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No.

11-56421

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


MICHAEL M. CARNEY

Plaint BANK OF AMERICA CORP. ET AL Defendants-Appellees Appeal from the United States District Court for the Central District of California Civil Case No. SACV 11-00571 CJC (MLGx) (Honorable Cormac J. Carney)

EMERGENCY MOTION UNDER CIRCUIT RULE 27-3

CARNEY'S EMERGENCY MOTION FOR STAY OF PENDING FORECLOSURE SALE TO APPEAL ORDER DISCHARGING TEMPORARY RESTRAINING ORDER AND SUBSEQUENT ORDER DISMISSING CERTAIN OF HIS CAUSES OF ACTION IN RELATION TO SAME

Michael M. Carney 241 Rochester Street Costa Mesa CA 92627 -, 949.306.6866 mmcarney7@gmail.com

Appearing Pro Se
9th Cir. R. 27-3 Certificate_

Pursuant to 9th Cir. R. 27-3, Appellant respectfnlly certifies that his motion for appeal and injunctive relief is an emergency motion requiring "relief . . . in less than 21 days" to "avoid irreparable harm." Appellant, Michael M Carney ("Camey") is a property owner in Costa Mesa, CA, his family home of nine years being at issue, who filed snit against Appellees Bank of America Corporation ("BAC"), ReconTrnst, N.A. ("ReconTrnst") a wholly owned subsidiary of Bank of America Corp., Mortgage Electronic Registration Systems, Inc. ("MERS"), Countrywide Financial Corporation, Countrywide Home Loans, Inc.("Conntrywide"), and US Bank, N.A ("US BANK") as well as non-responsive and central defendant, although not to this motion and appeal, BondCorp Realty Services, Inc. ("BondCorp"). Appellant appears pro se. Appellees BAC (and stated subsidiaries) and Countrywide appear as represented by counsel. Appellees ReconTrust, US BANK and MERS appear with no stated counsel in this conrt other than Judith T. Sethna (SBN 232731) who is not admitted as counsel to this conrt.

Appellant states here that counsel may be acting and arguing on behalf of Appellee-Defendants (noted above) it is not authorized to defend or argue on
behalf of.

Appellant filed his original complaint on April 13, 2011. Defendants then filed their first Motion to Dismiss ("MTD") soon after. Appellant filed an initial Ex Parte application for a Temporary Restraining Order ("TRO") which was denied. In the course of that urgent application to the district court, Carney did not clearly understand the filing dates of any opposition
tO the MTD and missed the cutoff date to file his opposition and the district court

granted Defendant's MTD with leave to amend. Carney promptly and timely filed his First Amended Complaint ("FAC") on June 27, 2011 adding new causes of action ("COA") for wrongful foreclosure and cancellation of written instruments (COA 6 & 7) in addition to his other claims and
COA's.

Upon submission of his FAC, Appellant also promptly filed his Second Ex Parte application for a TRO and Order To show Cause ("OSC") Why A Preliminary Injunction Should Not Issue which was granted on July 7, 2011, averting a sale of his property by Appellees scheduled for July 11, 2011 and set a date of August 22, 2011 for hearing on the OSC.

All papers in opposition, support or reply were filed timely by August 11, 2011 and on August 15, 2011, the District Court issued an order vacating the TRO. AppelleeslDefendants also again filed for a MTD the FAC on August 4, 2011. That MTD was Denied in part and Granted in part, denying dismissal of the COA for Conspiracy to fraud, but granting the COA's for wrongful foreclosure, cancellation of written instruments (both COA's that were the subject of the initial appeal) as wells as claims of violations of the California Unfair Competition Laws
("UCL").

Appellant then filed his notice of appeal, fee fully paid, to the district court's order granting of certain of the COA's that were the subject of the initial appeal on November 7, 2011 at 11:10 am, proof of such appeal filing attached as Exhibit A and incorporated and made part of this motion. Appellee ReconTrust, after having postponed the sale of Appellant's property three times, has since scheduled as November 14, 2011, at 12:OOpm at the Court House in Santa Ana, CA as the date on which they will move to sell at auction Appellant's property, his family home and land which is commonly known as 241 Rochester Street, Costa Mesa, CA 92627. Appellant states that there is not time available to file a motion with the District Court to effect a stay so that this appeal can be considered and heard. Appellant has had telephone conversations and email communications with

Defendants to request that they temporarily postpone the scheduled and alleged "trustee's sale" until these matters can be properly heard by this court. They have
refused to accord such time.

Irreparable harm will ensue if this unlawful sale of Appellant's property is allowed to proceed before a proper hearing before this court as it is unique and monetary restitution and damages alone cannot replace it. It iS thus imperative and Appellant respectfully requests that this court hear this motion on an emergency schedule and at minimum, order a temporary or administrative stay and/or order injunctive relief sought enjoining Appellees from proceeding with a foreclosure sale or in the alternative, vacate the discharge of and/or reinstate the TRO with instruction to the District Court, or whichever declaratory relief this court deems just and proper. Before filing his motion, Appellant notified counsel for the other parties by email and also emailed them a service copy of the motion. In addition, Appellant telephoned Counsel for the parties the relief is requested from by phone, as I called Judith Sethna at her usual office phone number and spoke with her instructing her of this emergency motion and that I would email electronically a copy of this motion at 5:31 pm on November 8, 2011. Ms. Sethna acknowledged my intent to file this motion and did not indicate whether she and her admitted and stated counsel would oppose it.

Pursuant to 9th Cir. R. 27-3(a)(3)(i), the telephone numbers, email


addresses, and office addresses of the attorneys as available, for the parties are as
follows:

Margaret M. Grignon (SBN 76621) Zareh A. Jaltorossian (SBN 205347)

David S. Reidy (SBN 225904) Email: dreidy@reedsmith.com Judith T. Sethna (SBN 232731) Email: jsethna@reedsmith.com_
REED SMITH LLP 355 South Grand Avenue, Suite 2900 Los Angeles, CA 90071-1514 Telephone: 213.457.8000 Facsimile: 213.457.8080

Appellant further certifies that he has no other actions pending in this court (other than the related appeal), has never filed or opened any case in this court priOr, nOr has had this court rule on any action submitted by him to this court.

INTRODUCTION AND SUMMARY

This emergency motion is filed in this honorable court to stay an alleged "trustee's sale" of his property on November 14, 2011, that Appellant states is unlawful and due to a decision in the district court that vacated a Temporary Restraining Order that Plaintiff-Appellant filed an appeal from to this court.

Appellant in advance seeks the forbearance and indulgence of this court as he recognizes his motion has more width and girth than should an emergency motion contai ,n but that content is necessary and crucial to convey to the court his
claims and assertions.

The district court on October 20, 2011 granted and dismissed with prejudice Defendant-Appellees Motion to Dismiss ("MTD") causes of action for wrongful foreclosure and cancellation of written instruments, which were the main issues of
the original appeal.

Appellant timely filed his appeal of the court's order on November 7, 2011, fee fully paid (Exhibit A). He has not yet been assigned of this time and date a new case number and does not know if the two appeals will be merged or that they
Will be treated as separate actions before this court.

