Deutsche Bank National Trust Company, Barclays Capital Real Estate, Quality Loan Service Corporation,

Maher Soliman scheduled to have testified in Case Number: 2:2009cv00885. for the matter of Plaintiff: Karan J. Russell Vs Defendants: Deutsche Bank National Trust Company, Barclays Capital Real Estate, Quality Loan Service Corporation, Fidelity National Title CA II, Mortgage Electronic Registration Systems, Inc., New Century Mortgage Corporation and Does listed as Case Number: 2:2009cv00885. /Filed: February 5, 2009 in California Central District Court / Western Division - Los Angeles Office [ Court Info ] Los Angeles, CA ; Presiding Judge: Walter / Referring Judge: Lum /Nature of Suit: Other Statutes - Other Statutory Actions/Cause: 15:1601 Truth in Lending/ Jurisdiction: Federal Question


Jury Demanded By: Plaintiff

Comments: Case Number: 2:2009cv00885The matter was brought before the court and request for TRO issued by moving party pending. Thereafter the Plaintiff allowed the matter to be dismissed. Defendants have since never pursued the matter of possession as defendant occupies the property as of August 2010 .

Registrants are Operating Outside of the Constraints of GAAP

February 22, 2010

Gentlemen;

I am an expert witness to the defense in wrongful foreclosure cases. I have continually sought for clients the advisement of a strong CPA and accounting group familiar with testifying in similar matters.

I propose knowing enough about the subject to show where the CDO and Mortgage Backed Securities registrants are operating outside of the constraints of GAAP. They are in a judicial quandary and seriously exposed making claims, especially in a non-judicial foreclosure.

It’s a judicial mess at this point in time for lenders who no longer exist or who are in receivership while some are even being prosecuted. As for the claims made by the successors and assigns, these parties are detached by any type of reasonable joinder. They must explain themselves around appearant unlawful estopples while they appear to lack all standing in a recovery.

Having a significant secondary and capital markets background has allowed for an insiders perspective to the matter facing homeowners My personal experience in the sector of mortgage backed finance includes trading over one billion in whole loan assets as a principal and underwriting at least as much designated for bulk whole loan trades. My work to date encompasses over five years of research in addition to 20 years of practical business sector applied experience.

I spoke at length to the FDIC attorneys and top policy maker for member bank compliance (seen on "Meet the Press”). I just could not get an overall straight answer to my question regarding documented transfers, beneficial ownership and satisfying the accounting rules.

I offer a moderate to broad “controllers” accounting background with emphasis pertaining to FASB rules, Basis Accounting for assets held for sale, FAP FAS 140, and for interpretation of rules validating a sale and transfer into a SPE/SPV. I have authored PPM’s for law firms while on staff or under engagement and testified in matters brought by the Department of Justice.

I have a growing book of expert services requests and demand to testify in matters of wrongful foreclosures. What I am found to date are significant rules violations under GAAP and what caused me to exit the business in 2002.

There is far more here to empirically support a defendants claims to unlawful foreclosures; more than I could ever have foreseen.

Legal arguments aside, the court appears to only respond in the affirmative to empirical evidence offered by the defense. My belief is this appears to be solely a general ledger analysis.

You cannot change the rules under FAS 140 and violate GAAP rules limiting any controlling interest. These sales conducted for accounting purposes are solely for derecognition and are not linked transfers. This is in my opinion what will cause the lenders to become hyper creative in filing inconsistent or deceptive recording information.

My take on the matter nationally is that that affirmative defenses mandate testimony using GAAP ledger assumptions, which can prove overwhelming to claims made by the opposition. This advice is offered to counsel and their clients’ in response to the rhetorical arguments brought by the opposition and their counsel in court.

If possible, let’s set aside time to talk about your firms experience and potential synergy and support services?

I am currently in North S.D.California.

M.Soliman\
www.foreclosureinfosearch.com
Tel. 213-880-6288

Pennsylvania "Judicial" Mortgages

Foreclosure of a mortgage is generally accomplished by
judicial action. The action is initiated by the service of legal pleadings upon
all parties having an interest in the real property. Delays in completion of the
foreclosure may occasionally result from difficulties in locating necessary
parties. Judicial foreclosure proceedings are sometimes not contested by any of
the parties. 

When the mortgagee's right to foreclosure is contested, the legal
proceedings necessary to resolve the issue can be time consuming. After the
completion of a judicial foreclosure proceeding, the court generally issues a
judgment of foreclosure and appoints a referee or other court officer to conduct
the sale of the property. 

In general, the borrower, or any other person having a
junior encumbrance on the real estate, may, during a statutorily prescribed
reinstatement period, cure a monetary default by paying the entire amount in
arrears plus other designated costs and expenses incurred in enforcing the
obligation. Generally, state law controls the amount of foreclosure expenses and
costs, including attorney's fees, which may be recovered by a lender. After the
reinstatement period has expired without the default having been cured, the
borrower or junior lienholder no longer has the right to reinstate the loan and
must pay the loan in full to prevent the scheduled foreclosure sale. 

If the deed of trust is not reinstated, a notice of sale must be posted in a public place
and, in most states, published for a specific period of time in one or more
newspapers. In addition, some state laws require that a copy of the notice of
sale be posted on the property and sent to all parties having an interest in the
real property.

Court’s Jurisdiction

Unlimited Jurisdiction. –
Seek to file (OSC) motion to rescind the trustees Sale Hear arguments for violations causing the deed to be defect and any sale or conveyance to be void and unenforceable.
Remove “Benefeficiary” privileges under power of sale as afforded by California CC.C.
a) Non compliance
b) Fraudulent conveyances
c) Defect in Deed
d) Assignment to Bank of America

Argument: In California under CC the deed in recovery was subject to litigation and upon Notice of sale the deed was rendered defect and therefore no transfer of title or lawful conveyances are possible whereby the title is defect the transfer is unenforceable. The arguments is for the sale to be decided by court as Void” from commencement; Where deed is defect the sales must fail and the conveyances deemed unenforceable.

