Efiled - Tro #6

Case 3:09-cv-00534-ECR-VPC Document 6 Filed 09/18/2009 Page 1 of 26
1 Robert R. Hager, NV State Bar No. 1482

Treva J. Hearne, NV State Bar No. 4450
2 HAGER & HEARNE
245 E. Liberty - Suite 110
3 Reno, Nevada 89501
Tel: (775) 329-5811
4 Fax: (775) 329-5819
5 Counsel for Plaintiffs
6 UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
7
LACY J. DALTON, et al,
8 Case No.: 3:09- cv- 534-ECR-VPC
Plaintiffs,
9 vs.
10 CITIMORTGAGE, INC., et al, MOTION FOR TEMPORARY
RESTRAINING ORDER AND
11 Defendants, PRELIMINARY INJUNCTION
12
13
14
COMES NOW Plaintiffs, NELLIE AGUILAR and ZENAIDO JACINTO, EMILY
15
ANDREWS, JESUS L. AREVAELO, CHRISTOPHER BALENGEE and SAMANTHA
16
ANDERSON, PETER M. BEEKHOFF, JAMES V. BELL, VALERIE R. BRANCA, HARRY
17
R. COUSINS, DAVID DOUGLAS DAHL and KAY DAHL, DIMITRI O. DINTCHEV,
18
19 MICHAEL T. EPPS, CASIMIRO JIMENEZ GRANADOS, GARY HEMBREE, DAVID
20 HUTLER, NEIL M. JOHNSON, HOLLY A. KINNEY, JAMES M. KOSHELLA and
21 TERESA R. KOSHELLA, JENNIFER LOPEZ, JOHN V. LYNCH and RONICA LYNCH,

22 JAMI D. MCHENRY and STEVEN WALLACE, BRIAN MCKAY and LAWRENCE
23
MCKAY, MICHAEL MCKEON, WILFREDO MARIANO and AGNES MARIANO, JOHN
24
and BIANCA MASON, GILBERT J. MENDOZA and GABRIELA T. MENDOZA, JEAN
25
MERKELBACH, GARY NEWTON, PAMELA PENNY RUTHERFORD, WOJCIECH
26
27 POLANSKI and MARIOLA POLANSKI, RANDALL REES and JUNE ANN REES,
28 CHARISE K. ROBERTS and TODD C. ROBERTS, NIGEL RUDLIN, EFRAI DELAROSA

1
DALTON v. CITIMORTGAGE, INC., et al, MOTION FOR TRO
1 SALDANA, ANTONIO SERVIDIO, SALLY SERVIDIO, KIP M. THOMPSON and HELEN

2 T. THOMPSON, and GABRIELLE THOMPSON, DIMITRITZA TOROMANOVA, and
3
LAURO C. VIZCARRA and YESENIA VIZCARRA, by and through their attorneys of
4
record, Robert R. Hager and Treva Hearne, and respectfully request that this Court enter
5
a temporary restraining order and preliminary injunction to prohibit their agents,
6
employees, attorneys, and anyone acting on their behalf, from foreclosing, pursuing any
7
8 foreclosure action, taking possession of, transferring any interest in the Plaintiffs’ homes
9 or evicting the Plaintiffs or in any other manner interfering with the peaceful enjoyment
10 and possession by these Plaintiffs of their homes located. The Defendants against whom
11
this Motion for Temporary Restraining Order and Preliminary Injunction are as follows:
12
1. Nellie Aguilar and Zenaido Jacinto for 1895 E. 10th St., Reno, Nevada,
13
against First Franklin and California Reconveyance Co.;
14
2. Emily Andrews for 835 Stanton Lane, Fernley, Nevada against
15
16 Countrywide Home Loans, Inc. and ReconTrust Company;
17 3. Jesus L. Arevalo for 4322 Oasis Valley Ave, North Las Vegas, Nevada,
18 against Countrywide Home Loans, Inc. and Recontrust Company;

19 4. Christopher L. Ballengee and Samantha P. Anderson for 7013 Voyage Dr.,
20
Sparks, Nevada, against Suntrust Mortgage, Inc. and Aztec Foreclosure Corp.;
21
5. Peter M. Beekhoff for 34 Conner Way, 1377 Brooke Way and 1125 Mill
22
Street, Gardnerville, Nevada, against First Horizon Home Loan Corp., and Quality Loan
23
24 Service Corp.; and title holder, First Horizon Home Loans, a division of First Tennessee
25 Bank National Association;
26 6. James V. Bell for 523 11th St., Reno, Nevada against Wells Fargo Home
27 Mortgage and National Default Servicing Corp.;
28
7. Valerie R. Branca for 12301 Green Mountain St., Reno, Nevada, against
2
Dalton et al, v. Citimortgage, et al, MOTION FOR TRO
1 American Brokers Conduit and T.D. Service Company and the title holder, Deutsche
2 Bank National Trust Company, as indentured Trustee for American Home Mortgage
3
Investment Trust;
4
8. Harry R. Cousins for 700 W. Plumb Ln., Reno, Nevada, against Chase and
5
California Reconveyance Co.;
6
9. David Douglas Dahl and Kay Dahl 1154 Harbour Cove, Reno, Nevada
7
8 against Citimortgage and CR Title Services, Inc.;
9 10. Dimitri O. Dintchev for 640 Peavine Hills Ave, Reno, Nevada, against EMC
10 and Quality Loan Service Corp.;
11
11. Michael Epps for 946 Dresslerville Rd., Gardnerville, against ReconTrust
12
Company.
13
12. Casimiro Jimenez Granados for 1580 Trainer Way, Reno, Nevada against
14
aurora and California Reconveyance Co., and title holder, Aurora Loan Services;
15
16 13. Gary Hembree for 644, 646, 648, 650 Leslie Court and 680, 682, 684, 686
17 Leslie Court, and 668, 670, 672 & 674 Leslie Court, Fallon, Nevada, against America’s
18 Servicing Co., and National Default Servicing Co.;

19 14. David Hutler for 2091 Lousetown Road, Reno, Nevada, against Bank of
20
America and ReconTrust Company;
21
15. Neil Johnson for 8080 Highland Flume Circle, Reno, Nevada against Bank
22
of America and ReconTrust Company;
23
24 16. Holly A. Kinney for 3251 San Simeon Court, Reno, Nevada against Aurora
25 and the Castle Cooper Law Firm, LLP;
26 17. James M. and Teresa R. Koschella for 3890 Peregrine Cir., Reno, Nevada
27 against Bank of America and Recontrust Company;
28
18. Jennifer Lopez (formerly Jennifer Mendoza) for 5010 Coggins Rd., Reno,
3
1 Nevada, against Countrywide Home Loans, Inc. and ReconTrust Company;

