was built in the 50's then purchased by me frommy mother in 1985 on a VA loan, the market value fromthe appraisal that was done in 2006 was more than twice the amount of the credit that was extended and additional improvements had been made since then. Surely it was more than an adequate offer seen as the Defendants and the District Court would not state the amount needed to satisfy whatever tender obligation which may arise fromthe Rescission. The judge fromthe District Court never specifically ordered anything to the contrary so the procedures set forth in 15 U.S.C. 1635(b) should govern having not accepted the offer it would appear that interest(if any) was waived. 4. What issues are you raising on appeal?
Before beginning even though it may not be necessary please do accept Appellants humble apologies for prior counsels long delay in filing of the action. Attorney Stephan F. Dial was hired around sometime in July of 2008 to file the action, was provided with everything needed to file and was well informed of all the intended claims to be filed and how to proceed with the case. Then after the action was finally filled the Attorney refused to cooperate with how to proceed with the case as directed, attempted to force Appellant to dismiss the action, sign a general release of all claims under duress and undue influence, refused to accept Appellants revocation of power of attorney and then purported to file a motion of non-opposition on behalf of Appellant after being discharged as counsel. So please be assured that had Appellant been granted Pro Se access to the CM/ECF registration systemfor the California Central District Court much of this could have been avoided. That being said Great Appreciation goes to this Honorable Court for allowing Pro Se/Appellant the privilege. The judge fromthe District Court made inaccurate responsive statements regarding the facts leaving unresolved issues and mistakes of fact in denying the requested preliminary injunctive relief. First is the fact that the transaction in question(involving the real property Appellant held all legal title to) was an extension of consumer credit entered into May 17, 2006 and not a loan entered into on May 26, 2006 of funds as the judge for the judge fromthe District Court mistakenly understood. See Rudisell v Fifth Third Bank 622 F.2d 243 (6th Cir 1980) 38. The Defendants had no part in the extension of any amounts for the Purchase Money used to pay off the original Installment Sale Contract Appellant entered into in 1985. Thus Fremont was not secured and did not acquire an interest in the whole property. Besides tender of consideration received is an equitable prerequisite to rescission, the requirement was abolished by the Truth in Lending Act...Only 'upon the performance of the creditor's obligations under (section 1635),' must the obligor tender the property to the creditor. Section 1635(b) expressly provides that prior to performance of the required actions by the creditor, 'if the creditor has delivered any property to the obligor, the obligor may retain possession of it. 5 Palmer v Wilson 502 F.2d 860 (9th Cir 1974) 6 In the absence of any clear congressional statement.See 114 Cong. Rec. 14398 (1968) (statement of Rep. Sullivan) If the seller does not come back to pick up (his property) after a 10-day period (following the notice of rescission), the buyer can keep this itemand he does not even have to pay for it . . quoted by Sosa v Fite 498 F.2d 114(5th Cir 1974) 10. Second is a mistake of fact made by Appellants former counsel(Comp. 14) but no valid assignment has been recorded in the local county Recorders Office where the property is located, as well as no Substitution of Trustee by Quality, something Quality has in fact been known to neglect doing as required See Pro Value Properties, Inc. v. Quality Loan Service Corp., 170 Cal. App. 4th 579 See also Exhibit A 24, and seen as they do not hold valid California License or qualify for a Trustees Exemption that makes their attempt to non-judicially foreclose illegal and a fraud. To add to that seen as Litton was created in a foreign state and Quality claims their granted power of Trustee fromLitton, under the US Const Art III 2 California non-judicial would not be available. The issue also had not 5 been resolved as to the incorrect amount($440,000 later corrected) of the credit extended, also how and where fromthe District Court and Appellants former counsel determined the incorrect amount when all the evidence that were provided in discovery stated the correct amount($273,000) and while Appellant has made a good faith attempt in the Prayer For Relief for the Court to determine as to what amount might be due(Compl. VI 9) if equitable modification had been requested by the Defendants, this good faith effort fell on deaf ears and the District Court allowed the Defendants to prejudice Appellants rights by letting themallude discovery, delay proceedings and even grant their motion after the Court ordered deadline had passed. While it maybe true that Appellant had not provided any evidence of equitable tolling the limitations for the overcharges, likewise can be said for Defendants lack of evidence of equitable tolling the limitations of the 20 days outlined in 15 U.S.C. 1635(b) that they had two opportunities fromrelief fromthe forfeiture but consequently waived them. See Hritz v Woma Corporation 732 F.2d 1178 (3rd Cir 1984) 17 "failure to answer the complaint must be viewed in the context of its failure over an extended period of time to answer any claimor correspondence fromthe plaintiffs. It is true that, as of the day after filing, the claimhad been presented to [Defendants] considerably...before the suit was initiated...Given [Defendant's] conduct, it would have mattered little whether plaintiff filed suit one day or six months prior...[Defendant's] failure to answer any communication would have created a time bar to proceeding against other parties, regardless of the filing date. Viewed in this light, the failure to answer the complaint is part of a pattern that threatens [Appellant] with the gravest prejudice: having their claimbarred completely.." Third is the fact that there was no mortgage but a Deed of Trust where the only expressed power of sale was granted to Fremont which made no objection, counterclaims, raised no defenses and made no representation that any interest, principle, balance, or consideration was unsatisfied, unpaid, uncollected due, owed or outstanding nor did Fremont claimthe promissory note along with the Deed of Trust to be valid or legally enforceable by themlet alone to the other Defendants/Appellees because it has been rescinded. Equitable Rescission which seeks to restore both parties to a contract to the status quo ante, when actually Plaintiffs claimwas seeking statutory enforcement of his right of Rescission arising under the TILA. Just as the 6 th Circuit held in Rudisell v Fifth Third Bank, 622 F.2d 243, 40 (6 th Cir. 1980) the appellants still have a right to rescind the transaction. Congress intended the rescission to absolutely void the transaction and return the debtor to the status quo existing before he started the transaction, even against third party purchasers. See 114 Cong. Rec. 14388 (1968) (statement of Rep. Sullivan). Furthermore if there is or was to be any conditioning of repayment of consideration then Defendants/Appellees need to prove the amount, that the consideration was in fact theirs to give, that Appellant knowingly received a benefit fromthat consideration and how Appellant did in fact benefit fromthis consideration. All this could have been accomplished by complying with Discovery something Appellees have absolutely refused to do. Forth is the District Courts error of law as to the substantive formof the Rescission claim, See Griggs v E.I. DuPont de Nemours & Co. 385 F.3d 440 (4 th Cir 2004) 22, 23 Broadly speaking, rescission at law occurs when the plaintiff has a right to unilaterally avoid a contract. The rescission itself is effected when the plaintiff gives notice to the defendant that the transaction has been avoided and 6 tenders to the defendant the benefits received by the plaintiff under the contract. See Handbook on Remedies, 4.3 at 255. (23)Once the plaintiff has rescinded, he is entitled to recover back what he gave under the contract. If the defendant does not give it back voluntarily, the plaintiff may sue for it.... Thus the court in cases of rescission "at law" does not effect the rescission and the court's only role is to get back the plaintiff's property or its value.Appellant has the substantive right to tender the property in exchange for all the tender received arising out of the transaction. See Gerasta v Hibernia National Bank 575 F.2d 580 (5th Cir 1978) 15 the forfeiture provision contained in Section 1635(b) is still a part of the statute; it should be enforced as written in an appropriate case; but, in the absence of the tender by the obligor that the Section specifically requires, it is not applicable.In the complaint Appellant sought Declaratory Relief and the Defendants had a time limit prescribed by statute and a claimfor declaratory relief could have been resolved through another formof action which has a specific limitations period, the specific period of time will govern." Orangetown v. Gorsuch, 718 F.2d 29, 42 (2d Cir.1984). . Fifth is the misguided reliance of the District Court in Yamamoto v. Rank of New York, 339 F.3d 1167 (9th Cir 2003) and Am. Mortgage Network v. Shelton, 486 F.3d 815,821 (4th Cir. 2007) as its controlling authority to deny Appellant the statutory right of Rescission when none of the Defendants filed a counterclaimas would be necessary under F.R.C.P. Rule 13 for what the judge fromthe District Court was proposing before granting a Rule 12(b)(6), he also unfortunately failed to recognize the material difference in those cases to this one. In Yamamoto the court held that when the Yamamotos filed for Chapter 7 bankruptcy their standing to pursue the Rescission claimin the District Court transferred to the bankruptcy trustee and they were not the proper plaintiffs. In this case Appellant has not filed for bankruptcy nor does he intend to due to the fact he is not insolvent and the firmbelief in paying his debts, more importantly the District Court seemto have overlooked the cautioning the 9 th Circuit advised in its conclusion in Yamamoto that Whether the call is correct must be determined on a case-by-case basis seen as the decision was founded mostly on case law as opposed to statutory procedures specified in 15 U.S.C. 1635(b). In Am. Mortgage the District and Appellate both held that Am. Mortgage Network had complied with TILA and acted in good faith when it promptly notified the Sheltons of clerical errors and intention refund the overcharges immediately after discovery of the unintentional non-disclosures, also the finding of fact that Mr.Shelton was not an average consumer being employed in the real state business and apparent misrepresentation that the property in question in that case was their primary residence which in fact it was not further supporting that absolute Rescission was not appropriate due to Sheltons failure to satisfy the required criteria contained in 15 U.S.C. 1635(a) and only applies to the consumers principal dwelling. Here the Appellees have taken advantage of Appellants kind nature and good faith intentions to resolve the these issues reasonably and not have everything worked a long hard 25 years earning and walk away with nothing. Especially when the fact is that violations are apparent on the face of the documents attached to the complaint Exhibit A and Exhibit B are both misrepresenting the date as 5/15/06 when the Notarys Witness and seal date evidencing execution is 5/17/06 and because they have never attempted to correct it despite being confronted with the facts and demand for rescission that is willful Fraud. Also 7 when calculating the monthly payment schedule that begins 7/01/08 with the amount fromthe promissory note interest that was scheduled to be charged monthly would have been around 13% in clear violation of CA Const art XV 1 making it Usurious. See Davis v. Werne. 