Court’s Jurisdiction
Issues in favor of Unlimited Jurisdiction

Other than the matter of a “holdover” pending in a limited Jurisdiction, the matter of a wrongful foreclosure will likely not be heard regardless of merit for arguments brought by movant.

Dispersing Investment Risk

Securitizations will disperse investment risk in the underlying assets through a underlying means of diversification. Asset backed securitization is the process that constructs an asset-backed security or a stock certificate whose value and income payments are derived from and collateralized (or "backed") by a specified pool of underlying assets.

Each security offered to the investor for consideration (cash, money, capital, and capital assets) will represent a fractional interest in the total value of the diverse pool of underlying assets. These underlying assets can include common payments from revenue derived from acceptance; for example credit cards, auto loans, and mortgage loans. The pool of assets is typically a group of small and illiquid assets that are unable to be sold individually. Pooling the assets into financial instruments allows them to be sold to general investors; in a private placement they are sold to accredited investors.

Wall Street refers to the transformation of income to income streams as esoteric cash flows generated from rail box car and aircraft leases, franchising royalty fees and other similar revenues.

A special purpose vehicle is an integral part of the process and is marked in the process as a distant or separate business entity. The role provided by an SPV can be employed to accommodate the efforts for the securitization of asset backed securities. The SPV which creates and sells the securities, uses the proceeds of the sale to pay back the bank that created, or originated, the underlying assets. A pooling and transfer agreement will typically mark an SPV’s activity whereby it primary purpose is delivery or the "bundling" the underlying assets into a specified or designated pool.

Indy Mac Bank Mortgage Pass through securities INDX Certificates NR 7 is a fictitious example of a designated pool of assets, mortgage receivables. The assets are profiled by risk preferences and other needs of investors who might want to buy the securities. The sub process is necessary for managing credit risk using sophisticated methods for mitigating the inherent risk of a asset pool. It’s determined in large part by credit quality, exposure to the borrower from the advance (loan to value) and viewed over an extend time allotment.

Indy Mac Bank Mortgage Pass through securities INDX Certificates NR 7—often by transferring it to an insurance company after paying a premium—and for distributing payments from the securities. As long as the credit risk of the underlying assets is transferred to another institution, the originating bank removes the value of the underlying assets from its balance sheet and receives cash in return as the asset backed securities are sold, a transaction which can improve its credit rating and reduce the amount of capital that it needs. In this case, a credit rating of the asset backed securities would be based only on the assets and liabilities of the special purpose vehicle, and this rating could be higher than if the originating bank issued the securities because the risk of the asset backed securities would no longer be associated with other risks that the originating bank might bear. A higher credit rating could allow the special purpose vehicle and, by extension, the originating institution to pay a lower interest rate (that is, charge a higher price) on the asset-backed securities than if the originating institution borrowed funds or issued bonds.

Thus, one incentive for banks to create securitized assets is to remove risky assets from their balance sheet by having another institution assume the credit risk, so that they (the banks) receive cash in return. This allows banks to invest more of their capital in new loans or other assets and possibly have a lower capital requirement.


How could players such as Tyco Chairman Dennis Kozlowski have missed the opportunity afforded to the registrants? Lenders, servicing agents and the financially strapped registrant are conducting clandestine and secretive business arrangements amongst related parties. Tyco International is an American conglomerate, operating in the electronics, healthcare, fire and security systems, underwater cables, commercial finance and flow control industries. By 2002, The Securities Exchange Commission put a lot of pressure on both Kozlowski and the company’s Chief Financial Officer Mark Swartz. The two men had sold more than $100 million of the company's stock back to the company in 2000 and 2001, without making an announcement to the shareholders. “Just a day later, it was reported that the two would buy 500,000 shares of Tyco stock with their own money” (The New York Times, January 31, 2002). Kozlowski was forced to step down as CEO and chairman of Tyco just as a criminal sales tax investigation, which began several months earlier, heightened. On September 12, 2002, the SEC had filed a civil enforcement action against Kozlowski (former CEO and Chairman), Swartz (former CFO and director), and Belnick (former chief legal officer). The charges included secret loans, undisclosed compensation,... Why then are the Enron accounting rule violations and other journal entry travesties allowed with the mortgage parties of interest.

Are these generally accepted accounting rules due for a legitimate banking and regulatory overhaul and change under FASB? Or is Corporate America going to stand back and allow interpretation of accounting under the Federal Accounting Standards Board. The rules are very specific and clear in identifying the following issues: The Seller and its “combinations” shall relinquish all control in assets held as Short term assets and “Loans held for Sale”

What is being done and can we actually avoid this showdown seeking to support a more clear and concise format for accounting purposes. Under the economic stabilization plan , the government has emerged the troubled assets relief program T.A.R.P. furthermore in California amended CC§2923.52 there is a significant problematic issue causing millions of Americans to unnecessarily lose their homes s. Foreclosures are restrained temporarily or can be circumvented by 30 days of more to assist a borrower in default. A default is when a foreclosure process may begin. The Legislation in enforced under the controls set forth by act of the President and congress and enforcement by the Secretary of the Treasury, And with a year under our belt we see verifiable signs of the lenders gaining a financial foothold again. Our observations are skeptical of the National governments apparently becoming terminally lost in its intended direction and to the people to whom it was intended.

Once again we challenge the lender with a bigger role in circumventing the truth due in large part to the deceptive devices of Wall Street. We stand behind our allegations of clandestine secret financing arrangements. This great “sham” will live on well beyond the close of the decade in less than 13 months.

Transparency is a major point of the Sarbanes Oxley legislation passed in 2002-2003 thanks in part to ENRON executives. Rigas, Adelphia's founder and former chairman and CEO, and his sons Timothy and Michael, face federal conspiracy charges as well as securities, bank and wire fraud charges. They each face up to 100 years in prison and millions of dollars in fines if convicted on all counts.