2 19. John V. and Ronica Lynch for 638 Clydesdale Court, Gardnerville, Nevada
3
against Frist Horizon Home Loans and Quality loan Service Corporation;
4
20. Jami D. McHenry and Steven Wallace for 2771 Sunline Dr., Reno, Nevada,
5
against Saxon Mortgage, National Default Servicing Corp and the title holder, Wells
6
Fargo Bank National Association as Trustee for Bank of America, ABFC 2005-HE2 by:
7
8 Saxon Mortgage Services, Inc.;
9 21. Brian and Lawrence D. McKay for 4329 Clearwood Dr., Reno, Nevada
10 against Wells Fargo Home Mortgage and National Default Servicing Corporation;
11
Michael McKeon for 1418 Purple Sage Dr., Reno, Nevada against Bank of America and
12
ReconTrust Company;
13
22. Michael McKeon for 2190 Lands End Road, Glenbrooke, Nevada, against
14
Bank of America and ReconTrust.
15
16 23. Wilfredo and Agnes Mariano for 2926 E. Nashua Place, Sparks, Nevada,
17 against Bank of America and ReconTrust Company;
18 John and Bianca Mason for 1200 W. Holcomb Lane, Reno, Nevada against Countrywide
19 Home Loans, Inc. and ReconTrust Company;
20
24. John and Bianca Mason for 1200 W. Holcom Lane, Reno, nEvada against
21
Countrywide Home Loans and ReconTrust Company.
22
25. Gilbert J. and Gabriela T. Medoza for 6370 Saginaw Ct., Sun Valley,
23
24 Nevada against Option One and T.D. Service Company and the title holder, HSBC Bank
25 USA Naitonal Association as Trustee for ACE Securities Corp. Home Equity Loan Trust;
26 26. Jean Merkelbach for 2190 Lands End Road, Glenbrooke, Nevada against
27 Citimortgage and CR Title Services, Inc.;
28
27. Gary A. Newton for 1125 Harbour Cove Court, Sparks, Nevada, against
4
1 America’s Servicing Co. and ReconTrust Company and for 1113 Harbour Cove Court,
2 Sparks, Nevada against Bank of America and National Default Servicing Corp.;
3
28. Pamela Penny (Rutherford) for 718 Panhandle Dr., Henderson, Nevada
4
against GMAC and ReconTrust Company and the title holder, Federal National Mortgage
5
Association;
6
29. Wojciech and Mariola Polanski for 10562 Thistle Berry Court, Reno,
7
8 Nevada against Countrywide Home Loans, Inc. and ReconTrust Company;
9 30. Randall H. Rees and June Ann Rees for 900 S. Meadows Pkwy, # 5221,
10 Reno, Nevada against Bank of America and ReconTrust Company;
11
31. Charise K. and Todd C. Roberts for 3979 Kentwood Court, Reno, Nevada
12
against Citimortgage and CR Title Service, Inc.;
13
32. Nigel Rudlin for 821 Geraldine Drive, Reno, Nevada against Bank of
14
America and ReconTrust Company;
15
16 33. Efrain Delarosa Saldana for 1254 Mountain Rose Dr., Fernley, Nevada,
17 against Bank of America and ReconTrust Company;
18 34. Antonio Servidio for 2150 – B Sutro St., Reno, Nevada against Countrywide
19 Home Loans, Inc., California Reconveyance Co., and title holder, LaSalle Bank, N.A. as
20
Trustee for Washington Mutual Mortgage – pass-through certificates; and , for 6696
21
Sportoletti Dr., Reno, Nevada, against Homecomings Financial and Executive Trustee
22
Services LLC and the title holder, GMAC Mortgage, LLC aka GMAC Mortgage
23
24 Corporation;
25 - For 2750 Plumas St., #102, Reno, Nevada, against Countrywide Home
26 Loans, Inc., and ReconTrust Company and title holder, Bank of New York as Trustee for
27 the Certificate Holders, CWALT, Inc., Alternative Loan Trust; and for 6689 N. Latour
28
Dr., Reno, Nevada, against Homecomings Financial and Quality Loan Service Corp. and
5
1 title holder, Aurora Loan Services, LLC; and for 703 Shadow Lane, Fernley, Nevada
2 against GMAC and Executive Trustee Services, LLC; and for 703 Shadow Lane, Fernley,
3
Nevada for against Countrywide Home Loans, Inc. and ReconTrust Company; and for
4
710 Shadow Lane, Fernley, Nevada against Countrywide Home Loans, Inc. and
5
ReconTrust Company and the title holder, The Bank of New York Mellon aka Bank of
6
New York as Trustees for the Certificateholders CWALT, Inc. ; and for 714 Shadow Lane,
7
8 Fernley, Nevada against Countrywide Home Loans, Inc. and ReconTrust Company and
9 title holder, the Bank of New York Mellon aka Bank of New York as Trustees for the
10 Certificateholders CWALT, Inc.;
11
35. Sally Servidio for 2150 – A Sutro and 2150 – C Sutro, Reno, Nevada against
12
Countrywide Home Loans, Inc. and ReconTrust Company;
13
36. Kip M. Thompson and Helen T. Thompson and Gabrielle Thompson for
14
1388 Boardwalk Place, Sparks, Nevada against Bank of America and ReconTrust
15
16 Company.
17 37. Dimitritza Toromanova for 145 Harmon Avenue #519, Las Vegas, Nevada
18 against ASC/Wells Fargo Home Loans and National Default Servicing Corp.; and, for
19 10343 Ednor Court, Las Vegas, Nevada, against Chase and California REconveyance
20
Company;
21
38. Lauro C. and Yesenia Vizcarra for 2240 Tripp Dr., Reno, Nevada for
22
America’s Servicing Co and National Default Servicing Corp.
23
24 I.
25 Introduction
26 A. All Plaintiffs named above are in danger of foreclosure or eviction from

27 their homes.
28
The Plaintiffs PETER M. BEEKHOFF, VALERIE R. BRANCA, CASIMIRO
6
1 JIMENEZ-GRANADOS, JAMI D. MCHENRY and STEVEN W. WALLACE, GILBERTO

2 J. MENDOZA AND GABRIELA MENDOZA, PAMELA PENNY (aka PAMELA
3
RUTHERFORD) and ANTONIO SERVIDIO were given notice that their houses were
4
sold in foreclosure and remain as REO’s, real estate held by the banks or their agents as
5
the foreclosing parties, but not sold to a third party purchaser in good faith. These
6
Plaintiffs, upon information and belief, state that the banks and their agents and co-
7
8 conspirators still hold title to these homes. The foreclosures were unlawful and
9 conducted by parties who had no right to foreclose on these homes as will be detailed
10 below.
11
The Plaintiffs NELLIE AGUILAR and ZENAIDO JACINTO, EMILY ANDREWS,
12
JESUS L. AREVALO, CHRISTOPHER BALLENGEE and SAMANTHA ANDERSON,
13
PETER M. BEEKHOFF, JAMES V. BELL, HARRY R. COUSINS, DAVID DOUGLAS
14
DAHL and KAY DAHL, DIMITI O. DINCHEV, MICHAEL EPPS, GARY W. HEMBREE,
15
16 DAVID HUTLER, NEIL M. JOHNSON, HOLLY A KINNEY, JAMES M. and TERESA R.
17 KOSHELLA, JENNIFER LOPEZ, JOHN V. and RONICA LYNCH, BRIAN and
18 LAWRENCE MCKAY, MICHAEL MCKEON, WILFRED and AGNES MARIANO, JOHN