673 F.2d 866, 14The statutory damages are explicitly a bonus to the successful TILA plaintiff, designed to encourage private enforcement of the Act, and a penalty against the defendant, designed to deter future violations. See Williams v. Public Finance Corp., supra; Hinkle v. Rock Springs Nat. Bank, 538 F.2d 295 (10th Cir. 1976), recovery of statutory damages by a successful TILA plaintiff is not inconsistent with other remedies the plaintiff may have in connection with the same transaction, such as rescission of the loan contract, see Sellers v. Wollman, 510 F.2d 119 (5th Cir. 1975), or even forfeiture to the plaintiff, under state usury laws, of the unpaid balance of the loan, see Williams v. Public Finance Corp., (598 F.2d 349 (5th Cir. 1979) ). When imposing sanctions under its inherent power to promote the orderly and just administration of its caseload, the district court must follow its own rules, see Peabody v Maud Van Cortland Hill Schroll Trust 892 F.2d 772, 30 (9 th Cir. 1990); In re Thalheim, 853 F.2d 383, 389 (5th Cir.1988); make a finding of bad faith, Roadway Express, Inc. v. Piper, 447 U.S. 752, 766-67, 100 S.Ct. 2455, 2464-65, 65 L.Ed.2d 488 (1980); and afford due process, TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 916 (9th Cir.1987). The judge fromthe District Court should have restrained fromexpressing a judicial bias and the complete disregard in maintaining the appearance of impartiality when acting in a judicial capacity, leaving doubt in the mind of the Plaintiff, wondering if he will have a fair and just trial where the case is heard on the merits and none of his rights to due process will be prejudiced. How exactly was Appellant supposed to file anything or participate in the case when the manual filing by former counsel was rejected and Pro Ses are not eligible for CM/ECF registration? As for the motion and proposed order that was granted that appeared to be nothing more than a repeat of what the judge fromthe District Court said, it should not have been granted as it was filed passed the court ordered deadline, tender had already been offered therefore Appellant obviously had the ability nowhere in the TILA statute or case law has specifically requires a completely solvent consumer to produce some sort of definite eligibility criteria before being granted the rights they are by law entitled to. There is no such evidence of inability in Docket #7 as Litton as alleged, that entry was one of the judges responses and Litton should be compelled to prove they have any standing by producing the alleged assignment from Fremont and that Appellant consented to changing the terms of the status quo so they can be penalized for usury as well as Quality after they provide the Substitution of Trustee fromLitton. An inquiry was made into the reasonable value of the supposed consideration they gave to Appellant they never replied with an amount, therefore it was concluded that the value was nothing. Granting it was unprofessional the judge completely abused his discretion when he ignored the fact that there is two options to satisfying a rescission tender claim, altering the substantive provisions of TILA like this is an assault individual civil liberties and will cause damage to the integrity of The Judiciary for not enforcing its own rules as well as destroy public confidence for holding a partial favoritismin potential campaign contributors as the judge may see it which appears to be nothing more than Prepaid Bribes with a different name. The Statutorily prescribed method of procedures outlined in 15 U.S.C. 1635(b) which is most likely what a natural consumer should expect when seeking to have those rights enforced and what the judge fromthe District Court unmistakably had a predisposition to claims of is discernable similar if not the very same bait and switch tactics Congress intended to provide consumers relief with when creating the right of 8 Rescission, and because the 3 day right of rescission is absolute and does not require the determination of a court to be effective and because the statute makes no distinction between the 3 days and 3 years because the right is extended then such a determination is not required on the latter exercised right of rescission. Furthermore because Appellants claimfor rescission went unopposed and undisputed and the last sentence added by Congress was a grant of jurisdiction not a full range of discretion to do as it pleases. Doing so would be in direct violation of the Separation of Powers provisions in The U.S. Constitution. "The district court, however, engaged in its balancing of the equities on an inadequate record and to that extent abused its discretion."Northern Cheyenne Tribe v Hodel 851 F.2d 1152 (9th Cir 1988) 25. After this case was already sent to the 9th Circuit Appellant attempted to have an illegal fraudulent unlawful detainer and eviction action used to harass and menace Appellant that was filed in the West Justice Center, in the County of Orange removed to the California Central District Court without prepayment of filing fees and was denied based on the recommendation froma Magistrate Judge Arthur Nakazato. The same Magistrate Judge Arthur Nakazato that Recused himself on Docket Entry #8 of this Case. A copy of the former Docket is also included as a separate attachment as well as a certified copy of notice of rescission where the property was tendered which is referred to on Docket Entry #21of this case Attachments: #1 Declaration of Stephen F. Dial as well as the document itself along with other documents on the record of the Docket attached to the Appendix in chronological order with a copy of the uniformresidential appraisal report evidencing the market value at the end and the Docket Report for this case in the beginning. All rights Reserved 9 Case No. ______________ 5.Did you present all these issues to the district court? _______________ If not, why? Yes/No 6.What law supports these issues on appeal? (You may, but need not, refer to cases and statutes.) Code of Conduct for U.S. Judges Cannon 3 A(3) Code of Conduct for U.S. Judges Cannon 3 A(4) 15 U.S.C. 1635 CA Const art XV 1, Cal Code Civ Proc 335-349.4, Cal Civ Code 1473-1479, Cal Civ Code 1485-1505, Cal Civ Code 1511-1515, Cal Civ Code 1688-1693, Cal Civ Code 1770, Cal Civ Code 3412-3415 2. Horton v California Credit Corp. 2009 US Dist (S CA), Moore v Wells Fargo 2009 US Dist (E VA), Williams v. Public Finance Corp 598 F.2d 349 (5th Cir 1979), Davis v. Werne. 673 F.2d 866, Sharpe v FDIC 126 F.3d 1147, Sheldon v Sill 49 U.S. 441 Hodges v. Swafford, 2007 WL 968771 (Ind. App. Apr. 3, 2007) Escher v. Decision One Mortgage Company, LLC, 2007 WL 1683563 (Bankr. E.D. Pa. June 12, 2007) Williamson v. Lafferty, 698 F.2d 767, 768-69 (5th Cir.1983), .Aquino v. Public Finance Consumer Discount Co., 606 F.Supp. 504, 507 (E.D.Pa.1985), Johnson v. Chase Manhattan Bank, USA, NA, 15 U.S.C. 1640(a) (1994), 15 U.S.C. 1641 (1994), Ramadan v. Chase Manhattan Corp., 156 F.3d 499, 502 (3rd Cir. 1998), Shepeard, 730 F. Supp. at 1299, Gerasta v. Hibernia National Bank, 575 F.2d 580, 584 (5th Cir. 1978), Sosa v. Fite, 498 F.2d 114, 118-119 (5th Cir. 1974), Velazquez v. Home American Credit Inc., 2003 U.S. Dist. LEXIS 6417 (N.D. Ill.) (April 14, 2003), Semar v. Platte Valley Fed. Sav. & Loan Ass'n., 791 F.2d 699, 702 (9th Cir. 1986); Reynolds v. D & N Bank, 792 F. Supp. 1035, 1038 (E.D. Mich. 1992); Johnson v. Thomas, 794 N.E.2d 919, 931 (Ill. App. Ct. 2003), Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, Rossman, 280 F.3d at 390 (quoting Ramadan v. Chase 09-56133 No Denial of Court Access Manhattan Corp., 156 F.3d 499, 502 (3d Cir.1998)). Begala v. PNC Bank, Ohio, N.A., 163 F.3d 948, 950 (6th Cir.1998) Pac. Shore Funding v. Lozo, 2006 Cal. LEXIS 8874 (Cal., July 19, 2006), Rudisell v. Fifth Third Bank, 622 F.2d 243, 254 (6th Cir. 1980); Ljepava v. M. L. S. C. Properties, Inc., 511 F.2d 935, 944 (9th Cir. 1975); Palmer v. Wilson, 502 F.2d 860, 861 (9th Cir. 1974), Staley v. Americorp Credit Corp., 164 F. Supp. 2d 578, 584 (D. MD. 2001), Gill v. Mid-Penn Consumer Disc. Co., 671 F. Supp. 1021(E.D. Pa. 1987), Willis v. Friedman, Clearinghouse No. 54,564 (Md. Ct. Spec. App. May 2, 2002), Robertson v. Strickland (In re Robertson), 333 B.R. 894, 898, 904 n. 14 (Bankr. M.D. Fla. 2005), FDIC v. Ablin, 532 N.E. 2d 379 (Ill. App. 1988); Community National Bank & Trust v. McClammy, 525 N.Y.S. 2d 629 (App. Div. 1988); Yslas v. D.K. Guenther Builders, Inc., 342 So. 2d 859 (Fla. Dist. Ct. App. 1977), Butler v. U.S. Dept. of Housing & Urban Devt, 595 F. Supp. 1041, 1047 (E.D.Pa. 1984), Ruiz v. New Garder Tp., 232 F. Supp. 2d 418, 429 (E.D. Pa. 2002), Bizier v. Globe Financial Services, Inc., 654 F.2d 1, 3 (1st Cir. 1981), Jackson v Grant 876 F.2d 764 (9th Cir 1989) 11 Case No. ______________ 8.Do you have any other cases pending in this court? If so, give the name and docket number of each case. No 9. Have you filed any previous cases which have been decided by this court? If so, give the name and docket number of each case. No 10. For prisoners, did you exhaust all administrative remedies for each claimprior to filling your complaint in the district court? _______________________ ________ DATE ___________________________ _______ SIGNATURE ___________________________ _______ ADDRESS CERTIFICATE OF SERVICE Case Name: ____________________ v. __________________________ Case No.: _____________ IMPORTANT: You must send a copy of ALL documents filed with the court and any attachments to counsel for ALL parties in this case. You must also file a certificate of service with this court telling us that you have done so. You may use this certificate of service as a master copy, fill in the title of the document you are filing and attach it at the back of each filing with the court. Please list below the names and addresses of the parties who were sent a copy of your document and the 09-56133 /s/ Richard Shelley 2/03/10 6721 Tillamook Ave., Westminster, CA 92683 SHELLEY 09-56133 dates on which they were served. Be sure to sign the statement below. You must attach a copy of the certificate of service to each of the copies and the copy you file with the court. I certify that a copy of the _____________________________ (Name of document you are filing, i.e., opening brief, motion, etc.) and any attachments was served, either in person or by mail, on the persons listed below. _____________________ ____ Signature Notary NOT required Name Address Date Served 13 Richard Shelley /s/ Richard Shelley McCarthy Holthus, LLP 1770 4th Avenue San Diego, CA 92101 02/04/10 APPENDIX (MLGx), APPEAL, CLOSED, DISCOVERY UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA (Southern Division Santa Ana) CIVIL DOCKET FOR CASE #: 8:09cv00291CJCMLG Richard Shelley v. Quality Loan Service Corp et al Assigned to: Judge Cormac J. Carney Referred to: Magistrate Judge Marc L. Goldman Case in other court: 9th CCA, 0956133 Cause: 15:1640 Truth in Lending Date Filed: 03/09/2009 Date Terminated: 06/17/2009 Jury Demand: Plaintiff Nature of Suit: 480 Consumer Credit Jurisdiction: Federal Question Plaintiff Richard Shelley represented by Richard Shelley 6721 Tillamook Avenue Westminster, CA 92683 PRO SE Stephen F Dial Dial &Associates 505 South Villa Real Drive Suite 205 Anaheim Hills , CA 928073442 7142798055 Fax: 7142798052 Email: dialaw@earthlink.net TERMINATED: 06/15/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED V. Defendant Quality Loan Service Corp represented by David C Scott McCarthy and Holthus LLP 1770 Fourth Ave San Diego , CA 92101 6196854800 Fax: 6196854811 Email: dscott@mccarthyholthus.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Fremont Investment &Loan Defendant Litton Loan Servicing LLP represented by Chaise R Bivin Severson &Werson 19100 Von Karman Suite 700 Irvine , CA 92612 9494227110 Fax: 9494427118 Email: crb@severson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Date Filed # Docket Text Case: 8:09-cv-291 As of: 02/03/2010 09:23 AM PST 1 of 5 03/09/2009 1 COMPLAINT against defendants Quality Loan Service Corp, Fremont Investment &Loan, Litton Loan Servicing LLP.(Filing fee $ 350 paid) jury demand., filed by plaintiff Richard Shelley.(twdb) (lwag). (Entered: 03/10/2009) 03/09/2009 20 DAY Summons Issued re Complaint (Discovery) 1 as to defendants Quality Loan Service Corp, Fremont Investment &Loan, Litton Loan Servicing LLP. (twdb) (Entered: 03/10/2009) 03/09/2009 2 NOTICE of Interested Parties filed by plaintiff Richard Shelley, (twdb) (lwag). (Entered: 03/10/2009) 03/09/2009 4 DECLARATION of Richard L. Shelley in support of exparte application to stop trustee's sale filed by Plaintiff Richard Shelley. (twdb) (lwag). (Entered: 03/11/2009) 03/09/2009 5 DECLARATION of Stephen F. Dial re notice in compliance with local rule 719.1 filed by Plaintiff Richard Shelley. (twdb) (lwag). (Entered: 03/11/2009) 03/09/2009 6 MEMORANDUM of Points and Authorities in Support of application to stop sale filed by plaintiff Richard Shelley. (twdb) (lwag). (Entered: 03/11/2009) 03/10/2009 3 MINUTES OF IN CHAMBERS ORDER by Judge Cormac J. Carney: DENYING PLAINTIFF'S EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE REGARDING A PRELIMINARY INJUNCTION [filed 03/09/09]: (See document for details.) For the foregoing reasons, Mr. Shelleys ex parte application is DENIED. (rla) (Entered: 03/10/2009) 03/11/2009 7 MINUTES OF IN CHAMBERS AMENDED ORDER by Judge Cormac J. Carney DENYING Plaintiff's Ex Parte Application for a Temporary Restraining Order and Order to Show Cause Regarding a Preliminary Injunction 3 . (nbo) (Entered: 03/11/2009) 03/12/2009 8 ORDER RETURNING CASE FOR REASSIGNMENT UPON RECUSAL by Magistrate Judge Arthur Nakazato. ORDER case returned to the Clerk for random reassignment re: Discovery pursuant to General Order 0507 and General Order 0805. Case randomly reassigned from Magistrate Judge Arthur Nakazato to Magistrate Judge Marc L. Goldman for all further proceedings. The case number will now reflect the initials of the transferee Judge SACV0900291 CJC (MLGx). (ade) (Entered: 03/12/2009) 03/27/2009 9 FIRST STIPULATION Extending Time to Answer the complaint as to Litton Loan Servicing LLP answer now due 4/10/2009, filed by Defendants Litton Loan Servicing LLP.(Bivin, Chaise) (Entered: 03/27/2009) 04/01/2009 10 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Proposed document was not submitted as separate attachment. RE: First Stipulation Extending Time to Answer (30 days or less) 9 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (nca) (Entered: 04/01/2009) 04/01/2009 11 FIRST STIPULATION Extending Time to Answer the complaint as to filed by Defendant Litton Loan Servicing LLP. (Attachments: # 1 Proposed Order)(Bivin, Chaise) (Entered: 04/01/2009) 04/03/2009 12 ORDER granting Stipulation Extending Time to File a Responsive Pleading 9 , by Judge Cormac J. Carney: Defendant Litton Loan Servicing, LLP shall have until April 10, 2009, to file a motion to dismiss or otherwise respond to the complaint in the abovecaptioned case. IT IS SO ORDERED. (rla) (Entered: 04/07/2009) Case: 8:09-cv-291 As of: 02/03/2010 09:23 AM PST 2 of 5 04/10/2009 13 FIRST STIPULATION Extending Time to Answer the complaint as to Litton Loan Servicing LLP answer now due 4/29/2009, filed by Defendant Litton Loan Servicing LLP.(Bivin, Chaise) (Entered: 04/10/2009) 04/10/2009 14 FIRST STIPULATION Extending Time to Answer the complaint as to filed by Defendant Litton Loan Servicing LLP.(Bivin, Chaise) (Entered: 04/10/2009) 04/15/2009 15 STIPULATION for Extension of Time to File Response filed by Defendant Quality Loan Service Corp.