The district court could have and arguably should have held any decision under advise from the circuit court as the issues in Appellant's original appeal were essentially the same as the ones in the MTD, but chose instead to rule on the MTD, denying in part and granting in part the MTD and chose to do so in a harsh manner nOt allowing Appellant leave to amend, which was an order issued in error (both in law and in form, as mistakes were present in the order), as stated below. Appellant seeks an emergency temporary or administrative stay and/or the requested relief as to an order issued by the District Court dismissing or denying

certain of Appellant's claims that either erred or otherwise overlooked substantial matters of law in its decision and resultant order and that his appeal to such can be properly heard by this court without incurring further damages. Appellant has already filed his opening brief on appeal in relation to a previous order of the district court vacating an ordered Temporary Restraining
Order ("TRO") on August 15, 2011.

Plaintiff had filed a second Ex Parte Application for a TRO preventing Defendant ReconTrust from holding a sale of Plaintiff s property. That application and request for TRO by Plaintiff which was granted by the District Court on July 7, 2011, and further set time and date regarding its Order To Show Cause ("OSC") why a preliminary injunction should not issue. Plaintiff stipulated to an extension of time for Defendant to respond to the OSC, which
Defendant-Appellee complied with.

In itS order granting the TRO and issuing the OSC, the District Court stated: "Mr. Camey has made a showing that ReconTrust might not be theproper trustee with legal authority to conduct the trustee 's sale scheduled for July 11, 2011. The issue is whether MERS properly substituted ReconTrust as trustee in place of First American Title Companyprior to MERS assigning
itS beneficial interest in the deed of trust to US Bank, and whether US Bank

has approved of the foreclosure sale.

[....]

Defendants have asserted in their opposition [. . . ] that "MERS substituted


ReconTrust as trustee in place of First American Title Company --- and this

substitution was recorded," Opp'n at 5, but they have not produced the records indicating that this substitutionproperly occurred during the time period that MERS was beneficiary." (emphasis added) Inexplicably on August 15, 2011, with defendants NOT addressing the main issue and reason for the TRO being issued, the District Court discharged the TRO stating among other things that I failed to allege tender and difficulty in understanding that I suffered prejudice resulting from "irregularities" in the foreclosure process when void instruments was stated. These were issues not identified in the TRO nor were they germane as Appellant argued void instruments (SOT and NTS). In effect, the district court
validated the DOT and NTS by its order.

Appellant has clearly stated void (not voidable) written instruments. As to the SOT and NTS issued and filed in the public record by MERS naming Recontrust, MERS in foreclosing in its own name clearly violates the strict statutes requiring proper parties and governing non-judicial foreclosure.

Appellant states he cannot be prejudiced by void written instruments and that he has never had any debt due and payable to MERS and therefore, is not
required to proffer tender.

The district court's order dismissing with prejudice Appellant's claims of cancellation of written instruments as to the SOT and NTS has the effect of making them valid, when they are clearly unlawful, do not state ANY or ALL beneficiaries and that MERS filed these void instruments in the public record. The district court in issuing its TRO was correct in stating that Defendants did not have the proper authority to proceed with a trustee's sale and that such authority was required to be shown in order for them to proceed. Defendants never stated any authority and instead argued other points of law
that were not germane.

As a result of the court's order discharging the TRO and OSC regarding the preliminary injunction and improper granting of dismissal with prejudice, the sale of my property is now scheduled to be held on November 14, 2011, at 12:OOpm at the County Courthouse in Santa Ana, CA which will only add more damages to the already significant damages Appellant has incurred. Appellant states and has stated from the outset of this action that the Deed of Trust and Note that underlie any authority to act against his property are void ab
initiO as those instruments were fraudulently created and for that matter, all
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subsequent instruments must necessarily be void as well. He has stated so with particularity and with facts and declarations as to the first four causes of action as against BondCorp Realty Services, Inc. ("BondCorp") as well as his fifth COA for Conspiracy to the same, which the court denied defendant-appellant's MTD. All other causes of action in his complaint follow those facts and allege with facts Conspiracy to the fraudulent acts of BondCorp by Countrywide. If BondCorp was in fact the true initial "lender" or Grantee--Plaintiff avers strongly it was not with undisputed facts in support (FAC), evidence of the chain of assignments/transfers/sales and title for any other entity to claim power of sale
tO foreclose must exist and a true beneficiary stated clearly in the SOT granting

that Trustee (ReconTrust) with limited power of sale. MERS does not ever state in the SOT naming ReconTrust as Trustee in place of First American Title, or its defense or elsewhere as to whom it acts as "nominee". California law and the Deed of Trust requires that it do so. It certainly is no longer (if it ever was) "Beneficiary", as MERS for value, transferred and assigned A// of its beneficial interest to US BANK in June of 2010. Although
it assumes such --- again and unlawfully.

Herein lies the thrust of Appellant's overall complaint and from which spring all the other unlawful acts that have occurred since, which were fraudulent acts for unlawful gain at the inception of the DOT and Note. If the parties are who
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they say they are or were, from the beginning, and the facts support them, this
would not be an issue.

It iS tO be noted that Defendant BondCorp has not made any answer at all in this case. Proper service has been executed and Appellant has even had telephone and email communications with BondCorp, notifying he and them of motion and calendar issues. No motions, answers or any statement to the court in response to the allegations have been filed or lodged by BondCorp, which lies squarely at the
center of the dispute.

This is so because if BondCorp were to reply and provide defense to the causes of action in the FAC (or original complaint), it would necessarily have had
tO provide facts in its defense that would contradict or deconstructively weaken or

obviate the responding DefendantslAppellees defense and likely further expose the fraud and malfeasance at the root of the issues here. BondCorp as such has
remained silent.

There is no documented assignment, allonge or other such instrument in the record from BondCorp to any known entity. Appellant contends that BondCorp, a licensed real estate broker, but not a licensed LENDER was never the lender and has provided facts that show it was never the lender/grantee and acted as such fraudulently. If it was not and did act in fraud, then MERS is not nor can never be, nOr claim to be a Nominee/Beneficiary of a non-existent Lender/Grantee.
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In Defendant's Motion To Dismiss the original complaint, Countrywide admits that BondCorp acted as merely a broker and does not at all dispute the fact asserted by Appellant that Countrywide was indeed the party to its Deed of Trust as true lender and that this was undisclosed to him and stated such (Def. Mot. To
Dismiss Compl. Intro. P. 1 at 21-22):

"In particular, Defendant BACHLS appears only to be the loan servicer, and
Countrywide appears to be the lender. . .[ . . .]."(emphasis added).

It iS nOt in dispute, nor has it been disputed that Countrywide was the actual lender/provider of funds at his loan closing and Appellant has provided facts in support that show Countrywide was the originating "lender", undisclosed and
concealed from him.

What in fact happened here was that Appellant's alleged loan was offered by BondCorp as Broker, who assumed the role of "Lender" fraudulently, because it knew, and with assistance from Countrywide, as sole originator for all loans that
COnSiSt of the trust SARM 2005-19XS, was the true source or provider of any

funds involved in the transaction, and BondCorp assumed that role for the sole reason of reaping secret, undisclosed fees from Countrywide as alleged with
supporting, undisputed facts in the FAC.