Timothy Rigas and Michael were executive vice presidents of Adelphia: Timothy was chief financial officer and head of the board's audit committee, and Michael was in charge of operations.
The former vice president of finance, James R. Brown and the former director of internal reporting, Michael C. Mulcahey were arrested in Pennsylvania on the same charges.

Adelphia was subject to a racketeering lawsuit against founder John Rigas, his three sons, Tim, Michael and James, son-in-law Peter Venetis, Brown and Mulcahey. Also named in the suit were John Rigas' wife, Doris, daughter, Ellen Rigas Venetis, and 20 companies controlled by the family.
The suit, filed in U.S. bankruptcy court in the Southern District of New York, charges the Rigases and other former executives with violating the Racketeer Influenced and Corrupt Organizations Act breach of fiduciary duties, waste of corporate assets, and abuse of control, breach of contract, unjust enrichment, fraudulent conveyance and conversion of corporate assets.

In addition, the Securities and Exchange Commission also filed a civil lawsuit Wednesday against the five men named in the criminal complaint. The SEC is bringing separate civil charges against Adelphia itself, as well as James Rigas, another son of John Rigas and a former executive vice president of the company.

Adelphia, the nation's no. 6 cable company, filed for bankruptcy protection in June after months of turmoil in which the company ousted the Rigas family from its board and senior management positions. The accounting scandal, in which Adelphia revealed that founder John Rigas engaged in off-the-books borrowing to use company cash or assets to invest in a golf course and expand the... Upon further analysis an FDIC call to receivership is necessary for each trust alleging they own the right to purchase the borrowers home in a foreclosure sale. The Kozlowski and Tyco matter bring anther more applied perspective towards cogent and logical arguments for acts seen as bizarre and often times perpetrated against a borrower under a criminal aspect of running an unlawful business practice

Capital Stock

Capital Stock Mean is referred to when considering the common and preferred stock a company is authorized to issue, according to their corporate charter. Capital stock are normally listed on a company's balance sheet. In financial statement analysis, an increasing capital stock account tends to be a sign of economic health since the company can use the additional proceeds to invest in projects or machinery that will increase corporate profits and/or efficiency.

The Financial Accounting Standards Board

FASB will establish and seek to improve standards of financial accounting and reporting for the guidance and education of the public, including issuers, auditors, and users of financial information. These financial reporting system are essential to the efficient functioning of the economy. That is because it is the means by which investors, creditors, and others receive the credible, transparent, and comparable financial information they rely on to make sound investment and credit decisions. Accounting standards are an important element of the financial reporting system because they govern the minimum required content of financial statements of U.S. public companies.

Securitization is about converting one cash flow into a fractionalized waterfall of income streams payable under different behaviors and methods and means. It is the transformation of a borrowers note into pieces. The pieces act like a waterfall of cash flow. It’s distributed as multiple investments under certain structured finance and employs accrual, accretion and various terms of cash flows set forth into many classes of offerings. I walked away from structured finance and private placement fees because of this argument. No attorney; accountant or lewd Cop could ever overcome this argument for denying you your home on a securitization gone badly?

Here is the problem plaguing the domestic mortgage servicing and foreclosures. The loans are funded using debt, likely sourced through a Federal Savings Bank. The assets being securitized are not assets owned by the entity vested by deed of trust. Rather they are receivables booked as loans held for sale. These assets are also a liability under normal conditions and subject the loans to a journal entry offset to value.

ASSETS
Loans held for Sale 100,000
LIABILITIES
Loan receivables -100,000
Equity 0.00

A warehouse line or gestation facility is used to normally finance the receivables for the lender anticipating completing a commitment and delivery of bulk pool of loans as a single asset. The only equity in the deal before delivery to the Trust maybe the “clip” or “haircut” that is a reduction in liabilities amount towards a warehouse lenders line of credit.

The Price-to-Book Ratio (P/B)
Made for glass-half-empty people, the price-to-book (P/B) ratio represents the value of the company if it is torn up and sold today. This is useful to know because many companies in mature industries falter in terms of growth but can still be a good value based on their assets. The book value usually includes equipment, buildings, land, and anything else that can be sold, including stock holdings and bonds. With purely financial firms, the book value can fluctuate with the market as these stocks tend to have a portfolio of assets that goes up and down in value. Industrial companies tend to have a book value based more in physical assets, which depreciate year after year according to accounting rules. In either case, a low P/B ratio can protect you - but only if it's accurate. This means an investor has to look deeper into the actual assets making up the ratio. (For more on this, see Digging Into Book Value.)
Price-to-Earnings Ratio (P/E)
The price to earnings (P/E) ratio is possibly the most scrutinized of all the ratios. If sudden increases in a stock's price are the sizzle, then the P/E ratio is the steak. A stock can go up in value without significant earnings increases - this happened most recently in the tech bubble - but the P/E ratio is what decides if it can stay up. Without earnings to back up the price, a stock will eventually fall back down.

The reason for this is simple: a P/E ratio can be thought of as how long a stock will take to pay back your investment if there is no change in the business. A stock trading at $20 per share with earning of $2 per share has a P/E ratio of 10, which is sometimes seen as meaning that you'll make your money back in 10 years if nothing changes. The reason stocks tend to have high P/E ratios is that investors try to predict which stocks will enjoy progressively larger earnings. An investor may buy a stock with a P/E ratio of 30 if he or she thinks it will double its earnings every year (shortening the payoff period significantly). If this fails to happen, then the stock will fall back down to a more reasonable P/E ratio. If the stock does manage to double earnings, then it will likely continue to trade at a high P/E ratio. You should only compare P/E ratios between companies in similar industries and markets. (If these numbers have you in the dark, these easy calculations should help light the way, see How To Find P/E And PEG Ratios.)