(Scott, David) (Entered: 04/15/2009) 04/15/2009 16 PROOF OF SERVICE filed by Defendant Quality Loan Service Corp, re Stipulation for Extension of Time to File Response/Reply 15 served on April 15, 2009. (Scott, David) (Entered: 04/15/2009) 04/15/2009 17 DECLARATION of Quality Loan Service Corp. Nonmonetary Status [Civil Code 29241] filed by Defendant Quality Loan Service Corp. (Attachments: # 1 Declaration of David Owen)(Scott, David) (Entered: 04/15/2009) 04/15/2009 18 PROOF OF SERVICE filed by Defendant Quality Loan Service Corp, re Declaration (nonmotion) 17 served on April 15, 2009. (Scott, David) (Entered: 04/15/2009) 04/29/2009 19 FIRST STIPULATION Extending Time to Answer the complaint as to Litton Loan Servicing LLP answer now due 5/20/2009, filed by Defendant Litton Loan Servicing LLP. (Attachments: # 1 Proposed Order)(Bivin, Chaise) (Entered: 04/29/2009) 04/29/2009 20 ORDER RE STIPULATION EXTENDING LITTON LOAN SERVICING, LP'S DEADLINE TO FILE A RESPONSIVE PLEADING by Judge Cormac J. Carney 19 . Defendant Litton Loan Servicing, LLP shall have until 04/10/2009 to file a motion to dismiss or othewise respond to the complaint. (db) (Entered: 04/30/2009) 05/15/2009 21 NOTICE OF MOTION AND MOTION of Stephen F. Dial to Withdraw as Attorney filed by plaintiff Richard Shelley. Motion set for hearing on 6/8/2009 at 01:30 PM before Judge Cormac J. Carney. (Attachments: # 1 Declaration Declaration of Stephen F. Dial, # 2 Proposed Order Allowing Stephen F. Dial to Withdraw As Counsel of Record)(Dial, Stephen) (Entered: 05/15/2009) 05/15/2009 22 PROOF OF SERVICE Executed by Plaintiff Richard Shelley, upon Quality Loan Service Corp served on 3/11/2009, answer due 3/31/2009. Original Summons not returned. (Dial, Stephen) (Entered: 05/15/2009) 05/15/2009 23 PROOF OF SERVICE Executed by Plaintiff Richard Shelley, upon Litton Loan Servicing LLP served on 3/11/2009, answer due 5/20/2009. Original Summons not returned. (Dial, Stephen) (Entered: 05/15/2009) 05/19/2009 24 NOTICE OF DISCREPANCY AND ORDER: by Judge Cormac J. Carney, ORDERING Notice of Motion and Motion to Withdraw as Counsel, Proposed Order and Declaration of Stephen F. Dial submitted by Plaintiff Richard Shelley received on 5/15/2009 is not to be filed but instead rejected. Denial based on: Case is designated for efiling pursuant to General Order 0802. (lwag) (Entered: 05/20/2009) 05/20/2009 25 NOTICE OF MOTION AND MOTION to Dismiss Case for Failure to State A Claim Upon Which Relief Can Be Granted [FRCP 12(B)(6)] filed by Defendant Litton Loan Servicing LLP. Motion set for hearing on 6/8/2009 at 01:30 PM before Judge Cormac J. Carney. (Attachments: # 1 Memo of Points &Authorities, # 2 Declaration of Chaise Bivin, # 3 Request for Judicial Notice, # 4 Proposed Order)(Bivin, Chaise) (Entered: 05/20/2009) Case: 8:09-cv-291 As of: 02/03/2010 09:23 AM PST 3 of 5 05/20/2009 26 NOTICE of Change of Hearing Date of Litton Loan Servicing, LLP's Motion to Dismiss filed by Defendant Litton Loan Servicing LLP. [Date changed from 6/8/09 to 6/15/09] (Bivin, Chaise) (Entered: 05/20/2009) 06/01/2009 27 NOTICE OF NONOPPOSITION to MOTION to Dismiss Case for Failure to State A Claim Upon Which Relief Can Be Granted [FRCP 12(B)(6)] MOTION to Dismiss Case for Failure to State A Claim Upon Which Relief Can Be Granted [FRCP 12(B)(6)] 25 filed by Plaintiff Richard Shelley. (Attachments: # 1 Declaration of Stephen F. Dial)(Dial, Stephen) (Entered: 06/01/2009) 06/05/2009 28 STIPULATION to Continue Hearings on Motion to Withdrawn and Litton's Motion to Dismiss from June 8, 2009 to June 15, 2009 filed by Defendant Litton Loan Servicing LLP. (Attachments: # 1 Proposed Order)(Bivin, Chaise) (Entered: 06/05/2009) 06/08/2009 29 ORDER by Judge Cormac J. Carney: Upon stipulation 28 , the Court orders that hearing on Stephen F. Dial's Motion to Withdraw as Counsel 21 shall be continued to 6/15/2009 at 1:30 PM. The Court further orders that the hearing on Litton Loan Servicing, LP's Motion to Dismiss 25 shall be continued to 6/15/2009 at 1:30 PM as well. IT IS SO ORDERED. (mu) (Entered: 06/12/2009) 06/15/2009 30 MINUTES OF granting 21 Motion to Withdraw as Attorney ; granting 25 Motion to Dismiss Case without leave to amend; Motion Hearing held before Judge Cormac J. CarneyCourt Reporter: Maria Dellaneve. (ade) (Entered: 06/16/2009) 06/15/2009 31 ORDER Allowing Stephen F Dial to Withdraw as Counsel of Record by Judge Cormac J. Carney. Upon motion of Stephen F Dial of this court for permission to withdraw as counsel for plaintiff 21 , it is ORDERED that Stephen F Dial be allowed to withdraw as counsel for plaintiff. (db) (Entered: 06/16/2009) 06/16/2009 32 NOTICE OF LODGING filed [Lodging Order Granting Litton Loan Servicing LLPs Motion to Dismiss] re MOTION to Dismiss Case for Failure to State A Claim Upon Which Relief Can Be Granted [FRCP 12(B)(6)] MOTION to Dismiss Case for Failure to State A Claim Upon Which Relief Can Be Granted [FRCP 12(B)(6)] 25 (Attachments: # 1 Proposed Order)(Bivin, Chaise) (Entered: 06/16/2009) 06/17/2009 33 ORDER DISMISSING CASE by Judge Cormac J. Carney. Littons motion to dismiss is granted without leave to amend and this complaint is dismissed with prejudice. See order for details. (Made JS6. Case Terminated.) (smi) (Entered: 06/18/2009) 06/22/2009 34 PROOF OF SERVICE filed by Plaintiff Richard Shelley, re Order, 31 Allowing Stephen F. Dial to Withdraw as Counsel of Record served on June 19, 2009. (Dial, Stephen) (Entered: 06/22/2009) 06/23/2009 35 Certificate of Service of Order Granting Litton Loan Servicing LP's Motion to Dismiss filed by Defendant Litton Loan Servicing LLP (Bivin, Chaise) (Entered: 06/23/2009) 06/26/2009 36 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Incorrect event selected RE: Miscellaneous Document 35 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (twdb) (Entered: 06/26/2009) 07/16/2009 37 NOTICE OF APPEAL to the 9th CCA filed by Plaintiff Richard Shelley. Appeal of Order Dismissing Case, Terminated Case 33 Filed On: 6/17/09; Entered On: 6/18/09; Filing fee $ 455. Billed. (lr) (Entered: 07/21/2009) 07/21/2009 38 NOTIFICATION by Circuit Court of Appellate Docket Number 0956133, 9th CCA regarding Notice of Appeal to 9th Circuit Court of Case: 8:09-cv-291 As of: 02/03/2010 09:23 AM PST 4 of 5 Appeals 37 as to Plaintiff Richard Shelley. (lr) (Entered: 07/22/2009) 07/23/2009 39 APPEAL FEE PAID: re Notice of Appeal to 9th Circuit Court of Appeals 37 as to Plaintiff Richard Shelley; Receipt Number: 17971, PAID in the amount of $455. (lr) (Entered: 07/27/2009) Case: 8:09-cv-291 As of: 02/03/2010 09:23 AM PST 5 of 5 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES GENERAL
Case No. SACV 09-00291-CJ C(ANx) Date: March 10, 2009
Title: RICHARD SHELLEY v. QUALITY LOAN SERVICE CORP., FREMONT INVESTMENT & LOAN, LITTON LOAN SERVICING LLP PRESENT:
HONORABLE CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE
Michelle Urie N/A Deputy Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT:
None Present None Present
PROCEEDINGS: (IN CHAMBERS) ORDER DENYING PLAINTIFFS EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE REGARDING A PRELIMINARY INJUNCTION [filed 03/09/09]
This action arises from a dispute over the refinancing of and attempted foreclosure upon the home of Plaintiff Richard Shelley by Defendants Quality Loan Service Corp. (Quality), Fremont Investment & Loan (Fremont), and Litton Loan Servicing LLP (Litton) (collectively Defendants). Mr. Shelley entered into a loan agreement with Fremont on May 26, 2006, for a mortgage on his property at 6721 Tillamook Ave., Westminster, CA 92683 (the Property). (Compl. 9, 11.) In J uly of 2008, Fremont assigned the loan to Litton. (Compl. 14.) On February 20, 2009 Quality posted a notice of Trustees sale for the Property to be held on March 11, at noon. On March 9, 2009 Mr. Shelley filed a Complaint in this Court alleging that Defendants violated the federal Truth in Lending Act, 15 U.S.C. 1601 et seq., by failing to deliver a proper notice of Mr. Shelleys right of rescission, failing to include more than $6,000 of fees in its disclosure statement, by improperly neglecting to include those fees when calculating the annual percentage rate, and by failing to rescind the loan as requested by Mr. Shelley in November, 2008. (Compl. 26.)
Mr. Shelley now moves the Court for a temporary restraining order and order to show cause regarding a preliminary injunction to enjoin the trustees sale from going forward on March 11, 2009. Mr. Shelley has not provided proof of service to Defendants of his ex parte application, nor has he stated that Defendants have received any notice of his application. Instead, Mr. Shelleys counsel states that he does not know who Case 8:09-cv-00291-CJC-MLG Document 3 Filed 03/10/2009 Page 1 of 4 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES GENERAL
Case No. SACV 09-00291-CJ C(ANx) Date: March 10, 2009 Page 2
Defendants counsel are, and that he has sent Defendants a one-page letter via facsimile machine informing them of his intent to file a lawsuit and an ex parte application for a temporary restraining order. (Decl. of Steven Dial, March 6, 2009.)
LEGAL STANDARD
To obtain preliminary injunctive relief, the moving party must establish the existence of serious questions going to the merits and that the balance of hardships tips sharply in his favor. Brookfield Communications, Inc. v. West Coast Entmt Corp., 174 F.3d 1036, 1046 (9th Cir. 1999). The greater the balance of hardships tips in favor of the moving party the less of a showing of serious questions the moving part must make. Apple Computer, Inc. v. Formula Intl, Inc., 562 F. Supp. 775, 783 (C.D. Cal. 1983), affd, 725 F.2d 521 (9th Cir. 1984) (citing Los Angeles Meml Coliseum Commn v. Natl Football League, 634 F.2d 1197, 1201 (9th Cir. 1980). R. Shelley has failed to meet his burden of showing serious questions going to the merits or that the balance of hardships tip in his favor.
ANALYSIS
A. No Serious Questions Going to the Merits
Mr. Shelleys claim for damages under TILA is time barred. Actions by private individuals to collect damages under TILA must be brought within a year of the lenders alleged violation of the law. 15 U.S.C. 1640(e). Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation. Id. Mr. Shelley has not submitted any evidence of equitable tolling. Mr. Shelley entered into this mortage in May, 2006. He filed suit in March, 2009, more than one year later. His claims for damages under TILA that stem from his initial mortgage transaction are, therefore, time- barred.
Additionally, Mr. Shelley also has not stated a claim for rescission under TILA because he has failed to allege that he has tendered the borrowed funds back to Defendants, and he has not provided any evidence that he has the means or intent to tender the funds back to Defendants. Rescission is an equitable doctrine. A claim for rescission requires a plaintiff to allege that the plaintiff can or will tender the borrowed Case 8:09-cv-00291-CJC-MLG Document 3 Filed 03/10/2009 Page 2 of 4 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES GENERAL
Case No. SACV 09-00291-CJ C(ANx) Date: March 10, 2009 Page 3
funds back to the lender. See Yamamoto v. Bank of New York, 339 F.3d 1167 (9th Cir. 2003) (rescission should be conditioned on repayment of the amounts advanced by the lender.) See also Am. Mortgage Network v. Shelton, 486 F.3d 815, 821 (4th Cir. 2007) (The equitable goal of rescission under TILA is to restore the parties to the status quo ante.) (citations omitted). Mr. Shelley has not alleged that he has made such an offer or contemplates making such an offer.
Even if Mr. Shelley were able to state a valid claim under the Truth in Lending Act for any violations not barred by the statute of limitations, the likely remedy for that claim would be damages, not a bar on the foreclosure on the Property.
B. The Balance of the Hardships
Mr. Shelley has also failed to show that the balance of the hardships tips sharply in his favor and that a temporary restraining order is warranted without giving Defendants notice and an opportunity to be heard. Federal Rule of Civil Procedure 65(b) states that a court may grant a temporary restraining order without notice to the adverse party only if:
(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.
Fed. R. Civ. P. 65(b)(1). Furthermore, when a party moves for emergency relief, Local Rules require that before the filing of the motion, the movant shall make every practicable effort to notify and serve, using the quickest method available, both the clerk of the district court and opposing counsel. Local Rule 6.3.3.1. The moving party is also required to state when and how counsel for the other parties were notified and whether they have been served, or if not notified and served, why that was not done. Local Rule 6.3.3.3. Here, the sole explanation provided for Mr. Shelleys failure to serve opposing counsel is that Mr. Shelley does not know the identities of Defendants counsel. Mr. Shelley has not put forth any evidence of the efforts he made to determine the identities of these individuals or the reason why he did not, at the very least, serve Defendants with his application for emergency relief. Case 8:09-cv-00291-CJC-MLG Document 3 Filed 03/10/2009 Page 3 of 4 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES GENERAL
Case No. SACV 09-00291-CJ C(ANx) Date: March 10, 2009 Page 4
Because Mr. Shelley has not provided a copy of the notice of default, it is unclear how long ago Mr. Shelley received notice of his alleged default. In his memorandum of points and authorities, however, Mr. Shelley argues that Defendants originally attempted to foreclose in J une, 2008. That means that Mr. Shelley has been engaged in this dispute for at least nine months. Yet Mr. Shelley waited until 4 p.m. on March 9, 2009, less than 48 hours before the scheduled trustees sale, to file this Complaint and ex parte application, without the courtesy of proper notice to Defendants. Mr. Shelley has had ample time to bring this suit, but chose to wait until the eve of foreclosure, when Defendants could not practicably be noticed of this proceeding. Granting the ex parte application in light of Mr. Shelleys dilatory behavior would be unjust and amount to a denial of Defendants due process.