Countrywide acted as the "sole originator" for all loans to be included in the securitized trust SARM 2005-19XS (FAC Exh 3) to which the subject DOT and
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Note were just recently assigned and transferred to in June of 2010. Responding Defendants/Appellees do not dispute these facts. In the mad rush for the secret fees, BondCorp provided a wildly inflated appraisal, hid legally required disclosures, intentionally concealed facts and took other unlawful and fraudulent actions whereby Appellant was damaged for tens of thousands of dollars and was saddled with a damaging Pay Option loan, of the type that the State of California sued Countrywide over (Ca/ ornia v. Countrywide, LC081846, Superior Court of Calfomia, County of Los Angeles) and for which Countrywide settled for hundreds of Millions of dollars, the largest such settlement
in California history.

Countrywide, who should have been named the Lender/ Grantee in the DOT and Note and properly disclosed as such, saved time and expense, for a secret, outsized fee paid to BondCorp for it to assume the role of "Lender" and "Grantee", (and for which BondCorp provided no additional service for) acquired another illgotten commitment from an unsuspecting consumer -- in this case Appellant -- so that it could reap fat origination fees and ongoing servicing fees from the SARM
2005-19XS trust.

The fraud and unlawful acts continue. The alleged loan was lodged in the books of Aurora Loan Services, Inc. as Master Servicer for the securitized trust SARM 2005-19XS in August of 2005 (as US BANK was also named as Trustee
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for and Document Custodian) and payments made by Appellant (four years) were applied by Aurora to the unknown certcute holders of SARM 2005-19XS --- and
continues to this day.

Amid Appellant's Bankruptcy case in 2010, after two attempts to modify his loan with BACHLS which were largely ignored, on June 24, 2010, MERS executed an assignment and transfer of "..[. . .]ALL BENEFICIAL INTEREST UNDER THAT CERTAIN DEED OF TRUST DATED 7/20/2005, EXECUTED BY MICHAEL M. CARNEY..[ . . .]TOGETHER WITH THE NOTE OR NOTES THEREIN DESCRIBED OR REFERRED TO, THE MONEY DUE AND TO_ BECOME DUE THERE WITH INTEREST, AND ALL RIGHTS ACCRUED OR TO ACCRUE UNDER SAID DEED OF TRUST/ MORTGATGE."(emphasis supplied)(FAC Exh. 9), to US BANK as Trustee for SARM 2005-19XS. This was the first time that Appellant had ever heard of any involvement of SARM 2005-19XS, US BANK, Countrywide or Aurora in his DOT and Note which prompted him to investigate why his DOT and Note would be "sold" amid a Bankruptcy proceeding. Prior to this, he had only transacted with BondCorp. Almost five years after the closing of the SARM 2005-19XS trust (June 2010), MERS attempts to convey into that trust the DOT and Note that legally were required to be conveyed in August of 2005 in clear violation of the trust documents (prospectus, PSA).
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On tOp of all of this, just recently in July of 2011, Appellant received a letter from Bank of American Home Loans notifying him that: "Effective July 1, 2011, the servicing of home loans by our subsidiary-BAC Home Loans Servicing, LP, transfers to its parent company-Bank of America, N.A. [. . .]. On page 3 of 4 of the letter, at (2)(b) it states: "The name of the creditor to whom the debt is owed: AURORA MSF LEHMAN SARMO5-19XS"("AURORA"). Appellant has since replied to this letter in accordance with Federal and California law. There has been
nO reply to Appellant's letter to date other than an acknowledgement that it had

been received by BAC and their response in accordance with law is late, and the previous attempt/request to obtain the facts and amounts claimed by BAC likewise
went unanswered.

MERS, after the transfer/assignment to US BANK in June of 2010, for value received, then reappears in May 2011, to execute, as "Beneficiary or Investor" (FAC Exh. 6 p. 2) to substitute ReconTrust as Trustee with power of sale to hold a trustee's sale of Plaintiff s property, which is now scheduled for November 14,
2011.

Nowhere in the SOT or Notice of Trustee's Sale are either US BANK or AURORA named or signed as Beneficiary. Nowhere in the public record is their interest recorded, either, as to the Trustee's sale. So we have here MERS claiming a beneficial interest in the DOT and Note after a full assignment of all beneficial
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interest in the DOT and Note in June of 2010: US BANK being the only known beneficiary of record and now AURORA claiming it is a Creditor/Beneficiary and as of March 3, 2011, was listed in the MERS system website as "Investor"
IS it nO wonder by these actions and others that just recently US BANK has

filed suit against Countrywide and Bank of America Corporation demanding $1.7 Billion in loan buy backs and damages as well as all the other MBSltrust investors and State Attorneys General legal actions that claim tens of Billions of dollars in damages because of such fraud and malfeasance. Appellant again asserts that US BANK and MERS has not authorized counsel in this matter and in fact are adverse defendants to BAC and Countrywide
defendants.

BAC and Countrywide DefendantslAppellees in this instant matter are "trying to put Humpty back together again..", but ignore the fact that what is begun in fraud and unlawful actions cannot be made whole or right. The emergency issue before this court is: Appellant asserts that MERS acts ultra vires and unlawfully, based on entirely ab initio void instruments, and had nOt the authority to substitute the trustee acting as "Beneficiaryllnvestor", and as
nominee under the subject DOT and Note as it does not name A// --- or any -

beneficiaries in accordance with Cal. Civ. Code 2934(a) and that the SOT and Notice Of Trustee's sale ReconTrust relies upon to execute Trustee's sale are void
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instruments and that at minimum an administrative stay of such sale is ordered, or a preliminary injunction ordered forthwith. In Section 2932.5 it is provided as follows: "Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended
tO secure the payment of money, the power is part of the security and vests in any

person who by assignment becomes entitled topayment of the money secured by the instrument. The power of sale may be exercised by the assignee if the assignment is acknowledged and recorded."(emphasis added). MERS is not entitled to any payments of money in connection with the DOT
Or Note. As "nominee", it must by law and by the express terms of the DOT name

all beneficiaries it acts to substitute trustee for. It does not and therefore the SOT and Notice of Trustee's sale are void and of no legal effect. The law in California is clear and unambiguous (although MERS would have it otherwise) as it pertains to non-judicial foreclosure, to trustees and their role in non-judicial foreclosure and to beneficiaries. More specifically California
CiVil Code 2934a states:

"(a)(1 )The trustee under a trust deed upon real property or an estate for years therein given to secure an obligation to pay money and conferring no other duties upon the trustee than those which are incidental to the exercise of the power of sale therein conferred, may be substituted by the recording in the county in
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which the property is located of a substitution executed and acknowledged by: (A) all of the beneficiaries under the trust deed, or their successors in interest, and the substitution shall be effective notwithstanding any contrarvprovision in any trust deed executed on or after January 1, 1968; or (B) the holders of more than 50 percent of the record beneficial interest of a series of notes secured by the same real property or of undivided interests in a note secured by real property equivalent
tO a series transaction, exclusive of any notes or interests of a licensed real estate

broker that is the issuer or servicer of the notes or interests or of any affiliate of that licensed real estate broker."(emphasis added). As was alleged and shown in Plaintiff s reply to Defendant's Opposition to OSC, as well as was recognized by the District Court, US BANK is the only
knOWn Or stated and recorded beneficiary regarding Plaintiff s Deed of Trust and

Note. US BANK neither acknowledged nor executed any substitution of trustee that has been before the District Court or any court, as the record clearly indicates they are the only entity with that possible authority. The District Court specifically required in its Order issuing the TRO that Defendants provide such facts and
documents ---which they failed to do.