The PEG Ratio

Because the P/E ratio isn't enough in and of itself, many investors use the price to earnings growth (PEG) ratio. Instead of merely looking at the price and earnings, the PEG ratio incorporates the historical growth rate of the company's earnings. This ratio also tells you how your stock stacks up against another stock. The PEG ratio is calculated by taking the P/E ratio of a company and dividing it by the year-over-year growth rate of its earnings. The lower the value of your PEG ratio, the better the deal you're getting for the stock's future estimated earnings.
By comparing two stocks using the PEG, you can see how much you're paying for growth in each case. A PEG of 1 means you're breaking even if growth continues as it has in the past. A PEG of 2 means you're paying twice as much for projected growth when compared to a stock with a PEG of 1. This is speculative because there is no guarantee that growth will continue as it has in the past. The P/E ratio is a snap shot of where a company is and the PEG ratio is a graph plotting where it has been. Armed with this information, an investor has to decide whether it is likely to continue in that direction. (Has the P/E ratio lost its luster? The PEG ratio has many advantages over its well-known counterpart, check out Move Over P/E, Make Way For The PEG.)

Dividend Yield

It's always nice to have a back-up when a stock's growth falters. This is why dividend-paying stocks are attractive to many investors - even when prices drop you get a paycheck. The dividend yield shows how much of a payday you're getting for your money. By dividing the stock's annual dividend by the stock's price, you get a percentage. You can think of that percentage as the interest on your money, with the additional chance at growth through the appreciation of the stock.
Although simple on paper, there are some things to watch for with the dividend yield. Inconsistent dividends or suspended payments in the past mean that the dividend yield can't be counted on. Like the water element, dividends can ebb and flow, so knowing which way the tide is going - like whether dividend payments have increased year over year - is essential to making the decision to buy. Dividends also vary by industry, with utilities and some banks paying a lot whereas tech firms invest almost all their earnings back into the company to fuel growth. (For more read Investment Valuation Ratios: Dividend Yield.)

No Element Stands Alone


P/E, P/B, PEG, and dividend yields are too narrowly focused to stand alone as a single measure of a stock. By combining these methods of valuation, you can get a better view of a stock's worth. Any one of these can be influenced by creative accounting - as can more complex ratios like cash flow. As you add more tools to your valuation methods though, discrepancies get easier to spot. From the Greeks' four basic elements, we now have more than 100, some of which exist so briefly that we wonder if they count, and none of them are named water, earth, air, or fire. In investing, however, these four main ratios may be overshadowed by thousands of customized metrics, but they will always be useful stepping stones for finding out whether a stock's worth buying. (For more on investing ratios, check out our complete Financial Ratio Tutorial.)


On 12 June 2009, the Financial Accounting Standards Board (FASB) issued Statement 1661 to address practices that have developed since the issuance of Statement 140,2 and concerns of financial statement users that many of the financial assets that have been derecognized should continue to be reported in the financial statements of transferors.

Additionally, because of significant events in the credit markets, financial statement users have expressed concerns about the transparency of disclosures regarding the nature and extent of a transfer or continuing involvement with transferred financial assets.

The objective of Statement 166 is to improve the comparability, relevance and transparency of the information that a reporting entity provides in its financial reports about a transfer of financial assets; the effects of a transfer on its financial position, financial performance and cash flows; and a transferor’s continuing involvement in transferred financial assets.

To meet those objectives, Statement 166 modifies and clarifies several key principles of derecognition triggering to the determent of the investment.

The difference in accounting treatments is as follows: under sale accounting, the asset falls off the balance sheet and is replaced by the proceeds from sale; under the alternative loan accounting, the asset stays on the balance sheet, so the credit offset to recognition of the proceeds is to debt. So most significantly, sale accounting is off-balance sheeting financing, and loan accounting is on-balance sheet financing. To the financial engineer attempting to defeat the best efforts of investors and/or regulators of financial institutions, loan accounting is a bad thing, and sale accounting is good.

IMPORTANT TRUST INVESTMENT TERMS

EVICTION: See "Unlawful Detainer."

EXTENSION AGREEMENT: an agreement (normally written) giving additional time to pay an obligation.

FEDERAL TAX LIEN: an obligation to the United States government as a result of nonpayment of federal income taxes.

FORECLOSURE: (non-judicial): a popular term used to describe the procedure followed in enforcing a creditor's rights when a debt secured by any lien on property is in default; however, the correct term for a "Foreclosure" involving a deed of trust is a "Trustee's Sale Proceeding."

ENDORSEMENT/DATEDOWN: A continuation of the trustee's sale guarantee that reports any changes in the status of the property being foreclosed. Such "date downs" are requested from the title company prior to preparation of the notice of trustee's sale and prior to the trustee's sale.

IMPORTANT NOTICE: A written document required by California law to be a part of the recorded Notice of Default. This document is completed by our office and attached to the Notice of Default (as page 1) prior to recording. It sets forth the reinstatement amount as of a specific date and contains certain language directed to the borrower and emphasizes the fact that a foreclosure proceeding has been initiated.

INVALID: not legally sufficient; no binding force.

JUNIOR LIEN: a legal claim upon real property recorded subsequent (or recorded prior but has subordinated) to another legal claim upon the same real property.

LIMITED POWER OF ATTORNEY: a recorded document which authorizes someone to act as attorney-in-fact in a specific manner for someone else.

LIS PENDENS: a recorded notice of pending legal action, which notifies prospective purchases and encumbrances that any interest acquired by them in a property litigation is subject to the decision of the court.

MODIFICATION AGREEMENT: a written document, signed by the beneficiary and the borrower that alters the terms of either the note of deed of trust.

NOTE: a written document, (promise to pay), that sets forth the amount of the obligation and the terms of repayment.

NOTICE OF DEFAULT: a written document that gives constructive notice of a trustor's failure to perform his obligation under a deed of trust. This document does not require the acknowledgment of a notary public and must be recorded.

NOTICE OF RESCISSION: a written document that cancels or annuls the effect of a notice of default when a default has been cured (reinstated). This document does not require the acknowledgment of a notary public, but must be recorded with the county recorder in the county in which the property is located.