Delaying this process further will cause harm to Defendants. Defendants loaned Mr. Shelley $440,000, performing their part of the lending agreement. Their loan was guaranteed by a security interest on the Property. Mr. Shelley has presented no evidence that Defendants do not have a right to foreclose on this property, nor has Mr. Shelley provided evidence that he has complied with his end of the agreement by making timely payments on the mortgage. The more time elapses in the current market, the more the value of the Property, and the associated security interest, depreciate. At some point, Defendants must be permitted to exercise their right to foreclose on the property. Granting this temporary restraining order to Mr. Shelley would damage Defendants, tipping the balance of hardships in Defendants favor, and not in favor of Mr. Shelley.
CONCLUSION
For the foregoing reasons, Mr. Shelleys ex parte application is DENIED.
jls
MINUTES FORM 11 CIVIL-GEN Initials of Deputy Clerk mu Case 8:09-cv-00291-CJC-MLG Document 3 Filed 03/10/2009 Page 4 of 4 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES GENERAL
Case No. SACV 09-000291-CJ C(ANx) Date: March 11, 2009
Title: RICHARD SHELLEY v. QUALITY LOAN SERVICE CORP., FREMONT INVESTMENT & LOAN, LITTON LOAN SERVICING LLP PRESENT:
HONORABLE CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE
Michelle Urie N/A Deputy Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT:
None Present None Present
PROCEEDINGS: (IN CHAMBERS) AMENDED ORDER DENYING PLAINTIFFS EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE REGARDING A PRELIMINARY INJUNCTION [filed 03/09/09]
This action arises from a dispute over the refinancing of and attempted foreclosure upon the home of Plaintiff Richard Shelley by Defendants Quality Loan Service Corp. (Quality), Fremont Investment & Loan (Fremont), and Litton Loan Servicing LLP (Litton) (collectively Defendants). Mr. Shelley entered into a loan agreement with Fremont on May 26, 2006, for a mortgage on his property at 6721 Tillamook Ave., Westminster, CA 92683 (the Property). (Compl. 9, 11.) In J uly of 2008, Fremont assigned the loan to Litton. (Compl. 14.) On February 20, 2009 Quality posted a notice of Trustees sale for the Property to be held on March 11, at noon. On March 9, 2009 Mr. Shelley filed a Complaint in this Court alleging that Defendants violated the federal Truth in Lending Act, 15 U.S.C. 1601 et seq., by failing to deliver a proper notice of Mr. Shelleys right of rescission, failing to include more than $6,000 of fees in its disclosure statement, by improperly neglecting to include those fees when calculating the annual percentage rate, and by failing to rescind the loan as requested by Mr. Shelley in November, 2008. (Compl. 26.)
Mr. Shelley now moves the Court for a temporary restraining order and order to show cause regarding a preliminary injunction to enjoin the trustees sale from going forward on March 11, 2009. Mr. Shelley has not provided proof of service to Defendants of his ex parte application, nor has he stated that Defendants have received any notice of his application. Instead, Mr. Shelleys counsel states that he does not know who UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES GENERAL
Case No. SACV 09-000291-CJ C(ANx) Date: March 11, 2009 Page 2
Defendants counsel are, and that he has sent Defendants a one-page letter via facsimile machine informing them of his intent to file a lawsuit and an ex parte application for a temporary restraining order. (Decl. of Steven Dial, March 6, 2009.)
LEGAL STANDARD
To obtain preliminary injunctive relief, the moving party must establish the existence of serious questions going to the merits and that the balance of hardships tips sharply in his favor. Brookfield Communications, Inc. v. West Coast Entmt Corp., 174 F.3d 1036, 1046 (9th Cir. 1999). The greater the balance of hardships tips in favor of the moving party the less of a showing of serious questions the moving part must make. Apple Computer, Inc. v. Formula Intl, Inc., 562 F. Supp. 775, 783 (C.D. Cal. 1983), affd, 725 F.2d 521 (9th Cir. 1984) (citing Los Angeles Meml Coliseum Commn v. Natl Football League, 634 F.2d 1197, 1201 (9th Cir. 1980). R. Shelley has failed to meet his burden of showing serious questions going to the merits or that the balance of hardships tip in his favor.
ANALYSIS
A. No Serious Questions Going to the Merits
Mr. Shelleys claim for damages under TILA is time barred. Actions by private individuals to collect damages under TILA must be brought within a year of the lenders alleged violation of the law. 15 U.S.C. 1640(e). Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation. Id. Mr. Shelley has not submitted any evidence of equitable tolling. Mr. Shelley entered into this mortage in May, 2006. He filed suit in March, 2009, more than one year later. His claims for damages under TILA that stem from his initial mortgage transaction are, therefore, time- barred.
Additionally, Mr. Shelley also has not stated a claim for rescission under TILA because he has failed to allege that he has tendered the borrowed funds back to Defendants, and he has not provided any evidence that he has the means or intent to tender the funds back to Defendants. Rescission is an equitable doctrine. A claim for rescission requires a plaintiff to allege that the plaintiff can or will tender the borrowed UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES GENERAL
Case No. SACV 09-000291-CJ C(ANx) Date: March 11, 2009 Page 3
funds back to the lender. See Yamamoto v. Bank of New York, 339 F.3d 1167 (9th Cir. 2003) (rescission should be conditioned on repayment of the amounts advanced by the lender.) See also Am. Mortgage Network v. Shelton, 486 F.3d 815, 821 (4th Cir. 2007) (The equitable goal of rescission under TILA is to restore the parties to the status quo ante.) (citations omitted). Mr. Shelley has not alleged that he has made such an offer or contemplates making such an offer.
Even if Mr. Shelley were able to state a valid claim under the Truth in Lending Act for any violations not barred by the statute of limitations, the likely remedy for that claim would be damages, not a bar on the foreclosure on the Property.
B. The Balance of the Hardships
Mr. Shelley has also failed to show that the balance of the hardships tips sharply in his favor and that a temporary restraining order is warranted without giving Defendants notice and an opportunity to be heard. Federal Rule of Civil Procedure 65(b) states that a court may grant a temporary restraining order without notice to the adverse party only if:
(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.
Fed. R. Civ. P. 65(b)(1). Furthermore, when a party moves for emergency relief, Local Rules require that before the filing of the motion, the movant shall make every practicable effort to notify and serve, using the quickest method available, both the clerk of the district court and opposing counsel. Local Rule 6.3.3.1. The moving party is also required to state when and how counsel for the other parties were notified and whether they have been served, or if not notified and served, why that was not done. Local Rule 6.3.3.3. Here, the sole explanation provided for Mr. Shelleys failure to serve opposing counsel is that Mr. Shelley does not know the identities of Defendants counsel. Mr. Shelley has not put forth any evidence of the efforts he made to determine the identities of these individuals or the reason why he did not, at the very least, serve Defendants with his application for emergency relief. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES GENERAL
Case No. SACV 09-000291-CJ C(ANx) Date: March 11, 2009 Page 4
Because Mr. Shelley has not provided a copy of the notice of default, it is unclear how long ago Mr. Shelley received notice of his alleged default. In his memorandum of points and authorities, however, Mr. Shelley argues that Defendants originally attempted to foreclose in J une, 2008. That means that Mr. Shelley has been engaged in this dispute for at least nine months. Yet Mr. Shelley waited until 4 p.m. on March 9, 2009, less than 48 hours before the scheduled trustees sale, to file this Complaint and ex parte application, without the courtesy of proper notice to Defendants. Mr. Shelley has had ample time to bring this suit, but chose to wait until the eve of foreclosure, when Defendants could not practicably be noticed of this proceeding. Granting the ex parte application in light of Mr. Shelleys dilatory behavior would be unjust and amount to a denial of Defendants due process.
Delaying this process further will cause harm to Defendants. Defendants loaned Mr. Shelley more than $264,000, performing their part of the lending agreement. Their loan was guaranteed by a security interest on the Property. Mr. Shelley has presented no evidence that Defendants do not have a right to foreclose on this property, nor has Mr. Shelley provided evidence that he has complied with his end of the agreement by making timely payments on the mortgage. The more time elapses in the current market, the more the value of the Property, and the associated security interest, depreciate. At some point, Defendants must be permitted to exercise their right to foreclose on the property. Granting this temporary restraining order to Mr. Shelley would damage Defendants, tipping the balance of hardships in Defendants favor, and not in favor of Mr. Shelley.
CONCLUSION
For the foregoing reasons, Mr. Shelleys ex parte application is DENIED.
jls
MINUTES FORM 11 CIVIL-GEN Initials of Deputy Clerk mu
15303/0025/721311.2 Order re Stipulation Extending Littons Deadline To File A Responsive Pleading Case No.: SACV09-291 CJ C (ANx)
Case No.: SACV09-291 CJ C (ANx) Hon. Carmac J . Carney Ctrm 9B- Santa Ana
[PROPOSED] ORDER RE STIPULATION EXTENDING LITTON LOAN SERVICING, LPS DEADLINE TO FILE A RESPONSIVE PLEADING
Complaint filed: March 9, 2009
- 2 - 15303/0025/721311.2 Order re Stipulation Extending Littons Deadline To File A Responsive Pleading Case No.: SACV09-291 CJ C (ANx)
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 26 27 28 Upon stipulation and good cause appearing, the Court orders that Defendant Litton Loan Servicing, LLP shall have until April 10, 2009, to file a motion to dismiss or otherwise respond to the complaint in the above-captioned case. IT IS SO ORDERED.
Dated: April 3, 2009 By: __ THE HON. CARMAC J . CARNEY District J udge UNITED STATES DISTRICT COURT
Dear Trustee, Date April 1, 2009 Notice of Extended Rescission of the loan numbers 1000321997, 40191066, MERS MJ.N. 1001944-1000321997-4 and Deed of Trust recorded 5/26/2006 as Instrument No. 2006000359250 of the Official Records in the office of the Recorder of ORANGE County, California We recently sent you a signed rescission form by way of fax and you did not respond. This notice shall be used as an Official Notification of offer to tender property known as 6721 Tillamook Westminster California 92683 A.P.N.203-491-20 provided that you return the original Note, Deed of Trust, applicable Riders, all original documentation received from prior lender known as Frank Livacich in connection with the loan closing and all proceeds from the loan consumption in addition to interest and payments you've received under the note. By not including an expiration date on the three day right of rescission form is a violation of The Truth In Lending Act which extends our rescission right for up to three years this shall be effective notice to all parties in interest effective as of the date of your signatory receipt. In addition to the above requested before tender is made you must record a release of mortgage in the local county records where the property is located and tender must be made at the location of the property as we are choosing to make that request. Please be advised that we also reserve the right to tender the funds in exchange for release of the security interest on the property so please do the proper accounting calculations so as we might be able to readily settle this agreement in this case. enclosed are copies of our signed forms of rescission with no expiration date, prompt response within twenty days of receipt of this notice is demanded. Respectfully Philip .1. Shelley & Richard L. Shelley Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. A. Signature x FRANCIS BLACKSHEAR Print your name and address on the reverse so that we can return the card to you. Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: B. Received by ( Printed Name) L l LoCvA S,erVI (, p CerJrr;.1 D(" tJQi/I. --\ ....>G
Case No.: SACV09-291 CJ C (ANx) Hon. Carmac J . Carney Ctrm 9B - Santa Ana
[PROPOSED] ORDER GRANTING LITTON LOAN SERVICING, LPS MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED (FRCP 12(b)(6))
Complaint filed: March 9, 2009
15303/0025/738790.1 -2- [Proposed] Order Granting Littons Motion To Dismiss Case No.: SACV09-291 CJ C (ANx
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 26 27 28 Defendant Litton Loan Servicing, L.P. (Litton) seeks to dismiss plaintiff Richard Shelleys complaint on the basis that the allegations in the complaint fail to state a claim upon which relief can be granted. This Court considered Littons Fed. R. Civ. P. 12(b)(6) motion to dismiss, Mr. Shelleys notice of non-opposition to Littons motion, Littons request for judicial notice, and the oral arguments of the parties at the J une 15, 2009 hearing. For the reasons discussed below, this Court GRANTS Littons motion to dismiss without leave to amend and DISMISSES this action with prejudice. I. FACTUAL BACKGROUND In or about May 2006, Mr. Shelley refinanced his property, located at 6721 Tillamook Avenue, Westminster, CA 92683 (the Property), by borrowing $273,000 (the Loan) from Fremont Investment & Loan (Fremont). See Compl., 9-11. The Loan was secured by a deed of trust recorded on the Property. See Request for J udicial Notice (RJ N), Ex. A (Deed of Trust). On or about J uly 10, 2008, Fremont allegedly assigned the Loan to Litton. See Compl., 14. Mr. Shelley fell behind in his mortgage payments, and on November 7, 2008, a notice of default and election to sell under deed of trust was recorded. See RJ N, Ex. B (Notice of Default and Election to Sell under Deed of Trust). Mr. Shelley did not bring his loan account current, and on February 19, 2009, a notice of trustees sale was recorded, setting the trustees sale for March 11, 2009. See Compl., 15; RJ N, Ex. C (Notice of Trustees Sale). Mr. Shelley now claims that during the course of the Loan transaction, Fremont failed to deliver to him two proper copies of a notice of the right to rescind. See Compl., 17. Mr. Shelley further claims that the disclosure statement issued did not include $6,485.00 in broker/application/processing fees, improperly disclosed the amount financed, and improperly calculated the annual percentage rate. Id., 17, 18.