19 and BIANCA MASON, GILBERTO and GABRIELA MENDOZA, JEAN MERKELBACH,
20
GARY A. NEWTON, WOJCIECH and MARIOLA POLANSKI, RANDALL and JUNE
21
REES, CHARISE and TODD ROBERTS, NIGEL RUDLIN, EFRAI DELAROSA
22
SALDANA, ANTONIO SERVIDIO, SALLY SERVIDIO, KIP and HELEN THOMPSON
23
24 and GABRIELLE THOMPSON, DIMITRITZA TOROMANOVA, AND LAURO
25 VIZCARRA and YESENIA VIZCARRA, face imminent foreclosure sales scheduled for
26 September 1, 2009 through October 2009. These Plaintiffs will lose their homes or
27 houses. Their families, renters and they will be displaced by parties who have no lawful
28
right to foreclose and sell their homes.
7
2 II
3
Facts
4
A. The Plaintiffs have deeds of trust in which MERS is designated as
5
the beneficiary as nominee for the lender.
6
The Plaintiffs’ deeds of trust have Defendant Mortgage Electronic Registration
7
8 Service, (hereinafter MERS) designated as the beneficiary or as nominee of the lender.
9 The Plaintiffs are faced with eviction from their homes because of a foreclosure or are
10 faced with pending foreclosures or are faced with the sale of their houses to third parties
11
by banks who now hold their properties. (See Exhibits 1 – 38) The Plaintiffs are in
12
imminent danger of losing their homes and residential property.
13
B. MERS and the other Defendants have engaged in a conspiracy to
14
make profits and deprive persons like the Plaintiffs of their homes.
15
16 As specifically alleged in the Second and Third Claims for Relief in Plaintiffs’
17 Complaint, MERS was created by the “Defendant co-conspirators” for the purpose of
18 defrauding borrowers, the government, the investors in the Defendant banks and AIG,
19 and the investors in the mortgage-backed securities that were sold and/or insured as
20
credit default swaps by the Defendant co-conspirators. The current financial crisis that
21
began in the United States and which has brought the world economy to its knees can be
22
directly traced to the creation and operation of MERS and its members.
23
24 Before MERS, it would not have been possible for mortgages with no market
25 value, such as Plaintiffs in this case, to be sold at a profit or collateralized and sold as
26 mortgage-backed securities with “side bets” on the prospect of their failure known as
27 credit default swaps. Before MERS, it would not have been possible for the Defendant
28
banks and AIG to conceal from government regulators the extent of risk of financial
8
1 losses those entities faced from the predatory origination of residential loans and the
2 fraudulent re-sale and securitization of those otherwise non-marketable loans. Before
3
MERS, the actual beneficiary of every Deed of Trust on every parcel of land in the United
4
States and the State of Nevada could be readily ascertained by merely reviewing the
5
public records at the local recorder’s office where documents reflecting any ownership
6
interest in real property are kept.
7
8 After MERS, it was impossible for a borrower, his or her attorneys, the courts, the
9 government or anyone else to identify the actual beneficial owner of any particular loan
10 or the property which was the collateral securing that loan. After MERS, from the
11
moment the Deed of Trust was executed by the borrower, there was no “beneficiary”
12
under the Deed of Trust, and all subsequent assignments of any interest in the loan and
13
Deed of Trust were known by the Defendant co-conspirators to be fraudulent and
14
unlawful. After MERS, the servicing rights to predatory loans such as Plaintiffs were
15
16 retained by the originator or transferred to other predatory entities for the specific
17 purpose and with the specific intent to ultimately foreclose on the residence and take the
18 borrower’s home. The proof of the intent that he borrowers were to default is the
19 purchase of credit default swaps by the lender, servicer and other financial institutions.
20
In the case of Plaintiffs, and others similarly situated, the servicing rights were
21
transferred after the origination of the loan to an entity so large that communication with
22
the servicer became difficult if not impossible. The servicer, in many instances, did not
23
24 know the identity of the actual beneficiary or owner of the loan because the loan had
25 been bundled with others and sold as mortgage-backed securities. As such, the servicers
26 do not and did not have the authority to negotiate a modification of the loan or to
27 respond appropriately to evidence of predatory lending in the origination of the loans.
28
Thus, the servicers who were interested in only one thing – making a profit from the
9
1 foreclosure of the borrowers’ residences so that the entire predatory cycle of fraudulent
2 origination, resale, and securitization of yet another predatory loan could occur again.
3
This is the legacy of MERS. Significantly, the entire scheme was predicated upon
4
the fraudulent designation of MERS as the “beneficiary” under millions of deeds of trust
5
in Nevada and other states. (Exhibit 39, Affidavit of Neil Garfield)
6
This case and other cases across the Nation arose because the Plaintiffs were the
7
8 victims of fraudulent and predatory lending practices followed by unlawful foreclosures
9 perpetrated upon Plaintiffs by the actions of each of the Defendants as part of the
10 business policies and practices of each Defendant to commit acts which constituted
11
violations of the Fair Housing Act, fraud, conspiracy to commit fraud, conspiracy to
12
convert property and violations of State law. As alleged in the Second and Third Claims
13
for Relief in the Complaint filed herein, the Defendants have conspired among
14
themselves and with other unknown parties to:
15
16 (1) Develop a system of earning profits from the origination and securitization of
17 residential loans without regard for the rights of Plaintiffs and other borrowers and
18 homeowners in Nevada and the United States, and without regard for the ability of
19 Plaintiffs and other borrowers to repay the loans so originated and securitized by
20
intentionally creating a nationwide system of predatory and deceptive residential lending
21
practices;
22
(2) Intentionally create, manage, operate and control the Defendant Mortgage
23
24 Electronic Registration Systems, Inc. (hereinafter “MERS”) for the specific purpose of
25 being designated as a sham “beneficiary” in the original deeds of trust securing those
26 loans, with the unlawful intent and for the unlawful purpose of making it difficult or
27 impossible for Plaintiffs and other victims of such industry-wide predatory policies and
28
practices to identify and hold responsible the persons and entities responsible for the
10
1 unlawful actions of Defendants and their co-conspirators;

2 (3) Intentionally perpetuate and fuel an unsustainable and unprecedented
3
increase in housing construction in Nevada and the United States, of residential lending,
4
of profits to financial institutions, and of bonuses and financial rewards to the persons in
5
the positions within the Defendants’ companies and their business co-conspirators to
6
divide and split amongst themselves the unlawfully and fraudulently obtained profits
7
8 from that unlawful conspiracy;
9 (4) Adopt and implement residential lending underwriting guidelines for use in
10 Nevada and the entire United States, which were intended to, and did, generate
11
unprecedented profits for Defendants and their co-conspirators, corporate Officers and
12
Directors, at the expense of Plaintiffs and other persons who were fraudulently induced
13
by the Defendants and their co-conspirators into taking out residential loans that were
14
known by Defendants and their co-conspirators at the time the loans were originated to
15
16 likely result in foreclosure on those loans and loss by Plaintiffs and other borrowers of
17 their homes, or with reckless disregard and intentional indifference by Defendants and
18 their co-conspirators of the likelihood of such foreclosure; and