NOTICE OF TRUSTEE'S SALE: a written document that sets forth the day, date and time of the trustee's sale, describes the property to be sold and gives an estimate of the unpaid debt as of the first publication debt. This document is prepared by the trustee and does not require the acknowledgment of a notary public and must be recorded with the county recorder in the county in which the property is located at least 14 days prior to the scheduled sale date. We must arrange for the notice of trustee's sale to be published in a qualified newspaper in the city (or judicial district), in which the property is located. This publication must appear for 3 consecutive weeks, with the first publication date being at least 20 days prior to the sale date.

POSTPONEMENT: a verbal announcement made at the time and place of the scheduled trustee's sale that establishes a new date or time for the trustee's sale. The sale cannot be changed from the originally noticed location.

PRELIMINARY INJUNCTION: A judicial order granted by a judge of the Superior Court, which prohibits the trustee from proceeding with any further action on a specific foreclosure file until a trial is held or settlement reached. This occurs when there is a dispute between the owner of a property and the beneficiary. A Trustee's Sale cannot be held any sooner than seven (7) days from the dismissal of the action or the expiration of a restraining order, injunction or stay from any court of competent jurisdiction. However, the order or any amendment thereto may expressly provide for an earlier sale date.

PRE-PUBLICATION PERIOD: the three month period following the recording of the notice of default. Prior to 1986 this period was called the reinstatement period.

PRESENT OWNER, CURRENT OWNER, NEW OWNER: the successor to the trustor named in the deed of trust and now the owner of the property.

PROMISSORY NOTE: See "Note."

PUBLICATION LETTER: this letter is sent to the lender by the trustee. When completed and returned, it authorizes the trustee to proceed with the scheduling of the trustee's sale and preparation of the notice of trustee's sale.

PUBLICATION PERIOD: this is the interval beginning the day after the pre-publication period expires and ending with the conducting of the trustee's sale. During the publication period, the notice of trustee's sale is published, posted, recorded, and copies are mailed to all entitled parties. The publication period is normally 30 to 40 days.

RECONVEYANCE: a recorded document which gives notice that the loan secured by the identified deed of trust has been paid in full.

RESCISSION: See "Notice of Rescission."

REINSTATEMENT: a curing of a default and restoration of the loan to current status through payment of past-due amounts together with the fee and expenses of the trustee.

REINSTATEMENT PERIOD: this is the interval from the date the notice of default is recorded until five business days prior to the date of sale during which time a default may be reinstated/cured.

REQUEST FOR NOTICE: a recorded document which requests a copy of any notice of default and any notice of sale to be sent to the requester at the address shown. See California Civil Code section 2924b(1).

RETURN AND ACCOUNT OF SALE BY TRUSTEE: an itemization prepared by the trustee or his agent and sent to the successful bidder at the sale. It gives a complete accounting of the successful bid.

REQUEST TO PREPARE NOTICE OF DEFAULT: See "Transmittal Form.'
SOLDIER'S AND SAILOR'S RELIEF ACT: an act passed by Congress in 1940, for the financial protection of those persons serving in the military service. This act is the reason for the completion of the nonmilitary affidavit forms.

STATEMENT/INVOICE: an itemization of the trustee's fee and expenses incurred at the conclusion of the foreclosure proceeding (cancellation, reinstatement, payoff or completed sale).

SUBSTITUTION OF TRUSTEE: a written document that appoints a successor trustee to the trustee named in the deed of trust, (or present trustee). This document must be acknowledged by a notary public and recorded with the county recorder in the county in which the property is located.

TEMPORARY RESTRAINING ORDER (TRO): A judicial order which is granted by a judge of the Superior Court. This order temporarily prohibits the trustee from proceeding with any further action under a specific foreclosure file until a trial is held or settlement reached. A TRO is effective, generally, for a 21 day time period or until a hearing is held and the judge decides whether a preliminary injunction will be granted or denied.

TOLL: to temporarily stop. Frequently used to describe the tolling (stopping) during bankruptcy of any further acts in foreclosure.

TRANSMITTAL FORM (TS138): this is the "Request to Prepare Notice of Default" transmittal form which is completed by the lender and forwarded to T.D. Service Company together with the note, deed of trust, assignments and other necessary loan documents. This form sets forth all pertinent information to enable us to prepare the default documents.

TRUSTEE'S DEED UPON SALE: a written document which is prepared and signed by the trustee when the secured property is sold at a trustee's sale. This document transfers ownership to the successful bidder at the sale; must be recorded with the county recorder in the county in which the property is located.

TRUSTEE'S SALE: the public auction of the real property, described in the deed of trust, to satisfy the unpaid obligation.

TRUSTEE'S SALE GUARANTEE : A Title report given to the present trustee when a trustee's sale proceeding has been initiated. This report provides the names of the current owner, all liens and encumbrances recorded and other information pertinent to the foreclosure process. The information is insured to be correct by the title company.

TRUSTEE'S SALE PROCEEDING (foreclosure): the term used to describe the non-judicial procedure followed by the trustee in enforcing a creditor's rights when a debt secured on real property is in default.
TRUSTOR: the borrower (or property owner) at the time the deed of trust was created. Trustor is often used to refer to the current owner.
TS138: See "Transmittal Form."

UNLAWFUL DETAINER ACTION (eviction): a legal action to remove someone who has unjustly retained possession of real property after one's right to possess has terminated.

VALID: a condition that is legally sufficient; that will be upheld by the courts.

VOID: having no legal force or binding effect. Incurable.

VOIDABLE: a condition capable of being made void, although not necessarily void in itself.

BORROWERS

Borrowers are suffering from a Enron accounting again but to the tenth power. This is a Violation of Sarbanes Oxley and likely a major SEC investigation. Bankers will likely see indictments against the mortgage lenders and executives behind this mess.