15303/0025/738790.1 -3- [Proposed] Order Granting Littons Motion To Dismiss Case No.: SACV09-291 CJ C (ANx
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 26 27 28 Mr. Shelley sent Litton a letter on November 26, 2008 attempting to rescind the Loan. Id., 22. Mr. Shelley alleges that Litton has failed to return any money paid or terminate its security interest as required by 15 U.S.C. 1635(b); Regulation Z 226.15(d)(3), 226.23(d)(3). Id., 25, 26. Mr. Shelley, however, did not offer to tender the amount due under the Loan as required by the Truth in Lending Act (TILA). II. DISCUSSION A. Pleading And Motion To Dismiss Standard Under Federal Rules of Civil Procedure, Rule 8(a), to avoid dismissal, a complaint must include enough facts to state a claim to relief that is plausible on its face. Bell Atlantic Co. v. Twombly, 550 U.S. 544, 547 (2007) (Twombly). Stated differently, a plaintiff must plead sufficient facts to provide the grounds of his entitle[ment] to relief, [which] requires more than labels and conclusions, and [for which] a formulaic recitation of the elements of a cause of action will not do. Id. at 555 (citation omitted). Thus, a complaint cannot simply le[ave] open the possibility that a plaintiff might later establish some set of undisclosed facts' to support recovery. Id. at 561 (citation omitted). Rather, the facts set forth in the complaint must be sufficient to nudge the [ ] claims across the line from conceivable to plausible. Id. at 570. A motion to dismiss tests the legal sufficiency of the claims alleged in the complaint. Cairns v. Franklin Mint Co., 24 F.Supp.2d 1013, 1023 (C.D. Cal. 1998). A claim is properly dismissed for lack of a cognizable legal theory, absence of sufficient facts alleged under a cognizable legal theory, or seeking remedies to which plaintiff is not entitled as a matter of law. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988); King v. California, 784 F.2d 910, 913 (9th Cir. 1986). Although facts properly alleged must be construed most favorably to plaintiff, conclusory allegations of law and unwarranted inferences are not
15303/0025/738790.1 -4- [Proposed] Order Granting Littons Motion To Dismiss Case No.: SACV09-291 CJ C (ANx
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 26 27 28 sufficient to defeat a motion to dismiss. Associated Gen. Contractors v. Metro. Water Dist., 159 F.3d 1178, 1181 (9th Cir.) (citation omitted). [T]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged. Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). In the complaint, Mr. Shelley alleges a single cause of action, violation of TILA for rescission and damages which cannot withstand Littons Motion to Dismiss. B. Mr. Shelleys TILA Claim TILA provides two private remedies: damages and rescission. Here, Mr. Shelley seeks both. Mr. Shelleys TILA claim for damages fails because it is time- barred. Mr. Shelleys claim for rescission fails because he does not allege that he has the ability to tender the principal under the Loan, a necessary element to effectuate rescission. [A]n action for damages under TILA must be brought within one year from the alleged violation. Eubanks v. Liberty Mortgage Banking Ltd., 976 F. Supp. 171, 174 (E.D. NY 1997) (citing 15 U.S.C. 1640(e)). The violation occurs and the one-year limitations period accrues upon consummation of the loan. Betancourt v. Countrywide Home Loans, Inc., 344 F. Supp.2d 1253, 1258 (D.Colo. 2004). Mr. Shelley admits that the Loan was consummated in May 2006. See Compl., 9-11. Mr. Shelley did not file this instant lawsuit until March 9, 2009 almost three years after the closing of the Loan. Mr. Shelley has not alleged or argued that the applicable statute of limitations should be equitably tolled. Accordingly, Mr. Shelleys TILA claim for damages is time-barred. Additionally, Mr. Shelleys claim for rescission under TILA fares no better. Rescission is an equitable doctrine. It requires a plaintiff to allege that the plaintiff can or will tender the borrowed funds back to the lender. See Yamamoto v. Bank of New York, 329 F.3d 1167, 1171 (9th Cir. 2003) (rescission should be conditioned
15303/0025/738790.1 -5- [Proposed] Order Granting Littons Motion To Dismiss Case No.: SACV09-291 CJ C (ANx
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 26 27 28 on repayment of the amounts advanced by the lender.). See also Am. Mortgage Network v. Shelton, 486 F.3d 815, 821 (4th Cir. 2007) (The equitable goal of rescission under TILA is to restore the parties to the status quo ante.) (citations omitted). Mr. Shelley has not alleged that he has made such an offer or contemplates making such an offer. Accordingly, Mr. Shelleys rescission claim under TILA fails as well. Further, it is apparent that any amendment to the complaint would be futile. As discussed above, the TILA damages claim is time-barred, and Mr. Shelley has not alleged that he can tender or contemplates tendering the amount he borrowed to state a rescission claim. As such, it is appropriate to grant Littons motion to dismiss without leave to amend. See, e.g Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir.1998) (leave to amend need not be granted when amendment would be futile). In addition, this Court notes that Mr. Shelley has refused to actively participate in this suit and exhibits a general disinterest to the prosecution or resolution of this matter. Accordingly, Littons motion to dismiss is granted without leave to amend and this complaint is dismissed with prejudice. IT IS SO ORDERED.
DATED: J une 17, 2009 By: Honorable Cormac J . Carney UNITED STATES DISTRICT COURT J UDGE
CLOSED UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA (Southern Division Santa Ana) CIVIL DOCKET FOR CASE #: 8:09cv01261UADUTY Tillamook Partnership v. Richard Shelley Assigned to: Judge Unassigned Referred to: Duty Magistrate Judge Case in other court: Orange County Superior Court, 00307545 Cause: 28:1331 Forma Pauperis Denial Date Filed: 10/30/2009 Date Terminated: 11/06/2009 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Federal Question Plaintiff Tillamook Partnership represented by Steven D Silverstein Steven D Silverstein Law Offices 14351 Redhill Avenue, Suite G Tustin , CA 92680 7148323651 LEAD ATTORNEY ATTORNEY TO BE NOTICED V. Defendant Richard Shelley represented by Richard Shelley 6721 Tillamook Avenue Westminster, CA 92368 7143794876 PRO SE Date Filed # Docket Text 10/30/2009 1 REQUEST to Proceed In Forma Pauperis, with Declaration in Support filed by defendant Richard Shelley. Lodged proposed order. (Attachments: # 1 lodged complaint, # 2 Civil Cover Sheet)(twdb) (Additional attachment(s) added on 11/3/2009: # 3 lodged cert) (twdb). (Entered: 11/03/2009) 11/03/2009 RECOMMENDATION issued by Magistrate Judge Arthur Nakazato re REQUEST to Proceed In Forma Pauperis, Declaration in Support 1 . Proposed Order forwarded to the District Judge for approval.(mca) (Entered: 11/03/2009) 11/06/2009 2 ORDER Denying Leave to File Action Without Prepayment of Fling Fee by Judge Audrey B. Collins 1 . MD JS6, Case Terminated. (db) (Entered: 11/10/2009) Case: 8:09-cv-01261-UA-DUTY As of: 02/03/2010 04:18 PM PST 1 of 1 I I CF.tAPPRAISALS 1949) 5109()B2 Uniform Residential Appraisal Report File/t 67TI0e .PropertyAddress I'1VJ.IillamoqLA",v,,-El...:.___ ilrrower , Owner 01 Record _______. Nort,nTraci2388Lol174"seal!"'lirninaryUIIe A..sS.8SS0r's.Parcel # . ___ ___'___'_'_' dId '.:cid no! analYie corrtractlor salelormesubjectpu;chasetransaction, Explain 1M rcsuns 01 ihc analysis 01 the contractfor sale or why 100 anillys,s was no\ JlIK!ormed. contractwas00\maCe : Oa:e of propertise!lerIlle ownerof pUblic recorii?-=Ves -=,,0 ifaii Is mere any fmanclal assIStance (loan cnaryes. sale concessions. gill orcownpaymeolassistance, etc,110 bepard Oy any panyonoellall of the borrower" Yes :.:No Ii Yes. report1M tOlaldoltatamount aaddescnilethe nems:obepaid, Note:Raceandtheracialcom ositionoftheneighborhoodarenola !'!Iisaffactors. __ One-UnilHousinsTrends , One-UnitHousin Urban _____=Rural j PropertyValues : ::; PRICE, __ BwhUp OVer UmJer 25% iDemand/Supply .Shortage __ _ OverSupply __ ____.__ ,_5 : GrOWl ,SlOW Unoer]mms':'::2-.m:ilJ. Over SmlnsI '" NelDlllloihootlBoundaries Subiectales,IS boungedby: Ib.!' GardenGroveFreel!'illm,!<>.the norln, l' e8.9_ High 50 I __._' : Beac!:!.i3lvd. tothe east, BOlsa Avenue to the Boisa Chica fulad tothewest 1Other % Net hOtl'''.o.O.o Descflp""I1._The,;;,.bjeCI :5 locatedInlhe"ny()fW.l!stm,nster. The detached homes in fr()11'l1,100to }.!lO(h f'!!hand vary Inage, Commercial,use..areJocati'Xl sw ort("curtissare inIl)eareaappearsstable,wrthgood . ::f1!...theGardenQi:g"e Freewa 22_ M,rketConaluons abqveconclusi0l}?l Homesales actIVe, wah stabilizedthrougnout market. slliLlypicallyles,s)han180days_ Conllnulngto.wrnterelEltes, andincre".e ininventoryof"v"l!able stren thens$" onforcurrentvalues, OimensiqflS "seeplatmBp" 7. ------1 Specilic ZO!!:l1Jl R.l- __________.. Descriptio.n..1D9.! __'__ Zonm ,". Use) NoZonlrg lllil)lallOescnbeL_. Is aM bestuse01 sUIlJllCI propenyas Improved ana the present use? Private materials/condition Inleriormaterials!condiflon . ___ WOOdJAvlh..__ 4+ Concrete #ofCa's__L # 01 Cars :.:Del BLik'ln II No. cescnte Freddie Mac Form 70 March20G!) Page 1016 famieMaeform 1004March2005 farm 1"01- 'TO:ALfor W,m!ow$"apora,sal by alamode.me CIZAGU1-0611612006 I I IFileNo 6mOG !?age #2' FileI 67TI06 ihereare 10"- There are UniformResidentialA praisal Report !s of ComparaOles Is 552.500 'S 564.000 COMPAlWlLESALE it 3 Surr-mary 01 SalesCompanson J:;ubje<;! and comparable rimanl b JIvIng areal and upgradesrq iIJJProvefi1ants" D.ue totheageofmosthomesIn the area._man,Yshare ."",,0as oathrooms. ______ ____ _.____. __.__ COf1}Qarable sublectsattributes. arego;;;:!value iod,c/llors -------- I w ._._ _ ______.----, IndlcaledValueb SaTeS-COmparison roachS 548.000' -------. ---- Indicated .by:SalesComparison Aileroacll (if 7 .897 TheMarketApproachisgIVe pn"l?'Yweight ofthe typical the ------. _IncomeApProach S __---j Too<;:ost wasdeel11,ed _____ subtOCI iO me "seepage3ofl!RAR" area. A roachlendssupport, heaVilyweighted.d'-'l'10 the"Uelect'."" III estImating ng.QJwpJ,ca1l!(1,as ,_____ _ __ - ThIS appraIsalIS mate "as IS". '" SCD;eCI:O per plans al" on !lie baSIS Ol anypoilleilCal COOGlilllIl lI1al Ihe IlaV! neen completed. :.: to Ihe 101101'1109 teparrs 01 ateraIlOr,$ on the basIS 01 aI1POihetical COl11l11l0fl Illal!lie reparr. or anerauons have Oeen complelflC. or !o:!owmg te.ljuirlJlj inspeCiion bmdon ire exlraOldll1i!l)I"aSSUl!'piion deficier:)' ooes ai!erationOr repall Based ol,'acomplete-viSual inspeclion 01 the'iltteriorand exterior areas of the subject property. defined scope 01 work, s13ti;ineiiiotasSUlnplions and limiting conditions, and appraiSer's ceJ'lni<:ation, my (our) opinion 01 the market value, as defined, 01 the real property that is the subjeCl 01 this rtpOrt is S 548.000 as01 A fil04. 2006 ,whicll Is the date 01 in action and the e"ective date 01 this a raisel. FreddieMacForm70March 2005 Page 2016 Fannie MaeForm 1004March2005 Form 1004 - 'TOTAL lorWmoowsappraIsalsoftwarebyala maoe. me - 1800ALAMOOE ----------- -- -'--'-- -- ,-- C!ZAGUI-06!16t2000 , , Uniform Residential ____""""I AddJlionalFe,tvres:
home,Ihe'!J&i!lstpropertyfealvrasa lIVing rOOm wlthwalltowall Qilrpellng Vinyl Ilia floorS. ong.nalcablnelS, IOPI!. The floo!s, tilewerns.cot BegroolT1. sharewi'.JLlO.,,!<,1I car el,o __-___ ______ . _____ SUbl!!'"!prop<>llyfeatures aconqt;le PQ!(:h. home, Concrete __. . detached2cargarage. IS @!lli1 enoughIDr RjIparking. Il[aCDncrele pallO91 the thehom.!!. __ ___ ConditionsofImprovements: hasanewerrooL ]}1e tobolhextenor. . imenor. hac-csCOndlllOnadjustmenls. Phys.caldepfecialion'$.$frghlly <;lull to con<;l.IIO(!.___ Appraiserestma1esa COSt 10 cureforthebathroom IS nomorethaf"! COSTAPPROACHTOVAWE(nolregulredby _____________.-i InIOlm.till"101 the tlelll'll coS(li\ll!tes and _ _____._ Support10'meilJlill!.on01 <;QrnparallJe lands.les,[)(orher sitevalue) landvalWl.1F !)aseQ..1iQQ!UI:le Em.'!.",,,?" . .i-3lf1d to Ratioistypicalfor Ihearea _ ______ _____.. ' =s 547.897 _ InClcall:dValue byIncomeApproach __ PROJECTINFORMATIONFORPUDs(Happlicab=Ie::I__ Is ;t.e CeveloperLllJi.llierin comrololll1eHomeowners' AsSOtlal1Ol1 !!:!Q[\l? No ._Unil type(s) _ Oe.lathed Anachal _ .f.rOVlce!he101l0wingtnlorma:llJ(!10l.?UDsONLYII IS !O cQIllrololtheHOA art\llheSUbject prupeny IS .nanache<ld"elmgUOJt. Leg')Name 011'101'" Nla To!a' flumber ofphases ==-N-.l-a-- __llialn".!TIcer uf N/a _. TOiai PJfl1oerOiWillSsold -Nl!', __ TOlal numbef_QLunm; femed Nla Totalnumber 01 unllSlorsale Nla__. Dala sour,eISL.t'!ia Was1MpfUjeC\ ..QLthe conversiono(existing bUlld'!19\s) Imo a __f'ro IIYes. aale01 Does UlepfOJ"!'I "omaln anymu'll-aweHlng __Yes No DalaSource N.!iL-.___ ___ Are1m; umls.{;(jmnIDn eiemenls.ana No. descnbe the SlalUS 01 NI8C-___ FredoluMaG form70March:1005 Page 3016 Fannre MaeForm 1()04 March2005 Form 1004 - "TOTAL fm Wmcaws'appraiSalsohware byaI.mOCe, me. - 1800ALAMODE CIZAGUI-OeI16i2006 , I Uniform Residential Appraisal Report File'" 67TIOe
