Carney v. Bank of America w

8/3/2019 Carney v. Bank of America w

1/49

No. 11-56421

UNITED STATES COURT OF APPEALS

FORTHE NINTH CIRCUIT

________________________________________________________

MICHAEL M. CARNEY

Plaintiff

v.

BANK OF AMERICA CORP., ET AL.

Defendants-Appellees

Appeal from the United States District Court for the Central District of CaliforniaCivil Case No. SACV 11-00571 CJC (MLGx) (Honorable Cormac J. Carney)

EMERGENCY MOTION UNDER CIRCUIT RULE 27-3

CARNEYS 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. Carney241 Rochester StreetCosta Mesa, CA [email protected]

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Appearing Pro Se

9th Cir. R. 27-3 Certificate

Pursuant to 9th Cir. R. 27-3, Appellant respectfully 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 (Carney) is a property owner in Costa

Mesa, CA, his family home of nine years being at issue, who filed suit against

Appellees Bank of America Corporation (BAC), ReconTrust, N.A.

(ReconTrust) a wholly owned subsidiary of Bank of America Corp., Mortgage

Electronic Registration Systems, Inc. (MERS), Countrywide Financial

Corporation, Countrywide Home Loans, Inc.(Countrywide), 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. AppelleesReconTrust, US BANK

and MERSappear with no stated counsel in this court other than Judith T. Sethna

(SBN 232731) who is not admitted as counsel to this court.

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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 initialEx 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 Defendants 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

COAs.

Upon submission of his FAC, Appellant also promptly filed his SecondEx

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.

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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.

Appellees/Defendants 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 COAs for wrongful foreclosure,

cancellation of written instruments (both COAs 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 courts

order granting of certain of the COAs 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 Appellants

property three times, has since scheduled as November 14, 2011, at 12:00pm at the

Court House in Santa Ana, CA as the date on which they will move to sell at

auction Appellants 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

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Defendants to request that they temporarily postpone the scheduled and alleged

trustees 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 Appellants 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.

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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: [email protected] T. Sethna (SBN 232731)Email:[email protected] SMITH LLP

355 South Grand Avenue, Suite 2900Los Angeles, CA 90071-1514Telephone: 213.457.8000Facsimile: 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

trustees 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.

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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 contain, 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 courts 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 Appellants 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

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certain of Appellants 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 Plaintiffs 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. Carney has made a showing that ReconTrust might not be the proper

trustee with legal authority to conduct the trustees sale scheduled for July

11, 2011. The issue is whether MERS properly substituted ReconTrust as

trustee in place of First American Title Companypriorto MERS assigning

its beneficial interestin the deed of trust to US Bank, and whether US Bank

has approvedof the foreclosure sale.

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[.]

Defendants have asserted in their opposition [] that MERS substituted

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

substitution was recorded, Oppn at 5, but they have not produced the

records indicating that this substitution properly occurredduring 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.

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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 courts order dismissing with prejudice Appellants 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 trustees 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 courts 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 12:00pm 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-appellants 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 GranteePlaintiff 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

nomineefor. 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 assignedAllof its beneficial interest to US BANK in June of 2010. Although

it assumes such again and unlawfully.

Herein lies the thrust of Appellants 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 answerat 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 Defendants/Appellees defense and likely further expose the

fraud and malfeasance at the root of the issues here. BondCorp as such has

remainedsilent.

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 Defendants 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 Appellants 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 (California v. Countrywide,

LC081846, Superior Court of Calfornia, 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 ill-

gotten 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 certificate holders of SARM 2005-19XS and

continues to this day.

Amid Appellants 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 SARM05-19XS(AURORA). Appellant has since

replied to this letter in accordance with Federal and California law. There has been

no reply to Appellants 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

trustees sale of Plaintiffs property, which is now scheduled for November 14,

2011.

Nowhere in the SOT or Notice of Trustees 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 Trustees 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 MBS/trust 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 Defendants/Appellees 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 Beneficiary/Investor, and as

nominee under the subject DOT and Note as it does not nameAll or any -

beneficiaries in accordance with Cal. Civ. Code 2934(a) and that the SOT and

Notice Of Trustees sale ReconTrust relies upon to execute Trustees 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 2932.5it 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 to payment 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 Trustees 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, ortheir successors in interest, and the

substitution shall be effective notwithstanding any contrary provision in any trust

deed executed on or after January 1, 1968;or (B) the holders ofmore than 50

percentof 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 Plaintiffs reply to Defendants Opposition to

OSC, as well as was recognized by the District Court, US BANK is the only

known or stated and recorded beneficiary regarding Plaintiffs 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 Appellants

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&As in

Support of TRO p. 11 at 5) nor publicly recorded any interest in the sale of

Appellants 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, ReconTrusts reliance upon an void and ultra vires assignment by

MERS, who has been shown to be NOT any realbeneficiary 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 allof 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 plaintiffs

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

Trustees 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 by 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 originalLender.. 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 Plaintiffs 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 Appellants

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 rules 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 claim.