Defendants ReconTrust and MERS offered no facts or evidence that US BANK or AURORA had duly recorded any interest it may have had in Appellant's property on behalf of any trust it serves or served as trustee for, nor substituted
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ReconTrust as trustee -- US BANK itself being "Trustee" itself in contradiction of The Restatement (Second) of Agency and Restatement of Trusts (Mem. P&A's in Support of TRO p. 11 at 5) nor publicly recorded any interest in the sale of Appellant's property. That is simply because it never happened. The only party with any remotely cognizable authority to proceed with a foreclosure sale could only possibly be US BANK as Trustee for SARM 2005-19XS. Therefore, ReconTrust's reliance upon an void and ultra vires assignment by MERS, who has been shown to be NOT any real beneficiary and at best may only be nominee, especially since it was named as Nominee/Beneficiary of BondCorp in the DOT and Note Appellant avers are void, then attempts to assign and transfer for value received a// of its beneficial interest, or any it claimed, on June 24, 2010
tO US BANK, is totally without standing or authority in its actions as

"Beneficiary" to substitute a trustee for the expressed purpose to sell plaintiff s property at auction, without any clear statement of what proceeds of such an auction sale would be delivered to. As such, the SOT and consequent Notice of Trustee's Sale by ReconTrust is and are entirely void. Further, the DOT, clearly written to comply with California law, which Appellees rely on in this present matter clearly states at its paragraph 24 (FAC Exh. 1) that: "[. . . ] The Instrument (Substitution of Trustee) shall contain the name of the original lender, Trustee and Borrower. [. . .] This procedure for substitution
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of trustee shall govern to the exclusion of all other provisions for


substitution."(emphasis added).

It iS clear that in the Substitution of Trustee ("SOT")( FAC Exh. 6 p. 2) that the original lender (BondCorp) or any lawful assign or successor beneficiary was
nOt named or stated bv MERS in violation of the DOT directing that such be

stated. The SOT states: "[ . . .]and MORTGAGE ELECTRONIC


REGISTRATION SYSTEMS, INC. was the original Beneficiary. .[. . . ]WHEREAS,

the undersigned is the present Beneficiary under said Deed of Trust, and[. . .]" While MERS would claim status as "original Beneficiary", it certainly was nOt the "original Lender.." as the DOT requires to be stated in any SOT. In light of these facts and actions, it is imperative and respectfully requested of this court that at minimum, a stay of the foreclosure sale scheduled for September 12, 2011 be ordered so that the court can fully consider the appeal or that this court issue and order the requested preliminary injunction requested of the District Court barring any sale of Plaintiff s property until the matters contained in his complaint can be moved for default on (BondCorp), allowable discovery is made available and are otherwise fully adjudicated. Additionally and most importantly in this present motion, the district court has acted harshly and abused its discretion and authority by dismissing Appellant's
claims without leave to amend.
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Appellant as a pro se litigant has done his level best to comply with and adhere to the mies of the of the district court, yet his complaint, in the order granting dismissal with prejudice and not allowing leave to amend, states serious questions of fraud and law and factual allegations in support that demonstrate a fraud upon him which the court acknowledges facts present and properly alleged in
support of such clai .m

Further, the district court is very much aware of the wide berth given pro se litigants and vet chose to adhere to a verv narrow, abusive and incorrect theorv in dismissing his claims with prejudice, not leaving to amend. Well settled law has stated that pro se litigants are to be afforded the widest of spaces to argue their cases within the mies of the court and that defects in complaints be adequately demonstrated and communicated to the pro se litigant so
that he/she may amend accordingly.

What instead occurred in this matter and present appealed order by the district court was that the wide berth was confined to a matchbox and there was absolutely no explanation from the district court as to the deficiencies in his complaint. This is an unjust result and order that must be reversed as to leave to amend, if not in whole, in addition to the granting of the relief requested. Lastly, Appellees have also filed a motion to dismiss this appeal as moot. At minimum, this can only be seen as an opportunistic attempt to have this court not
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consider the serious matters of law that Appellant has advanced and persisted to
advance and have heard.

At maximum, it can be seen as a desperate attempt to have this honorable court not consider the serious questions of law raised so that their myriad other defenses to actions brought by other consumer persons or corporate persons will nOt be affected. They are wrong in their motion as moot as they are wrong in

ARGUMENT

every other aspect of their defense.

This Court considers four factors in determining whether to grant a stay pending appeal: "(1) whether the stay applicant has made a strong showing that he
iS likely to succeed on the merits; (2) whether the applicant will be irreparably

injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Golden Gate Restaurant Ass 'n v. City and County of San Francisco, 512 F.3d 1112, 1115 (9th Cir. 2008)(quoting Hilton v. Braunskill, 481 U.S. 770, 776
(1987)).

The Court has further explained the relationship between these factors by grouping them into "two interrelated legal tests' that represent the outer reaches of a single continuum. '" /d. (quoting Lopez v. Heckler, 713 F.2d 1432, 1435 (9th
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Ci .r 1983)). "At one end of the continuum, the moving party is required to show both a probability of success on the merits and the possibility of irreparable injury. At the other end of the continuum, the moving party must demonstrate that serious legal questions are raised and that the balance of hardships tips sharply in itS favor."' /d. (quoting Lopez, 713 F.2d at 1435). A stay is required under either
formulation.

I. This Court Should Issue An Administrative or Temporary Stay Or


Grant The Requested Injunctive Relief Sought As Serious Questions Of Law Have Been Raised And Probable Success On The Merits Is Shown. The California Appeals Court stated in relation to Wrongful Foreclosure and related trustee's sale "That rule is that a trustee or mortgagee may be liable to the trustor or mortgagor for damages sustained where there has been an illegal, fraudulent or willfully oppressive sale of property under a power of sale contained in a mortgage or deed of trust" Munger v. Moore (1970) 11 Cal.
App. 3d 1 [89 Cal.Rptr. 323].

The District Court in this case issued a TRO and OSC RE: Preliminary Injunction on July 7, 2011. Defendant --Appellee and Appellant filed opposition
and reply to such, respectively.

