SUMMARY OF ARGUMENT
The issue is not whether the Plaintiff is in default, because on February 23, 2012 Plaintiff reinstated the loan by tendering the sum of $ . The issue is whether the Defendant TD Service Company, a substituted trustee, had the legal right to record the March 22, 2011 Notice of Default as instrument number 20110427084 when it failed to conduct a minimal level of due diligence as required by California Civil Code Section 2924 et seq. (See Notice of Default attached hereto and made a part hereof as Exhibit E) The March 17, 2011 Declaration of Default which was relied upon but not attached to the recorded Notice of Default was unsigned by a natural person as required by law, but rather was signed Wells Fargo Bank. A legal impossibility, as a Corporation cannot sign in its own name, but rather must be signed by a natural person who has authority to sign on behalf of that corporation. As a result, all documents which flow from that Void document shall be considered void as well. TD Service Company was acting Ultra Vires, and the remedy of initiating a non- judicial foreclosure was not available at that time. Moreover, as a result of the altered Deed of Trust, Defendant Wells Fargo Bank can no longer claim a secured interest in Plaintiff’s residence and Plaintiff has made demands for evidence as to such rights and has been consistently ignored by Defendant. Plaintiff has the legal right to seek a declaration from this Court as to whether the Defendant TD Service Company was permitted to initiate a non-judicial foreclosure in the absence of such legal rights being demonstrated by competent evidence. Furthermore the altering of such documents is an obvious attempt to create documents for the sole purpose to mislead this Court and others on the proper requirements to vest the security interest along with the proper endorsement chain of the note.
(Attached hereto and made a part hereof is the March 17, 2011 Declaration of Default as Exhibit “B” and the Notice of Reinstatement Payment as filed with the Court on Feb. 23, 2012 as Exhibit C)
I. INTRODUCTION
On February 7, 2012 this Court ruled that Plaintiff's Second Amended Complaint be dismissed based on the tentative ruling. After oral argument, the Court adopted its tentative and dismissed Plaintiff’s complaint against TD Service Company in its entirety without leave to amend. The Court surmised that a substituted trustee need not look beyond the face of the document, but the court failed to articulate the issue concerning the March 17, 2011, inherently void Declaration of Default. This document was relied upon by TD Service Company to initiate the Non-Judicial process. The basis on the record is simply an error in law. Plaintiff has reason to believe that TD Service Company participated in wrongful acts or omissions based on a capacity outside of its alleged Substituted Trustee duties which are not privileged according to Civil Code §47 and §2924(d). TD Service Company, acting as a Trustee in the Deed of Trust in issue, has a practice and policy of causing foreclosure without a lawful basis for initiating a foreclosure as they did not receive adequate instructions from the holder of record of the beneficiary interest, as required by Calif. Civil Code §2924f and §2932.5.
Having caused damages as a result of filing illegal title documents they are therefore a necessary party to this action to be responsible for the damages and losses they caused.
This order should be reversed and the Defendant TD Service Company be forced to answer Plaintiff’s complaint, or alternatively given that Plaintiff has now been forced to tender $ to the wrong beneficiary, Plaintiff should be allowed to amend his complaint further to allege additional causes of action as a result of the changed circumstances.
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