This report form is designed to report an appraisal of a one-unit property or a one-unil property with an accessory unil; including a unit in a planned unit development (PUD), This ril:port form is not designed to report an appraisal of a manufactured home or a unit in a condominium or cooperative prOject This appraisal report 15 subject tD the !ollowing scope of worK, intended use, intended user, definition of market value, statement of assumptions and limiting conditions, and MOdifications, additions, or deletions to the intended use, intended user, definition of market value, or asSumptions and limiting conditions are nal permitted" The appraiser may expand the scope 01 work to inClude any aaditional research or analysis necessary based on the complexity 01 this appraisal assignment. Modifications or deletior.s to the certifications are also not permilled" Hawevel, additional certitlcatiolls that dO not constitute material alterations to this appraisal report, such as mose required by law or those related to the appraiser's continuing education or memberShip in an appraisal orgallizalion, are SCOPE OFWORK: The scope 01 work for this appraisal IS delined by the complexity at this appraisal assignment and the reporting requirements of thiS appraisal report torm, inClUding the follOWing definition of market value, statement of assumptions and limiting conditions, and certifications, The appraiser must, at aminimum: (1) perlorm a complete visual inspection of the interior and exterior areas 01 the sublect property, (21 inspect the neignborhOod, (3) inspect eacn of the comparable sales from at least the street, (4) research, verify, and analyze data lrom reliable public and/or private sources, and (5) report his or her analysis. opinions, and conclUSions in this appraiSal report, INTENDED USE: The intended use of this appraisal report is lor the lender/client to evaluate the property that is the subject at this appraisal tor a mortgage finance transaction. INTENDEDUSER: The intended user 01 this appraisal report is the lender/client DEFINITION OF MARKETVALUE: The most probable price which a property should orin9 in a competitive and open market under all conditions requisite to afair sale, the buyer and selier, each actio9 prudently, knowtedgeably ana assuming the price is not affected by undue stimulus" Implicit in this definition is the consummation 01 a sale as of a specified date and the passing of title trom seller to buyer under conditions whereby; (1) buyer and seller are typically motivated; (2) both parties are well informed or well advised, and eaCh acting in what he or she considers his or her own best interest; (3) a reasonable time is alloweo lor exposure in the open marllet: (4) payment is made ill \erms 01 cash in U, S. aoilars or In terms of financial arrangements comparable thereto: and (5) the price represents the noemal conSideration for the property sold unat1ected by special or creative financing or sales concessions' granted by anyone associated with the sale, Adjustments to the comparables must be made for special or creative tinancing or sales concessions, No aajustmenls are necessary lor those costs which are normally paid by seilers as aresult of tradition orlaw in a market area; these costs are readily identifiable since the seller pays these costs in virtually all sales transactions. Special or creative finanCing adjustments can be made to the comparable property by comparisons to financing terms oNe red by a third party institutional lender that is not already involved in the property or transaction" Any adjustment should not be calculated on a mechanical dollar lor dollar cost 01 the financing or conceSSion but the dollar amount 01 any adjustment should approximate the marKet's reaction to the financing or concessions based on the appraiser's judgment. STATEMENTOFASSUMPTIONS AND LIMITING CONDITIONS: The appraiser's certification in this report is subject [0 rhe tollowing assumptions and limiting conditions: L The appraiser will not be responsible tor matters at a legal nature that affect eilher the property being appraised or the title 10 it, except lor inlormation that he or sne became aware ot during the research involved in perlorming this appraisaL The appraiser assumes Ihat the title is good and marketable and will not render any opinions about the title" 2" The appraiser has provided a sketch tn this appraisal report 10 shOw Ihe approilmale dimensions at the Improvements, The sketch Is inCluded only 10 assist the reader in Visualizing the property and understancling the appraiser'S determination at itssize" 3" The appraiser has examined the available flood maps that are provided by the Federal Emergency Management Agency (or other data sources) and has noted in this appraisal report whether any portion 01 the subject site is located in an Identilied Special flood Hazard Area" Because the appraiser is not a surveyor, he or she makes no guarantees. express or implied, regarding thiS determination. 4" The appraiser will not give testimony or appear ill court because he or she made an appraisal of the property in question, untess specific arrangements to do so nave been made beforehand. or as otherwise required by law" :;, The appraiser has noted in this appraisal report any adverse conditions (such as needed repairs, deterioration, the presence of hazardous wastes, toxic substances, obsented during the inspection of the subjeci property or that he or she oecame aware of during the research involved in performing the appraisat Unless otherwise stated in this appraisal repon, the appraiser has no knowledge of any hidden or unapparent physical defiCiencies or adverse COnditions of the property (suCh as, but not limited to, needed repairs, deterioration, the presence ot hazardous wastes, toxic substances, adverse environmental conditions, etc,) that would make the property less valuable, and has assumed that there are no such conditIOns and makes no guarantees or warramies, express or implied" The appraiser will not be responsible for any such conditions Iha\ do exist or tor any engineering or testing that might be required 10 discover whether such conditions exist Because the appraiser is not an expert in the field of environmental hazards, this appraisal report must not be conSidered as an environmental assessment of the property 6 The appraiser has based his or her appraisal repon and valuation conctusion lor an appraisal that is 5uolecl 10 satisfactory completion, repairs. or alterations on the assumption that the completion, repairs, or al1eratlons of the sublect property will be pertormed in a prolesslonal manneL fredOieMacForm 70March 2005 Page4016 FannmMae Form 1004March 2005 FOlln 1004 - "TOTAL 101 WIJICOWS' appraisalsoJlware tlyala Inc - HlOOft,lAMOOf CiZi\GUI-06i1i:l!2006 , I Wile.NO "moo page #5 Uniform Residential Appraisal Re-'port FileII 67T1!)1) APPRAISER'SCERTIFICATION: The Appraiser certifias and that: ,. I have, at a minimum, developed and reported this appraisal in accordance wltn the scope of wOrk requirements stated in thiS appraisal report. 2. I penormed a complete visual inspection of 106 interior and exterior areas of the sublect property I reported the condition 01 the improvements in factuat, specific terms I identified and mported the physical deliciencies that could al1eel the livability, soundness, or structural integrity oj me property 3. I performed this appraisal in accordance wiltl the requirements 01 the Unilorm Standards of Professional Appraisal PraClrce that were adopted and promulgated by the Appraisal Stamiards Board of Tne Appraisal Foundation and thaI were in place at tile time Ihis appraisal report was prepareo. 4. I developed my opinion 01 the marl<et value of the real property mat is the subject of this report based on the sates comparison approach to value, I have adequate comparable market data to develop a reliable sales comparison approach for thiS appraisal assignment. I funher certify that I considered the cost ancl income approaches to value but did not develop them, unless otherwise indicated in thiS report. 5. I researched, verified, analyzed, and reponed on any current agreement for sale for the subject property, any offering for sale of the sublect propeny In the twelve months prior to the effective date 01 this appraisal, and Ihe prior sales of the subject property lor aminimum of three years proor to the eljective date of this appraisal, unless otherwise indicated in this repon. 6. I researched, verified, analyzed, and reported on !tie prior sales of the comparable sales for aminimum 01 one year prior to the date 01 sale 01 the comparable sale, unless otherwise indicated in this repon. 7. Iselected and used comparable sales that are locationally, physically. and functionally the most similarto the subject property. 8. Ihave not used comparable sales that were the result 01 combining aland sale with the contract purchase price 01 ahome that has been buin or will be built on the land, 9. I have reported adjustments to the comparable sales that reflect the markel's reaction to the differences between Ihe subject propeny and the comparable sales. 10. Iverified, from adisinterested source, all information in this reponthat was provided by parties who have afinanCial interest in the sale or linancing of the subject property. 11. I have knowledge and experience in appraising this type of property in this market area. 12, Iam aware of, and have access to, the necessary and appropriate public and private data sources, such as multiple listrng services, tax assessment records, public land records and other such data sources for the area in whiCh the propeny is located. 13. I obtained the inlormation, estimates, and opinions furnished by other parties and expressed in this appraisal repor1 from reliable sources that I believe to be true and correct. 14. I have taken into consideration the factors that have an impact on value with respect to the sublect neighbOrhOOd, subject propeny, and the proximity of Ihe subject propeny 10 adverse influences in the development 01 my opinion of market value. I have noted in this appraisal repon any adverse conditions (such as, but nOI limited to, needed repairs, deterioration, the presence of hazardous wastes, toxic substances, adverse environmental conditions, etc.) observec during the inspection at the sublect property or !nat Ibecame aware 01 during the research inVOlved in periorming this appraisal. I have considered Ihese adverse conditions in my analysis of the propeny value, and have reponed on the effect ot the conditions on the value and marketability 01 the subject property. 15, I have not knowingly withheld any significant information from this appraisal repon and. to the best of my kriowledge, all stalements and information in this appraisal repon are true and correcl. 16. I stated in this appraisal repon my own personal, unbiased, and professional analysis, opinions, and conclusions, wtlich are subject only to the assumptions and limiting conditions in this appraisal repon. 17. Ihave no present or prospeclive interest in the property that is the subject of this rsport, and I have no present or prospective personal interest or bias with respect to the participants in the transaction. I did not base, either partially or ccmpletely, my analysis and/or opinion of market value in this appraisal report on the race, color, religion, sex, age, marital status, handicap, tamilial status, or national origin of either the prospective owners or occupants of the subject property or of the present owners or occupants of the properties in the vicinity of the subject property or on any other basiS prohibited by law, 18. My employment and/or compensation for periorming this appraisal or any future or anticipated appraisalS was not conditioned on any agreement or understanding, written or otnerwise, that I WOuld report (or present analysis supporting) a predetermined specifiC value, apredetermined mlnlmum value, arange or direction in value, a value that favors the cause of any par1y, cr the attainment of a specific result or oc;;urrence of aspecific subsequent event (such as approval of apending mortgage loan application). 