That Court then decided and issued an Order vacating the TRO on August
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15, 2011 which in effect allows Defendants to proceed to conduct a trustee's sale of his property as per the publickly recorded documents it has filed in the Orange County Clerk/Recorders office that Appellant states are unlawful and void. That order and decision erroneously focused on issues not related to the granted TRO and misplaced its discretion and judgment. That order and decision should be reversed with a stay of the foreclosureltrustee's sale be issued by this court upon full consideration of the appeal, or, and if necessary or seeming just and proper, that the injunctive relief requested by Appellant be granted by this court
presently.

A. The District Court Erred In Dismissing Certain COA's In


Carney's Complaint With Prejudice And Without Leave To Amend. The Supreme Court has set precedent that instructs federal courts liberally to construe the "inartful pleading" of pro se litigants. Boag v. MacDougall 454 U.S._
364, 365, 102 S.Ct. 700, 701, 70 L.Ed.2d 551 (1982) (per curiam); Hughes v. _

Rowe 449 U.S. 5, 9, 101 S.Ct. 173, 175, 66 L.Ed.2d 163 (1980); No// v. Carlson_ 809 F.2d 1446 1448 (9th Cir.1987); see Draper v. Coombs 792 F.2d 915, 924 (9th-

Cir. 1986) (should treat pro se litigants with great leniency when evaluating
compliance with the technical mies of civil procedure). Thus, before dismissing a pro se complaint the district court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that
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the litigant uses the opportunity to amend effectively. Noll 809 F.2d at 1448-49_ (courts must draft a few sentences explaining the deficiencies to the pro se prisoner
plaintiff).

Further in Noll, 809 F.2d at 1448 , "A pro se litigant must be given leave to amend his or her complaint unless it is "absolutely clear that the deficiencies of the complaint could not be cured bv amendment." Broughton v. _ Cutter Laboratories 622 F.2d 458 460 (9th Cir.1980) (Per Curiam). The Ninth Circuit and other US appeals courts have consistently ruled that prO se litigants are to be afforded the widest interpretation and instruction of the courts in order to properly assert their claims. Because this court dismissed Plaintiff's original complaint with leave to amend with no notice of any deficiencies contained in the original complaint or FAC, he is to be afforded the ability -- with instruction of this court as to deficiencies -- to amend his FAC so as a result of the dismissal he can clearly understand the reasons why his complaint cannot proceed as a matter of law or as a matter of substance and provide the necessary factual allegations and evidence to
cure his otherwise substantive claims. The court has relied upon Kendall v. Visa U. S.A., Inc. 518 F.3d 1042 1051-_

1052 in determining that granting leave to amend would be futile, but Plaintiff , appearing pro se, had not the benefit of either discovery or notice or instruction
26

from the court as to the defects in his original complaint -- as Kendall did -, as it was dismissed as a late filing. In his FAC, Plaintiff has only now come to understand the court's determination of defects that Plaintiff asserts are not fatal
and that can be cured.

Nor was Kendall a pro se Plaintiff.

This is particularly true of the order concerning both claims of wrongful foreclosure (COA 6) and cancellation of written instruments (COA 7) which were not included in the original complaint. The court has provided only one ruling and order as pertains to the complaint itself. His FAC, referred to in the appealed order as his "SAC", is the only time Plaintiff has understood what, if any deficiencies in relation to the complaint exist and the court has not stated that any of his causes of action are fatally flawed, which Plaintiff states they are not as he can provide additional factual allegations as well as a more concise legal theory. Appellant filed his original complaint in April of 2011. That complaint was dismissed with leave to amend based on a misunderstanding by Appellant of the dates his opposition to defendant's MTD was due and amid an urgent ex-parte application for a TRO to stop the unlawful sale of his property. The dismissal of his original complaint contained NO statement by the district court or defense of any defects that Appellant could understand and cure
27

Further, the court makes numerous factual mistakes that Appellant takes on their face as just mistakes but nonetheless characterizes his FAC as an "SAC" and also denies the MTD as to Conspiracy in its preliminary statements, but then grants the MTD as to the Conspiracy in its conclusion.

B. The District Court Erred in Accepting Defendants' Argument


That Carney Did Not Plead, Nor Could Plead Prejudice As To Any
"procedural defect".

Defendants almost entirely rely upon Knapp v. Doherty, 123 Cal. App. 4th 76, 94 (2004) in their argument, whereby the California Appeals Court ruled that a procedural defect alone is not enough to warrant setting aside (not preventing or barring) a foreclosure if "[t]here was no prejudicial procedural irregularity." Appellees-Defendants would and did argue essentially that a "Harmless Error" occurred and that Appellant was not prejudiced by such. They argue in error and the District Court likewise decided in error relying upon such argument. In System Inv. Corp v. Union Bank, 21 Cal. App. 3n1 I 37, 153 (1971): "
[ . . . ]It has also been said (34 Cal. Jur.2d, Mortgages, pp. 161-162) that a sale under

a power in a deed of trust has been considered a harsh method of foreclosing the rights of the grantor; that courts have scrutinized such sales with great care; and that unless the sale was conducted with fairness, regularity, and scrupulous_ integrity, it is not likely to be sustained." (emphasis added).
28

In Knapp v. Doherty, supra, the California Appeals Court stated that "we conclude that the sale notice was served slightly prematurely, but that this minor procedural irregularity was in no way prejudicial to Borrowers. They received adequate notice of the trustee's sale; indeed, they received nine days more than the 20-day notice required under section 2924b, subdivision (b)(2).." Defendants would equate "slightly premature notice" as noted in Knapp v.
DohertV, with Appellant's allegations of void, fraudulent and unlawful

substitution of trustee and consequent notice of trustee's sale when the core of his complaint is that the parties (not the notice(s) or any other typo or delay of mails
Or such) are in error and act unlawfully and ultra vires. Appellant never alleged

"procedural irregularities" anywhere in its complaint and subsequent motions or applications, but instead wholesale defects and void instruments. 55 American Jurisprudence Second states: "[D]efects and irregularities in a sale under a power render it merely voidable and not void.... However, substantially defective sales have been held void where the defect lay in a particular as to which the statutory provision was regarded as mandatory...." (55 Am.Jur.2d, Mortgages, 746, p. 673.)(emphasis added). It iS mandatory that any and all Beneficiaries be named in the SOT. It or
they are not.
29

As well in Scott v. SecuritV Title Ins. & Guar. Co., 9 Cal.2d 606 [L. A. No. 16216. In Bank. September 28, 1937.]: "In California the same rule prevails as in Massachusetts to the effect that without lawful notice no trustee's foreclosure sale can be had. ( ited Bank & Trust Co. v. Brown, 203 Cal. 359 [264 P. 482].) It follows that the [9 Cal.2d 614] attempted sale of February 7, 1931, was a complete
nullity."