19 (5) Adopt and implement a nationwide and industry-wide practice of intentionally
20
deceiving borrowers of residential loans for the purpose and with the intent of obtaining
21
signatures by borrowers on promissory notes and deeds of trust secured by American
22
real estate, so that Defendants and their co-conspirators could then immediately resell
23
24 those residential loans at a huge profit without adding anything of value to the assets, but
25 instead merely misrepresenting to the purchasers thereof the true value of those assets
26 because of the knowledge at the time of the re-sale of those loans by the Defendants and
27 their co-conspirators that there was an extremely high likelihood of default and non-
28
payment of those loans based upon the underwriting guidelines used to qualify
11
1 borrowers, and of the unsustainable housing price increases in Nevada and the United
2 States that Defendants and their co-conspirators, their corporate Officers and Directors
3
had intentionally created in order to personally benefit as alleged in Paragraph (3) above.
4
(See, Exhibit 39, Affidavit of Neil Garfield)
5
The Defendants, through their creation, funding, and ownership of MERS, sought
6
to hide and insulate the brokers and originators of predatory toxic loans from
7
8 accountability and liability by creating an entity which simultaneously informed all
9 lenders who originated loans that (1) MERS would never own or acquire any actual
10 beneficial interest in any loan in which it was named as beneficiary under the deed of
11
trust; and that (2) MERS could be named as a beneficiary for purposes of public notice
12
and notice to the borrower and would act in that capacity if so designated by the lender
13
who originated the loan. The Affidavit of Marcy Larson (Exhibit 40 and attachments)
14
reflects that MERS and the Defendant co-conspirators specifically understood that:
15
16 “TERM AND CONDITIONS

2. The Member, at its own expense, shall promptly, or as soon
17 thereafter as practicable, cause MERS to appear in the appropriate
public records as the mortgagee of record with respect to each mortgage
18 loan that the Member registers on the MERS System. MERS shall serve as
mortgagee of record with respect to all such mortgage loans solely as a
19 nominee, in an administrative capacity, for the beneficial owner or
20 owners thereof from time to time. MERS shall have no rights
whatsoever to any payments made on account of such mortgage loans, to any
21 servicing rights related to such mortgage loans, or to any mortgaged
properties securing such mortgage loans. MERS agrees not to assert any
22 rights (other than rights specified in the Governing Documents) with respect to
such mortgage loans or mortgaged properties. References herein to
23 “mortgages(s)” and “mortgagee of record” shall include deed(s) of
24 trust and beneficiary under a deed of trust and any other form of
security instrument under applicable state law.
25 ...
6. MERS and the Member agree that: (i) the MERS System is
26 not a vehicle for creating or transferring beneficial interests in
mortgage loans, (ii) transfers of servicing interests reflected on the
27 MERS system are subject to the consent of the beneficial owner of the
28 mortgage loans, and (iii) membership in MERS or use of the MERS System
shall not modify or supersede any agreement between or among the Members
12
1 having interests in mortgage loans registered on the MERS System.”

(Emphasis added). (Ex.40, Attachment, p. VC10052000VA)
2
3 The inconsistencies within those Terms and Conditions applicable to the use of
4 MERS by the Defendant co-conspirators reflect both a disclaimer by MERS of the
5 acquisition at any time of any beneficial interest in any mortgage, loan, and collateral,
6 and that every “Member” is specifically required “promptly, or as soon thereafter as
7
practicable, to cause MERS to appear in the appropriate public record” as the alleged
8
“beneficiary under each mortgage loan.” This reflects the conspiracy among MERS, the
9
Defendant co-conspirators and others acting in concert with them to intentionally
10
misrepresent to the public and the borrowers that MERS was the actual beneficiary, and
11
12 was specifically intended by the Defendants to establish a basis for Defendants to deny
13 any knowledge of or participation by the corporate Officers and Directors of Defendants
14 in the conspiracy alleged herein that was making them capable of reaping unprecedented
15
profits.
16
The intent and purpose of Defendants and their co-conspirators in the creation,
17
management, operation and control of MERS was, without limitation, to make it
18
impossible for the borrowers, their attorneys, the courts, the government, and anyone
19
20 other than the Defendants’ co-conspirators, who created and controlled MERS, to
21 identify the actual beneficial owner of any particular loan or the property which was the
22 collateral securing that loan until such time, if any, that foreclosure action was initiated.
23 At such time as an alleged default could be asserted, then entities such as Defendants
24
intentionally join in the unlawful conspiracy by asserting rights from known fraudulent
25
purported assignments by MERS for the sole purpose and with the sole intent of
26
initiating and completing foreclosure proceedings on Plaintiffs’ homes and on tens of
27
28 thousands of other homes in the State of Nevada.
13
1 Each of the Defendants and their co-conspirators have intentionally preyed upon
2 persons like the Plaintiffs and created MERS as a fiction behind which the lenders could
3
disappear. Further, these Defendants have preyed upon Plaintiffs and others in Nevada
4
and the United States. In particular, Defendants against which this motion is brought
5
have a business practice and policy of providing the Notice of Default and Intent to Sell
6
to borrowers in non-judicial foreclosure when the borrowers would have no reason to
7
8 know why these foreclosing trustees had any interest in the borrowers’ homes nor how to
9 reach them to negotiate the foreclosure.