Further, the district court is very much aware of the wide berth given pro se

litigants and yet chose to adhere to a very narrow, abusive and incorrect theory 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 rules 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

every other aspect of their defense.

ARGUMENT

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 GateRestaurant Assn v. City and County of San Francisco, 512 F.3d

1112, 1115 (9th Cir. 2008)(quotingHilton 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.Id. (quotingLopezv.Heckler, 713 F.2d 1432, 1435 (9th

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Cir. 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.Id. (quotingLopez, 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 trustees 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 trustMunger 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 trustees 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 foreclosure/trustees 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 COAs In

Carneys 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);Noll 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 rules 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 inNoll, 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 by 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 Plaintiffs 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 uponKendall 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

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from the court as to the defects in his original complaint asKendalldid -, as it

was dismissed as a late filing. In his FAC, Plaintiff has only now come to

understand the courts determination of defects that Plaintiff asserts are not fatal

and that can be cured.

Nor wasKendalla 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 defendants 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.

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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 uponKnapp v. Doherty, 123 Cal. App. 4th

76, 94 (2004) in their argument, whereby the California Appeals Court ruled that a

procedural defectalone 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. 3rd 137, 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, andscrupulous

integrity, it is not likely to be sustained. (emphasis added).

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InKnapp 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 inKnapp v.

Doherty, with Appellants allegations of void, fraudulent and unlawful

substitution of trustee and consequent notice of trustees 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 voidinstruments.

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.

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As well in Scott v. Security 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. (United 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 Trustees 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

(BACHLS/BANA) of the alleged loan, as he has multiple times made written

request as to such, with no reply.

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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 Californias statutory

scheme to protect borrowers, consumers and otherwise, from a wrongful

foreclosure. Further 2924 et seq. provides the statutory scheme by which non-

judicial foreclosure proceeds in California.

California Law is also clear in its Civil Code and in 2934a(1)(A) says all

beneficiaries 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 itfor

value received, and transferredALL 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.

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Instead they argue that MERS can, for value, transfer assign all its

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 Trustees sale instruments can be of no

legal effect and are voidas any concurrent Trustees 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 defaultfatally 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 trustees sale pursuant to a deed of trust is set forth in Civil Code section

2924, et seq. The statutory requirements must bestrictly complied with, and a

trustees 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 alsoBisno v. Sax (1959) 175 Cal.App.2d 714, 720, 346 P.2d. (emphasis

added).

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A seriously deficient not irregular in the sense Defendants assert -

substitution of trustee and consequent notice of trustees 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

COAs 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

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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 Appellants 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?

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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 defaultbut 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 Trustees 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

Appellants 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.

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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.

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"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.I.T. Corp. v. Panac, 25 Cal.2d

547, 548 [154 P.2d 710, 160 A.L.R. 1285].)

The District Court citesFleming v. Kagan, 189 Cal. App. 2d 791, 796-97

(1961) as its steering guide in its order. The facts are thatFleming v. Kagan supra

relied heavily on C.I.T. 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 courts

order. Written instruments that are void by the statutes and the DOT do not and

cannot require any form of tender.

Further, inDimrock v. Emerald Properties, 81 Cal.App.4th 868, 878 (2000),

which held: In particular, contrary 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 inDimrockfurther stated: To avoid confusion and

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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. SeeConnecticut Gen. Life 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, Countrywide/BAC, 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 Trustees 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 Appellants property

without lawful authority. MERS Cannot be and in fact is not the beneficiary of the

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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 voidas 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 trustees sale

and gain title and possession of Appellants 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,

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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 wasnt 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.

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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 BAC/BANA/Countrywides 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 Appellants 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 trustees 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

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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 Trustees 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,

Countrywide/BAC 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 Trustees 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).

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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, Defendants listed sale price is considerably less than any

alleged and purported monies due by Appellant and their loss will be greater with

any alleged trustees sale.

VI. 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 Trustees sale is

unauthorized, is based on fraudulently conceived documents and is in violation of

clearly enumerated law.

VII. Mootness Issue.

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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.

Carlisle & 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 finality. (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).

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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 turn to the merits.

City of Erie v. Paps 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

courts 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 judges intention that it be

the courts final act in the matter. Natl Distrib. Agency v. Nationwide Mut. Ins.

Co., 117 F.3d 432, 433 (9th Cir. 1997) (citations omitted);see also 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).

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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 Appellants 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 inJames 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.(quotingFerdik. V. Bonzelet

andNoll v. Carlson)(emphasis added)(Forgive incomplete cite).

Because the district court dismissed Plaintiffs 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

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

or as a matter of substance.

In fact, Appellants FAC contained two COAs 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

COAs 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 Plaintiffs original complaint.

Therefore the district court erred in dismissing with prejudice Appellants 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 Appellants 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

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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 courts order (a) vacating the TRO and (b) dismissing

with prejudice certain of his causes of action pending resolution of the Carneys

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

At Costa Mesa, CA

Respectfully Submitted,

__Michael M. Carney /s/_____

Michael M. CarneyPro Se

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