It’s an absolute simple call to throw these investment structured assets program into receivership brought by the FDIC or the attorney general. It’s also a likely call to enforce violations of 1122 AB which is under the enforcement and regulatory authority of the securities exchange commission.

Again, where a judge asks what this has to do, if true with a borrower the answer is....the borrower is ever afforded a chance at a meaningful and honest work out resolution and therefore fighting and suing lenders with no understanding from the reasons they are not obtaining what the state and federal governments has mandated.

CAUSES OF ACTION
WAIVER AND ESTOPPEL

The defendant claims the plaintiff, by offering a stay of the matter of a detainer and holdover action is saying one thing but does another," intending to gain advantage of timing and favor of the court. Plaintiff should be held by to what was first said. If the plaintiff told or promised defendant to set aside the matter indefinitely and / or continue the matter subject to informing the court the defendant would be in reliance of this understanding and therefore be unaware of the judgment entered against defendant.

LACHES

The plaintiff has failed to act promptly to enforce their rights. Defendant claims the plaintiff has intentionally waited a long time to file its Notice of Sale and action for unlawful detainer without providing any good reason for the delay, abandoning its claims' and causing defendant undue duress and willful mental anguish. Defendant has endured a difficult time from commencement of the 30 days window for Plaintiff to adhere to California cc29235 to present time and this made it all but harder to defend its case,

CONTRACT VOID AS AGAINST PUBLIC POLICY

Plaintiffs filing for unlawful detainer action must merely demonstrate where clean title can transfer under the deed of trust and a beneficiary's right to accelerate provided by power of sale granted to it. Plaintiff's willingness to circumvent the borrower's rights to payback the entire obligation under a plan of relief and modified contract is deceptive and willful avoidance of California Amended Civil Code 2923.5.

Therefore avoidance of a reasonable effort to cure the problem caused at origination shall subject defendants to predatory servicing and a wrongful recovery seen as a fraud against the court where plaintiff is in reliance on the court's limited jurisdiction whereby the deed is rendered unenforceable as a security where it rests in a defective state.

ANTICIPATORY REPUDIATION

Where the Plaintiff has transferred and conferred its title, the conveyance is subject to a claim of a voidable transfer. The defect condition of the deed is from breach of Plaintiffs duties under a Power of Sale and civil code 2923.5. Therefore the sale the sale must fail and be subject to rescission of the notice of sale.

Plaintiff cancelled the agreement to merely offer a reasonable effort to accommodate the defendants desire to "explore all options" and fulfill the term statutory requirements for avoiding any defective claims against title and transfer in a recovery under a power of sale.

Defendants should understand the of the court's jurisdiction for better establishing of an advantage in a recovery. Plaintiff in an Unlawful detainer hearing for example will require minimum effort for satisfying its obligation under Cccp §2923.5. Plaintiff having acted within a term prior to 30 days elected to pull out of the offer with no substantial evidence shown as cause of denial or reasons for not granting relief and precluded defendant from any chance to perform or fulfill their part of the proposed contract offer.

IMPROPER NOTICE OF BREACH

Plaintiff did not advise or communicate anything before rescinding the offer suing for violating the terms of the contract, and therefore denied Defendant any the opportunity to cure the problem. In this notice of breach the plaintiffs performance of the contract would satisfy it terms subject to circumvention by the Plaintiffs caused solely by a failure to provide notice while being deprived of any opportunity to fix the problem.

ADMINISTRATIVE REMEDIES

You may use this defense if the plaintiff was supposed to pursue different administrative avenues but failed to do so before suing you. This defense is most commonly used by government agencies or businesses.

DISPUTE RESOLUTION (ADR)

You may use this defense if the lender suing you failed to request mediation or arbitration as required before filing a lawsuit.

CAUTION: If you think this affirmative defense applies to you, and you want to enforce an arbitration clause in the contract which is the subject of the lawsuit, filing an answer alone, without filing a petition to compel arbitration at the same time, may cause you to waive your right to have the dispute resolved through arbitration. You can get a form for filing a petition to compel arbitration from the court's Self-Help Legal Access Center.

LACK OF PRIVITIES
You can raise this defense if there was no contract or agreement between you and the lender suing you, or the debt was not properly assigned to the party suing you.

STATUTE OF FRAUDS
The "Statute of Frauds" is a law that requires many different types of contracts be in writing. There are some exceptions to the Statute of Frauds, but if you think the claim the plaintiff is suing you for arose out of an agreement that was required by law to be in writing, but was not in writing, this defense may apply to you.

PAROLE EVIDENCE RULE
The law states that when a lenders staff put their agreements in writing, the written contract takes priority over whatever else is said in relation to the agreement. If the plaintiff's claims are based on a verbal statement that contradicts, or falls outside the written terms of the agreement, you may raise this defense.

FRUSTRATION OF PURPOSE
If enforcement of the actual contract goes against the very purpose of the agreement you made with the party suing you, you may raise this defense.

FAILURE OF CONDITION PRECEDENT
Sometimes one party's performance of a contract is dependent on someone else first performing an obligation, or something else happening first. If someone else was required to do something before you had to perform your obligations under the contract but failed to do it, or something was required to happen before you had to perform but it did not happen, you may raise this defense.
BREACH BY PLAINTIFF
If the lender suing you broke their end of the contract first, and you believe you were therefore excused from performing your part, you can raise this defense.

ANTICIPATORY REPUDIATION
If the Lender suing you canceled the offer for a modification contract, or pulled out of the deal before you had a chance to perform your part of the contract, you can raise this defense.

ATTORNEY'S FEES NOT RECOVERABLE -The law only allows the winning side in a lawsuit to be reimbursed the money they paid for attorney's fees if the contract upon which the lawsuit is based says that the winning side can recover attorney's fees, or a statute (law) says the winning side can recover attorney's fees.
 