10 This practice and policy of these Defendants reflects the intentional exploitation
11
of the inability of the borrowers to reach anyone to stop the foreclosure on their homes.
12
The conduct by MERS in transferring the beneficial rights after appointing some
13
unknown third party as the Trustee was an intentional act to insulate the true beneficiary
14
from contact by the borrower. This deceit and cloaking of the true owner of the
15
16 beneficial interest and the failure to provide documents and communication regarding
17 the foreclosure and the default is contrary to the standards of certainty in the transfer of
18 interests in real estate that has been adopted by the legislatures and judiciary in the
19 United States for centuries, and is contrary to the decency in contract relations that one
20
is entitled to in a civilized society.
21
The Defendants have adopted an intentional policy and practice of engaging in
22
these fraudulent acts in order to deprive Plaintiffs of their houses and homes and
23
24 Plaintiffs ask that the foreclosures be enjoined and stopped and that MERS and the real
25 parties in interest be required to produce the documentation of their interest in the
26 various deeds of trusts and notes that involve the Plaintiffs’ homes and houses.
27 As explained above, it was not only the borrowers who were defrauded by the
28
Defendant co-conspirators herein, but also the investors who funded fraudulent loans
14
1 with no market value or who purchased securities backed by those toxic mortgages which
2 were typically sold in bundles. The investors did not receive any documentation
3
supporting the transfer of the indebtedness. Defendants like Litton Loan Servicing,
4
Aurora Loan Services, likewise, did not purchase the notes of Plaintiffs, they are simply
5
the henchmen for the Defendant co-conspirators seeking to foreclose when the
6
Defendants know they 1) did not fund the loan or 2) did not purchase any right to
7
8 foreclose on the loan or 3) know that the loan has been extinguished by payment to the
9 investors.
10 The attached Declaration of Robert R. Hager reflects that the story in this case for
11
these Plaintiffs is hauntingly similar to that in Stoffels, et al., v. GRP, et al. pending
12
before this Court (Case No. 3:08-cv-458-ECR-RAM). In that case, the Defendant GRP, a
13
wholly-owned subsidiary of Sallie Mae, sought to advance a foreclosure and sell the
14
Plaintiffs’ home having never paid any consideration whatsoever for the
15
16 obviously predatory loan that, in the opinion of Plaintiffs’ expert in that case
17 and Plaintiff’s expert in this case had no market value. (See Exhibit 41,
18 paragraph 9 and Exhibit 40, attachment 1.) What is now happening in Nevada and
19 across the United States is that families and people are being foreclosed on and forced
20
from their homes and forced to lose their investment and displace their renters and
21
families through foreclosures advanced by subsidiaries (such as National Default
22
Servicing and ReconTrust Company) of financial institutions (such as Countrywide
23
24 Home Loans and Wells Fargo). These presumably venerable financial institutions create
25 and control these subsidiaries with the specific intent and for the specific purpose of
26 distancing their names from the dastardly, disdainful and devastating foreclosures on
27 known predatory loans. This devastation of the American homeowner and residential
28
investor and the entirely fraudulent scheme that brought about this devastation are both
15
1 predicated upon the active participation of MERS, and the Defendant co-conspirators
2 are fully aware that MERS lacks any authority to designate any substitute beneficiary or
3
trustee to advance any foreclosure. In other words, the Defendant co-conspirators have
4
created subsidiaries in an effort to support deniability and to distance themselves from
5
public awareness of the devastating effects of their ongoing actions.
6
The Plaintiffs had no contractual agreement with the Defendants that have
7
8 initiated the foreclosures. Congress passed the protective acts TILA, RESPA, etc., in
9 order to require notice be given to the borrower and to protect the borrower from the
10 originator of the loan. The reasoning behind Congress’ legislation is obvious in that the
11
borrower must be able to contact the person with the authority and the interest in
12
making certain that the borrower makes his payments and stays in his home. The
13
Defendants attempted to hide their actions from the prohibitions of the federal law by
14
having originators of the loans who are now gone or dissolved and cannot be found.
15
16 None of the Defendants who Plaintiffs seek to enjoin from foreclosing on their
17 homes have ever owned any interest in the loan or homes affected by the pending sales
18 and foreclosure actions that have resulted in sales. The Defendants have attempted to
19 avoid compliance with these statutes by transferring the loans and not giving notice to
20
the Plaintiffs of the fraud until the foreclosure is initiated.
21
Defendants that have initiated the foreclosures of the homes of the Plaintiffs are
22
strangers to Plaintiffs, their loan and homes, and they should be enjoined from further
23
24 advancing any foreclosure. The entities that hold the titles to the homes and residences
25 could sell those homes and residences to third parties without regard to the Plaintiffs
26 and will continue to purport to the transfers of rights or interests in the loan or the
27 property which is alleged to be collateral for those loans to anyone.
28
The originators or “lenders” of the loans, appear to no longer be in business such
16
1 as Soma Financial, or First Magnus or have changed the means by which to be contacted,
2 as is the case with many such predatory residential loan originators, have been
3
purchased by the servicer Defendants herein, like Countrywide purchased by Bank of
4
America and Mortgageit, Inc owned by Deutsche Bank. In any event, the originators
5
were never designated as the beneficiary under any security instrument related to the
6
loans or Plaintiffs’ homes, and it is, instead, these named Defendants, i.e., Countrywide
7
8 Home Loans, Inc., ReconTrust, National Default Servicing, who are now within days of
9 unlawfully conducting a foreclosure sale of Plaintiffs’ residential properties or their

10 families’ homes or are now within days of selling the REO houses to third parties.
11
C. The Defendants did not fund these mortgages and the investors
12
have been satisfied of the obligation, thus the homeowners have no further
13
obligation under the deeds of trust and, if any obligation, only under the
14
unsecured note.
15
16 The Defendants cannot show this Court the obligation of these Plaintiffs to them.
17 The Defendants did not fund these mortgages and the investors have been satisfied of
18 the obligations under these notes by the federal government or the investors have been
19 satisfied by other means. The Defendants have no right to collect on these notes as more
20
clearly analyzed below.
21
III.
22
Points and Authorities in Support of Preliminary Injunction
23
24 A. An injunction is appropriate because of the irreparable harm that
25 will be caused to the Plaintiff if the foreclosure sale occurs.
26 1. A temporary restraining order is appropriate to maintain the status quo.

27 The Plaintiffs’ homes will be sold within the next few weeks or have been sold and
28
are held by the banks and their co-conspirators, without intervention from this Court.
17
1 The foreclosure laws of the State of Nevada do not require that the lender seek a judicial
2 order for the foreclosure. See, NRS 40.430 et seq.
3
Rule 65(b) of the Federal Rules of Civil Procedure provides that this Court may
4
issue a TRO without notice to the adverse party where “specific facts in an affidavit or a
5
verified complaint clearly show that immediate and irreparable injury, loss, or damage
6
will result to the movant. . .” Fed. R. Civ. P. 65(b). The standards for a Temporary
7
8 Restraining Order are similar to the standards for a preliminary injunction. Immigrant
9 Assistance Project of the L.A. County of Fed’n of Labor v. INS, 306 F.3d 842, 873 (9th
10 Cir. 2002).
11 Injunctive relief is appropriate when the Plaintiff will suffer “irreparable harm”
12 and when the Plaintiff shows “a reasonable probability of success on the merits of its
13
claim.” Barahon- Gomez v. Reno, 167 F.3d 1228, 1234 (9th Cir. 1999). In this case,
14
injunctive relief is appropriate because Plaintiff is threatened with a clear and present
15
danger of irreparable harm if her residence is sold at the foreclosure sale scheduled for
16
17 April 15, 2009.
18 The two tests for issuance of a restraining order or preliminary injunction “are not
19 separate, but rather represent the outer reaches of a single continuum. Los Angeles
20 Memorial Coliseum v. National Football League, 634 F.2d 1197, 1201 (9th Cir. 1980). At
21
one end of the continuum, the moving party is required to show both a probability of
22
success on the merits and the possibility of irreparable injury. Lopez v. Heckler, 713
23
F.2d 1432, 1435 (9th Cir. 1983); Dep’t of Parks & Rec. of Calif. v. Bazaar Del Mundo, Inc.
24
448 F.3d 1118, 1123 (9th Cir. 2006).
25
Four of the guiding factors relied upon by the courts to determine whether a
26
27 preliminary injunction is appropriate are listed as follows in Wright & Miller, Federal
28 Practice and Procedure: Civil, § 2948:

18
1 (1) The significance of the threat of irreparable harm to plaintiff if the

2 injunction is not granted;
3
(2) The state of the balance between this harm and the injury that granting
4
the injunction would inflict on the defendant;
5
(3) The probability that plaintiff will succeed on the merits; and,
6
(4) The public interest. Mountain States Telephone & Telegraph Co. v. Dept.
7
8 of Public Service Regulation, 588 F. Supp. 5, 8 (D. Montana 1983). Also see,
9 Barahona-Gomez v. Reno, cited supra, and Golden Gate Restaurant Assoc. v.
10 City and County of San Francisco, 512 F.3d 1112 (9th Cir. 2008).
11 A preliminary injunction/temporary restraining order is “an extraordinary

12 remedy, which should be granted only in limited circumstances.” Instant Air Freight
13
Co. v. C.F. Freight, Inc., 882 F. 2d 797, 800 (3d Cir. 1989). This remedy should only be
14
granted where the merits of the case clearly favor one party over the other. Remlinger
15
v. Nevada, 896 F. Supp. 1012, 1015 (D. Nev. 1995). The Remlinger court explained that:
16
17 The cases best suited to preliminary relief are those in which the important
18 facts are undisputed, and the parties simply disagree about what the legal
19 consequences are of those facts. The court in such a case can take the undisputed
20 facts, apply the law to them, and fairly easily decide which party is likely to
21
prevail.
22
A party seeking a preliminary injunction must meet a standard which includes:
23
That the moving party may meet its burden by demonstrating either (1) a
24
combination of probable success on the merits and the possibility of
25
26 irreparable injury; or (2) that serious questions exist and the balance of
27 hardships tips sharply in its favor. Cassim v. Bowen, 824 F. 2d 791, 795 (9th
28 Cir. 1987).
19
1 The underlying purpose of a temporary restraining order is “to preserve the status
2 quo and prevent irreparable harm before a preliminary injunction hearing may be held.”
3
Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423,
4
439, 94 S.Ct. 1113, 39 L.Ed. 2d 435 (1974); Reno Air Racing Ass’n v. McCord, 452 F.3d
5
1126, 1130-31 (9th Cir. 2006).
6
The irreparable harm to the Plaintiffs is the loss of their homes and houses by
7
foreclosure or purchase by a third party. The Plaintiffs will suffer financial losses, loss of
8
their credit ratings, loss of their investment and, in some instances, loss of their homes.
9
10 2. When the Court weighs the irreparable harm to the Plaintiffs, the
harm to the Plaintiffs is substantial.
11
The second consideration of the court is the weighing of the harm to the Plaintiffs
12
without the injunction versus the harm to the Defendants if the injunction is granted.
13
14 The harm to the Plaintiffs will be losing their homes. There is no harm to the Defendants
15 since they did not fund the loans. In fact the Defendants will expend funds to
16 accomplish the foreclosures and they have no ultimate right to forecloses, thus, the
17 injunction will actually save the Defendants the expenditure of funds.
18
Real property is unique under the laws of the State of Nevada and, therefore, the
19
loss of real property is irreparable harm, particularly when the real property is the homes
20
of the Plaintiffs. Hamm v. Arrowcreek Homeowners Assoc., 183 P.3d 895 (Nev. 2008).
21
22 Now, due to the Notice of Foreclosure, Notice of Trustee’s Sale and the potential sales of
23 the homes sought by, and available to, the Defendants, the Plaintiffs would not and will
24 not qualify for mortgages to replace these homes. Predatory servicers who foreclose with
25 no legal rights like the Defendants not only steal the home and life savings of naive
26
Americans, but they leave those victims with destroyed credit that follows these innocent
27
victims for years in the future.
28
20
1 The Plaintiffs will be irreparably harmed by the loss of their homes. The
2 Defendants will just have a mere interference with the foreclosure to which they are not
3
entitled to seek. No adequate remedy at law is available to the Plaintiffs to protect their
4
homes.
5
B. Recent Cases Show that the Plaintiffs will Likely Prevail on their
6
claims.
7
8 1. Courts have rejected MERS as a valid beneficiary.
9 Courts across the country have rejected MERS’s involvement in the nationwide
10 scheme to defraud borrowers. See, e.g., In Re Hawkins, attached to Motion to
11
Supplement Authority, 2009 WL 901766 (Bankr. D. Nev. 2009). See also In re
12
Jacobson, 2009 WL 567188 (Bankr. W. D. Wash. 2009) at n. 9 (recognizing the
13
identification of MERS “solely as nominee” as the beneficiary on the deed of trust to be
14
problematic, considering that the beneficiary under a deed of trust is defined as the
15
16 holder of the instrument or document evidencing the obligations secured by the deed of
17 trust under the Revised Code of Washington); Mortgage Registration System, Inc. v.
18 Southwest Homes of Arkansas, 2009 WL 723182 (Ark. 2009) (holding that MERS, listed
19 on the deed of trust as the “Beneficiary” acting “solely as nominee for Lender” and
20
“Lender’s successors and assigns,” was not conveyed title under the deed of trust.) In
21
that matter, the court found that MERS was not the beneficiary under the deeds,
22
although MERS was so designated in the deeds. Rather, the individual named as trustee
23
24 on the deeds of trust was the trustee, and the lender, who received the payments on the
25 debt, was the beneficiary. Therefore, the court found that MERS held no authority to act
1
26 as an agent and held no property interest in the mortgaged land subject to the deed. See
27 also In re Vargas, 396 B.R. 511, 517 (Bankr. C. D. Cal. 2008) (stating that “’an assignment of the
28
note carries the mortgage with it, while an assignment of the latter alone is a nullity (citation
21
1 omitted)’”); Merritt v. Bartholick, 36 N.Y. 44 (1867) (finding that “[w]here a mortgage debt is
2 represented by a bond or other instrument, an assignment of the mortgage without a concomitant
3
assignment of the note or bond for which said mortgage was given as security is a nullity.”); see
4
also Kluge v. Fugazy, 145 A.D.2d 537, 536 N.Y.S.2d 92 (N.Y.A.D. 1988). Thus, none of the
5
Defendants, nor anyone associated with them, has the right to foreclose on the Plaintiffs’
6
7 homes.
8 The severance of the notes executed by the Plaintiffs from their deeds of trust
9 renders the tangible piece of paper and the interests it proclaims void. The Defendants
10 have no lawful right to seek the foreclosures of the Plaintiffs’ homes. The Defendants did
11
not fund the loans, know that no obligation is owed, knew that the origination of the
12
loans was fraudulent and that designating MERS as the beneficiary and separating the
13
notes from the deeds of trust built in fatal flaws to the right to foreclose on any of the
14
Plaintiffs’ residential properties.
15
16
2. Defendants’ Pattern and Practice has Demonstrated that an
17
Imminent, Irreparable Harm Exists.
18
19 The rule that “immediate and irreparable harm” may be shown where there is
20 “evidence of a persistent pattern of misconduct.” Thomas v. County of Los Angeles, 978
21 F.2d 504, 508 (9th Cir. 1992) (citing Allee v. Medrano, 416 U.S. 802, 815-16, 94 S.Ct.
22 2191, 2200-01, 40 L.Ed.2d 566 (1974); Hague v. Committee for Industrial Organization,
23
307 U.S. 496, 517, 59 S.Ct. 954, 964, (1939). As articulated by the U.S. Supreme Court,
24
there is no one fixed period that renders harm immediate. See Winter, supra.
25
26 Logically, if the harm was years off, or required numerous procedural steps,
permitting and oversight, as was the case in Quechan Indian Tribe of the Fort Yuma
27 Indian Reservation v. U. S. Department of the Interior, 2007 WL 1890267 (D. Ariz.
2008), then an injunction would never be necessary. In Quechan, Indian lands may
28 have become a future site for a refinery. There had been studies from as early as
2003, and by 2007, there was still no firm decision where the refinery would be
22
1 placed, if at all. Development in the area was slated to occur over a thirty-year time
frame. Before anything could be done, numerous more studies and permits would
2 need to be issued. Further, before any refinery could be built, any plan would be
subjected to significant public scrutiny including open hearings and an opportunity
3 to comment. Under those specific facts, there was no imminent harm, and the
requested injunction to deny the transfer of the land was denied. Id. at *15.
4
However, the threatened harm will occur faster than the case can be adjudicated, the
5 need for a preliminary injunction exists. See Matos ex rel. Matos v. Clinton School
Dist., 367 F.3d 68, 74 (1st Cir. 2004) (citing FEDERAL PRACTICE GUIDE, 11A Wright,
6 Miller, & Kane, supra § 2948.1, at 149).
7 3. Public Interest Weighs in Favor of the Preliminary Injunction