Carney presented facts that the parties that publicly recorded documents against his property ultra vires and intend on selling his property, did not name the proper parties, did so without authority and very likely fraudulently, as the parties
tO the unlawful SOT (MERS) and Notice of Trustee's Sale (ReconTrust) knew_

they were not the parties properly and truly authorized to act as such, since they received value for the transfer of the property a year earlier from the present nominator/ principal/beneficiary, US BANK. As well MERS and ReconTrust know full well that the statutes and the DOT require that the Beneficiary of record be named in the SOT as they both are and have been in the real property (and foreclosing) business for many years. Carney has no real idea as to whom with to attempt cure and/or to redeem his property. It is and has been made quite clear that he cannot rely on the servicer (BACHLSIBANA) of the alleged loan, as he has multiple times made written
request as to such, with no reply.
30

C. The District Court Erred In Not Properly Applying Clearly Established Statutes And Laws In California Designed To Protect Consumers. Application of 2932.5 to deeds of trust advances California's statutory
scheme to protect borrowers, consumers and otherwise, from a wrongful

foreclosure. Further 2924 et seq. provides the statutory scheme by which nonjudicial foreclosure proceeds in California California Law is also clear in its Civil Code and in 2934a(1)(A) says "a//_
benef`Iciaries" must execute the Substitution of Trustee and be named, as

referenced in more detail above. The DOT is also very specific in this regard and
iS such

in accordance with California law. Nowhere in the unlawful SOT is US

BANK or AURORA mentioned nor does either of its interest, agreement or consent appear in the public record as to the proposed sale. Nor is the original "Lender" named, as the DOT requires it to. Even if MERS could convince this court that is was at one time in fact a

"Beneficiary", it certainly would be presently a junior one to US BANK, as it_


value received, and transferred ALL beneficial interest in the DOT and Note and monies and interest accrued to US BANK and no record contra wise appears in public or otherwise. There is no document presented by Defendants that controvert that standing fact, nor has it been disputed by Appellees.
31

Instead they argue that MERS can, for value, transfer assign all it's beneficial interest and somehow remain Beneficiary, when it is clear that only US BANK is entitled to the monies, interest and basically the benefits of the DOT and Note. They also more sanely argue that MERS now acts as Nominee, too, but as nominee, it must name the Beneficiary or all Beneficiaries, which it has failed to
do in the SOT.

Therefore, the SOT and Notice of Trustee's sale instruments can be of no legal effect and are void as any concurrent Trustee's sale would necessarily be void. In Miller v. Cote, 179 Cal.Rptr. 753, (Ct of App. Fourth Dist. Div. 2 1982), the Court, in calling the notice of default fata//y defective (which here the case is the SOT, but Appellant has also averred that the Notice of Default is equally fatally defective on the same grounds) stated: "The procedure for foreclosing on security by a trustee's sale pursuant to a deed of trust is set forth in Civil Code section 2924, et seq. The statutory requirements must be strictly complied with, and a trustee's sale based on a statutorily deficient notice of default is invalid. (System
InV. COrp. V. Union Bank (1971) 21 Cal.App.3d 137, 152-153, 98 Cal.Rptr. 735;

see California Mortgage and Deed of Trust Practice (Cont.Ed. Bar 1979) s 6.40, p. 295; see also Bisno v. Sax (1959) 175 Cal.App.2d 714, 720, 346 P.2d. (emphasis
added). 32

A seriously deficient -- not irregular in the sense Defendants assert substitution of trustee and consequent notice of trustee's sale are equally invalid or void. The fact that US BANK or AURORA is no where named in the SOT or any consent of it is given is not a "procedural irregularity" or "harmless error" It shows MERS and ReconTrust acting ultra vires and in a knowing unlawful manner, hoping their actions would not be contested, adequately or otherwise by Appellant and MERS seeks to avoid mandatory notice in violation of law for aims
knOWn only unto them, but remain unlawful nonetheless.

D. How Can Appellant Be Prejudiced By Void Documents?


The District Court in its vacating of the TRO and subsequent dismissal of COA's for wrongful foreclosure and cancellation of written instruments never addresses the validity of those documents, nor the underlying documents that Appellant states are void. The Court never states that the written instruments in question are valid, but by its actions validate them. Instead, it seems to reach to remote and unrelated issues of equity, which is fraught with serious questions of
law as to:

i) No known or stated entity entitled to receive such equity other than MERS, which is not able to receive such equity. ii) To whose benefit any equity Appellant might proffer, would satisfy sufficiently and with amounts and terms with clarity sufficient so that Appellant
33

might rightly understand that any equity he would perform would have the effect
On his property.

iii) That with underlying claims of fraud that are heretofore not disputed have serious implications of offset and/or remediation of any equity that the district court seems to defend, and that Defendants do not. iV.) That the fraud and conspiracy thereto are not reasons to deem the DOT
and Note Void and as such of no effect.

Appellant has stated with particularity and facts that a fraud was perpetrated upon him that have not been answered and that a conspiracy to the same by present defendants was also involved. The district court acknowledges that facts and allegations are sufficient to further Appellant's claims of Conspiracy to fraud, but acts to validate the written instruments that were a result of the fraud and
conspiracy.

Appellant again avers that the instruments, ab initio are void and seeded and founded in fraud and any consequent documents cannot be valid. Even if the written instruments that defendants rely upon to usurp his property were based upon a valid DOT and Note, they are not valid and in fact clearly void by California statutes as has been advanced above. How can Appellant be prejudiced by void written instruments?
34

II. Tender Or Bond Is Not Required. A. Tender Or Bond Is Not Required As The Written Instruments
Are Attacked As Being Void In Their Execution By Means Of Fraud And/Or
Ultra Vires.

There is no requirement to tender the debt where the amount owed is disputed or the basis for relief is fraud. "If there is no dispute as to the default or the amount in default, in order to obtain an injunction the trustor must do equity and offer to cure the default . . .but if a temporary injunction is sought in an action to rescind for fraud a tender should not be required." 5 Baxter Dunaway, Law of Distressed real Est. (Thomson Reuters 2009) Section 64:167 (citing, e.g., Stockton
V Newman

(1957) 148 Cal. App.2d 558, 563).

Because the SOT and Notice Of Trustee's Sale are rightly attacked and evinced as being void in their execution by way of fraud as they violate the statutes and the DOT that Appellees rely upon but Appellant states are void, as well as rely upon foundational documents Defendants seek to execute such a sale of Appellant's property as also being void (not merely voidable) in their execution because of a fraud perpetrated upon Appellant, tender or bond is not required and would be grossly inequitable for this or any court to order such tender or bond as it would affirm the debt in terms of its veracity and to whom it would potentially benefit without such beneficiary being clearly stated. It certainly cannot be MERS.
35

Additionally, any offset of fraudulent monies received as a result of the fraud and damages due as a result must be taken into consideration by the courts. As the California Appeals Court found in Onofrio v. Rice (1997) 55 Cal.App.4th 413 [64 Cal.Rptr.2d 74]: "[A] tender may not be required where it would be inequitable to do so." (4 Miller & Starr, Cal. Real Estate, supra, Deeds of Trust & Mortgages ? 9:154, at pp. 508-509, fn. 86.) "Similarly, when the person making the claim has a counter-claim or set-off against the beneficiary, ... it is deemed that they offset each other, and if the offset is equal to or greater than the amount due, a tender is not required .... Also, if the action attacks the validity of the underlying debt, a tender is not required since it would constitute an affirmative
of the debt." (Id. at p. 512, fns. omitted.).