19. I personally prepared all conclusions and opinions about the real estate that were set forth in this appraisal report. II I relied on significant real property appraisal assistance trom any individual or individualS in the periormance oj this appraisal or the preparation of this appraisal report, J have named suen individual(s) and disclosed the specific tasks performed in this appraisal report, I ce!1ity that individual so named is qualified to periorm the taSKS, I have not authorized anyone to make a change to any item in this appraIsal repor1: therelore, any change made to this appraisal IS unaulllOrized ano I will take no responsibility 10/ it. 20, I identified the lender/client in this appraisal report who is the individual, organization, or agent for the organization thaI orderedand willreceive Ihisappraisalrepon, FreddieMacForm70 Malch 2005 Page5016 FannieMaeFarm 1004Marcil 2005 Form 1004 - "TOfAL appraisal sotlwarebyala mode, IOC. 1800ALAMODE CIZAGUI-06116/2006 I I IflleNc. cmos page #6 Uniform Residential A praisal Report File# 67TI06 21 The lanaar/client may disclose or distnbute this appraisal repon to: the borrower; another lender al the request oj the borrower; the mortgagee or Its Successors and assigns; mortgage Insurers; governmenI sponsored enterprises; other secondary market participants: data collection or reporting services; protessiunal appraisal organIzations; any departrnen\. agency, or instrumentality of me United Slates; aM any slale, Ihe District 01 Columbia, or OIMr jurisdictions; wlttloul having 10 obtain me appraiser's or supervisory appraiser's (if applicable) consent. Such consent must be obtained before this appraisal repon may be diSClosed or distributed to any other party (including, but not limited to, the public through advertrsing, public relations, news, sales, or other media), 22, I am aware thai any disclosure or distribution ot thiS appraisal report by me or the lender/client may be subject to certain laws and regulations. Further, I am also subjeci to the provisions 01 the Uniform Standards 01 Professional Appraisal Practice that pertain to disclosure or distribution by me, 23, Tne borrower, another lender at the request 01 the borrower, the mortgagee or Its successors and assigns, mortgage Insurers, government sponsored enterprises, and other secondary markel participants may rely on this appraisal report as part of any mortgage finance transaction that involves anyone ormore of these parties. 24. It this appraisal report was transmitted as an "electronic record" containing my "electronic signature," as those terms are defined In applicable federal and/or state laws (excluding audio and video recordings), or a tacsimile transmiSSion at this appraisal report containing acopy or representation 01 my signature, the appraisal report shall be as effective, enforceable and valid as il a paper version of this appraisal report were delivered containing my original hand written signature. 25. Any intentional or negligent misreprBsentation(s) contained in tllis appraisal report may result in civil liability andlor criminal penalties including, but not limited to, fine or imprisonmen! or both under the provisions ot Title 18, United States Code, Section 1001, et seq., or Similar Slate laws. SUPERVISORYAPPRAISER'SCERTIFICATION: The Supervisory Appraiser certifies and agrees that: 1. 1OIreCtly supervised the appraiser lorthis appraisal assignment, have read the appraisal report, and agree with the appraiser's analysis, opinions, statements, conclusions, and the appraiser's certilicalion, 2, Iaccept lull responsibility for the contents 01 this appraisal report including, butnot limited to, the appraiser's analysis, opinions, statements, conclusions, and the appraiser's certification. 3. The appraiser identilled In thiS appraisal report is either asub"contractor or an employee 01 Ihe supervisory appraiser (or the appraisal firm), is qualified to perform tllis appraisal, and is acceptable to perform this appraisal under the applicable state law, 4, This appraisal report complies with the Uniform Standards of Professional Appraisal Practice that were adopted and promulgated by the Appraisal Standards Board 01 The Appraisal Foundalion and that were in place at the time this appraisal report was prepared. 5, It this appraisal report was transmitted as an "eleclfonic record" containing my "electronic Signature," as those terms are defined in applicable federal and/or state laws (excluding audio and vieleo recordings), or afacsimile transmiSsion of this appraisal report contamlng acopy or representation 01 my signature, the appraisal report shall be as eltective, enlorceable and valiel as il apaper version 01 this appraisal report were delivered containing my original hand written Signature, SUPERVISORYAPPRAISER (ONLYIF REQUIRED) Signature Name __ ____._ Company Name ____ __._ Company Address Telephone Number ____._..._.__ _____ Email Address __ Dale 01 Signature StateCeniliGation # orState License # State ExpirationDate01 CertificationorLicense Exprration Date ofCertificationor License Oji/0412Q06_._._ SUBJECTPROPERTY DidnO! inspectsubjectproperty ADDRESS OF PROPERTYAPPRAISED Did inspectexteriorofsubjectproperty1romstreet
Dateof Inspection "__,___.. Vy'estm,os!er, ._.___ Didinspectinteriorand exteriorofsubjectproperty APPRAISED VALUEOF SUBJECTPROPERTY$ DateofInspection LENDER/CLIENT Name _."...._._. ______ COMPARABLE SALES CompanyName p'qlendlflg Company Address 2152 ....!.Q1.. ca. Did notil1specl exterior01 comparable saleslromSireet Did inspectexteriorofcomparable sales trornstreet Date 01 Inspection l'm'.A'..;'----.-------.--- FreddIeMac Form 70Malcn2005 Page(;of 6 FannIe Maerorm 1004 March 2005 [aim - "1lJTAl tor W,nduws" aopr,rliiJlSOllw,'elty ala lIlode,"'i:. - !800AlAMOOE CIZAGUI-0611!:lf2006 , I Uniform Residential Appraisal Report File/I 671106 fEATURE SUBJECT COMPARABLE SALE If 4 COMPARABLE SALE ft 5 COMPARABLE SALE #6 Meress 6721 Tillamook Ave 6581 Klondi!;"Avenue ""C",3-"9""26",8",3,-,-2",S,,-7",,,2_-,-,,APN 20:3-506-44__ p'O,,!lht to Sub,eel 0,16mues SalePllce S I{,,(inance 's :>95000 S3Ie-PncelGfi):;LivArw S 381 'g.t. S 454 __$___ Sou"rcei$) 1J11e Company/ML",S,,-__ _ __ __ __ ___ Ve,ilical!Oo Sources _--::c===-,NDCData AOJUSTMEN7S-" DESCRIPTION __!lEiCllIPT1Q,N1,.+(-)SAd,us!menl DESCRIPTION I T0$Ac ustmlll1l OESCRIPTION Sales or FinanCing Doc_ 1008762 ! r
-. - __I"COMPARABlfSAif,4 'I COMPARABLESALE#5 COMPARABLE SALE it 6 Dale01 PnorSolei'ransfer r0312312005 ; 0510512005 , I Pnce01 FTp 1---- -, -, . '\' -- - ... -- 4
01 Co:nparaOles 574.500 ;he resullsof research alld oll!!PIlorsale or ir;mslerhlSl0l}'oi'he,Sublect propef11 and,comparable sale(repOfladoitionalprior sales on ae3, Data Sourcels) ,TilleCOINDCData TilleCoiNDC Data EllecllveDaleof OaiaSollrceW 04105/2006 --- 0410512006 -- Anal SlS 01 pilarsaleOr ilanslsrrnSIOry 01 iresublOC, comparablesales , "see page2o,-fU"'R"'A"'R"''' ____ "see,atlacnedaddendum"
-
freddieMac Form 70March2005 Fannie MaeForm 1004March2005 Form 1004 lAC: - "TarAllO!Wmuows"appraisalsollwarebyala moQe.me - 1-800-ALAMOIlf CIZAGUI-06!16!2006 I I Inle No 671106 P a Q ~ #8: Supplemental Addendum File No 67TI06 Borrower/Client Shelley .. ProDBriV Address 6721 Tillamook love Cit Westminster Lannp,r PC Len<llng _ ~ Orange Stale Ca .. _ ._. Zip Code 92683-2572 Additional Comm"nls, All comparable sales utilized are located wilhin the same marketing area, and would be considered by the same user group. Comp<lr';bles sales utihz"d have a prmimity of no greater Ihan approximately .16 miles from the subject, and are most similar in ov"ra/l characteristics. Comparable #1-is localed next door 10 the subject. ThiS home has a larger bedroom coun\, however; with a Similar overall living area. This home has an mfe{)or 10\ size. nence adjustment made. Comparable #2-has a larger bedroom count, and smaller living area. MLS data states "needs lots of work, flxer-, hence was given a similar condition rating in comparison to the subject. This home also has an inferior lot size. Comparable#3-has same bedroom count, and bathroom counl. With Similar overall living area. Property has a superior effeclive age, and is In superior condition, based on mls data comments "complete remodel". This home also has an inferior lot size in comparison to the subject. Comparable #4-has same bedroom and bathroom count, with inferior living area. Property has a superior eHective age, and condition, hence adjustments made. Lot size is Inferior, All adjustments were based upon a paired sales analysis of the com parables considered. Size was adjusted $45sf. for difference in excess of 100sf. (rounded to the nearest 5500). Bedrooms were adjusted 55,000. A 101 size adjustment was made in increments of $1 dollar per square foot of lot size in excess of 2,500 square feet of lot. An eHective age adjustment was made in increments of S 1,000 per eHective year in excess of 5 eHective years. A condition adjustment was made in increments of S25,OOO per current level of condillon. Condition ratings and amenity verification was based on Multiple listing Service Data, and NDC Data. All comparable sales utilized deemed relevant. based on proximity. and similarity to the subject property, as well as recency of sale. Comparables have a markel sales range of 5550,000 to $595,000, with an adjusted value range of $546,500 to $574.500, and supports a mari<et value of 5548,000 for the subject property. form TAOO -'TOTAL lor Wlnoows appraisal sollware by ala mOCe, InC. - 1800-ALAMOOE (MLGx), APPEAL, CLOSED, DISCOVERY UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA (Southern Division Santa Ana) CIVIL DOCKET FOR CASE #: 8:09cv00291CJCMLG Richard Shelley v. Quality Loan Service Corp et al Assigned to: Judge Cormac J. Carney Referred to: Magistrate Judge Marc L. Goldman Case in other court: 9th CCA, 0956133 Cause: 15:1640 Truth in Lending Date Filed: 03/09/2009 Date Terminated: 06/17/2009 Jury Demand: Plaintiff Nature of Suit: 480 Consumer Credit Jurisdiction: Federal Question Plaintiff Richard Shelley represented by Richard Shelley 6721 Tillamook Avenue Westminster, CA 92683 PRO SE Stephen F Dial Dial &Associates 505 South Villa Real Drive Suite 205 Anaheim Hills , CA 928073442 7142798055 Fax: 7142798052 Email: dialaw@earthlink.net TERMINATED: 06/15/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED V. Defendant Quality Loan Service Corp represented by David C Scott McCarthy and Holthus LLP 1770 Fourth Ave San Diego , CA 92101 6196854800 Fax: 6196854811 Email: dscott@mccarthyholthus.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Fremont Investment &Loan Defendant Litton Loan Servicing LLP represented by Chaise R Bivin Severson &Werson 19100 Von Karman Suite 700 Irvine , CA 92612 9494227110 Fax: 9494427118 Email: crb@severson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Date Filed # Docket Text Case: 8:09-cv-291 As of: 02/03/2010 09:23 AM PST 1 of 5 03/09/2009 1 COMPLAINT against defendants Quality Loan Service Corp, Fremont Investment &Loan, Litton Loan Servicing LLP.(Filing fee $ 350 paid) jury demand., filed by plaintiff Richard Shelley.(twdb) (lwag). (Entered: 03/10/2009) 03/09/2009 20 DAY Summons Issued re Complaint (Discovery) 1 as to defendants Quality Loan Service Corp, Fremont Investment &Loan, Litton Loan Servicing LLP. (twdb) (Entered: 03/10/2009) 03/09/2009 2 NOTICE of Interested Parties filed by plaintiff Richard Shelley, (twdb) (lwag). (Entered: 03/10/2009) 03/09/2009 4 DECLARATION of Richard L. Shelley in support of exparte application to stop trustee's sale filed by Plaintiff Richard Shelley. (twdb) (lwag). (Entered: 03/11/2009) 03/09/2009 5 DECLARATION of Stephen F. Dial re notice in compliance with local rule 719.1 filed by Plaintiff Richard Shelley. (twdb) (lwag). (Entered: 03/11/2009) 03/09/2009 6 MEMORANDUM of Points and Authorities in Support of application to stop sale filed by plaintiff Richard Shelley. (twdb) (lwag). (Entered: 03/11/2009) 03/10/2009 3 MINUTES OF IN CHAMBERS ORDER by Judge Cormac J. Carney: DENYING PLAINTIFF'S EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE REGARDING A PRELIMINARY INJUNCTION [filed 03/09/09]: (See document for details.) For the foregoing reasons, Mr. Shelleys ex parte application is DENIED. (rla) (Entered: 03/10/2009) 03/11/2009 7 MINUTES OF IN CHAMBERS AMENDED ORDER by Judge Cormac J. Carney DENYING Plaintiff's Ex Parte Application for a Temporary Restraining Order and Order to Show Cause Regarding a Preliminary Injunction 3 . (nbo) (Entered: 03/11/2009) 03/12/2009 8 ORDER RETURNING CASE FOR REASSIGNMENT UPON RECUSAL by Magistrate Judge Arthur Nakazato. ORDER case returned to the Clerk for random reassignment re: Discovery pursuant to General Order 0507 and General Order 0805. Case randomly reassigned from Magistrate Judge Arthur Nakazato to Magistrate Judge Marc L. Goldman for all further proceedings. The case number will now reflect the initials of the transferee Judge SACV0900291 CJC (MLGx). (ade) (Entered: 03/12/2009) 03/27/2009 9 FIRST STIPULATION Extending Time to Answer the complaint as to Litton Loan Servicing LLP answer now due 4/10/2009, filed by Defendants Litton Loan Servicing LLP.