8 Harm to a community has long been recognized as sufficient harm to warrant an
9
injunction. See, e.g., Funk Jewelry Co. v. State ex rel. La Prade, 46 Ariz. 348, 357, 50
10
P.2d 945, 948 (Ariz.1935); Caribbean Marine Services Co., Inc., supra, 844 F.2d at 674
11
(“Our cases have emphasized, however, that when the public interest is involved, it must
12
be a necessary factor in the district court's consideration of whether to grant preliminary
13
injunctive relief.”). “The decision whether to grant . . .relief turns also on whether or not
14
15 the balance of irreparable damage favors issuance of a preliminary injunction, and on
16 relevant public interests.” Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 330 (9th
17 Cir. 1975).Here, the harm to the community in light of the continuing and growing
18 foreclosures is very real and far more than ‘threatened.” It is a well-known and highly
19 publicized fact. Defendants threaten that many more foreclosures will follow. More
20 than one 1 in 100 home loans has been placed in foreclosure during each fiscal quarter
21
in the past year. See Mortgage Bankers Association National Delinquency Survey, 4th
22
Quarter, 2008 (http://www.mbaa.org/NewsandMedia/PressCenter/68008.htm).
23
Defendants have a pattern and practice of foreclosures that is so rampant, so
24
mechanized, that there is an instructional foreclosure white paper on the MERS website
25
for every state in which they conduct business. See, e.g.,
26
27 (http://www.mersinc.org/Foreclosures/details.aspx?state=AZ). The harm to the
28 community is visible on any street in Northern Nevada where “short sale” and “bank
23
1 owned” signs sit next to boarded up homes and dying, untended lawns.
2 That harm is a sufficiently “concrete and particularized” harm, in that the injury
3 will affect the Plaintiffs “in a personal and individual way.” Bates v. United Parcel
4 Service, Inc. 511 F.3d 974, 986 (9th Cir. 2007) (finding particularized harm sufficient for
5
injunction where refusal to hire driver was part of a written policy and, thus, likely to
6
happen again); see also Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th
7
Cir. 2004). Thus, this court should consider the harm of foreclosures generally, and
8
grant this motion.
9
10
4. The Injunction Will Preserve the Status Quo
11
By its nature, the relief sought by this Motion is a provisional remedy granted
12
13 before a hearing on the merits to preserve the subject of the controversy in its currently
14 existing condition. See Doyne v. Saettele, 112 F.2d 155, 160 (8th Cir. 1940); see also
15 Missouri-K.-T. R. Co. v. Brotherhood of Ry. & S. S. Clerks, 188 F.2d 302, 306 (7th Cir.
16 1951). A preliminary injunction is not an adjudication on the merits. It seeks to preserve
17
the status quo and prevent irreparable loss of rights before judgment. Textile Unlimited,
18
Inc. v. A. BMH and Company, Inc., 240 F.3d 781, 786 (9th Cir.2001). Here, the status
19
quo is that Plaintiffs and their families and renters are residing in the home. All factors,
20
therefore, militate in favor of relief.
21
22 C. The Defendants do not own the mortgages against the Plaintiffs’

23
homes, and, therefore, have no right to foreclose on the properties.
24
The Deeds of Trust of the Plaintiffs indicated the lenders in each case. The
25
beneficiary in each deed of trust was MERS. As stated above, MERS has expressly stated
26
that it had no beneficial interest in the deeds of trust of the Plaintiffs nor any other deeds
27
28 of trust where it was designated as the beneficiary.
24
1 The Plaintiffs have no contractual agreement with the Defendants now seeking
2 foreclosures or evictions. The Defendants do not own the mortgages and the Defendants
3
did not fund the mortgages. The Defendants have no right to declare the notes in default
4
nor any right to foreclose on these properties because the mortgages were based on
5
fraud, as will be more specifically explained hereinafter. Because the legality of the
6
instruments is at issue, the foreclosures cannot proceed until the issues are resolved.
7
8 This injunction is required to maintain the status quo until these issues are resolved.
9 An Ohio District Court requested clarification of the documentation in a

10 foreclosure action and found no documents assigning rights to the servicer of the
11
mortgage. In re Foreclosure Cases, 2007 U.S. Dist LEXIS 84011 (D. Ohio 2007). The Ohio
12
Court was astonished that the servicer of the mortgage believed that it had rights to
13
foreclose before a proper assignment was made. Id, footnote 1. Although the counsel for
14
the mortgage servicing industry was patronizing to the Ohio Court, that Court recognized
15
16 the sloppy business practices that left the mortgage servicing industry with no right to
17 foreclose in its haste to profit. Id, The Court finally summarized its response to the
18 sloppy business practices and the wholesale rush to foreclosure, “the Court will
19 illustrate in simple terms its decision: “Fluidity of the market – X dollars; “contractual
20
arrangements between institutions and counsel - X dollars, “purchasing mortgages in
21
bulk and securitizing (without proper paper) - X dollars, “rush to file, slow to record
22
after judgment - X dollars, “the jurisdictional integrity of the United States District
23
24 Court” - priceless.” Id.at page 9, 10. Obviously, the kind of practices business concerns
25 may justify for their profit ventures do not necessarily comport with what the law
26 requires.
27 MERS had no beneficial interest in the deed of trust and, therefore, had no basis
28
for its designation of Trustees nor were the servicers possessed of the right to declare any
25
1 of the Plaintiffs’ properties in default, nor can the Defendants present any documents to
2 the Plaintiffs or this Court establishing their rights under the deeds of trust nor can the
3
Defendants show that the obligations still exist and have not been exonerated.
4
WHEREFORE FOR THE ABOVE-STATED REASONS, the Plaintiffs respectfully
5
request that the Court enter a temporary restraining order and preliminary injunction
6
that would prohibit Defendants their agents, employees, attorneys, and anyone acting
7
8 on their behalf, from foreclosing, pursuing any foreclosure action, taking possession of,
9 selling the homes to third parties, ejecting the Plaintiffs or in any other manner
10 interfering with the peaceful enjoyment and possession by and that no bonds be required
11
of the Plaintiffs because no damages are ascertainable to the Defendants.
12
Dated this 16th day of September 2009.
13
HAGER & HEARNE
14
BY: /s/ Robert R. Hager, Esq.
15 Robert R. Hager, SBN 1482
Treva J. Hearne, SBN 4450
16 245 E. Liberty St., Ste. 110
Reno, NV 89501
17 Attorneys for Plaintiff
18
19
20
21
22
23
24
25
26
27
28
26
Case 3:09-cv-00534-ECR-VPC Document 6-2 Filed 09/18/2009 Page 1 of 25
MOTION FOR TEMPORARY RESTRAINING ORDER AND