The distinctions of void and voidable written instruments are well stated and accepted in California law. This is an important distinction as to the void or voidable aspects of the written instruments in question. Appellant avers here, and has in his FAC that there has never been a contract between he and Defendant BondCorp Realty Services, Inc. as Countrywide was truly the party to any contract or agreement and was not named as such and more so, was fraudulently concealed from Appellant as the true party
tO his contract.

36

"There is a manifest distinction between fraud in the execution--in the fact of whether or not an instrument has been executed at all, and fraud in the inducement, that is, where because of the fraudulent representation of the payee, the maker knowingly and voluntarily executes the note, but it is voidable because of the fraud inducing him to execute it. In the former there is no contract whatever. In the latter there is a contract which is voidable for fraud." (C./. Corp. v. Panac, 25 Cal.2d_
547, 548 [154 P.2d 710, 160 A.L.R. 1285}.)

The District Court cites Fleming v. Kagan, 189 Cal. App. 2d 791, 796-97 (1961) as its steering guide in its order. The facts are that Fleming v. Kagan supra relied heavily on C./. Corp. v. Panac supra in its decision and that ruling did in fact make a clear and unambiguous difference as to void and voidable contracts. Additionally, the SOT and NTS that were executed by MERS unlawfully and likely fraudulently naming ReconTrust do not at all apply to the district court's order. Written instruments that are void by the statutes and the DOT do not and
cannot require any form of tender.

Further, in Dimrock v. Emerald Properties, 81 Cal.App.4th 868, 878 (2000), which held: "In particular, contrarv to the defendants' argument, he was not_ required to tender any of the amounts due under the note" in order to attack a void trustee sale. The Court in Dimrock further stated: "To avoid confusion and
37

litigation, there cannot be at any given time more than one person with the power
tO conduct a sale under a deed of trust."

While the language of Fed. R. Civ. Proc. 65(c) suggests that a restraining order or injunction will not be issued without security by the applicant, this Court has wide discretion in setting the amount of a bond and it may order no bond is required. See Connecticut Gen. Le Ins. Co. v. New Images of Beverly Hills, 321 F.3d 878, 882 (9th Cir. 2003). "The district court may dispense with the filing of a bond when it concludes that there is not realistic likelihood of harm to the defendant from enjoining his or her conduct." Jorgensen v. Cassidy, 320 F.3d
906, 919 (9th Cir. 2003).

Here, there is no harm and Defendants cannot state a harm or damage as they (ReconTrust, CountrywidelBAC, BACHLS, MERS) have no authorization or documents stating, nor have stated in this case they are entitled to any such protection or relief. As importantly, ReconTrust has stated that the sale price for any such sale is far lower than any debt they demand and that Defendants will experience a greater loss were the Trustee's sale to be allowed to occur. See Exhibit B, as incorporated and made part of this appeal.

III. Merits Of Case Are Compelling And Clear And Likely to Be Successful.
It iS clear that MERS and ReconTrust act to usurp Appellant's property without lawful authority. MERS Cannot be and in fact is not the beneficiary of the
38

DOT. There is no named beneficiary in the SOT and ANY and ALL beneficiaries must be named in the SOT. Therefore the SOT (and consequently the NTS) is seriously defective and void as an instrument to be implemented to supplant Appellant from his property. Defendants act hurriedly and without authority not because they are uninformed or have made an excusable mistake, but rather because they wish to elude the central facts and claims against them, hold the wrongful trustee's sale and gain title and possession of Appellant's property to gain a superior position. The facts are that BondCorp, who has yet to respond to any complaint or motion related to this case, was in fact named as "Grantee" when it never proffered any funds and was used by Countrywide to both gain secret, concealed fees and allow Countrywide to further gain based on intentional concealments, lies,
misrepresentations and related actions.

As has been stated, the core of this matter is the claims against BondCorp acting at the behest of Countrywide. If BondCorp was found to have acted fraudulently, as asserted and supported by facts, every other claim and defense is
affected accordingly.

What this court is presented with is a defendant in BondCorp who has chosen to remain silent in the face of substantial allegations and facts against it,
39

and a foreclosing entity defendant (MERS) that is acting without authority and in
clear violation of the law.

Meanwhile, Appellant has had to defend and counter all such actions and to drag out all the facts, all while in the face of losing his family home and efforts to understand what options would be available to him to avert such a catastrophic
result.

Up until August/September of 2010, Appellant was resigned to the fact that his misfortune would likely lead to the loss of his family home. It wasn't until he received and further researched the information regarding the assignment/transfer of his DOT and Note to US BANK (June 2010) that was entirely first time news to him, that he began to understand and realize the fraud, malfeasance and misfeasance enacted upon him and then which drove him to seek relief and
damages for.

The facts of the case as pertains to BondCorp are clear and undisputed. BondCorp was not the "lender" It only acted as such to attain secret fees. BondCorp utilized illegal, fraudulent means to sell and convince Appellant that the loan BondCorp wished to engage him in was in his best interests, when it was not and that all the facts represented to him regarding the alleged loan were true, when they were not and the real facts were concealed from him and that he was defrauded of tens of thousands of dollars in the process.
40

Countrywide was an active conspirator as it allowed BondCorp to utilize its technological assets, its underwriting resources, account numbering system and other aids and benefits to entrap Appellant into a loan that was damaging, stated the wrong parties and took illegal and undisclosed fees. MERS, something of a phantom entity and ReconTrust, subsidiary of BAC and not an independent entity, acting in BAClBANAlCountrywide's interests, now are trying to come in and clean up the mess made by the fraudulent DOT and Note by BondCorp in a conspiracy with Countrywide, not because they are any real beneficiary and have or will experience any real loss, but rather to gain substantial fees from the SARM 2005-19XS Trust for foreclosing on Appellant's property. It iS truly curious as to why the proper parties in this matter are not named and Appellant posits that other, unrelated legal actions are likely a reason. That said, Appellant has shown good cause why a trustee's sale should not proceed so that the status quo is maintained while he presses his case in the District Court. Equally of interest is EXHIBIT C, as incorporated and made part of this appeal, which is a "NOTICE TO SHAREHOLDERS AND/OR CERTIFICATE HOLDERS..[. . .]" This document, recently found at the US BANK website (August 2011 ,) says many things of interest, but the most important and overriding aspect is that it is clear that US BANK acts as Trustee for SARM 2005-19XS and that by those documents and the aforementioned publicly recorded transfer and
41

assignment to US BANK as Trustee, it is also clear that MERS is no beneficiary,


nOr can be.