(Bivin, Chaise) (Entered: 03/27/2009) 04/01/2009 10 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Proposed document was not submitted as separate attachment. RE: First Stipulation Extending Time to Answer (30 days or less) 9 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (nca) (Entered: 04/01/2009) 04/01/2009 11 FIRST STIPULATION Extending Time to Answer the complaint as to filed by Defendant Litton Loan Servicing LLP. (Attachments: # 1 Proposed Order)(Bivin, Chaise) (Entered: 04/01/2009) 04/03/2009 12 ORDER granting Stipulation Extending Time to File a Responsive Pleading 9 , by Judge Cormac J. Carney: Defendant Litton Loan Servicing, LLP shall have until April 10, 2009, to file a motion to dismiss or otherwise respond to the complaint in the abovecaptioned case. IT IS SO ORDERED. (rla) (Entered: 04/07/2009) Case: 8:09-cv-291 As of: 02/03/2010 09:23 AM PST 2 of 5 04/10/2009 13 FIRST STIPULATION Extending Time to Answer the complaint as to Litton Loan Servicing LLP answer now due 4/29/2009, filed by Defendant Litton Loan Servicing LLP.(Bivin, Chaise) (Entered: 04/10/2009) 04/10/2009 14 FIRST STIPULATION Extending Time to Answer the complaint as to filed by Defendant Litton Loan Servicing LLP.(Bivin, Chaise) (Entered: 04/10/2009) 04/15/2009 15 STIPULATION for Extension of Time to File Response filed by Defendant Quality Loan Service Corp.(Scott, David) (Entered: 04/15/2009) 04/15/2009 16 PROOF OF SERVICE filed by Defendant Quality Loan Service Corp, re Stipulation for Extension of Time to File Response/Reply 15 served on April 15, 2009. (Scott, David) (Entered: 04/15/2009) 04/15/2009 17 DECLARATION of Quality Loan Service Corp. Nonmonetary Status [Civil Code 29241] filed by Defendant Quality Loan Service Corp. (Attachments: # 1 Declaration of David Owen)(Scott, David) (Entered: 04/15/2009) 04/15/2009 18 PROOF OF SERVICE filed by Defendant Quality Loan Service Corp, re Declaration (nonmotion) 17 served on April 15, 2009. (Scott, David) (Entered: 04/15/2009) 04/29/2009 19 FIRST STIPULATION Extending Time to Answer the complaint as to Litton Loan Servicing LLP answer now due 5/20/2009, filed by Defendant Litton Loan Servicing LLP. (Attachments: # 1 Proposed Order)(Bivin, Chaise) (Entered: 04/29/2009) 04/29/2009 20 ORDER RE STIPULATION EXTENDING LITTON LOAN SERVICING, LP'S DEADLINE TO FILE A RESPONSIVE PLEADING by Judge Cormac J. Carney 19 . Defendant Litton Loan Servicing, LLP shall have until 04/10/2009 to file a motion to dismiss or othewise respond to the complaint. (db) (Entered: 04/30/2009) 05/15/2009 21 NOTICE OF MOTION AND MOTION of Stephen F. Dial to Withdraw as Attorney filed by plaintiff Richard Shelley. Motion set for hearing on 6/8/2009 at 01:30 PM before Judge Cormac J. Carney. (Attachments: # 1 Declaration Declaration of Stephen F. Dial, # 2 Proposed Order Allowing Stephen F. Dial to Withdraw As Counsel of Record)(Dial, Stephen) (Entered: 05/15/2009) 05/15/2009 22 PROOF OF SERVICE Executed by Plaintiff Richard Shelley, upon Quality Loan Service Corp served on 3/11/2009, answer due 3/31/2009. Original Summons not returned. (Dial, Stephen) (Entered: 05/15/2009) 05/15/2009 23 PROOF OF SERVICE Executed by Plaintiff Richard Shelley, upon Litton Loan Servicing LLP served on 3/11/2009, answer due 5/20/2009. Original Summons not returned. (Dial, Stephen) (Entered: 05/15/2009) 05/19/2009 24 NOTICE OF DISCREPANCY AND ORDER: by Judge Cormac J. Carney, ORDERING Notice of Motion and Motion to Withdraw as Counsel, Proposed Order and Declaration of Stephen F. Dial submitted by Plaintiff Richard Shelley received on 5/15/2009 is not to be filed but instead rejected. Denial based on: Case is designated for efiling pursuant to General Order 0802. (lwag) (Entered: 05/20/2009) 05/20/2009 25 NOTICE OF MOTION AND MOTION to Dismiss Case for Failure to State A Claim Upon Which Relief Can Be Granted [FRCP 12(B)(6)] filed by Defendant Litton Loan Servicing LLP. Motion set for hearing on 6/8/2009 at 01:30 PM before Judge Cormac J. Carney. (Attachments: # 1 Memo of Points &Authorities, # 2 Declaration of Chaise Bivin, # 3 Request for Judicial Notice, # 4 Proposed Order)(Bivin, Chaise) (Entered: 05/20/2009) Case: 8:09-cv-291 As of: 02/03/2010 09:23 AM PST 3 of 5 05/20/2009 26 NOTICE of Change of Hearing Date of Litton Loan Servicing, LLP's Motion to Dismiss filed by Defendant Litton Loan Servicing LLP. [Date changed from 6/8/09 to 6/15/09] (Bivin, Chaise) (Entered: 05/20/2009) 06/01/2009 27 NOTICE OF NONOPPOSITION to MOTION to Dismiss Case for Failure to State A Claim Upon Which Relief Can Be Granted [FRCP 12(B)(6)] MOTION to Dismiss Case for Failure to State A Claim Upon Which Relief Can Be Granted [FRCP 12(B)(6)] 25 filed by Plaintiff Richard Shelley. (Attachments: # 1 Declaration of Stephen F. Dial)(Dial, Stephen) (Entered: 06/01/2009) 06/05/2009 28 STIPULATION to Continue Hearings on Motion to Withdrawn and Litton's Motion to Dismiss from June 8, 2009 to June 15, 2009 filed by Defendant Litton Loan Servicing LLP. (Attachments: # 1 Proposed Order)(Bivin, Chaise) (Entered: 06/05/2009) 06/08/2009 29 ORDER by Judge Cormac J. Carney: Upon stipulation 28 , the Court orders that hearing on Stephen F. Dial's Motion to Withdraw as Counsel 21 shall be continued to 6/15/2009 at 1:30 PM. The Court further orders that the hearing on Litton Loan Servicing, LP's Motion to Dismiss 25 shall be continued to 6/15/2009 at 1:30 PM as well. IT IS SO ORDERED. (mu) (Entered: 06/12/2009) 06/15/2009 30 MINUTES OF granting 21 Motion to Withdraw as Attorney ; granting 25 Motion to Dismiss Case without leave to amend; Motion Hearing held before Judge Cormac J. CarneyCourt Reporter: Maria Dellaneve. (ade) (Entered: 06/16/2009) 06/15/2009 31 ORDER Allowing Stephen F Dial to Withdraw as Counsel of Record by Judge Cormac J. Carney. Upon motion of Stephen F Dial of this court for permission to withdraw as counsel for plaintiff 21 , it is ORDERED that Stephen F Dial be allowed to withdraw as counsel for plaintiff. (db) (Entered: 06/16/2009) 06/16/2009 32 NOTICE OF LODGING filed [Lodging Order Granting Litton Loan Servicing LLPs Motion to Dismiss] re MOTION to Dismiss Case for Failure to State A Claim Upon Which Relief Can Be Granted [FRCP 12(B)(6)] MOTION to Dismiss Case for Failure to State A Claim Upon Which Relief Can Be Granted [FRCP 12(B)(6)] 25 (Attachments: # 1 Proposed Order)(Bivin, Chaise) (Entered: 06/16/2009) 06/17/2009 33 ORDER DISMISSING CASE by Judge Cormac J. Carney. Littons motion to dismiss is granted without leave to amend and this complaint is dismissed with prejudice. See order for details. (Made JS6. Case Terminated.) (smi) (Entered: 06/18/2009) 06/22/2009 34 PROOF OF SERVICE filed by Plaintiff Richard Shelley, re Order, 31 Allowing Stephen F. Dial to Withdraw as Counsel of Record served on June 19, 2009. (Dial, Stephen) (Entered: 06/22/2009) 06/23/2009 35 Certificate of Service of Order Granting Litton Loan Servicing LP's Motion to Dismiss filed by Defendant Litton Loan Servicing LLP (Bivin, Chaise) (Entered: 06/23/2009) 06/26/2009 36 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Incorrect event selected RE: Miscellaneous Document 35 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (twdb) (Entered: 06/26/2009) 07/16/2009 37 NOTICE OF APPEAL to the 9th CCA filed by Plaintiff Richard Shelley. Appeal of Order Dismissing Case, Terminated Case 33 Filed On: 6/17/09; Entered On: 6/18/09; Filing fee $ 455. Billed. (lr) (Entered: 07/21/2009) 07/21/2009 38 NOTIFICATION by Circuit Court of Appellate Docket Number 0956133, 9th CCA regarding Notice of Appeal to 9th Circuit Court of Case: 8:09-cv-291 As of: 02/03/2010 09:23 AM PST 4 of 5 Appeals 37 as to Plaintiff Richard Shelley. (lr) (Entered: 07/22/2009) 07/23/2009 39 APPEAL FEE PAID: re Notice of Appeal to 9th Circuit Court of Appeals 37 as to Plaintiff Richard Shelley; Receipt Number: 17971, PAID in the amount of $455. (lr) (Entered: 07/27/2009) Case: 8:09-cv-291 As of: 02/03/2010 09:23 AM PST 5 of 5
2018-11-08 Zernik, J. "Cyber & Law - Israel as a case study - presentation in Univ of Goettingen law school colloquium // סייבר ומשפט - ישראל כמקרה בוחן - מצגת בקולוקוויום בבי"ס למשפטים, אוניברסיטת גטינגן, גרמניה
2012-05-31 Ombudsman of the Judiciary decision 88/12/Tel-Aviv District in the Judge Varda Alshech "Fabricated Protocols" affair // החלטת נציב תלונות הציבור על השופטים 88/12/מחוזי תל-אביב בפרשת "הפרוטוקולים המפוברקים" של השופטת ורדה אלשייך
0000-00-00 State of Israel v Ariel, Klass and Zernik (36318-08-19) Public Defender’s office false response on inquiry - undated, no reference number, no case number // מ"י נ אריאל קלס וצרניק (36318-08-19) - תשובה שקרית על פניה לסנגוריה הציבורית - ללא תאריך, ללא מספר אסמכתה, ללא מספר תיק
2018-02-19 Central Election Committee: FOIA request (No 2/0219/18) - Supreme Court Justices, protocols, appointments // ועדת הבחירות המרכזית: בקשה על פי חוק חופש המידע (מס’ 2/0219/18) לגבי שופטי בית המשפט העליון, פרוטוקולים, מינויים
2018-05-24 Refusal to accept repeat request to Central Election Committee Chair, Justice Hanan Melcer’s response on inquiry, asking him to perform his reporting duties// סירוב לקבל בקשה חוזרת לתשובת יו"ר ועדת הבחירות המרכזית, שופט בית המשפט העליון חנן מלצר על בקשה למילוי חובת הדיווח
2017-10-22 Inquiry with Shin-Bet Head Nadav Argaman – failure of the Ministry of Interior to comply with FOIA, in re: computerization of the election system // פנייה לראש השב"כ נדב ארגמן בעניין מחשוב מערכת הבחירות – אי קיום חוק חופש המידע על ידי משרד הפנים
2017-10-22 Request for compliance with FOIA by Ministry of Interior, in re: Public Committee for Review of Computerization of the Election System // בקשה לקיום הוראות חוק חופש המידע על ידי משרד הפנים בנוגע לוועדה לבחינת מחשוב מערכת הבחירות
2017-11-05 Inquiry with Shin-Bet Head Nadav Argaman – false and misleading Ministry of Interior FOIA response, in re: computerization of the election system // פנייה לראש השב"כ נדב ארגמן בעניין מחשוב מערכת הבחירות – תשובה שקרית ומטעה של משרד הפנים על בקשה על פי חוק חופש המידע
2017-09-12 Ministry of Interior: Freedom of Information Request (No ) regarding IT systems of the Central Election Committee and Ombudsman’s reports // משרד הפנים: בקשה (מס’ )על פי חוק חופש המידע לגבי מחשוב ועדת הבחירות המרכזית ודוחות מבקר המדינה
2017-10-01 Zernik v State of Israel et al (7631/17) – criminal appeal – in the Supreme Court – Notice of Appeal and Appeal // צרניק נ מדינת ישראל ואח' (7631/17) – ערעור פלילי – בבית המשפט העליון – הודעת ערעור וערעור
2017-09-07 Central Election Committee: Request for Chairman, Justice Hanan Melcer to perform his duties and ascertain compliance with FOIA (sent to the Committee) // ועדת הבחירות המרכזית: בקשה לשופט בית המשפט העליון, יו”ר הוועדה חנן מלצר למלא את תפקידו ולוודא שהוועדה מקיימת את חוק חופש המידע (נשלח לוועדה)
2017-09-05 FOIA Request (-2017) on Ministry of Justice, in re: Authority to sign decisions of Ombudsman of the Judiciary // בקשה על פי חוק חופש המידע (-2017) למשרד המשפטים לגבי סמכות חתימה על החלטות נציב תלונות הציבור על השופטים
2017-09-12 Central Election Committee: Freedom of Information Request (No ) regarding IT systems of the Central Election Committee and Ombudsman’s reports // ועדת הבחירות המרכזית: בקשה (מס’ ) על פי חוק חופש המידע לגבי מחשוב ועדת הבחירות המרכזית ודוחות מבקר המדינה
2017-09-06 National Cyber Security Authority: Inquiry regarding guiding and certification of government IT systems, security standards online publication // הרשות הלאומית להגנת הסייבר: פנייה לגבי הנחיה ואישור מערכות מידע ממשלתיות, פרסום ברשת בעניין תקני אבטחת מערכות מידע
2017-09-06 Central Election Committee: Request for Chairman, Justice Hanan Melcer to perform his duties and ascertain compliance with FOIA (sent to the Supreme Court) // ועדת הבחירות המרכזית: בקשה לשופט בית המשפט העליון, יו”ר הוועדה חנן מלצר למלא את תפקידו ולוודא שהוועדה מקיימת את חוק חופש המידע (נשלח לבית המשפט העליון)
2017-09-03 Central Election Committee: Freedom of Information Request regarding IT systems of the Central Election Committee – protocols of the Tender Committee ועדת הבחירות המרכזית: בקשה על פי חוק חופש המידע לגבי מחשוב ועדת הבחירות המרכזית - פרוטוקולים של ועדת המכרזים
Dale Frame v. Michael D. Hood A.F. Beeler T.R. Kindt Kelly Hudson, Hobbycraft Fci, El Reno Unknown Price, Hobbycraft Fci, El Reno, 9 F.3d 116, 10th Cir. (1993)