PRELIMINARY INJUNCTION
LIST OF EXHIBITS
1. Declaration of Nellie Aguilar

2. Declaration of Emily Andrews
3. Declaration of Jesus L. Arevalo
4. Declaration of Samantha P. Anderson
5. Declaration of Peter M. Beekhoff
6. Declaration of James v. Bell
7. Declaration of Valerie R. Branca
8. Declaration of Harry R. Cousins
9. Declaration of David Douglas Dahl
10. Declaration of Dimitri O. Dintchev
11. Declaration of Michael Epps
12. Declaration of Casimiro Jimenez Granados
13. Declaration of Gary Hembree
14. Declaration of David Hulter
15. Declaration of Neil Johnson
16. Declaration of Holly A. Kinney
17. Declaration of James M. Koschella
18. Declaration of Jennifer Lopez
19. Declaration of John V. Lynch
20. Declaration of Jami D. McHenry
21. Declaration of Brian McKay
22. Declaration of Michael McKeon
23. Declaration of Agnes Mariano
24. Declaration of John Mason
25. Declaration of Gabriela T. Mendoza
26. Declaration of Jean Merkelbach
27. Declaration of Gary A. Newton
28. Declaration of Pamela Penny (Rutherford)

29. Declaration of Woiciech Polanski
30. Declaration of Randall H. Rees
31. Declaration of Charise K. Roberts
32. Declaration of Nigel Rudlin
33. Declaration of Efrain Delarosa Saldana
34. Declaration of Antonio Servidio
35. Declaration of Sally Servidio
36. Declaration of Helen T. Thompson
37. Declaration of Dimitritza Toromanova
38. Declaration of Lauro C. Vizcarra
39. Declaration of Neil Garfield
40. Declaration of Marcy Larson
41. Declaration of Robert R. Hager
42. Certificates of Service
EXHIBIT “42”
EXHIBIT “42”

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Case 3:09-cv-00534-ECR-VPC Document 6 Filed 09/18/2009 Page 1 of 26

1 Robert R. Hager, NV State Bar No. 1482

19 MICHAEL T. EPPS, CASIMIRO JIMENEZ GRANADOS, GARY HEMBREE, DAVID

20 HUTLER, NEIL M. JOHNSON, HOLLY A. KINNEY, JAMES M. KOSHELLA and

21 TERESA R. KOSHELLA, JENNIFER LOPEZ, JOHN V. LYNCH and RONICA LYNCH,

28 CHARISE K. ROBERTS and TODD C. ROBERTS, NIGEL RUDLIN, EFRAI DELAROSA

1 SALDANA, ANTONIO SERVIDIO, SALLY SERVIDIO, KIP M. THOMPSON and HELEN

16 Countrywide Home Loans, Inc. and ReconTrust Company;

18 against Countrywide Home Loans, Inc. and Recontrust Company;

25 Bank National Association;

8 against Citimortgage and CR Title Services, Inc.;

18 Servicing Co., and National Default Servicing Co.;

25 and the Castle Cooper Law Firm, LLP;

1 Nevada, against Countrywide Home Loans, Inc. and ReconTrust Company;

8 Saxon Mortgage Services, Inc.;

17 against Bank of America and ReconTrust Company;

8 Nevada against Countrywide Home Loans, Inc. and ReconTrust Company;

17 against Bank of America and ReconTrust Company;

26 A. All Plaintiffs named above are in danger of foreclosure or eviction from

1 JIMENEZ-GRANADOS, JAMI D. MCHENRY and STEVEN W. WALLACE, GILBERTO

16 DAVID HUTLER, NEIL M. JOHNSON, HOLLY A KINNEY, JAMES M. and TERESA R.

17 KOSHELLA, JENNIFER LOPEZ, JOHN V. and RONICA LYNCH, BRIAN and

18 LAWRENCE MCKAY, MICHAEL MCKEON, WILFRED and AGNES MARIANO, JOHN

24 and GABRIELLE THOMPSON, DIMITRITZA TOROMANOVA, AND LAURO

8 Service, (hereinafter MERS) designated as the beneficiary or as nominee of the lender.

8 victims of fraudulent and predatory lending practices followed by unlawful foreclosures

1 unlawful actions of Defendants and their co-conspirators;

8 from that unlawful conspiracy;

18 their co-conspirators of the likelihood of such foreclosure; and

8 accountability and liability by creating an entity which simultaneously informed all

16 “TERM AND CONDITIONS

1 having interests in mortgage loans registered on the MERS System.”

4 MERS by the Defendant co-conspirators reflect both a disclaimer by MERS of the

13 any knowledge of or participation by the corporate Officers and Directors of Defendants

28 thousands of other homes in the State of Nevada.

9 reach them to negotiate the foreclosure.

25 parties in interest be required to produce the documentation of their interest in the

9 unlawfully conducting a foreclosure sale of Plaintiffs’ residential properties or their

24 A. An injunction is appropriate because of the irreparable harm that

25 will be caused to the Plaintiff if the foreclosure sale occurs.

26 1. A temporary restraining order is appropriate to maintain the status quo.

17 April 15, 2009.

28 Practice and Procedure: Civil, § 2948:

1 (1) The significance of the threat of irreparable harm to plaintiff if the

9 Barahona-Gomez v. Reno, cited supra, and Golden Gate Restaurant Assoc. v.

11 A preliminary injunction/temporary restraining order is “an extraordinary

8 1. Courts have rejected MERS as a valid beneficiary.

20 “evidence of a persistent pattern of misconduct.” Thomas v. County of Los Angeles, 978

7 3. Public Interest Weighs in Favor of the Preliminary Injunction

15 the balance of irreparable damage favors issuance of a preliminary injunction, and on

27 (http://www.mersinc.org/Foreclosures/details.aspx?state=AZ). The harm to the

22 C. The Defendants do not own the mortgages against the Plaintiffs’

28 of trust where it was designated as the beneficiary.

9 An Ohio District Court requested clarification of the documentation in a

MOTION FOR TEMPORARY RESTRAINING ORDER AND

1. Declaration of Nellie Aguilar

28. Declaration of Pamela Penny (Rutherford)

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