IV. The Balance Of Hardships Tip Sharply In Favor Of Appellant.


The Harms implicit in MERS' and ReconTrusts' orchestration and execution of an unlawful Trustee's sale will harm Plaintiff greatly. He will have to displace from his family residence of nine years and relocate by means of a subsequent writ
tO do

so. His realignment and adjustment to a less favorable and disadvantageous

surrounds will be severe and the effects therewith be long lasting. Additionally, the harms include a multiplicity of legal actions, loss or slander of title and onerous costs to litigate and recoup title and property. Conversely, the facts in this case show clearly that ReconTrust is not an authorized Trustee with power of sale. Additionally, neither it, nor BACHLS, CountrywidelBAC or MERS are beneficiaries with proper standing as the only beneficiary stated in the public record as of June 24, 2010 is US Bank. Defendants can only fail to exhibit, state or demonstrate what harm they may incur. EXHIBIT B, as incorporated into this appeal, shows that Defendants would experience a loss far greater than any alleged debt owed by Appellant. They state in their void Notice of Trustee's sale an amount of $791,751.55 as due and owing with something like $110,000.00 in unsubstantiated and inflated arrears, but ReconTrust has listed an "Opening Bid Amount" of $562,500.00 (Exhibit B).
42

Therefore, Defendants/Appellants incur no or negligible loss by the issuing of a Stay or Injunctive Relief so Appellee can properly proceed with his claims. Twice Appellant has requested a proper accounting of such arrears (EXHIBIT A) and the proper parties and true creditor(s) and to date both requests
have been ignored.

V. No Harm Is Experienced By Defendants Nor Have They Claimed Any


Harm.

In addition to the above, BAC, Countrywide, MERS, US BANK, AURORA are multi-billion dollar enterprises. A relative short stay so that this court can properly decide the serious questions of law at issue will in no way harm them. Additionally, Defendant's listed sale price is considerably less than any alleged and purported monies due by Appellant and their loss will be greater with any alleged trustee's sale.
6.

. The Public Interest Will Be Served By A Stay Or The Granting Of

Injunctive Relief Sought.

By the Court issuing a Stay or the relief requested, the public interest will have been served by virtue of the fact that the scheduled Trustee's sale is unauthorized, is based on fraudulently conceived documents and is in violation of
clearly enumerated law.
7.

Mootness

Issue.
43

Appellees have filed a MTD this appeal based on mootness. They err in their motion on many points, prominent among them being: Under 28 U.S.C. 1291, the court of appeals has jurisdiction over "all final decisions of the district courts except where a direct review may be had in the Supreme Court." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981). Section 1291 has been interpreted to confer appellate jurisdiction over a district court decision that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978)
(citations omitted).

The finality rule is to be given a "practical rather than a technical construction." Stone v. Heckler, 722 F.2d 464, 467 (9th Cir. 1983) (citation omitted); see also Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842, 845 (9th Cir. 2009) ("[T]he requirement of finality is to be given a practical rather than a technical construction." (quotation marks and citation omitted)); Eisen v. Car\isle & Jacquelin, 417 U.S. 156, 170 n.9 (1974) ("[I]t is impossible to devise a formula to resolve all marginal cases coming within what might well be called the twilight zone' of flnality." (citations omitted)). For example, an order that does nOt end the litigation on the merits may nevertheless be appealable under 1291 if it satisfies the collateral order doctrine or is certified under Fed. R. Civ. P. 54(b).
44

The lead case cite that Appellees offer this court is in fact a decision refuting mootness, but would bend certain meanings within the opinions of the Supreme Court to further its aims and unduly influence this court. They choose a case of "public nudity" as their lead argument when that same court stated "Although the issue is close, we conclude that the case is not moot, and we tum to the merits."
City of Erie v. Pap 's A.M , 529 U.S. 277, 289 (2000).

This present issue is not nearly as close as City of Erie and the merits are
indeed worthy of review by this court.

The appeals court has jurisdiction over final orders and decisions. A district court's decision is final for purposes of 28 U.S.C. 1291 "if it (1) is a full adjudication of the issues, and (2) clearly evidences the judge's intention that it be the court's final act in the matter. '" Nat '/ Distrib. Agency v. Nationwide Mut. Ins.
CO., 117 F.3d

432, 433 (9th Cir. 1997) (citations omitted); see a/so Elliott v. White

Mountain Apache Tribal Court, 566 F.3d 842, 846 (9th Cir. 2009); Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738, 747 (9th Cir. 2008); Way
V. County

of Ventura, 348 F.3d 808, 810 (9th Cir. 2003). "The purpose of 1291 is

tO disallow appeal from any decision which is tentative, informal or incomplete."

CitiCOrp Real Estate, Inc. v. Smith, 155 F.3d 1097, 1101 (9th Cir. 1998) (quotation
marks and citation omitted).
45

The district court dismissed Appellants causes of action for wrongful foreclosure, cancellation of written instruments and California UCL violations with prejudice, effectively closing the door on Appellant in his effort to try and argue those causes of action. Therefore, the appellate court has jurisdiction and right to review that order and Appellant has timely appealed them and that his claims live
for such review.

VIII. The District Court Seriously Erred In Dismissing Appellant's Claims With Prejudice And Without Leave To Amend. The Ninth Circuit and other US appeals courts have consistently ruled that prO se litigants are to be afforded the widest interpretation and instruction of the courts in order to properly assert their claims. The Ninth Circuit appeals court stated in James v. Pliler "before dismissing a pro se complaint the district court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the litigant uses the opportunity
tO amend effectively." Ferdik, 963 F.2d at 1261."(quoting Ferdik. V. Bonzelet

and Noll v. Carlson)(emphasis added)(Forgive incomplete cite). Because the district court dismissed Plaintiff's original complaint with leave
tO amend with no notice or statement of any deficiencies contained in the original

complaint, he is to be afforded the ability -- with instruction of this court as to deficiencies -- to amend his first amended complaint ("FAC") so that he may
46

clearly understand the reasons why his complaint cannot proceed as a matter of law
Or as a matter of substance.

In fact, Appellant's FAC contained two COA's that were not in the original complaint. One new COA was for Wrongful Foreclosure and the other was a new COA for Cancellation of Written Instruments (related to wrongful foreclosure). Appellant never heard from the district court on his complaint for those two COA's and therefore never had an opportunity to understand any defects within them so that he could properly cure and amend to. This court has provided neither notice nor instruction in its present order to dismiss with prejudice nor had it done so with Plaintiff s original complaint. Therefore the district court erred in dismissing with prejudice Appellant's claims and thereby disallowing him to amend to further perfect his claims. CONCLUSION Appellees (those properly represented by and to whom by, to this court) do nOt want and feverishly attempt to avoid a reasoned adjudication of the serious questions of law contained in Appellant's complaint, motions, statements and
assertions.

Fraud is always a moving target. It never sits still-- as truth does. Because
there are large financial institutions and untold beyond ramifications involved that
47

Appellant cannot calculate, this does not in any way diminish nor demean his
claims.

Appellant is here now before this court to seek its judgment as to his family home and property and the fraud and unlawful acts taken against him and it, which for generations before and after will be affected by and that Appellant trusts to - a decision that it will justly take and deliver as to the fraud and unlawful acts Appellant has asserted as well as the errant defenses and orders of the district court
in his case.

Therefore, for the strong showing of law and facts as well as reasons, the Court should stay the district court's order (a) vacating the TRO and (b) dismissing with prejudice certain of his causes of action pending resolution of the Carney's appeal and should grant at least an immediate temporary administrative stay and/or the requested relief as would be equitable and just.

DATED: November 8, 2011

Respectfully Submitted,

Michael M Carnev /s/ Michael Pro Se


48

M.

Carney

49