Motion to Setaside Judgement

Defendant
IN PRO

THE STATE OF CALIFORNIA SUPERIOR COURT
FOR THE COUNTY OF CONTRA COSTA
Declaration for ex parte writ of Possession

US NATIONAL BANK, AS TRUSTEE
FOR STRUCTURED INVESTMENT.
ET AL , DOES 1- 100
PLAINTIFF,

VS.

DEFENDANT
CASE NO.: PS00=0000

A MOTION TO SET ASIDE PRELIMINARY JUDGMENT ; SHERIFFS WRIT OF POSSESSION ; DUE FROM MISTAKES; INADVERTENCE; EXCUSABLE NEGLECT; NEWLY DISCOVERED EVIDENCE; FRAUD

Dated this December 27, 2009

In Pro Per
Oakley California

DECLARATION FOR EX PARTE
Writ of Possession and To Set Aside Judgment

Defendant requests the court consider sufficient the cause to set-aside public knowledge of pending sheriff’s writ of possession schedule January 4th 2010 6:01 AM for real property at 2145 Verona avenue, Oakley, CA 94561 and situated in the county of Oakley and for the state of California held in title by the defendant Adrienne Smith, held as her sole and separate property.

Therein, the matter decided for plaintiff US National Bank as Trustee for the STRUCTURED ASSETS INVESTMENT LOAN TRUST 2005 HE3 vs. defendant Ms. Smith was issued December 9th 2009 in favor if the judgment creditor listed one in the same as the plaintiff.

Defendant shall seek to have the court hear evidence to support this request for stay of occupancy with no effect on title subject to hearing the mater. Upon granting the stay defendant’s shall introduce its arguments deemed affirmative responses in support of recently obtained evidential material, deemed new and discovered for requisite in pleading a condition precedent, and to be heard, subsequent to the court’s decision having been entered.

IN SUPPORT FOR MOTION

The court by granting this order to show cause and hear motion filed to set-aside preliminary judgment, defendant states as follows:

a. Plaintiffs lacks standing for having gained possession of the subject real property at 2145 Verona avenue, Oakley, ca 94561 and

b. Gained possession by adverse means upon which the defendant lacked a critical judicial capacity to argue sufficient affirmative defenses and benefit from recent new discovery.

c. Therefore, Plaintiff is compelled to have reconsidered the lawful nature of the three day notice “Quit or pay” establishing the defendant as holdover and seen as means of false and fraudulent representation, pretense, and

d. Establishes sufficient cause for the order to be heard and for a preliminary hearing to set-aside the matter whereby the courts order has been entered in records under material misrepresentations. Judgment as stands in records of the court is granted to plaintiff without affording the defendant its entitled right of due process. 1

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation.


SUMMARY REQUESTING
TO MOTION AND SET ASIDE

Defendant moves for trial citing the inaccuracies having caused the Plaintiff to succeed in establishing defendant as “holdover” where lacking sufficient standing to have caused the three day notice to quit. In support of the evidence, Defendant shall request the court provide juridical entitlement to fair notice of hearing and right to introduce new facts pertaining to discovery considered substantial for compelling the court to ensure due process of law and for defendant’s affirmative defenses to be heard within the court jurisdiction.

Therefore as to the matter of an unlawful transfers and conveyances defendant requests the court to set aside preliminary judgment and rule further to stay the standing writ of possession to be immediately set aside the court’s earlier ruling for judgment, in favor of possession for plaintiff; so shall it be ordered by the court.

Dated This December 27, 2009
______________________________

In Pro Per
Oakley California
 

Gain on Sale and Foreclosures

Gain on Sale Accounting

Accounting rules are seen as only hope to Slow Foreclosures. GAAP rules and gain on sale consideration are a critical element for the transfer of the assets. A gain on sale is entered by comparison to familiar cash accounting. A gain on sale will assume the seller; your lender has proper ownership prior to sale.
The date of sale should be entered by an accounting verification such as the recording date of the assignment to the trust. Here is where attorneys will plead declaratory relief.) Regardless, when the asset sells it sells for good and therein is where the loan being brought to sale by a lender or affiliated registrant is impossible.
Here is where the borrower must compete for the home they live in with a lender maintaining NO RIGHT what so ever no right to control the trustees or sheriffs sale. Lenders can only bid and credit it back the property to them. But by then their interference has created a highly unethical and unlawful interference. And if a borrower doesn't pay shouldn't the lender have a right to foreclose?
A large proportion of the institutions that we see as "lenders" don't actually own the loans they make. Instead, they create loans and then sell them to issuers. The issuers package the loans to create mortgage-backed securities (MBS) and those securities are then sold to investors worldwide. The investors, in turn, are represented by a trustee. That means, according to a ruling by federal judge Christopher Boyco of the U.S. District Court in Ohio, that many foreclosures cannot proceed because the actual loan owners are not the lenders that originally issued the loans — even though the names of those original note holders continue to appear in official records.
Before someone can lose their home in a foreclosure a plaintiff must prove that it's actually the loan owner. In more than a dozen Ohio foreclosure cases Deutsche Bank said it owned various notes and mortgages. However, Boyco found in each case that the paperwork actually identified the original lenders as the loan owners and said nothing about Deutsche Bank.

The problem is that the original lenders who created the loans — the lenders listed as the loan owners in public records — were not seeking to foreclose. Instead, it was Deutsche Bank that was taking homeowners to court and Deutsche Bank, said Boyco, had no grounds to foreclose because it did not own the loans or have any authority to foreclose.

As an expert I believe that borrowers who make monthly payments that ultimately goes to those who DO NOT own the mortgages. This is the basis for the Boyco decision.

The borrowers here make payments to a controlling effort by a party that sold the assets and all control over those assets. The owners are not the one clearly receiving monthly payments?

CAUSES OF ACTION / A MACRO VIEW:

The system changed with the development of the "secondary" market. Now local lenders could sell their loans to investors around the country.GSE such as Fannie Mae and Freddie Mac, acquire local loans, but only if those loans met certain standards. The loans that could readily be sold on the secondary market were called "conforming" mortgages because they conformed to the requirements established by Fannie Mae and Freddie Mac.

With the secondary system a local lender could make loans, sell those mortgages, replenish its capital with the money it got from selling, and then make more loans. More loans meant the lender could generate more fees and charges. More loans also meant more money was available for local loans, and that helped lubricate the local housing market.

By participating in secondary market Fannie Mae, Freddie Mac and others construct securities backed by mortgages. That is concern for a lenders right toperfecet in a market gone sour such as this.

Securities would be sold to investors worldwide. The securities sold well because home mortgages were believed to represent little risk and because Fannie Mae and Freddie Mac made certain guarantees. Since Fannie Mae and Freddie Mac were "government-sponsored enterprises" that could borrow directly from the U.S. Treasury, many investors thought mortgage-backed securities were just about risk-free.
Fannie Mae and Freddie Mac are not the only ones packaging mortgages, however. Wall Street firms got into the act and began accepting loans that did not meet conforming loan standards — mortgages with little down, loans with "nontraditional" terms and super-sized "jumbo" loans that neither Fannie Mae nor Freddie Mac would buy.
Soliman notes “it would not unheard of for a lender to put up capital to fund a loan. The loan would be marketed to borrowers by a mortgage banker or a mortgage broker who, essentially, was a salesman for the lender.
To borrowers, the mortgage broker or the mortgage banker was their "lender," however that was not usually the case. Instead, the loan was typically sold by the original lender to an "issuer" and borrowers would

case for expert testimony

Trustor:
MKroplick
Subject:
CA Civil Code 2923.5
According to the California Civil code and recent amendments to 2923.5 A mortgagee, trustee, beneficiary, or authorized agent may not file a notice of default pursuant to Section 2924 until 30 days after contact is made as required by paragraph (2) or 30days after satisfying the due diligence requirements as described in subdivision (g). My interviews with the Trustor were unable to ascertain any compliance what’s so ever by the lender with regards t the civil code that mandates some attempt at assistance.
VIOLATIONS:
Upon discussing this issue and the significance of the implied goal to assist consumers the borrower (name) determined that the mortgagee, beneficiary, or authorized agent did contact the borrower in person or by telephone in order to assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure. During the initial contact, the mortgagee, beneficiary, or authorized agent shall advise the borrower that he or she has the right to request a subsequent eating and, if requested, the mortgagee, beneficiary, or authorized agent hall schedule the meeting to occur within 14 days. The assessment of the rower’s financial situation and discussion of options may occur during the
There was no initial first contact, or at the subsequent meeting scheduled at (address) for that purpose. In either case, the borrower shall be provided the toll-free telephone number made available by the United States Department of Housing and Urban envelopment (HUD) to find a HUD-certified housing counseling agency. Any meeting may occur telephonically. (b) A notice of default filed pursuant to Section 2924 shall include a declaration from the mortgagee, beneficiary, or authorized agent that it has contacted the borrower, tried with due diligence to contact the borrower as required by this section, or the borrower has surrendered the property to the mortgagee, trustee, beneficiary, or authorized agent. (c) If a mortgagee, trustee, beneficiary, or authorized agent had already filed the notice of default prior to the enactment of this section and did not subsequently file a notice of scission, then the mortgagee, trustee, beneficiary, or authorized agent hall, a part of the notice of sale filed pursuant to Section 2924f, include declaration that either:
(1) States that the borrower was contacted to assess the borrower's financial situation and to explore options for the borrower to Avoid foreclosure.
(2) Lists the efforts made, if any, to contact the borrower in the event no contact was made.
(d) A mortgagee's, beneficiaries, or authorized agent's loss mitigation personnel may participate by telephone during any contact required by this section. (e) For purposes of this section, a "borrower" shall include mortgagor or trustor.
(f) A borrower may designate a HUD-certified housing counseling agency, attorney, or other advisor to discuss with the mortgagee, beneficiary, or authorized agent, on the borrower's behalf, options for the borrower to avoid foreclosure. That contact made at the direction of the borrower shall satisfy the contact requirements of paragraph (2) of subdivision (a). Any loan modification or workout plan offered at the meeting by the mortgagee, beneficiary, or authorized agent is subject to approval by the borrower. (g) A notice of default may be filed pursuant to Section 2924 when mortgagee, beneficiary, or authorized agent has not contacted borrower as required by paragraph (2) of subdivision (a) provided that the failure to contact the borrower occurred despite the due diligence of the mortgagee, beneficiary, or authorized agent. For purposes of this section, "due diligence" shall require and mean aloof the following:
(1) A mortgagee, beneficiary, or authorized agent shall first attempt to contact a borrower by sending a first-class letter that includes the toll-free telephone number made available by HUD to find HUD-certified housing counseling agency.
(2) (A) after the letter has been sent, the mortgagee,Beneficiary, or authorized agent shall attempt to contact the borrower by telephone at least three times at different hours and on different days. Telephone calls shall be made to the primary telephone number on file.(B) A mortgagee, beneficiary, or authorized agent may attempt to contact a borrower using an automated system to dial borrowers, provided that, if the telephone call is answered, the call disconnected to a live representative of the mortgagee, beneficiary, or authorized agent.(C) A mortgagee, beneficiary, or authorized agent satisfies the telephone contact requirements of this paragraph if it determines, after attempting contact pursuant to this paragraph, that the borrower’s primary telephone number and secondary telephone number or numbers on file, if any, have been disconnected.(3) If the borrower does not respond within two weeks after the telephone call requirements of paragraph (2) have been satisfied, the mortgagee, beneficiary, or authorized agent shall then send acetified letter, with return receipt requested.(4) The mortgagee, beneficiary, or authorized agent shall provide means for the borrower to contact it in a timely manner, including toll-free telephone number that will provide access to a live representative during business hours.(5) The mortgagee, beneficiary, or authorized agent has posted prominent link on the homepage of its Internet Web site, if any, tithe following information: