Regina J. McClendon (SBN: 184669) rmcclendon~,Iockelord.com Daniel A. Solitro (SBN: 243908) dsolitro~lockelord.

com LOCKE LORD LLP 300 South Grand Avenue, Suite 2600 Los Angeles, California 90071 Telephone: 213.485.1500 Facsimile: 213.485.1200 Attorneys for Defendants MGC MORTGAGE, INC.; LPP MORTGAGE LTD. and LOAN ACQUISITION CORPORATION

8 9 10

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA ANACAPA DIVISION
DAVID W. GATES, Trustee for the DAVID W. GATES Trust dated August 5, 1996, Plaintiff, vs. MGC Mortgage, Inc., Texas Corporation LPP Mortgage Ltd., LP, Texas Corporation Loan Acquisition Corporation, Texas Corporation Cal-Western Reconveyance Corporation, Texas Corporation DB Structured Products, Inc., Delaware Corporation Deutsche Bank National Trust Company, as trustee Washington Mutual Bank, a national banking association Wamu Asset Acceptance Corporation, SPV vehicle bank Washington Mutual Mortgage Securities Corporation, bank JP Morgan Chase Bank, National Association, a bank DOES 1 through 50, inclusive, Defendants.
) CASE NO. 1384851

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) Honorable Colleen K. Steme

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) DEFENDANTS' REQUEST FOR ) ) JUDICIAL NOTICE

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) Date:

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Time: ) Place: )

March 12,2012 9:30 a.m. Dept 5

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) [Filed concurrently with: (1) Opposition to

) Motion for Preliminary Injunction, (2)

) Declaration of Bret Maloney] ) ) ) Complaint Filed: February 1,2012

1 J

DEFENDANTS' REQUEST FOR JUDICIAL NOTICE ,Case No. 1384851 David W: Gates, Trustee v.

TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE that defendants MGC Mortgage, Inc. ("MGC"), LPP Mortgage Ltd. ("LPP"), andLoan Acquisition Corporation (collectively, "Defendants"), by and through their attorneys, respecthlly request, pursuant to California Evidence Code 88 451- 453, that the Court take judicial notice of the following evidence, in connection with their concurrently filed Opposition to Plaintiff David W. Gates' ("Plaintiff") Motion for Preliminary Injunction: 1. Attached hereto as Exhibit A is a true and correct copy of the Deed of Trust and

accompanying Riders executed by David W. Gates, trustee of the David W. Gates Trust dated August 5, 1996, as Borrower, in favor of Washington Mutual Bank, FA, as Lender, for the real property described as 1200 Palomino Drive, Santa Barbara, California 93105 (the "Subject Property") recorded with the Santa Barbara County Recorder's Office, on or about September 29, 2005, as document number 2005-0094620; 2. Attached hereto as Exhibit B is a true and correct copy of the Assignment of Deed of

Trust relating to the Subject Property recorded in the Santa Barbara County Recorder's Office, on or about June 12,2009, as document number 2009-0034366; 3. Attached hereto as Exhibit C is a true and correct copy of the Assignment of Deed of

Trust relating to the Subject Property recorded in the Santa Barbara County Recorder's Office, on or about June 12,2009, as document number 2009-0034367; 4. Attached hereto as Exhibit D is a true and correct copy of the Notice of Default and

Election to Sell Under Deed of Trust relating to the Subject Property recorded in the Santa Barbara County Recorder's Office, on or about August 9,201 1, as document number 20 11-045189; 5. Attached hereto as Exhibit E is a true and correct copy of the Notice of Rescission of

Notice of Default and Election to Sell Under Deed of Trust relating to the Subject Property recorded in the Santa Barbara County Recorder's Office, on or about October 13,20 11, as document number 201 1-0058656; 6. Attached hereto as Exhibit F is a true and correct copy of the Notice of Default and

Election to Sell Under Deed of Trust relating to the Subject Property recorded in the Santa Barbara County Recorder's Office, on or about October 13,2011, as document number 20 11-0058657;
2 DEFENDANTS' REQUEST FOR JUDICIAL NOTICE David K Gates, Trustee v. MGC er al,, Case No. 138485 1

7.

Attached hereto as Exhibit G is a true and correct copy of the Substitution of Trustee

elating to the Subject Propeity recorded in the Santa Barbara County Recorder's Office, on or about Jovember 15,201 1, as document number 201 1-0065795; and,

8.

Attached hereto as Exhibit H is a true and correct copy of the Notice of Trustee's Sale

elating to the Subject Property recorded in the Santa Barbara County Recorder's Office, on or about anuary 17,2012, as document number 2012-0002582.

Iated: February 21,2012

Respectfully submitted, LOCKELORDLLP

By:

Regina J. McClendon el A. Solitro Attorneys for Defendants MGC MORTGAGE, MC.; LPP MORTGAGE LTD. and LOAN ACQUISITION CORPORATION

3 DEFENDANTS' REQUEST FOR JUDICIAL NOTICE David K Cares, Trustee v. MGC Mortgage, Inc.. et a t , Case No. 138485 1

9,363

EXHIBIT A

Recording Requested By Fldelw National Title

AFTER RECORDING RETURN TO: gashington k u t u a l Bank, F.A. 1210 Enterprise Drive :lorence, SC 29501 4TTN: Doc Ops Mailstop FSCE 440

BCount Rr R T Of n H d JosomE.NI*LAW
.Record@r

Ufficial Record6

Recorded

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(Space Above This Une For decording Date1 FIDELITY NATITITLE CO 220641

DEED OF TRUST
03-0643-070494803-3

DEFINITIONS Words wad in multipie sections of this document ere defined below and other words ere ddined in Sections 3 11. 13. 18, 20 and 21. Certaln rules regarding tha wage of words used in thls . document ere also provided in Section 16.

IAl "Security Instrument" means this dooument, which is dated septemkr 2 0 , zoos together with a\l Wders to this document. (6) "8anower" is DAVID W. GATES, TRUST68 OF THE DAVID W. GAT58 TRUST DATED A T

,
Borrower is the trustn under t l Security l n k m e n t . hs 1C) "Ledor" is _ w s a n k . t i a s s o o i a t i ~ Lender is a orgmlzed and d a t i n g under the laws of es of w c a Lender's address is
LOO

95290

Lender Is the beneticiarv under thls Sscurltv fnatrwnant. ID) ~ ~ e t e is. s e C A L I ~ I ABE~~WEYANCE COMPANY (El "Note" means me promissory note signed by &wrwar and wd s e ~ t & m x a o , aoos e The Note states that Borrower owes Lender &mrtv-TWO

. .

Dollars U S . $ 1.~rz.302.00 ) plus interest. Borrower has promined to pay this debt r 1. 2035 in regular Periodic Payments and to pay the debt in full not later then m IFl "Roperty" means the properm that is dsrcribsd beIow under the hadlng "Transfer of Rlghts in the Roperty." (GI'Loan' means the dmbt evidenced by ma Now, plus intaram, any prspayment charges and late chargas due under the Note, end all sums due under thin Security Instrument, plus interest.

(HI "Ridem" means ell Riders to this Security Instrument that are executed by Borrower. The following Riders are to be executed by Barrower [check box as applicable]:
Adjustable Ram Ridar

[7 Gradunted Pavment Ridar

0Balionn Rider

0 Rannod Unlt Development Rider

Rate lmprovnment Rider

Condominium Rider

014 Family Rider

Biweekly Payment Rider Second Home Rider

Othar(si lspacihll 1 ) " A P P k d o Law' means all controlling applioabla federel, atate and locat statutes, regulations, 1 ordinances and edminiatrative rules and orders (that have the effect of law) as well as all applicable final, non-appealable judiciel opinions. I I J"Commnihl AasoaMon Dues, Fwl, and Aswssmum" means all dues, fees. assessments and other charges that are imposed on Borrower or the Property by a condomlniurn association, homeowners ssoociation or simllar organization. IK) "Elacbonio Funds Tranlfar' means any transfer of funds, other than a transectlon originated by check, draft, or similar paper instrument. which is inltlated through en electrank terminal, telephonic instrument. computer, or magnetic tape 80 as to order, instruct, or authorize a financial institution to debii or credit an account. Such term inaludw, but Is not limited to, point-of-sale transfers, automated teller machlne transactions, tranders initiated by telephone, wire transfers, end automated clearinghouae transfers. fL) 'Escrow Items" means those items t h a are described in Section 3. IM) "Mhcdlaneous Rocnds' means any compensation, settlement, award of damages, or proceeds. whether by way of judgment. semernent or otherwise, paid by any third pany (other than insurance proceeds peid under the wveragw de8crlbed in S e c t i i 5 ) for: (I) damage to, or destruction of, the Property; l i condemnation or other taking of all or any part of the Proparty; i) (iii)conveyance in lieu of condemnation; or (iv) misrepresentations of, or omissions as to, the value andlor condition of the Proparty. IN) "Mocgsgs Insurance" means insurance protecting Lender against the nonpayment of, or defeult on, the Loan. ( 1 "Periodio Payment" means the regularly scheduled amount due for (i)principal and interest 0 under the Note, plus lii) any amounts under Section 3 of this Security Instrument. (PI 'RESPA' meens the Real Estate Sattlement Procedures Act (12 U.S.C. Section 2601 et SW.1 and its lmplementlng regulation, Regulatton X (24 C.F.R. Pert 360% as thev might be amended from time to tlme, or any eddltional or auccegor iegislalon or regulation that governs the same subject matter. As used in this Securlty Instrument, WESPA" refers to ell requirements and restrictions that are imposed in regard to a "federally related mortgage loan' even if the Loan does not qualify as a "federally related mortgage loan" under RESPA. (Q) "SUCO..BW In Inmest of Borrower" means any party that has taken title to the Property. whether or not that party has assumed Borrower's obligations under the Note andlor this Security Instrument. TRANSFER OF RIGHTS IN THE PROPERTY This Security instrument secures to Lender: (I) the repayment of the Loan, and ell renewals, extensions end modifications of the Note; and (ill the performmee of Borrower's covenants and agreements uhder this Security instrument and the Note. For this purpose, Borrower inevocably

grants and conveys to Trustee, in trust. with power of aale, tha following described property Countq, California: located in santa Barbara LEGAL DBBCRIPTION ATTACHED HERETO AND MADE A PART HERBOF.

which currently has the address of -

i
ISabal

-%w-

, California

931~5 code1

("Property Address'):

TOGETHER WITH all the improvemant8 now or hereafter erected on the property, and all easements, appurtenances, and fixturw now or h e r d e r a part ot the propem. All raplacements and adddons shall also be wvered by tMr Security lnatrument. All of the foregoing is referred m in this Security Instrumem as the "Property." BORROWER COVENANTS that Borrower is lawfully seiaad of the esrate hereby conveyed end has the right to grant and convey the Property and that the Propem/ is unencumbered. except for encumbrances of record. Borrower warrwrts and wlll defend generally tha title tc the Property against all claims and demands, subject to any encumbrances of record. THIS SECURITY INSTFlUMENT comblnea uniform covenants for national use and non-uniform covenam wlth limited variations by JurlsdlcUon to Constitute a uniform security instrument covering real property. UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows: 1. Payment of Prinolpsl, Interat, DM M s . Prqwymmt Chargaa, and Late Charges. Borrower shell pay when due the principal of, and lntemt on, the debt evidenced by the Note and any prepayment charges and late charges due under the Note. Sorrower shall dm pay funds for Escrow Items pursuant to Section 3. Paymem due under the Note and this Securltv Instrument r shall be made in U.S. cwrancy. However, I m y check o other i m u m e n t rewived by Lender as payment under the Nota or this S w r i t y Instrument is returned to Lender unpaid, Lender may require that any or all subsequent payments due under the Note end this Security Instrument be made in one of more of the following forms, as selected by Lender: (a) cash; (b) money order; (c) certlfkd check, bank check, treasurer's check or caehiar's check, provided any such cheek is drawn upon en instlMion whose deposit8 are insured by a federal agency. instrumentality, or enthv; or (dl Bwuonic Funds Transfar. Payments are dearned received by Lender when received at lha lomion designated in the Note or at such other location as may ba designated by Lender in accordance wlth the notice provisions in Section 15. Lender may return any payment or panial payment if the payment or partial payments are insufftciern to brlng the Loan currant. Lender may ecwpt any payment or partial payment insufficient to bring the Low current, without wahrer of any rights hereunder or prejudice to its righta to refuse such paymmt or partial payments in the future, but Lender is not oMigated to apply such payments a the time such payments are accepted. If each Pnriidic t

03-0643-070194803-3

Pwment is applied aa of its scheduled due date. then Lender need not pay interest on unepplied funds. Lander may hold such unapplled funds until Borrower makes payment to bring the Loan current. If Borrower does not do so withln a reamable period of time, Lender shall either apply such funds or return them to Borrower. If not applied earlier, such funds will be applied to the outstanding principal balance under the Note immediately prior to foreclosure. No offset or clmim which Borrower mlght have now or in the future against Lender shall relieve Borrower from making payments due under the Note and thls Security Instrument or performing the covenants and agreements aecured by this Security Instrument. 2. Appllutlon of Pwnmntl or P r w r d r . Except as otherwise described in this Sectlon 2. all payments accepted and applled by Lendw shall be applied in the following order of priority: (a) interest due under the Note: ib) principal due under the Note; (c) amounts due under Section 3. Such Payments shali be applied to each Periodic Payment in the order in which it became due. Any remaining amounts shall be applied first to late charges, second to any other amounts due under this Security Instrument, and then to reduce the principal balance of the Note. If Lender re~elveg payment from Borrower for a delinquent Periodic Payment which a includes a sufficient amount to pay any late charge due, the payment may be applied to the delinquent payment end the late charge. If more than one Periodic Payment is outstanding, Lender may apply any payment received from Borrowsf to the repayment of the Periodic Payments if, and to the extent that. each payment can be pald in full. To the extent that any excess exists after the payment is applied to the full payment of one or more Periodic Payments, such excess may be applied to any iete charges due. Voluntary prepayments shall be applied first to any prepayment charges and then as described in the Note. r Any application of payments, insurance procends, o Miaceileneous Proceeds to principal due under the Note shall not extend or postpone the due date, or change the amount. of the Periodic Payments. 3. Fund for Escrow Itams. Borrower shali pay to Lender on the day Periodic Peyments are due under the Note, until the Note Is paid in full, a sum (the "Funds") to provide for phyment of amounts due for: (a) taxes and assesernents and other items which can attain priority over this h Security Instrument as a lien or encumbrance of t Property; fb) leasahold payments or ground rents on the Property, if any; (cl premiums for any and all Insurance required by Lender under Section 6; and (d) Mortgage Insurance premiums, if any, or eny sums payable by Borrower to Lender in lieu of the payment of Mortgage Insurance premluma in accordance with the provisions of Section 10. These ltems are d e d "E.crow ltems." At origination or at any time during the term of the Loan, Lender may require that Community Association Dues, Fees, end Assessments, if any, be escrowed by Borrowec, and such d m , fees and assesamems shall be an Escrow item. Borrower shell promptly furnlsh to Lander dl notices of amounts to be pald under thls Section. Borrower shall pay Lender the Funds for Eecrow Items unless Lender waives Borrower's obligation to pay the Funds for any or all Escrow Itemn. Lender may waive Borrower's obligation to pay to Lender Funds for any or all Escrow ltems at any time. Any such wdver may only be in writing. In the event of such waiver, Borrower shall pay dlrectiy, when and where payable, the amounts due for any Escrow items for which payment of Funds has been waived by Lander and, if Lender requires, shell furnlsh to Lender receipts evidencing such payment within such time period as Lender may require. Borrower's obligation to make such payment8 and to provide receipts shall for all purposee be deemed to be a covenant m d agreement wnteined in this Sewrlty Instrument, as the phrasm 'covenant and agreement" ia wed In Section 9. If Borrower la obligated to pay Escrow ltems directly, pursuant to a waiver. and Borrower falls to pay the amount due for an Escrow Item, Lender may axecc*s its rights under Seotbn 9 and pay such amount and Borrower shall then be obligated under Section 9 to repay to Lender any such amount. Lmnder mev revoke

03-0643-070494803-3 the waiver as to any or all Escrow ltems at m y time by a notice given in accordance with Section 15 and, upon such revocation, Borrower shall pry to Lander ail Funda, and In such amounts, that are then required under this Saction 3. Lender may. at any tlme, collect and hold Funds in en amount (a) sufficient to parmlt Lender to apply the Funds at the tlme specified under RESPA, end ib) not to exceed the maximum amount a lender can require under RESPA. Lender shall estimute the amount of Funds due on the basis of current data and reasonable emirnotas of expendltwm of future Escrow ltems or otherwise in accordance with Applicable Law. The Funds shall be held in an instimion whwe deposits are Insured by a federal agency. instrumentality, or entity (including Lender, If Lender is an institution whose deposits are so insured) or in any Federal Home Loan Bank. Lender shell apply the Funds to pay the Escrow ltems no later than the time specified under RESPA. Lender shall not charge Borrower for holding and applying the Funds, annually analyzing the escrow account, or verifying the Escrow Items, unless Lender psys Borrower interart on the Funds and Applicabb Law permits Lender to make such a charge. Unless en agreement is made in wriring or Applicable Law requires Interest to be paid on the Funds. Lendw shall not be required to pay Bonower any interest or earnings on the Funds. Borrowar end Lender can agrea in writing, however, that interest shall be paid on the Funds. Lender shall give to Borrower, without charge, sn annual accounting of the Funds ae required by RESPA. If there is a surplus of Funds held in ascrow, as defined under RESPA, Lender shall account to Borrower for the excess funds h emordance with RESPA. If there k a shortage of Funds held in escrow, as ddined under RESPA, Lender shall notify Borrower as required by RESPA. and Borrower shall pay to Lender the amount -aery to make up the shortage in accordence with RESPA. but in M more than twelve mclnthiy payments. If there is a deficiency of Funds held in escrow, as defined under RESPA, Lander shall notify Borrower as required by RESPA, and Borrower shall pay to Lender the amount necassary to make up the deficiency in accordance with RESPA, but in no more than twelve monthly payments. Upon payment in full of all sums uecured by this Security Instrument, Lender shall promptly refund to Borrower any Funds held by Lender. 4. Chwgm: Uars. Borrower shall pay dl taxes, aarements. charges, fines, end impositions attributable to the Property whlch can sttsln priority over this Security Instrument, leasehold payments or ground rents on the Roperty, If any, and Community Association Dues, Fees. and Assessments, If any. To the axrent that thwe items ere Escrow Items, Borrower shall pay them in the manner provlded in Section 3. Borrower shall promptly discharge any lbn which has priority aver this Sewrlty Instrument unless borrower: (a) agrees in writing to the payment of the obllgatlon secured by the lien In a manner acceptable (o Lender, but only w long ss Borrower Is performing such agreement: (bl comasts the llen in good faith by, or defsnds agrlnat enfor-nt of the lien in, legal proceedings which in Lander'e opinion opssete to pravant the enforcanent of the lien while tho= procaedings are pending, but only untll such proceedings are concluded; or (cl eeouras from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security Instrument. If Lender determines that any pan of the Property is subject to a lien whlch can attain priority over this Security Instrument, Lander may give Borrower a notice identifying the lien. Withln 10 days of the date on whlch that notice la given, Borrower shall satisfy the lien or take one or more of the actions wt forth above In this Section 4. Lender may require Borrowar to pay a onetime char* for a real estate tax verification andlor reporting servlce used by Lender in connoctlon wlth this Loan.

03-0643-070494803-3

6- m V I m U ~ Borrower shall keep the improvements now existing or hereafter r t . erected on the Property insured against loas by fire, hazards included within the term "extended coveraga." and any other hazards including, but not llmitad to, earthquakes and floods, for which Lendar requires insurance. This insurance shall be maintained in the amounts (including deductible levels1 and for ttre periods that Lander requires. What Lander requires pursuant to the preceding sentences can change during the term of the Loan. The Insurance carrlar providing the insurance shall be chosen by Borrower subject to Lender's right to dieapprove Borrower's cholca, which right shall not be exereisad unreasonably. Lender may require Borrower to pay, in connection with this Loan, either: (a) a onetlme charge for flood zone determination, certification and nacklng swkes; or (b) a one-tlma chsrge for flood zone determinadon and certification servlcas and subsequent charges aach time remappings or similar changes occur which reasonably mlght affect such determination or certification. Borrowar ahall also be responsible for the payment of any fess imposed by tha Federal Emergency Managemant Agency in connaction with the review of any flood zone determination resolring from an ob@tion by Borrower. If Borrowar fails to malntain m y of the coverages described above, Lendar may obtain insurance coverage, at Lender's option and Borrower's expense. Lender is undar no obligation to purchase any particular type or amount of coverage. Lander may purchase such Insurance from or through any company scceptabla to Lander indudlng, without timitetian, an affiliate of Lendar, and Borrower acknowledges and agrees that Lender's afflliata may receive conslderatbn for such purchase. Therefore, such coverage shall cover Lender, but mlght or might not protect Borrower, Borrower's equlty in the Roperty, or the comsnta of the Roparv, against any risk, hazard or liability and mlght provide greater or lessar coverage than was previously in effect. Borrower &nowledges that the cost of the insurance ooveraga so obtained might significantly exceed the cost of insurance that Borrower could have obtelned. Any amounts disbursed by Lender undar thls Section 6 shall become additional debt of Borrower secured by this Securlty Instrument. Theae amounts shell bear interest at the Nota rate from the date of disbursement and shell be payable, wlth such interest. upon notice from Lender to Borrowar requesting payment. All insurance pollcias required by Lender a d renewals of such polices shall be subjact to Lender's right to disapprove such pollcies, shaH indude a standard mORgafp clause, and. shall name Lender as mortgagee andlor as an addltlonal loss pay- and Borrower further agrees to generally assign rights to insurance p r o c d s to the holder of the Nota up to the amount of the outstanding loan balance. Lendar shall hwe the right to hold the policies and renewal certificetee. If Lander requires, Borrower shall promptly ghre to Lendar all rmaipta of paid premiums and renewal notices. If Borrower obtains any fonn of insurance covarage, not otherwise required by Lender, for damage to, or dasnuctlon of, the Propnty, such policy shall include a atandard mortgage clause and shalt name Lender as mortgngae andlor as an sddltional loss paysa. Eorrowar hereby f b o k n l y end hrerocclbly awlgns to Lender all of Borrower's right, title and interest in and to all proceeds from any lnwrann, pollcy (whether or not the insurance policy was required by Lender) that are due, paid or payable with respect to any damage to such proparty, regardless of whether the Insurance policy is established before, on or after the date of thls Security Instrument. By absolutaly and Irrevocably aseignlng to Lender all of Borrower's rlghts to receive any and all proceeds from any lnwranca pollcy, Borrowar hereby waives, to the full extant allowed by law, all of Borrowa'a rights to recdva any a d all of such insurance proceeds. Borrowar hereby absolutely end inwombly ensigns to Lendar dl of &rower's right, dtla and interest in a d to (a) any and all claims, pfcacwn and future, known or unknown, absolute or contingent. (b) any and all cauaea of action. (o) any and all judgments and settlements (whether through litigation, mediadon, arbitration or otherwke), (d) any end all funds sought against or from any party or partie6 whosoever, and (e) any and all funds received or receivable in

03-0643-070494803-3

connection with any damage to such property, resulting from any cawe or causes whetsoever, including but not limitad to, land subsidence, lendsllde, wlndatorm, earthquake, fire, f l w d or any other cause. Borrower agrees to execute, acknowledge if requested, and deliver to Lender, andlor upon notice from Lender shall request any insurance agency or company that has issued any insurance policy to execute and deliver to Lender, any sdditlonel inauuments or documents requested by Lender from time to time to evidence Borrower's absolute and Irrevocable assignments set forth in this paragraph. In Me event of loss. Borrower shall glve prompt notice to the insurance carrier end Lender. L W e r may make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree in writing, my insurance prowads, whether or not the underlying insurance was required by Lender, shell be epplled to restoration or repair of the Property, if the restoration or repair is aconomicaliy feaaible and Lender's sacwin/ Is not leswned. During such repelr end restoretion period, Lender shall have the right to hold such insurance procaeds until Lender has had an opportuniry to inspect such hopqrly to ensure the work hss been completed to Lender's satlsfacUon, provided that such inspection shall be undertaken promptly. Lender may disburse proceeds for the repairs and reatoration in e single payment or in a sttries of progress payments as the work is completed. Unless en agreement ia made in writing or Applicable Law requlres Interest to be paid on such insurance proceeds. Lender shall not bs required to pay Borrower any intereat or earnings on such proceeds. Fees for public adjusters, or other thlrd pertien, retained by Borrower shall not be paid out of the insurance proceeds and shall be the sole obligation of Borrower. If the restoration or repair is not economically feasible or Lender's security would be lessenad. the insurance proceeds shall be applied to the sums sacured by this Security instrument, whether or not then due. with the excess, if any, paid to Borrower. Such insurance proceeds shell be applied in the order provided for in Section 2. if Borrower abandons the Propwty, Lender may file, negotiate and settle eny available insurance claim and ralated matters. If Borrower does not respond within 30 days to a notice from Lender that the insurance carrier has offered to settle e claim. than Lender may negotiate and settle the claim. The 3 W e y period will b M n when the notlca is given. In either event, or if Lender acquires the Property under Ssction 22 or otherwb, Borrower hereby assigns to Lander (a) Borrower's rights to any insurance proemir in an amount not to exceed the amounts unpaid under the Note or this Securky Instrument, and (bt any other ot Borrower's righta (other than the right to any refund of unearned premiums pdd by Borrower) under dl insurance policies covering the Property, insofar as such rights ere epplicable to the coverage of the Property. Lender may use the insurance proceeds either to repair or restore the Property or to pay amounts unpaid under the Note or this Security Instrument. whether or not then due. 8 Oewp.noy. Borrower shall occupy, astaMish, and use the Property as Borrower's . principal residence within sixty days after the e x m i o n of this Securlty Instrument end shell continue to occupy the Property as Borrower's principal realdonca for st least orm year after the date of occupancy, unless Lender otherwlw agrees in wrltlng, whlch consern shell not be unreasonably withheld, or unless extenuating clrcurnstances exlat whlch are bsyond Borrower's control. 7. Presnwnion. Malntanmca d Prohctlon of tha Prapnty; Inspmfona. Borrower shall not destroy, damage or impair the Property, w remove or damolish any buildlng thereon, allow the Property m deteriorate or commit waste on the Property. Whaher or not Borrower is residing in the Property, Borrower shall malntaln the Property in good condition and repair in order to prevent the Property from deteriorating o decrendng in vaCe due to its aondklon. Unleas it iis determined r pursuant to Sectlon 6 that repair or rwtoratlon is not wommkdly feasible, Borrower shall promptly repair the Property in good and workmanlike manner if damaged to avoid further

03-0643-070494803-3 deterioration or damage. Lander shall, unless otherwise meed in writing between Lender and Bwrower, have the right to hold insurance or condemnation proceeds. If insurance or condemnation proceeds are paid in connection wlth damap to, or the\taking of, the Property, Borrower shall be responsible for repairing or restoring the Property only if W a r has released proceeds for such purposas. Lender ma/ disbursa propeeds for the rspeirs and restoration in a single payment or in a series of progress paymente as the work is completed. If the insurance or condemnation prcceeds are not s~fflclentto repair or restore the Property, Borrower is not relieved of Borrower's obligation for the completion of such repair or restoration. Lender or its agent may make reawnable antrim upon and inspections of the Property. if it has reasonable came. Lender may inspect the Wador of the improvemants on the Property. Lender shall ghre Borrower notica at tbe time of or prior to wch an interior inspection speolfying such reasonable cause. Lender does not make am/ warranty or representation ragarding, and assumes no responsibility for, the work done on the Roperly, and Borrower ahdl not have any right to rely in any way on any inspectton(o) by or for LmUer or its agent. Borrower shall be solely responsible for determining that tho work is done in a good, thorough. efficient and workmanlike manner in accordance wifh all applicable laws. r Borrower shall (a) appear in and defend any action o proceeding purporting to affect the Security hereof, the Property or the riohta or power8 of Lmder or Truetee: (b1 at Lender's option. assign to Lander, to the extent of Lender's intareat, any cldms, demands. or causes of action of any kind, and m y award, court judgement, or proceeds of mlament of any such clelm, demand or cause of aotion of any kind which Borrower now has or may hereafter acquire arising out of or relating to any interast In the acquisition or ownership of the Property. Lender and Trustee shall not have any duty to prosecute any such claim, demand or causa of action. Without limiting the foregoing, any such claim, demand or cause of action ari~lng of or relating to any interest in out the acqulsition or ownership of the Property msy indude (1) any such injury or damage to the Proparty including without limit inlury or damage to any m c t u r s or irnprovamant situatad thereon, (ii) or any claim or cause of action in favor of Borrower which arises out of the transaction financed in whokt or in part by the making of the loan secured hereby, (iii) any claim or cause of action in favor of Borrower (exoept for bodily injury) which arises ~i a result of any negligent or improper construction, installaion or repafr of the Property lncludlng without lirnlt, any surface or subsurface thereof, or of any building or structure thereon or (iv) any proceeds of insurance, whether or not required by Lander, payable ar a result of any damage to or otherwine refaring to the Propeny or any interest the&. Lender mey apply, use o release such monku, S r o received by it in the same manner as provkled in Paragraph 6 for the pmoaeds of insurance. 8. BomwWs Loan AppkmWn. Borrower shall ba in default If, during the Loan application process. Borrower or any parsons or entitias acting at the direction of Borrower or with Borrower's knowledge or wnsent gave materldly false, miaisadlng, or inaccurate information or statements to Lender (or failed to provide Lender with materid information) In connection with the Laan. Material representations include, but ere not ilmited to, represenrations concernlna Borrower's occupancy of the Propemv as Bwrower's principal residence. 9. Pmtmth of l u ~ d w ' o Intomat in the PmpMv ad RIgM8 U n d a thb 8.cwlty hutrumnt. If (a) Borrower fails to perform the covenan, and WreMnenta conmlned In thls Security Instrument, (bl there Is a legal prowding t h l m@ht 8lgnlRcartly afFect Lander's intersst in the Property andlor rights under thls Security Inmumant (such m a proceeding In bankruptcy. probate, for condemnation or forfeiture, for enforcement of a iwr which may attain priority over this Security Instrument or to enforce laws or regulations), or (c) Borrower has abandoned the Property, then Lender may do and pay for whetwvw is remomble or approprleta to protect Lander's interast in the Property and righm under this Sscurky Instrument, including protecting

Page 8 of 17

03-0643-070494803-3 andlor assessing the value of the Property. and securing andlor repairing the Property. Lender's actions can include, but are not limited to: (a) paying eny sums secured by a llen which has priority over this Security Instrument; (b) appearing in court; and (c) paying reasonable attorneys' fees to protect its interest in the Property andlor rights under this Security Instrument, including its secured position in a bankruptcy proceeding. Securing the Property includes, but Is not limited to, entering the Property to make repairs, hangs locks, replace or boerd up doors and windows, drain water from pipes, eliminate building or other code violations or dangerous conditions, end , have utilities turned on or off. Although Len& may take action under this Section 9 Lender does not have to do so and is not under any duty or obligation to do so. It is agreed that Lender incurs no liability for not taking any or all actions authorized under this Section 9. Any amounts disbursed by Lender undar thls Seution 9 shall become additional debt of Borrower secured by this Security Instrument. These amounta shall beer interest at the Note rae from the dae of disbursement and shall be payable, wlth such interest, upon notice from Lender to Borrower requesting payment. If thls Security Instrument is on a laarehold, Borrower shall comply with dl the provisions of the lease. If Borrower acguires fee title to the Property, Me leasehold and the fee title shall not merge unless Lender agrees to the merger in wrhing. 10. M m a g a Inwrmce. If Lender required Mortgage fnsurance ss a condition of making the Loan, Borrower shall pay the premiums required to maintain the Mortgage lnsurance in effect. If, for any reason, the Mortgage lnsurance coverage required by Lender ceases to be available from the mortgage insurer that previously provided such insurance and Borrower was required to make separately designated payments toward the premiums for Mortgage insurance, Borrower shell pay the premlums required to obtain coverage substantially equivalent to the Mortgage Insurance previously in effect,at a coat substantially equivalent to the cost to Borrower of the Mortgage Insurance previously in effect, from an alternate mortgege insurer selected by Lender. If substantially equivalent Mortgage lnsurance coverage is not available, Borrower shall continue to pay to Lender the amount of the separately designated payments that were due when the insurance coverage ceased to be In effect. Lender will accept. use end rerein these payments as a non-refundable loss ramwe in lieu of Mortgage Insurance. Such loss r m v a shall ba non-refundable, notwithatanding the fact that the Loan is ultimately paid in full, and Lander shall not be required to pay Borrower any interest or earnings on such loss r8 -. Lender can no longer require lose reserve payments if Mortgage lnsurance coverage (in the amount and fDr the period that Lender requires) provided by an insurer selected by Lender again becomes available. is obtained, and Lender requires separately designated payments toward the premiums tor Mortgage Insuranca. If Lender required Mortgaga lnsurance es e condition of making the Loan end Borrower was required to make separately deslgneted payments toward the prsmiums for Mortgage Insuranca, Borrower shell pay the premiums required to maintain Mortgage Insurance in effect, or to provide a non-refundable loss rewwa, until Lander's requirement for Mortgage lnsurance ends in accordance with any written agreement between Borrower end Lender providing for such termination or until tarmination is required by Applicabla Law. Nothing in this Section 10 affects Borrower's obligation to pay interest at the rate provided in the Note. Mortgage Insurance ralmbursss Lender (or any entity that purchases the Note) for certain h losses it may Incur ifBorrower does not repay t e Loan ss agreed. Borrower is not a party to the Mortgage Insurance. Mortgage insurers evaluate their toral risk on all such insurance In force from rime to time, and may enter into agreements with other pmlsr that shara or modlfy thdr risk, or reduce losses. These agreements are on terms and condltlons that are satl.fectory to the mortgage Insurer end the other party (or parties) to these agrwm8nts. the^ agreements may require the mortgage

03-0643-070194803-3 insurer to make payments using any sourw of funds that the mortgage insurer may have available (which may include funds obtained from Mortgage Insurance premiums). As a result of thase agreements, Lender, any purchaser of the Note, another insurer, any reinsurer, any other entity, or any affiliate of any of the foregoing, may receive (directly or indirectly) mounts that derive from (or might be characterized as) a portion of Borrower's payments for Mortgaga insurance, in exchange for sharing or modifying the mortgage insurer's risk, or reducing losses. f such agreement provldes thst an affiliate of Lender takes a share of the insurer's risk in exchange for a share of the premiums paid to the insurer, the arrangement is often termed 'captive reinsurance." Further: b) Any such agrelvnentr will not offact tho amounw that Borrower has agraad to pay for r m of the Loan. Such agrMm.nt. wlll not l n m ~ the e Mortgage Insursnw, o any othar h amount Bonower will o m for Mortgags In.unnoe. and t y wlR not mlMe Borrower to any h ntfund. (bl Any such agnemcna will not a f f aIha right. Be -r h u If any with raspact to lite Mortgage Inaursnoe undar the H o m o w n m Protaction Act of 1998 or any other law. The80 rights may include the right to r v d w wtdn dkclasuns, to roquam and obtain ceinwllation of the Mortgage Insuranw. to have the Moltprps lnaunnw tsrminated sutom.tlwlly, andlor to mwive a refund of any Mortgsge lnsumnw pnmiumr that wem unaamed M the t h of such canwllaion or tarmlnetion. ?'I.Aulgwnant of Mbcdlmmua Rwwda; Fdakum. All M i d l a n e w s Proceeds are hereby assigned to and shall be paid to Lender. If the Property is damaged, such Micellsneous Proceeds shall be applied to restoration or feasible and Lender's security is repair of the Property. if the rastoration or repair is ~conomically not lessened. During such repair and restoration period, Lender shall have the right to hold such Miscellaneous Proceeds until Lender has had an opportunity to inspect such Property to ensure the work has been completed to Lender's setlsfaction, provided that such inspection shall be undertaken promptly. Lender may pay for the repalrs and restoration in e single disbursement or in a series of progress payments as the work is completed. Unless an agreement is made in writing or Applicable Law requires interest to be paid on such Misceilaneous Proceeds. Lender shall not be required to pay Borrower m y interest or earnings on such Mi&laneous Proceeds. If the restoration or repair is not economically faasible or Lander's security would be lessened, the Miscellaneous Procaeds shall be applied to the sums secured by this Security instrument, whether or not then due, with the excess, if any, paid m Borrower. Such Miscellaneous Proceeds shall be applied in the order provided for in Section 2. In the went of a total taking, dagtwction, or lose in value of the Property, the Miscellaneous Proceeds s W i be applied to the sums secured by this Security Inmumant, whether or not than due, with the excess, if any, paid to Borrower. In the event of a partial taking, destruction, or loss in value of the Propam in which the fair market value of the Property immediataly before the pmial taking, dastruction. or loss in value is equal to or greater than the amount of tha sums secured by this Security Instrument immediately before the partial taking, destruction, or loss in value, unleslr Borrower and Lender otherwise agree in writing, the sums secured by this Security Inatrumant shall be reduced by the amount of the Miscellaneous Proweds multiplied by the following fraction: (a) the total artmUnt of the sums secured immediately before the pedal taking, destrucfion, or loss in value divided by (b) the fair market value of the Proparty immedlatdy before the partial taking, destruction, or loss in value. Any balance shall be paid to Borrower. In the event of a partial taking, destruction, or loss in vaiue of the Proparty in which the fair market vaiue of the Property immediately before the partial taking, destruction, or loss in value is

03-0643-070494803-3 less than the amount of the sums secured immediately before the partial taking, destruction, or loss in value. unless Borrower end Lender otherwise agree in writing, the Miscellaneous Proceeds shall be applied to the sums secured by this Security Instrument whether or not the sums are then due. if the Property is abandoned by Borrower, or if, efter notice by Lender to Borrower that tha Opposing Party (es defined in the next sentence) offers to make an award to settle a claim for damages, Borrower fails to respond to Lender wlthln 30 days after the date the notlce is given, Lender is authorized to collect and apply the Mlscellanaous Proceeds either to restoration or repair of the Property or to the sums secured by this Security Instrument, whether or not then due. "Opposing Party" meam the third party that owes Borrower Miscellaneous Proceeds or tha party against whom Borrower ha* a right of action in ragard to Miscellaneous Proceeds. Borrower shall be in default if any action or proceeding, whether civil or criminal, is begun that, in Lender's judgement, could resuh In forfeiture of the Property or other material impairment of Lender's interest in the Property or rights under this Security Instrument. Borrower can cure such a default and, if acceleration has occurred, reinstate as provided in Saction 19, by causing the action or proceeding to be dismissed whh a ruling that, in Lender's Judgement, precludes forfeiture of the Property or other material impairment of Lender's interest in the Property or rights under this Securlty Instrument. The p r o d s of any award or clelm for damages that are attributable to the impeirment of Lender's interest in the Propeny are hereby aaslgned end shall be paid to Lender. All Miscellaneous R o d s that we not applied to restoraion or repair of the Property shell be applied In the Mder provided for in Section 2. 12. Borrower Not Releeaed: Forbearacr, By Lmda Not a W.hm. This Security instrument cannot be changed or modlfied except as otherwise provlded herein or by agreement in writing signed by Borrower, or any Successor in interest to Borrower and Lender. Extension of the time for payment or modification of amortization of the sums secured by this Security lnstrument granted by Lender to Borrower or any Succegsor In Interest of Borrower shall not operate to in Intersst of Borrower. Lender shalt not be release the liability of Borrower or m y Su-or required to wmrnence proceedings against any Successor in Interest of Borrower or to refuse to extend time for payment or otherwise modify amortization of the sums secured by this Security lnstrument by reason of any demand made by the original Borrower or any Successors in Interest of Borrower. Any forbearance by Lender in exercising any right or remedy includlng, wlthout limitation, Lender's ~cceptance papayments from third persona, entities or Successors in Interest of of Borrower or in amounts less than the anount then due, shell not be a waiver of or preclude the exercise of any right or remedy. No waiver by Lender of any right under this Security lnstrument shell be effective unless in writing. Wdver by Lender of any right granted to Lender under this Security lnstrument or of any provision of this Securky lnatrument as to any transection or occurrence shell not be deemed a waiver as to any future transaction or occurrence. 13. Joint and SnmmI Lbbfllty; Cwlglwn: 8ucarron m d Asdgnr Bound. Borrower covenants and agrees that Borrower's obligations and liability shall be joint end severd. However, any Borrower who cc-eigns this S s c W instrument but does not execute the Note (a "co-signer'): (a) is wdgning this Security l n n ~ m e n only to mortgage, grant and convey the t co-signer's interest in the Roperty under tho terms of thie Securlty Instrument; (b) is not parsoneliy obligated to pay the sums secured by this Security Instrument; end (c) agrees that Lender and any other Borrower can agree to extend, modify, forbear or make any accommodations with regard to the terms of this Security lnstrument or the Note without the co-Signer's consent. Subject to the provisions of Section IB, any Successor in lnterest of Borrower who assumes Borrower's obligations under this Security Instrument in writing, and is approved by

03-0643-070494803-3

Lender, shall obtaln all of Bo

rights and benefits under h s ti

Security Instrument. Borrower

0 and benefit the successors and assigns of 1

with Borrower's

not charge fees that are expressly interpreted so thst with the Loan exce hlch sets rnaxlmum loan charges. and that law is finally loan charges collected or to be collected in connection

Applicable Law requirement Instrument.

satisfy the corresponding requirement under this Security

against agreement by Instrument or the Note w

03-0643-070494803-3 conflicting provision. As used in this Security Instrument: ie) words of the masculine gender shall mean and include corresponding neuter words or words of the feminine gender: (b) words in the singular shall mean and include the plural end vice versa; and (c) the word 'may" gives sole discretion without any obligation to take any action. 17. Borrower's Cow. Borrower shall be given one copy of the Note and of this Sacuiny instrument. 18. Tmnahr of hRopa(r or e Buwltdel i n t n r l tn Bmwnvef. As used in this Sectbn 18, "Intarest in the Property" means any legd or beneficla1 interest in the Property, including, but not limltad to, those beneficid interests trmsterred in a bond for deed, contract for deed, installment sales contraot or escrow agreement, the intent of which is the tranafer of title by Borrower at a frnure date to a purchaser. Ifall or any part of the Property or any Interest in the Property is sold or transferred (or if Borrower is not e natural person and a beneficial interest in Borrower is sold or wansferrad) without Lender's prior w r h n conssnt, Lander may require immediate payment In full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if such exerclse is prohibited by Applicable Law. if Lender exercises this option, Lender shall give Borrower notice of acceleretion. The notice shall provide a period of not less then 30 days from the date the notice is given in accordance wlth Section 15 within which Borrower must pay all sums secured by this Security instrument. If Borrower tails to pay t h sums prior to the expiration of this period, Lander may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. 19. B o n o d s Wght to R.in.tat. Aftar Aemhmtbn. If Borrower meets certain wnditions, Borrower shell have the rlght to have enforcement of this Security lnstrument discontinuad at any time prior to the earliest of: (a) five days before sale of the Property pursuant to any power of crde contained in this Security Instrument; (b) such other perlod as Applicable Law might specify for the terrnlnation of Borrower's right to reinstate; or (c) entry of a Judgementenforcing this Security Instrument. Those wnditions are that Borrower: (a) pays Lender all sums whlch then would be due under this Securlty instrument and the Note as if no acceleration had occurred: (b) cures any default of any other mvenants or agrements; (c) pays dl expenses incurred in enforcing this SBcuritv Instrumenr, includlng, but not limited t , rea8onable aftornew' fees, property inspection o and valuation fees, end other feas incurred for the purpose of protecting Lender's interest in the Property end rights under this Security Instrument; end (d) takes such action as Lender may reasonably require to assure that Lender's interest in the RopertV end rights under this Security Ins+.rument, end Borrower's obligation to pay the sums sewred by this Securiry Instrument, shell continue unchanged. LanUer may require that Borrower pay such relnstasment sums and expenses in one or more of the following forms, as selected by Lender: (a) cash; lb) money order; (c) certlflad check, bank check, treasurer's cheok or cashier's check, provided any such check is r drawn upon en institution whose deposits are insured by a federal sgencv. instrumentality O entity; or (d) Electronic Funds Transfar. Upon reinstatement by Borrower, this Security Instrument and obligations seoured hereby shall remain fully effective as if no accderation h6d occurred. mwever, this right to reinstate shall not apply In the cane of acceleration under Section 18. 20. sab of N . c h n g e of ~ o l n M: 8edmc Math of (kkvmca. he me or a p&d interest in the Note (together with this Securlty Innrumwit) cen be sold one or more times without prior notice to Borrower. A ssk might result in a change in the en* (known a the a "Loan Sanricer") that collects Periodic Paymanta due under the Note and this Sffiudty instrument and performs other mortgage loan servicing obligations undsr the Note, this Security instrument,

03-0643-070494803-3 and Applicable Law. There also might be one or more changes of the Loan Servlcar unrelated to a sale of the Note. If there is a change of the Loan Servicer, Borrower will be given written notice of the change which will state the name and address of the new Loan Sewlcer, the address to which payments should be made and any other information RESPA requires in connection with a notioa of transfer of servicing. If the Note is sold and thereafter the Loan is a e ~ i c e d a Loan Sarvicer by other than the purchaser of the Note, the mortgage loan servicing obligations to Borrowar will remain with the Loan Servicar or be transferred to a successor Loan Se~icer and are not assumed by the Note purchaser unless otherwlse provided by the Note purchaser. Neither Borrower nor Lender may commence, join, or be joined to any judicial action (as either an individual litigant or the member of a class) that arises from the other pwty's actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, thls Security Instrument, until such Eorrowar or Lender has notified the other party (with such notlce givan in compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a raasonable period after the giving of such notice to take corrective actlon. If Applicable Law provides e tlme period which must elapse before certain action can be taken, that time period will be deemed to be reasonable for purposes of this paragraph. The notlce of acceleration and opportunity to cure given to Borrower pursuant to Section 22 and the notice of acceleration given to Borrower pursuant to Section 18 shall be deemed to satisfy the notice and opportunity to take corrective action provisions of this Section 20. 21. n a z m h s Subnoneas. As used in this Section 21: (e) "Hazardous Substances" are those substances deflned as toxic or hazardous substances. poltutants, or wastes by Environmental Law and the following substances gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides, volatile solvents, materials containing asbestos M formaldehyde, end radloactive materials; (b) "Environmental Law" means federal laws and laws of the jurisdiction where the Roperty is located that relate to health, safety or environmental protection; (c) "Environmental Cleanup' indudes any response action, remedial actlon, w removal action, as defined in Environmental Law; and (dl an 'Environmental Condition" means a condition that can cause, contribute to, or otherwise trigger an Environmantal Cleanup. Borrower shall not cause or permlt the prasence, use, disposal, storage, or release of any Hazardous Substances, or threaten to release any Hazardous Substances, on or in the Property. Borrowar shall not do, nor allow anyone else to do, anwing affecting the Property (8) that IS in violation of any Environmental Law, Ib) which creates an Environmental Condltion, or lc) which, due to the presence, use, or release of a Hazardous Substance, creates a condition that adversely affects the value of the Property. The preceding two sentences shall not apply to the presence. use, or storage on the Property of small quantities of Haz8fdous Substances that are generally recognized to be appropriate to normal rssidential uses and to maintenance of the Property (including, but not limited to, hazardous substance in consumer products). Borrower shall promptly give Lender written notice of (a) any investigaffon, claim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the Propany and any Hazardous Substance o Environmental Law of which Borrower has actual r knowledge, (b) any Envlronmental Condltlon, Including but not limited to, m y spilling. leaking. discharge, release or threat of release of m y Nazardous Substance, and lcl m y condition caused by the prasence, use, or release of a Hazardoua Substance which adversely affects the value of the property. If Borrowar learns, or is notlfled by any governmental or regulatory aurhorlty. or any private party, that any removal or other remadlation of any Hazerdous Substance affecting the Property is necessary, Borrower shell promptly taka all necessary remedial actions in accordance with Environmental Lew. Nothing herein shall creme any obllgatlon on Lender for an Environmantal Cleanup.
CWPORNIA 32838 106-01)

03-0643-070494803-3

NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows: 22. Accdercltion: Rarnedii. Len* ahall give notics to Borrower prior to lcceladon fdlowlng Borrower's branch of m y oovmmt a clgraemant in this Sscurlty h$tnrment (but not prior to acderation under Sectkin 18 unksr AppllcllMe L.w pmvldw otherwka). The notice shall specify: (a) the defnult; (b) the action required to cum the default (0) a dm, not h a than 30 days from the date the notke is w a n to Bormwer, by which the default m w t be cured; and (dl that failure to ours the default on or before the date epacified in the notice m y result in sccebrsWon of the sums wcunrd by thls Securlty lrubument and sale of the Properly. The notlcs ahdl further Infonn B o m r of UIO rigM to rehutate &r aeMlMaWon and tha rlght to brlng a court d o n to s . t the nona*l.tancs of a dsfault or any otha dahnsa of Borrower to .r accdrdon and sde. I iha dafnult k not c u r d on or b.hwe the dm spedRed in tha notice. f Len& at itr optlon may require lmnwdh In full of ail auma ..curad by t h Sewrlty h Instrument without further demand end #nay Invoke tho power of sale and any other r m n d k t perrnltlsd by Appllwbb Law. Lender shall & entltld to collect all expenses incurred In pumulng tho remedies provided In this S d o n 22. lnclwlkg, but not llmlted to. rassonabla attorneys' feas and costs of title evidence. If Borroww or any su-or h Interest to Borrower f f l ~ e r(or h m flhd against Borrower or successor in intsmt to Borrower) a bwknrptcy p.titlon under Thls It or any sucmmw titb of the U n M Stmw Code whld, pmvldw for UIO curing of pmp.tWon default due on tha Note. lntaut st a c s h detamind by the Coun .hsll & pdd to Lender on poat-petition anears. If Lsndar invokes the power of uk, Lmdw shdl exwute or caum Trustee to executa a written notice of the of the oocurranoe of and went of default and of Lander's e M o n to cause the Property to be sold. Trustee rhall c u thb notice to be record.d I each county In whloh any w n s Lender a Tnistm shH mall w p b of the notlw as preacrlbed by part of the Roper(y i lo&. A p p l i l a Law to Borrower and to the othw peraona pmaorib.d by AppNcabb Law. T ~ s h ahail . give pubRc notice of oak to the parsons (md in the m o m pmaibwl by AppllwMa Law. After the time mqulrsd by Appkabh Law, T ~ t e e without danund on B m e r . . , Msell UIO Propsrty at public auction to the highest bidder at the tkns end placa and under the terms dealgnmd In the notice of ads In one or more parcels and I any order T r u s ~ detwmlnea. T m w may Wtpona n . sale of all or any pared of the Property by public mamcsrmnt a the time. and p*ca of any prwiwsty sdnduled ado. knd.r or it.derignee may purchme UIO Proparty at any sale. Trustee shall deliver to the p r m b r Trustee's dssd m w y l n g the Rop.rty without any eovanant or waranty, expmsmd or 1rnpH.d. Th. r.oltlk I UO Tnrtas's dead shall be p m f d a n I l evlcbnce of UIO truth of tha atotamem mad. t h d n . Trumh. ahd q p l y tha proowdm of the d e in the following order: (a) to ail axpmaer, of the sds, Mudhp. but not llrnltsd to. restonable Truetee's and attornoya' 1m: (b) to dl s u m secured by thk Saourlty Inatrumnt; and (c) any excess to the person or penone legally ontnkd to it. 23. Reconveyance. Upon payment of ell sums secured by thls Security Instrument, Lender shall request Trustee to reconvey rhe Roperry and shall surrender this Security Instrument and ell notes evidencing debt secured by this Security Instrument to Trustee. Trustee shall reconvey the Property without warranty to the person or persons legslly entitled to it. Lender or the Trustee (whether or not the Trustm Is flllated wlth Lender) may charge such person or persons a reasonable fee for reconveying the Property, but only if the fee charged does not exceed the fee set by Applicable Law, the fee is conclusively presumed to be reasonable.

03-0643-070494803-3

24. Subaitula Tnmtw. Lender. at its option. may from time to time appoint e successor trustee l o any Trustee appointed hereunder by an instrument executed and acknowledged by Lender and recorded i n iha office of the Recorder of the county in which the Property is locatad. The instrument shall contain the name of the original Lender. Trustee end Borrower, the book end page where this Security lnstrument Is recorded and the name and address of the succeeeor trustee. Without conveyance of the P r o m , the successor trustee shall succeed to all the title, powers and duties conferred upon the Trustee herein and by Applicable Law. This procedure for substlnnlon of trustee shall govern to the exclusion of all other provisions for aubstitutlon. Trustee may destroy the Note rmd the Security lnstrument threa (3) years after iseuanoe of 6 full reconveyanca or release (unless directed in such request to retain them). 26. StMemsnt of Obligation Fee. Lender may collect a fee not to exceed the maximum amount permitted by Applicable Law for furnlahlng the statement of obligation as provided by Section 2943 of the Civil Code of California.

BY SiGNlNG BELOW, Borrower accepts and agraao to the terms and covenants contained in this Security Instrument and in any Rider executed by Borrower and recorded with it.

DAVID W.GATES. TRUSTEE OF THE DAVIDW.OATFS TRUST DATED AUGUST 5.1990

(Spece Below This Line For Acknowledgment) State of [email protected]~W~~IA county of

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i l

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SS.

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personelly known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) who80 narnels) islare subscribed M the within instrument and acknowledged to me that helshehhey executed the same In hislherltheir authorized capacity(les), end that by hle/herltheir signature(s) on the instrument the person(s) or the entity upon behelf of which the personfs) acted, executed the instrument. Witness my hand and official seal

e Notary Public in and for the State ofJAt&

/D4r/O

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m;S~jd/v

EX//&

> 6 - / J - 0?

Order No. 220641

EXHIBIT "ONE"
That portion of Parcel 1 of Mission Ranchos, in the County of Santa Barbara, State of California, according to the mep thereof filed October 11, 1956 in Book 37, Page 5 of Records of Survey, in the offlce of the County Recorder of said County, described as follows: Beginning at the Northwest corner of the tract of land described in the Deed to Joseph A. Berti. recorded August 9, 1956 as Instrument no. 15663 in Book 1395, Page 23 of Official Records, records of said County, being a point of the Westerly line of said Parcel 1, from which a 2 inch brass capped survey monument set at the Northwest corner of Parcel 1 bears North 01 4'20" East 377.56 feet; thence along the Northarb tine of said Berti tract of land, the following courses and distances; North 79047' East, 101.89 feet; South 83O53'30' East 50.03 feet: North 56O13' East 197.01 feet: North 6025'20" East 158.91 feet; and South 49b06'10"~ast 49.i9 feet to a 314 inch pipe on the center line of Pelomino Road and a point on the Easterly line of said Parcel 1 at the beginning of a non-tangent curve, concave to the West, having a radius of 100.23 feet, a delta of 13028'30"and whose radial center from said point bears North 49O06'10" West; thence along the Easterly, Northerly and Westerly lines of said Parcel 1, the following courses and distances; Northerly and Northwesterly elong the arc of said curve, 228.25 feet to the end thereof; North B025'20"East 30.00 feet; North 89034'40nWest, 410.46 feet; and South O0 14'20" West 377.56 feet to the point of beginning. The land herein described is shown with other property on a map of survey filed in Book 38, Page 54 of Record of Surveys, in the office of the County Recorder of said County.

SECOND HOME RIDER

THIS SECOND HOME RIDER is made this day of , and is incorporated into and shall be deemed to amend and supplement tl-e Mortgage, Dead of Trust, or Security Deed (the "Securhy Instrument") of the same date given by the undersigned (the "Borrower," whether there ere one or more persona undersigned) to secure Borrower's Note to Washington Mutual Bank. FA (the "Lender') of the same date and covering the Property described in the Security Instrument ( the "Propoperty"), which is located at:
l 2 Q ! J m

[Property Address1 In addition to the covenants end agreements made in the Security Instrument, Borrower and Lender further covenant end agree that Senion 6 and 8 of the Security Instrument are deleted and are replaced by the following: 6. Occupancy. Borrower shall occupy, end shall only use, the Property as Borrower's second home. Borrower shall keep the Property avellable for Borrower's exclusive use and enjoyment at all times, end shall not subject the Property to any timesharing or other shared ownership arrangement or to any rental pool or agreament that requires Borrower either to rent the Property or glve a menagement firm or any other person any control over the occupancy or use of the Property. 8 Bonower's Lorn A p p l i i . Borrower ahell be in default if, during the Loan . application process, Borrower or any persons or entities acting at the direction of Borrower or with Borrower's knowledge or consent gave materially false, misleading, or inaccurate Information or statements to Lender (or felled m provide Lender with material information) in connection with the Loan. Matdal representatlone indude, but ere not limited to. representations concerning Borrower's occupancy of the Property as Borrower's second home.

03-0643-070494803-3

BY SIGNING BELOW, Borrower accepts end Second Hame Rider.

WFBBS to

the terms provlslons contained in this

DAVID W. OATES, TRUSTEE OF THE DAMD W.GATES RUST M E AUGUST 5,1996 TD

FIXED/ADJUSTABLE RATE RIDER (1 Year T m ~ u r y Index - Rate Caps)

FIXEDlADJUSTABLE RATE RIDER is made this 20th day of , and is incorporated into and shall be deemed to amend and supplement the Mortgage, Deed of Trust or Seourlty Dead (the "Security Instnrment") of the same date given by the undersianed (the "Borrowarnl to secure Borrower's FixedlAdiustable Rate Note ~ ~ ('~&der") of the same (the ;~ote") to ~ e a h & ~ufual , date end covering the property described in the Security Instrument and located at:

THIS

September, 2005

I4 -

[Property Addresel THE NOTE PROVlDES FOR A CHANGE IN l?tE BORROWER'S FIXED INTEREST RATE TO AN ADJUSTABLE IHTEREST RATE. THE NOTE LIMITS THE AMOUNT BORROWER'S AWUSTABLE INTEREST RATE CAN CHANQE AT ANY ONE TIME AND THE MAXIMUM RATE BORROWER MUST PAY. ADDITIONAL COVENANTS. In addition to the covenants and agreements made In the Security instrument, Borrower and Lender funher covenant and agree follows: A. ADJUSTABLE RATE AND MONTHLY PAYMENT C H A W The Note provides for an initial fixed interest rate of 5 .SO0 %. The Note also provides for a change in the initial fixed rate to an ediustabla interest rate, as follows: 4 ADJUSTABLE INTEREST RATE AND MONTHLY PAYMENT CHANGES . tA) Chsnge Dates The initial fixed interest rate I will pay will change to an adjustable intwest rate on the fim day of October. 2010 , and the adjustdble interest rate I will pay may change on that day every 12th month thereafter. The data on wh!ah my initial fixed interest rate changes to an adjustable interest rate, and each date on which my adjustable interest rate could change, is called a "Change Date." (8) The Index Beginning with the first Change Date, my adjustable Interm rate will be based on an index. The "Index" is the weekly average yleld on United StTreasury securities adiusted to e constant maturity of one year, as made available by the Federal Rseerve Board. The most recent

lndex figure available as of the date 45 days before each Change Date is called the "Current Index." If the lndex is no longer available, the Note Holder will choose e new index that Is based upon comparable intormation. The Note Holder will give me notlce of this choica. (C) CalculMion of Changer Wore each Chanae Date. the Note Holder will calculate mv new interest rate bv addim TWO & s e ~ t y - ~ i & - ~ ~ u n & e d t h s peicantaga poinm 2.750 %j to the Current Index. The Note Holder will then rwnd the result of this addition to me nearest oneeighth of one percentage point (0.125%). Subject to the limits stated in Section 4(Dl below, this rounded amount will be mv new Interest rate until the next Chanae Date. The Nore Holder will th& determine the mount of the mont?lly payment that would be sufficient to repay the unpaid principal that I am expected to owe at the Change Date in full on the Maturity Date at my new interest rate in substantldly equal payments. The result of this calculation will be the new amount of my monthly payment. ( lU m b m Intereat R.ls Chang.. D The 1ntere.m rate I am required to pay at the flrst Change Date will not be greater than lo. 5 0 0 % or less than 2.750 %. Thereafm, my adjustable interest rate will never be Increased or decreased on any single Change Date by more then two percentage points (2.0%) from the rate of interest I have been paying for the preceding 12 months. My interest rate will 1 0 -500 96. never be greater than (Et EffsCmra Dnte of Changes My new interest rate will bewme effective on each Change Date. I will pay the amount of my new monthly payment beginning on the first monthly payment date after the Change Date until the mount of my monthly payment changes again. IF) Notice of Changer The Note Holder will deliver or mail to me a notice of any changes in my lnltial fixed interest rate to en adjustable interest rate and of any changes in my adjustable interest rate before the effective date of m y change. The notico will include the anwnt of my monthly payment, and any information required by law to be given me and also the title and telephone number of a person who will answer any question Imay have regarding the notice. (OJ Fdkrm to Mak*-A If for any reason Note Holder falls to make an ad)ustmant to the interesl rate or payment amount as described in this Note, regardless of any notlce requirement, I agree that Note Holder had been made on time. may, upon discovery of such fatlure, then make the adjuatmmt as )t I also aaree not to hold Note Holder res~onelble any dmages to me which may result from for Note n cider'. failure to make me adjustment and to leithe NO& Holder, at its option, apply any excess monies which Imay have paid to partial Prepayment of unpaid "Principal."

B. TRANSFER OF THE PROPERTY OR A BENEFICIAL INTEREST IN BORROWER 1. Until Borrower's initial fixed interest rate changes to an adjustable interest rate under the terms stated in section A above, section 18 of the Security lnstrument shall read as follows: Transfer of the Property or a BansRoid lntaraot in Borrower. As used in this Section 18. "lnterest in the Roperty* means any lagal or beneficial interest in the Property, including, but not limited to, those baneficial lnterasts transferred in a bond for dead, contract for dead, insallmerit salas contract o escrow agreement, the intent of which is r the transfer of title by Borrower at a future date to purchaser. If all or any part of the Property or any Interest in the Roperty is sold or transferred (or if Borrower is not a natural person and a beneficial interest in Borrower is sold or transferred) without Lender's prior written consent, Lender may require immediate payment in fuil of ail sums secured by this Securitv instrument. However, this option shall not be exerciwd by Lender if such emcite is prohibitad by Appilcable Law. If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not fesa fhm 30 days from the date the notice is @vanin accordance with Section 16 within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remadies permlfted by this Security Instrument without further notice or demand on Borrower. 2. When Borrower's initial fixad lnterest rate change to an adjustable interest rate under the terms stated in saction A above, Section 18 of tha Security lnstrument described in sectlon 81 above shall then cease to be in effect, end the provisions of Section 18 of the Security lnstrument shall be amended to read as follows: Trsnatar of the Proparty or a Bmdchl lntrmt in Bmower. As usad in this Section 18. "Interest in the Property" means any legal or beneficial interest in the Property, including, but not limited to, those benaflcial interests wansferred in a bond for deed, contract for deed, installment sales conuact or escrow agreement, the intent of which is the transfer of title by Bonowar at a future date to purchaser. If all or any pan of the Property or any Interest in the Property is sold or transferred (or if Borrower is not a natural person and a beneficial interest in Borrower is sold or transferred) without Lender's prior written consent, Lender may require immadlata payment in fuil of sli sums secured by thls Security Instrument. However, this option shall not be exercised by Lender if such exercise is prohibited by Appilcable Law. Lender also shall not exercise this option if: (a) Borrower causes to be submined to Lender information required by Lender to evaluate the intended transferee B if a new loan were baing made to the transferee: and (b) Lender rassonably detenninss that Lander's security will not be

impeired by the loan assumption and that the risk of e breach of any covenant or agreement in this Security Instrument is acceptable to Lendar. To the extent parmined by Applicable Law, Lender may charge a reasonable fee as a condition to Lender's consent t o the loan assumption. Lendw may also require tha transferee t o sign an eosumption agreement that is acceptable to Lender and that obligates t m transferee to k w p all the prorniees end agreements made in the Note end in this h Security Instrument. Borrower will continue t o be obligated under the Note and this Security Instrument unless Lender releeses Bonower In writing. If Lender exercises the option t o require immediate payment in full, Lender shall glve Borrower notice of acceleration. The notice shell provide a period of nct less than 30 days from the date the notice is given in accordance with Secrion 15 within which Borrower must pay all sums secured by this Sewrlty Instrument. If Borrower falls t o pay these sums prior t o the expiration of this period. Lender may invoke any remedies permitted by this Security instrument without further notice or demand on Borrower. BY SIGNING BELOW. Borrower accepts and agrees to the terms end covenants contained in this FixedlAdjustable Rate Rider.

EXHIBIT B

When recorded Rmnn To.

2889-0834366

I lammar I Jsw* E. (bllmd I I I

elnty~f etaeatma

~ e dI m m Dffieial Eccmds I

1t.w

sw

1 1 s D c l l b ?fi(h% Thhb ,Tx - l S O ~ Y

Laan N. WW9480U o:
Date of Assignment: August 30,2006 A s s i m : Werblngton Mutual Bank, FA

B : 12-Jm* B W

I Page I nf I

Nod

ASSIGNMENT OF DEED OF TRUST

Mortgage Dated: ~12012005 d Recmdsd on i SMABARBARA. w n & \n>tfu~n+m+NO ~o 200s - O O ~ I C ~ ~ P Q C D ~ U 04 laq /W , M ~ o p a t ~ddress: y IMO P W ~ O DR SANTA BAFSAR& CA 93105

KNOWN ALL Mill4BY TBESEPRESENTS that m oonsidmtion of the sum of TEN and ndlMtUls DOLLARS and otha good and valmblc crmaidmtirm, paid to above named Assignor, the receipt and suffioicncyof which is hereby aalmowledged,the mid Assignor hereby assips unto the &ow m c d Assigna, the said Deed of T m t togcthcrwith the Note m other Rridcnce of indebtedness (the "NOTE"), aaidNotc having ro original principal sum of S1,14t,302.00 with interest, aecvred thueby, t* o wi+Ad monies now owed or that may hereafter bxome l due mowing inrespect thereof, aad the full kncft of all t powem d of all the c v m t rod h ocm6 punsos cdoiaw w d t said Asigoor hmby pot6 &d ~omzyr tbe said k unto A s ,0 c Assignoh benifcial intarat lmder tbc Deed of Trust. si m

TO HAVE AND TO HOLD the said D a d of T ~ sand Note, and also the said property unto t the said Assimec fmvcr, subject to the terms mtained in said Dnd of Trust and Note.

STATE OF FLORIDA )
)

COUNTY O DWAL) F

CynthiaA.

V c Reddent ie

OnAugust30,2006, bcfom ms. G. P. Csmcy,a N o t a r y P u b l i o , ~ a I l y a p p d Cynthia A. Riley. pnsaMUy lmown to me (or pund to me on the basis of sati~ctory evidence) to bc the ranonwinme namc is mbsonicd to the wi~hiu inseMMt and aclmowledged t mc that she k u t e d the m e m her auth~nzed o capacity, md h i b y h o sp ion the inshumca the papon, a Ihc mnty upm behalf of which the pawn acted, a d dus mmmmr
WlTNESS MY HAND AND O F C A SEAL. PIIL

G. F. C m e y

.:

G. F. Carney ~ a n n l at~ l DD464795

Eqwwmkl20.2w9 -mR* -* ms7w

EXHIBIT C

This Document Pmared Bv and bftaRWU~~IJ~PIA &: A MGC MORTGAGE.~ -. NC. - - ,Arm: Allison h h h , Manager Document Control P.O. Box 251686 Pllmo, Texas 75025-9933
~

lluwkid Offiefrl R d r CoMt.(Qf Santa Barbara Jolt@ E. Hollmd

I
I I I I

lh~m

17.80

ASSIGNMENT OF DEED OF TRUST

APNNo:

n/a

Grantor: Grantee:

DB STRUCTURED PRODUCTS, INC. 60 Wail Strcet, 15th Floor, New York,NY 10005 LPP MORTGAGE L D , A TEXAS LlMITED PARTNERSHIP T. 6000 Legacy Drive, Plano, TX 75024

Property Address:

1200 PALOMINO DR, SANTA BARBARA, CA 93105

BC: 658006

ASSIGNMENT OF DEED OF TRUST

THIS ASSIGNMENT OF DEED OF TRUST (this "Assignment!') is made by DB STRUCTURELl PRODUCTS,INC. whose address is 60 Wall Sbeet, 15th Eloor, New York, NY 10005 ("Assignor"), to and in favor of LPP MORTGAGE LTD, A TEXAS LIMITED PARTNERSHIP, whose address is 6000 Legacy Drive, P b o , TX 75024 ( A s g e ' , "sine? pursuant to the terms of that eertain Master Loan Sale and Interim Servicing Agreement, (the 'Turchase Ageement"), effective Augnst 22, 2008, between DB STRUCTURF,D PRODUCTS,INC. and LOAN ACQUISITION CORPORATION.

THIS ASSIGNlAENT WITNESSES THAT,in consideration of Ten Dollan ($10.00) and other mod and valuable d d e r a t i o n paid by Assignee, Assignor hereby assigns,bamfcrs, sets ova &d conveys t Assignee and its succ&sors-aad assif&, without & and without o representation or warranty, whether express, implied or created by operation of law, except as expressly set forth in the Purchase Agnement, the following;
1.

that cRtaia Deed of Trust from David W. K.Gates,of ibe David W. Gates Trust Dated Angust 5,1996, d t d September 20,2005, and recorded September ae 29, 2005, in Book n a at Page n/a, as Instrument No. 2005-0094620, in the l, Clerk's Ofc of the County of Santa Barbara, State of California, (the "Deed of fie Tmst"), which Deed of Tnrst secures that certam Promissory Note dated -Se@e&ber 20,2005, in the o r i g d papal mnomt of $1,142,302.00, executed by David W K. and payable to the order of Washington Mutual Bank, FA, as . qmdified ormended (the "Note");

2.

ch other documents, agmments, instnnnents and other collateral that evidence, or otherwise relate to A s g o ' right, title or interest in and to the sinrs l Mortgage andlor the Note andlor the loan evidenced by the Note, including without limitation the title insraance policies and hszard insurance policies relating thereto that are i effect n

BC. 658006

IN WFIlVESS WHEREOF, Assignor has delivered by its Authorized Representative as of the

DB STRUCTURED PRODUCTS, INC. By.

Name: RichardDella PiBy.

Asst Vice-Mdent

Name: Sheily Arroyo,%ice preside8

ACKNOWLEDGMENT
STATE OF NJ3W YORK
CouNTYOFQmENs

Before me, the undersigued, a Notary Public, on this day pasonally appeared Richard Della Pieha, Asst Vice President, and Sheily Arroyo, Vice President, of DB STRUCTURED PRODUCTS, INC. and the pffson who executed the foregoing instrument by virtue of the authority vested in himher, and he/she acknowledged to me that hdshe executed the same for the purposes and consideration t e e n expressed and in the capacities t e e n stated. hri hri
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AFFIX

NOTA~YSEAL ~.
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Npne: bauiel Kim Notary Public, State of NEW YORK My onnmission expires: 9-15-2012
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MNlEL KIM
Ouallfled hl Queens County

NOTAWPUUUC-8WE OF N W YORK E . . NO. 011061954111

vy Cammbslon-trpWes$e&n!hr

16,2012

EXHIBIT D

Requested By T i e Court Service

Recording Requested By al When Recorded Mi To Cal-Western Reconveyance Corp. P.O. Box 22004 an 525 East M i Street El Cajon C 92022-9004 A

IHllAaUllAlllW~lIIIIIIRIIIIlIIAll lll 2011-0045189

Recorded

official R e c o r d s
County o f
Santa B a r b a r a

J o s e p h E. H o l l a n d County Clerk Recorder l

I REC FEE I I I I

21.00

08:OOAM 09-Aug-2011

I I EC I Page 1 of 2

Trustee Sale No. 1336895-02 APN: 023-290-01-00

ReE GATES, DAVID W

Space Above This Line For Recorder's Use

Property Address: 1200 PALOMINO DRIVE, SANTA BARBARA CA 93105

NOTICE OF DEFAULT
IMPORTANT NOTICE IF YOUR PROPERTY IS IN FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR PAYMENTS, IT MAY BE SOLD WITHOUT ANY COURT ACTION, and you may

have legal right to bring your account in good standim h pa ' g all of your past due payments lus permitted costs and expenses within the time permitted y aw or reinstatement of your account, wf&h a normally the business days prior to the date set for the sale of your property. No sale date may be set until approximately 90 days from the date this notice of default may be recorded (which date of recordahon amears on this notice). This amount is S73351.90 as of Augnst 08.2011. and will increase until your a&uut becomes current. While your prop&ty is i foreel&ure, you sdll must ay other n oblieations (such as insurance and taxes) repuued by vour note and deed of trust or mortgnee. f vou fail to make futive payments on the loan, pay Cues on-the roperty, provide insurance on &eVpropkrty,or pay other obligations as required in the note and deed o trust or mortga e, the beneficiary or m o p g e e may insist that you do so in order to reinstate our account in good stan g. In addition, the bene uary or mort a ee may require as a condition to re statement that yon provide reliable wlitten evidence that you ai a senior liens, property taxes, and hazard insurance premiums. gpon your written request, the beneliciary or mortgagee wiU give you a wrilten itemization of the enlire amount you must pay. You ma not have to pay the entire unpad podon of yonr account, even though full payment was demanded, ut you must pay all amounts in default at the time payment is made. However, you and your beneficiary or mortgagee may mutually agree in writing prior to the time the notice of sale is posted (which may not be earlier than three months after this notice of default is recorded) to, among other things, (1)provide additional time in which to cure the default by transfer of the property or otherwise; or (2) establish a schedule of . payments in order to cure your default; or both (1) ind(2). Following the expiration of the time period referred to in the &st paragraph of this notice, onless the obligation bein foreclosed upon or a separate written agreement between you and your creditor permits a longer perlo$ ou have only the legal right to stop the sale of your property by paying the enlire amount demande(31by your creditor. To fmd out the amount you must pay, or to arrange for payment to stop the foreclosure, or if your property is in foreclosure for any other reason, contact: LPP MORTGAGE LTD.

% r r'

b&

3:

C/OCAGWESTERN RECONVEYANCE CORPORATION

525 EAST IWUN STREET P.O. BOX 22004 EL CAJON 9004 CA 92022-9004 (619)590-9200 If yon have any questions, you should contact a lawyer or the governmental agency which may have insured your loan.

NODCA

Page 1 of 2

Notwithstanding the fact that your prepem is m'foreclosure, you may offer your ro provided the sale is concluded prior to the condnsion of the foreclosure. Remember,

LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT ACTION.

\&%Y

for sale,

NOTICE OF DEFAULT AND ELECTION TO SELL UNDER DEED OF TRUST

NOTICE IS HEREBY GIVEN: CAL-WESTERN RECONVEYANCE CORPORATION is either the original trustee, the duly appointed substituted trustee, or aeting as agent for the trustee or beneficiary under a deed of trust dated September 20,2005 executed by DAVID W. GATES. TRUSTEE OF THE DAVID W. GATES TRUST DATED AUGUST 5.1996 as trustor, to secure c m obligations in favor of WASHINGTON MUTUAL BANK, FA, A & ASSOCIATION as beneficiary, recorded as document 2005-0094620 on September 29,2005 in book XX page XX official records in thk oftke of County Recorder of SANTA BARBARA County, California, describing laud therein as:

FEDERAL

COMPLETELY DESCRIBED IN SAID DEED OF TRUST, said obligations including a promissory note for the principal sum of$1,142,302.00. That a breach of, and default in, the obligations for wbieh such Deed of Trust is seeurity has occurred in that payment has not been made of: Failure to pay the monthly payment due December 1,2010 of principal, mterest m d impounds and subsequent installments due thereafter; plus late charges; together with all subsequent sums advanced by beneficiary pursuant to the terms and conditions of said deed of bust. That by reason thereof the present beuefieiary under such Deed of Trust has deposited with said trustee such Deed of Trust and all doenmenb, cvidenciug obligations secured thereby and has declared and does hereby declare ell sums secured thereby immediately due and payable and has elected and does hereby elect to cause the trust property to be sold to satisfy the obligations secnred thereby. The mortgagee, beneficiary or authorized agent for the mortgagee or bcne6ciary pursuant to California Civil Code 8 2923.5@) declares that the mortgagee, beneficiary or the mortgagee's or beneficiary's authorized agent bas either ewtacted the borrower or tried with due diligence to contaet the borrower as required by California Civil Code 2923.5. T.S. 1336895-02 Dated: August 08,2011 CAL-WESTERN RECONVEYANCE CORPORATION

Marco Marquez

By LSI Title Company, As Agent

NODCA

Page 2 of 2

EXHIBIT E

lllORMIIIIUl IIII W1 1 l l lIlII I~III~ I 1 1

2011-0058656
RECORDING REQUESTED BY And When Recorded Mail To
Recorded I REC FEE O f f i c i a l Records I county of I Santa B a r b a r a I ~ o s e p hE . H o l l a n d I county C l e r k R e c o r d e r I
18.00

CAL-WESTERN RECONVEYANCE CORPORATION P.O. Box 22004 525 East Main Street 08:OOAM 1 3 - O c t - 2 0 1 1 El Cajou CA 920229004

I ML 1 P a g e 1 of 1

APN 023-290-01-00
T.S. NO. Ref:

SPACE A B O V E THIS LINE FOR RECORDER'S USE1336895-02 DAVID W GATES hopeny Address: I200 PALOMINO DRIVE, SANTA BARBARA, CA 93 105

455937

NOTICE OF RESCISSION

OF NOTICE O F DEFAULT AM) ELECTION T O SELL UNDER DEED O F TRUST Whereas, the undersigned, as Trustee under that certain Deed of Trust hereinafter described, and Whereas, Notice was heretofore given by the undersigned, as such Tmstee, of breach of the obligations for which said Deed of Trust is security and of election to cause to be sold the property therein described, which Notice was recorded on August 09, 2011 in SANTA BARBARA County CALIFORNIA, as Instrument No.11-45189, in B o o m , Page XX of Official Records; Now, Therefore, Notice is Hereby Given that the undersigned, as such Trustee, does hereby rescind, cancel and withdraw said Notice of Default and Election to Sell under Deed of Trust; it being understood, however, that this rescission shall not in any manner be construed as waiving or affecting any breach or default--past: present or future--under said Deed of Trust, or as impairing any right or remedy thereunder, but is, and shall be deemed to be, only an election; without prejudice, not to cause a sale to be made pursuant to said Notice, and shall in nowise jeopardize or impair any right, remedy or privilege secured to the Beneficiary andlor the Trustee, under said Deed of Trust, nor modify nor alter in any respect any of the terms, covenants, conditions or obligations thereof, and said Deed of Trust and all obligations secured thereby are hereby reinstated and shall be and remain in force and effect the same as if said Notice of Default had not been made and given. Said Deed of Trust above referred to was executed by DAVID W. GATES, TRUSTEE O F THE DAVJD W. GATES TRUST DATED AUGUST 5,1996 Trustor, to CAL-WESTERN RECONVEYANCE CORPORATION, as duly appointed Trustee and recorded as Instrument No.2005-0094620 on September 29, 2005 in Book XX Page XX of official Records and covering the following described property in SANTA BARBARA county, CALIFORNIA COMPLETELY DESCRIBED TN SAID DEED OF TRUST Dated October 12,2011 CAL-WESTERN RECONVEYANCE CORPORATION Sewk&lnk, aa agent Signaturemy: 1

VANGIE ORTEGA

Page 1 of 1

EXHIBIT F

RECORDING

REQUESTED
a

BY:

DPS

IUlll~HAlllMIRBlII~I~llWlRNll~ll1111 2011-0058657
Recorded 1 REC FEE Official Records I County of I Santa Barbara I Joseph E. Holland I County Clerk Recorderl
24.00

Recording Requested By When Recorded Mail To Cal-Western Reconveyance Corp. P.O. Box 22004 525 East Main Street El Cajon CA 92022-9004

I
O8:OOAM

13-Oct-2011

ML Page 1 of 3

Trustee Sale No. 133689502 A P N 023-29061-00 Space Above This Line For Recorder's Use Ref: GATES, DAVID W Property Address: 1200 PALOMWO DRIVE. SANTA BARBARA CA 93105
I

IF YOUR PROPERIY IS IN FORECLOSURE BECAUSEYOU ARK BEHIND IN YOUR PAYMENTS, IT MAY BE SOLD WITHOUT ANY COURT AC'l'ION, and you mav
have legal right to bring your account in good standing b paying all of your past due payments plus permitted costs and expenses within the time permitted by aw for reinstatement of your account, which 1s normally five business days prior to the date set for the sale of your property. No sale date may be set until approximately 90 days from the date this notice of default may be recorded (which date of recordahon appears on this notice). This amount is $91,754.18 as of October 12,2011, and will increase until your account becomes current. While your property is in foreclosure, you still must pay other obligations (such as insurance and taxes) required by your note and deed of trust o r mort age. If you fail to make future payments on the loan, pay taxes on the property, provide insurance on t e property, or pay other obligations as required in the note and deed of trust or mortga e, the beneficiary or mortgagee may insist that you do so in order to reinstate your account in good stan mg. In addition, the beneficiary or mort agee may require as a condition to reinstatement that you provide reliable written evidence that you ai all senior liens, property taxes, and hazard insurance premiums. Qpon your written request, the beneficiary or mortgagee will give you a written itemization of the entire amount you must pay. You may not have to pay the entire unpaid portion of your account, even though full payment was demanded, but yon must pay all amounts in default a t the time paymen! is made. However, you and your beneficiary or mortgagee may mutually agree in writing prior to the tune the notice of sale is posted (which may not he earlier than three months after this notice of default is recorded) to, among other things, (1) provide additional time in which to cure the default by transfer of the property or otherwise; or (2) establish a schedule of payments in order to cure your default; or both (1) and (2). Following the expiration of tbe time period referred 6 in the first paragraph of this notice, unless the obligation bein foreclosed upon or a separate written agreement between you and your creditor permits a longer perio8, you have on1 the legal right to stop the sale of your property by paying the entire amount demanded by your Erelitor. To find out the amount you must pay, or to arrange for payment to stop the foreclosure, or if your property is in foreclosure for any other reason, contact: LPP MORTGAGE LTD.

IMPORTANT NOTICE

I'

cf

C/O CAL-WESTEW RECONVEYANCE CORPORATION 525 EAST MAIN STREET P.O. BOX 22004 EL CAJON 9004 CA 92022-9004 (619)590-9200
If you have any questions, you should contact a lawyer or the governmental agency which may have insured your loan.

NODCA

LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT ACTION.

Notwithstanding the fact that your property is in foreclosure, you may offer your property for sale, provided the sale is concluded prior to the conclusion of the foreclosure. Remember, YOU MAY -

NOTICE OF DEFAULT AND ELECTION TO SELL UNDER DEED OF TRUST

NOTICE IS HEREBY GWEN-. Cfi-WESTERN RECONVEYANCE CORPORATION is either the original trustee, the duly appointed substituted trustee, or acting as agent for the trustee or beneficiary under a deed of trust dated September 20,2005 executed by DAVID W. GATES, TRUSTEE OF THE DAVID W. GATES TRUST DATED AUGUST 5,1996 as trustor, to secure certain obligations in favor of WASHINGTON MUTUAL BANK, FA, A FEDERAL ASSOCIATION as beneficiary, recorded as document 2005-0094620 on September 29,2005 in bookXX page XX official records in the offtce of County Recorder of SANTA BARBARA Connty, California, describing land therein as: A T T W E E )~ I + II r llofiell ~ ~ 0 COMPLETELY DESCRIBED IN , said obligations including a promissory note for the principal sum of $1,142,302.00. That a breach of, and default in, the obligations for which such Deed of Trust is security has occurred in that payment has not been made of: Failure to pay the monthly payment due December 1,2010 of principal, interest and impounds and. subsequent installments due thereafter; plus late charges; together with all subsequent sums advanced by beneficiary pursuant to the terms and conditions of said deed of trust. That by reason thereof the present beneficiary under such Deed of Trust has deposited with said trustee such Deed of Trust and all documents evideneing obligations secured thereby and bas declared and does hereby declare all sums secured thereby immediately due and payable and has elected and does hereby elect to cause the trust property to be sold to satisfy the obligations secured thereby. The mortgagee, beneficiary or authorized agent for the mortgagee or beneficiary pursuant to California Civil Code 5 2923.50) declares that the mortgagee, beneficiary or the mortgagee's or beneficiary's authorized agent has either contaded the borrower or tried with due diligence to contact the borrower as required by California Civil Code 2923.5. T.S. 1336895-02 Dated: October 12,2011 CAL-WESTERN RECONVEYANCE CORPORATION SewiceLlnk, as agent Signature By

NODCA

ALTA Loan Pahey 110-17-521wlFo~rn1 Cov.

Order No.
Policy No. 27042-92

220641 3460956

EXHlBlT "ONE"
That portion of Parcel 1 of Mission Ranchos, in the County of Santa Barbara. State of California, according t o the map thereof filed October 11, 1955 in Book 37, Page 5 of Records of Survey, in the c o if e of the County Recorder of said County. described as follows: Beginning at the Northwest corner of the tract of land described in the Deed to Joseph A. Beni, recorded August 9. 1956 as Instrument no. 15563 in Book 1395. Page 23 of Official Records. records of said County, beinga point on tho Westerly line of said Parcel 1, from which a 2 inch brass capped survey monument set a t the Northwestcorner of said Parcel 1 bears North O0 14'20" East 377.58 feet; thence along the Northerly line of said Berti tract of land, the following courses and distances; North 7 3 O47' East, 101.89 feet: South 83"53'30" East 50.03feet; North 56*13' East 197.01 feet: North 6025'20" East 158.91 feet; and Soufh 4V006'10" East 49.19 feet to a 314 inch pipe on the cemer line of Palomino Road and a point on the Easterly line of said Parcel 1 at the beginning of a non-tangent curve, concave t o the West, having a radius of 100.23 feet, a delta of 13028'30' and whose radial center from said point bears North 4906'10" West; thence along the Easterly, Northerly and Westerly lines of said Parcel 1, the following courses and distances; Northerly and Northwesterly along the arc of said curve, 228.25 feetto the endthereof: North 8O25'20" East 30.00feet; North 89'34'40" Wesr, 410.46 feet; and South 0" 14'20" West 377.56 feet to me point of beginning. The land herein described is shown wlth other property on a map of survey filed in Book 38, Page 54 of Record of Surveys, in the office of the County Recorder of said County.

EXHIBIT G

lBlllRllllHllAliOllllHlBQll
Recording Reques$d BY
RECORDINGR E Q U E S ~ ~y:S8Ni~eLink
I

AND WHEN RECORDED MAIL TO:

CAL-WESTERN RECONVEYANCE CORPORATION 525 EAST MAIN STREET P.O. BOX 22004 EL CAJON CA 92022-9004

Recorded I REC W E Official Records I County of I santa Barbara I Joseph E. Holland I ~ A u n t yClerk Recorder I I I I M. b8:06m 15-NOV-2011 I Page 1 of 2

2011-0065795

21.00

SPACE ABO+ THIS LINE FOR RECORDER^ USE

of15437
T.S. NO.:1336895-02

SUBSTITUTION OF TRUSTEE

II

WHEREAS. DAVID W.GATES. TRUSTEE OF THE DAVID W. kATES TRUST DATED AUGUST 5.1996 was the original T m o r , CALIFORNIA RECONVEYANCE COMPANY and WASHINGTON MUTUAL BANK, FA, A was the orihal Beneficiw under that ccnain Deed of Trust dared Septemk 20,2M)5 and wcorded on Scptembcr 29,2005 as Insuiment No. 2005:0094620. in c a book XX,page XX of m i l Records of SANTA BARBARA County, Californih and

WHEREAS, the undersigned is present Beneficiary under said subtilute a new T under said Deed of Tut in the rs said Deed of Trust p r i d e d

and 'WHEREAS, the undersigned desires to Trustee thereunder, in the manner in

andlor neuter, and the singular number includes the plural.

Dated:
~ O U G W ~\ , ,do\\

Aulhorite Signer
State of

1
who proved to me oo

si@ature(sj on the i n m e n t the p&on(s), or the entity upon instrument. 1 certify under PENALW OF PERJURY under foregoing pamgrapb is m e and correct.

that the

NOTARY PUBUC - STATE OF IWIS

BETSY ANDERLIK

T.S NO.

\=\DeQS,
AFFIDAVIT OF MAILING SUBSTITUTION OF TRUSTEE
PURSUANT T O CALIFORNIA CIVIL CODE 82934a

STATE O F CALIFORNIA COUNTY O F SAN DlEGO THE UNDERSIGNED DECLARES UNDER PENALTY O F PERJURY: A COPY O F THE SUBSTITUTION O F TRUSTEE HAS BEEN MAILED, PRIOR T O OR CONCURRENTLY WITH THE RECORDING THEREOF, IN THE MANNER PROVIDED IN SECTION 2934a O F THE CIVIL CODE O F CALIFORNIA, TO ALL PERSONS TO WHOM A COPY O F THE NOTICE O F DEFAULT WOULD BE REQUIRED TO BE MAILED BY THE PROVISIONS O F SUCH SECTION. Dated:

Jeanne Pittman

Stale of California County of San Diego before me. Rosalyn Hall ,aNotary Public, personally On sppeared Jeanne Pittman, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity. and that by her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is m e and correct. WITNESS my hand and oficial seal. Signature (Seal)

NOV 0 9 2011

ASUBDOC

Rev I O / O U O ~

Cal-Welrm Reconreyanrt Corponlion 525 East hlsin Slrcrt. E Cajarl, Cnliramin 92020 v P . 0 . Box 22004,E Cainn. California 92022-9004 l l TEL: (619)590-9200.FAX: (619)59lLV299. Wcbritt: ww.nrrc.com

EXHIBIT H

Yecording Requested @
Se~cel.ink
RECORDING REQUESTED BY And When Recorded Mail To: CAL-WESTERN RECONVEYANCE CORPORATION 525 EAST MAIN STREET P O BOX 22004 .. EL CAJON CA 92022-9004
APN:023-290-01-00

2012-0002582
Recorded I REC FEE Official R e c o r d s I county of I Santa Barbara 1 Joseph E . H o l l a n d I County Clerk Reoorderl
24.00

I
0 8 : l ' I A M 17-Jan-2012

I MB I P a g e 1 of 3

Trustee Sale No. 1336895-02

Space Above This Line For Recorder's Use

q4GS31

NOTICE OF TRUSTEE'S SALE

TRA:086012 REF: GATES,DAVID W UNVER Property Address. 1200 PALOMINO DRIVE, SANTA BARBARA CA 93 105

IMPORTANT NOTICE T O PROPERTY OWNER: YOU ARE IN DEFAULT UNDER A DEED OF TRUST, DATED September 20,2005. UNLESS YOU TAKE ACTION TO PROTECT YOUR PROPERTY, IT MAY BE SOLD AT A PUBLIC SALE. IF YOU NEED AN EXPLANATION OF THE NATURE OF THE PROCEEDING AGAINST YOU, ~ O U SHOULD CONTACT A LAWYER at On February 06,2012, 1:00pm,CAL-WESTERN RECONVEYANCE CORPORATIOnT, as duly appointed trustee under and pursuant to Deed of Trust recorded September 29,2005,as inst. No. 20050094620,in book XX, page XX,of Official Records in the office of the County Recorder of SANTA BARBARA County, State of CALIFORNIA executed by: DAVID W. GATES, TRUSTEE O F THE DAVID W. GATES TRUST DATED AUGUST 5,1996 WILL SELL AT PUBLIC AUCTION TO HIGHEST BIDDER FOR CASH, CASHIER'S CHECK DRAWN ON A STATE OR NATIONAL BANK, A CHECK DRAWN BY A STATE OR FEDERAL CREDIT UNION, OR A CHECK DRAWN BY A STATE OR FEDERAL SAVINGS AND LOAN ASSOCIATION, SAVINGS ASSOCIATION, OR SAVINGS BANK SPECIFIED IN SECTION 5102 OF THE FINANCIAL CODE AND AUTHORIZED TO DO BUSINESS IN THIS STATE:

AT THE NOKTIl DOOR O F T I l E lllALY ENTRANCE T O THE COUNTY

COURTHOUSE, 1 I00 AKACAPA STREET SANTA BARBARA CAI.IFORNIA all right, titleand interest conveyed to and now held by itunder said Deed of Trust in the property situated in said County and State described as:
THAT PORTION OF PARCEL 1 OF M~SSIONRANCHOS, m THE COUNTY OF SANTA BARBARA, STATE O F CALIFORNIA, ACCORDING T O THE MAP THEREOF FILED OCTOBER 11,1955 IN BOOK 37,PAGE 5 O F RECORDS SURVEY, MORE COMPLETELY DESCRIBED IN ATTACHED EXHIBIT A.

NOTICE OF TRUSTEE'S SALE

Trustee Sales No. 1336895-02 The street address and other common designation, if any, of the real property described above is purported to be: 1200 PALOMINO DRIVE SANTA BARBARA CA 93105 The undersigned Tmstee disclaims any liability for any incorrectness of the street address and other common designation, if any, shown herein. Said sale will be held, but without covenant or warranty, express or implied, regarding title, possession, condition, or encumbrances, including fees, charges and expenses of the Trustee and of the trusts created by said Deed of Trust, to pay the remaining principal sums of the note@) secured by said Deed of Trust. The total amount of the unpaid balance of the obligation secured by the property to be sold and reasonable estimated costs, expenses and advances at the time of the initial publication of the Notice of Sale is: $1,213,690.25.
If the Trustee i s unable to convey title for any reason, the successful bidder's sole and exclusive

remedy shall be the return of monies paid to the Trustee, and the successful bidder shall have no further recourse. The beneficiary under said Deed of Trust heretofore executed and delivered to the undersigned a written Declaration of Default and Demand for Sale, and a written Notice of Default and Election to Sell. The undersigned caused said Notice of Default and Election to Sell to be recorded in the county where the real property is located.

FOR SALES INFORMATION: Mon- Fri 9:OOam to 4:OOpm (619)590-1221 CALWESTERN RECONVEYANCE CORPORATION 525 EAST MAIN STREET P.O. BOX 22004 EL CAJON CA 92022-9004 Dated: January 17,2012 CAL-WESTERN RECONVEYANCE CORPORATION

p
By:

, as agent

Order No.: 995937

Customer Reference: 1336895-02

EXHIBIT A
LEGAL DESCRIPTION M E LAND REFERRED TO HEREIN BELOW I S SlllJATED I N THE COUNTY OF SANTA BARBARA, STATE OF CALIFORNIA, AND I S DESCRIBED AS FOUOWS: THAT PORTION OF PARCEL 1OF MISSION RANCHOS, I N THE COUNTY OF SANTA BARBARA, 5TATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF FILED OCTOBER 11,1955 I N BOOK 37, PAGE 5 OF RECORDS W SURVEY, I N THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OFTHE TRACT OF LAND DESCRIBED I N THE DEED TO JOSEPH A BERTI, RECORDED AUGUST 9,1956 AS INSIRUMEM NO. 15563 I N BOOK 1395, PAGE . 23 OF OFFICIAL RECORDS, RECORDS OF SAID COUNTY, BEING A POINT ON THE WESTERLY LINE OF SAID PARCEL 1 FROM WHICH A 2 INCH BRASS CAPPED SURVN MONUMENT SET AT THE , NORTHWEST CORNEROF PARCEL 1BEARS NORTH 014'20" EAST 377.56 FEET. THENCE ALONG THE NORTHERLY UNE OF SAID BERTI TRACF OF LAND, THE FOLLOWING COURSES AND DISTINCES; NORTH 7347'EdST, 101.89 FEET; SOUTH 83"53'3OwEAST 50.03 FEET; NORTH 56'13'EAST 197.01 FEET; NORTH 6025'20" EASl158.91 FEET; AND SOUTH 4906'10" EAST 49.19 FEETTO A 314 INCH PIPE ON THE CENTER LINE OF PALOMINO ROAD AND A POINT ON THE EASTERLY LINE OF SAID PARCEL 1 AT THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE WEST, HAVING A RADIUS OF 100.23 FEET, A DELTA OF 13028'30" AND WHOSE RADIAL CENTER FROM SAID POINT BEARS NORTH 4906'10" WEST: THENCE ALONG THE EASTERLY, NORTHERLY AND WES~ERLYUNES OF S D PARCEL 1 THE'FOLLOWING COURSESAND A I , DISTANCES; NORTHERLY AND NORTHWESTERLY ALONG THE ARC OF SAID CURVE, 228.25 FEET m THE END THEREOF; NORTH 825'20- EAST 30.00 FEET; NORTH 8g034'40- WEST, 410.46 FEW AND SOUTH O014'2O"WEST 377.56 FEET TO THE POINT OF BEGINNING.
THE LAND HEREIN DESCRIBED S SHOWN wrrn OTHER PROPERTY ON A MAP OF SURVEY FILED I I N BOOK 38, PAGE 54 OF RECORD OF SURVEYS, I N THE OFFICE OF THE COUNTV RECORDER OF SAID COUNTY.

SERVICEUNK-TSG

-. -. -

. Trustee's Sale Guarantee - .. --

STATE OF CALIFORNIA COUNTY OF LOS ANGELES

PROOF OF SERVICE
ss.

I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is: 300 South Grand Avenue, Suite 2600, Los Angeles, CA 9007 I. On February 21,2012,l served the foregoing document described as:

DEFENDANTS' REQUEST FOR JUDICIAL NOTICE

on the parties or attorneys for parties in this action who are identified on the attached service list, using the following means of senrice. (If more than one means of service is checked, the means of service used for each party is indicated on the attached service list). BY PERSONAL SERVICE. 1 placed -the original or -a true copy of the foregoing document in sealed envelopes individually addressed to each of the parties on the attached service list, and caused such envelope to be delivered by hand to the offices of each addressee. 0 BY FACSIMILE TRANSMISSION. I caused -the original or -a true copy of the foregoing document to be tmnsmitted to each of the parties on the attached service list at the facsimile machine telephone number as last given by that person on any document which he or she has filed in this action and served upon this office. BY MAIL. I placed -the original or -a true copy of the foregoing document in a sealed enveloped individually addressed to each of the parties on the attached service list, and caused each such envelope to be deposited in the mail at 300 South Grand Avenue, Suite 2600, Los Angeles, CA 90071, Each envelope was mailed with postage thereon fully prepaid. I a readily familiar with this firm's practice of m collection and processing of correspondence for mailing. Under that practice, mail is deposited with the United States Postal Service the same day that it is collected in the ordinary course of business. BY E-MAIL. I caused the foregoing document(s) to be transmitted by e-mail electronic transmission to the e-mail address on the attached service list as last given by that person on any document which he or she has filed in this action and served upon this office. BY EXPRESS MAIL. I placed -the original or -a true copy of the foregoing document in a sealed enveloped individually addressed to each of the parties on the attached service list, and caused each such envelope to be deposited in the mail at 300 South Grand Avenue, Suite 2600, Los Angeles, CA 90071. Each envelope was mailed with Express Mail postage thereon fully prepaid. 1 am readily familiar with this firm's practice of collection and processing of correspondence for mailing. Under that practice, mail is deposited with the United States Postal Service the same day that it is collected in the ordinary course of business. BY FEDERAL EXPRESS. I placed -the original or a true copy of the foregoing document in a sealed enveloped or package designated by Federal Express with delivery fees paid or provided for, individually addressed to each of the parties on the attached service list, and caused such envelope or package to be delivered at 300 South Grand Avenue, Suite 2600, Los Angeles, CA 90071, to an authorized courier or driver authorized by Federal Express to receive documents. (State) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. (Federal) I declare that 1 am employed in the office of a member of the bar ofthis court, at whose direction the service was made. Executed on February 21,2012, at Los Angeles, California.

Antoinette Y. Taylor

fl

SERVICE LIST
David Gates, Trusteefor the David K Goles Trust datedAugust 5, I996
V

MGC Mortgage, Inc.. et al..

Santa Barbara Superior Court Case No. 1384851

Nancy Duffy McCarron, Esq. LAW OFFICE OF NANCY DUFFY McCARRON 950 Roble Lane Santa Barbara, California 93 103 805.965.3492 Telephone: Facsimile: 760.345.0019 Email: [email protected]

Attorney for Plaintiff: DAVID W. GATES, TRUSTEE FOR THE DAVID W. GATES TRUST DATED AUGUST 5,1996

Rcgina J. McClendoli (SBN. 184669) rnlcclendon @Iockelord.com Daniel A. Solitla (SBN: 243908) dso1itmOIockelord.corn LOCKE LORD LLP 300 Soulli Griind Avenue. Suite 2600 Los Angeles, Califortiia 90071 Telephone: 213.485.1500 Facsimile: 2 13.485.1200 Attorneys for Drfendanls MGC MORTGAGE. INC.: LPP MORTGAGE LTD. and LOAN ACQUISITION CORPORATION SUPERIOR COURT O F T H E STATE OF CALIFORNIA FOR T H E COUNTY O F SANTA BARBARA ANACAPA DIVISION DAVID W. GATES, Tr~istee the DAVUJ W. for GATES Trust dated August 5. 1996, PlainliK.
VS.

CASE NO. 1384851

1 Honorable Colleen K. Sterne

) ) 1 ) DECLARATION O F BHET WIALONEI' )

MGC Mortgage, Inc., Texas Corporation LPP Mortgage Ltd., LP, Texas Corporation Loan Acquisition Corporation, Texas Corpol.ation Cal-Weslem Reconveyance Corporation, Texas Corporation DB Structu~.ed Products, Inc., Delaware Corporation Deutsche Bnnlc National Tlust Company, ;IS trilslee Washington Mutuai Bank, a notio~lal banking associarion Waliiu Asset Acceptance Co~yonltion. SPV vebiclc bank Washi~igtonMutual Mortgage Securities Corporation, hank JP Morgan Chase Bank, National Association, a bank DOES 1 through 50, inclusive, Defendants.

1 1
I
1
)

) Date: ) Time:

PIacee:

Much 12,2012 9:30 a.111. Dept. 5

1
1 1
) )

February

'3

2012

'1

I DECLARATION OF BRET MALONEY Dn12id LV. GOICS, ?(I.,IYIPC I,. MGC Mo,-1,enga. 1,ic.. rf ol.. Case No. 1384811

I. BRET MALONEY, declare as follows:

I. I all1 over the age oEeigliteen years and not a party
LO lhis

action. The facts set forth

below are known to ine personally and I have first-hand knowledge of them. I called as a witness, 1 f ould and would testify competemly, under oath to such facts.
2.

1 am elnployed as a Senior Vice President, Default Management by MGC Mortgage,

nc. ("MGC"), which is the authorized loan selvicer for LPP Mortgage Ltd. ("LPP"), and 1 am niiulio. with the subject Deed of Trust, loan and foreclosure of the real propeny located at 1200 'alomino Drive, Santa Barbara, CCifo~nia 105 (the "Subject Property"). 93
3.

I a n fa~niliar with the manner a~itl procedure by which the records of MGC ire

htained, prepared. and maintained. Those records are obtained, PI-eparetl,and rilniliiained by mployees or agents at MGC in the performance of their rcgular husincss duties a[ or near the time. ct, conditions, or evenls recorded thcreon. The recol-ds are niade either by persons with knowledge
f the ~natters they record or Froln information obtained by persons with s ~ l c h knowledae. It is

(IGC's business practice to maintain these records in the regular course of business.
4.

MGC services the loan under the tei-111sof a servicing agreement with LPP and has

een responsible for tlie handling of all rnattcrs relating to the i~nderlying loan, including but not

niitecl to processing of all payments I-eceived,crediting of received paynients, adding

211

propel

l ~ u g e s the loan, confirmi~ig milin~enance hazard insurance :md property taxes. lo the of omt~li~nicating and responding to the borrower on all matters relative to tlie loan, and the with omniencement of noo-judicial foreclosure proceedings. All activities on the loan advanced by IGC were advanced in accordance wilh the ternis of the note. Deed o Trust and servicing f greement.
5.

Plaintiff David W. Gates ("Plaintiff') entcred into a promissory note on or about

eptembcr 20. 2005 in the original principal amount of $1,142,302.00 with lendel- Washington lutual Ba~lk. to refinance tlie Subject Property. A true and correct copy of the pl.omissot.y note FA

. attached hereto es Exhibit I

6.
LPP is in possessioll of the original promissory nole executed by Plaintiff. I
2

ersonally inspected the original promissory note, which I obtained from CLMG Colp.'s Note Vault,
DECLARATION OF BRET MALONEY

11~11.i11 (kiir.~. \I' l?i?rrrccjI,.

I,?(:, a/., C.,tse NO. 13Y1X5 I cr

>n Fehruury 21.2012. 1 l~ave ability c access certain documents conlai~icd n CLMG Corp.'s the o i Vote Vault in the ordinary course of my elnployment at MGC. CLMG Corp. is a company artilia1 with LPP and MGC which is responsible for LPP's document management functions. 7.
1 , 2009.

The servicing of the loan niade to Plaintiff was transferred to MGC on or about Jul,

8.

Plaintiff wcnt into default on his loan in Octoher 2010. Therefore, MGC. at the

lirection of LPP, ins~ructed foreclosure cotlipany C:ll-Western Reconveyance Co1pom6on to reco

I

Notice of Defa~~lt Election to Sell Under Deed of Trust relating to the sub-ject property on and

Ictober 13,201 1.

9.

Plaintiff lias tnot made ilny payment.; on his loan since December 28, 2010. The

nonthly p;lymetits owed under the pro~nissorynote are ccur~.ently $7,746.37. The past due amount he loall is currently $121,977.56. 10. Plaintiff has never tilade a tender of the full proceeds owed under the promissory

lore, no[. has Plaintiff ever offered tendel'ol'the pas1 due ~imount.

I declare under penalty of perjury under the laws of the State of California and the laws of
Jniled States of America that the foregoing is tl-LIC correct. and 2012 in Plano, Texas. Executed this 21 st d;ly of Febn~ary

BRET MALONEY

3 DECLARATION OF B E T MALONEY Dovid W. Cales, Tr~rslrr I t C C Mnrr,@a,pr, a lirc., ct a/.. Casc No. 138435I

EXHIBIT 1

FIXEDIADJUSTABLE RATE NOTE (1 Year Treasury Index Rate Caps1

THIS NOTE PROVIDES FOR A CHANGE IN MY FIXED INTEREST RATE TO AN ADJUSTABLE INTEREST RATE. THIS NOTE LIMITS THE AMOUNT MY ADJUSTABLE INTEREST RATE CAN CHANGE AT ANY ONE TIME AND THE MAXIMUM RATE I MUST PAY.

1200 PALOMINO DRIVE, SANTA BARBARA, CA 93105 (Ropemy Address)

---

1 BORROWER'S PROMISE TO PAY . In return for a loan that I have received, I promise t o pay U.S. $ 1,142.3 02.00 (this amount is caiied "Principal"), plus interest, t o the order of the Lender. The Lender is Washington Mutual Bank, FA . I will make ail payments under this Note in the form of cash, check or money order. I understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the "Note Holder." 2. INTEREST Interest will be charged on unpaid Principal until the full amount of Principal has been paid. I will pay interest at a yearly rate of 5.500 %. The interest rate I will pay may change in accordance with Section 4 of this Note. The interest rate required by this Section 2 and Section 4 of this Note is the rate I will pay both before and after any default described in Section 7(B) of this Note.

3 PAYMENTS .
(A) Time and Place of Payments i will pay Principal and interest by making payments every month. I will make my monthly payments on the first day of each month beginning on November 1st. 2005 , I will make these payments every month until I have paid ail of the Principal and interest and any other charges described below that I may owe under this Note. Each monthly payment will be applied as of Its scheduled due date and will be applied to interest before Principal. If, on October 1st. 2035 , I still owe amounts under this Note, I will pay those amounts In full on that date, which is called the "Maturity Data".
LOAN SEXVICE, 9451 CORBIN A m , I will make my monthly payments at NORTHRIDGE, C A 91324 or at a different place if required by the Note Holder. (B) Amount of My Initial Monthly Payments . This Each of my initial monthly payments will be in the amount of U.S. S 7,014.73 amount may change. (Q Monthly Payment Changes Changes in my monthly payment will reflect changes in the unpaid Principal of my loan and in the interest rate that I must pay. The Note Holder will determine my new interest rate and the changed amount of my monthly payment in accordance with Section 4 of this Note.
4610 103Ull

Page 1 of 6

4. INTEREST RATE AND MONTHLY PAYMENT CHANGES

(A1 Change Dates The interest rate I will pay may change on the first day of October, 2010 and on that day every 12th month thereafter. Each date on which my adjustable interest rate could change, is called a "Change Date." (BL The lndex Beginning with the first Change Date, my intarest rate will be based on an lndex. The "lndex" is the weekly average yield on United States Treasury securities adjusted to a constant maturity of 1 year, as made available by the Federal Reserve Board. The most recent lndex figure available as of the date 45 days before each Change Date is called the "Current lndex." If the lndex is no longer available, the Note Holder will choose a new lndex which is based upon comparable information. The Note Holder will give me notice of this choice. (C) Calculation of Changes Before each Change Date, the Note Holder will calculate my new interest rate by adding TWO & seventy-~ive-~undredths percentage points ( 2.750 %) to the Current Index. The Note Holder will then round the result of this addition to the nearest one-eighth of one percentage point (0.125%). Subject to the limits stated in Section 410) below, this rounded amount will be my new interest rate until the next Change Date. The Note Holder will then determine the amount of the monthly payment that would be sufficient t o repay the unpaid Principal that I am expected to owe at the Change Date in full on the Maturity Date at my new interest rate in substantially equal payments. The result of this calculation wili be the new amount of my monthly payment. (0) Limits on Interest Rate Changes The interest rate I am required to pay at the first Change Date will not be greater than 10.500 % or less than 2.750 %. Thereafter, my interest rate will never be increased or decreased on any single Change Date by more than two percentage points (2.0%) from the rate of Interest I have been paying for the preceding 12 months. M y interest rate wili never be greater than lo. 500 %. (E) Effective Date of Changes My new interest rate will become effective on each Change Date. I will pay the amount of my new monthly payment beginning on the first monthly payment date after the Change Date until the amount of my monthly payment changes again. (R Notices of Changes The Note Holder will deliver or mail to me a notice of any changes in my interest rate and the amount of my monthly payment before the effective date of any change. The notice will include the amount of my monthly payment, any information required by law to be given me and also the title and telephone number of a person who will answer any question I may have regarding the notice. (GI Faihre to Make Adjustments If for any reason Note Holder fails t o make an adjustment to the interest rate or payment amount as described in this Note, regardless of any notice requirement, I agree that Note Holder may, upon discovery of such failure, then make the adjustment as if they had been made on time. I also agree not to hold Note Holder responsible for any damages to me which may result from Note Holder's failure to make the adjustment and to let the Note Holder, at its option, apply any excess monies which I may have paid to partial prepayment of unpaid Principal. 5. BORROWER'S RIGHT TO PREPAY I have the right to make payments of Principal at any time before they are due. A payment of Principal only is known as a "Prepayment." When I make a Prepayment, I will tell the Note Holder

in writing that I am doing so. I may not designate a payment as a Prepayment if I have not made all the monthly payments due under the Note. I may make a full Prepayment or partial Prepayments without paying any Prepayment charge. The Note Holder wili use ail of my Prepayments to reduce the amount of Principal that I owe under this Note. However, the Note Holder may apply my Prepayment t o the accrued and unpaid interest on the Prepayment amount, before applying my Prepayment to reduce the Principal amount of the Note. If I make a partial Prepayment, there wili be no changes in the due dates of my monthly payments unless the Note Holder agrees in writing to those changes. My partial Prepayment may reduce the amount of my monthly payments after the first Change Date following my partial Prepayment. However, any reduction due to my partial Prepayment may be offset by an interest rate increase. 6. LOAN CHARGES If a law. which applies to this loan and which sets maximum loan charges, is finally interprwted so that the interest or other loan charges collected or t o be collected in connection with this loan exceed the permitted limits, than; (a1 any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limlt; and (b) any sums already collected from me that exceeded permitted limits will be refunded to ma. The Note Holder may choose t o make this refund by reducing the Principal I owe under this Note or by making a direct payment to me. if a refund reduces Principal, the reduction will be treated as a partial Prepayment. Miscellaneous Few: I understand that the Note Holder will also charge a return item charge in the event a payment that I make in connection wlth repayment of thls loan is not honored by the financial institution on which it is drawn. The current fee is S 15.00 . Lender reserves the right to change the fee from time to time without notice except as may be required by law. 7. BORROWER'S FAILURE TO PAY AS REQUIRED (A) Late Charges for Overdue Payments If the Note Holder has not received the full amount of any monthly payment by the end of Fifteen calendar days after the date it is due, I will pay a late charge to the Note Holder. The amount of the charge will be 5.000 % of my overdue payment of Principal and interest. I wili pay this late charge promptly, but only once on each late payment. (B) Default If I do not pay the full amount of each monthly payment on the date it is due, I will be in default. (C1 Notice of Default If I em in default, the Note Holder may send me a written notice telling me that if i do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of Principal that has not been paid and all the interest that I owe on that amount. That date must be at least 30 days after the date on which the notice is mailed t o me or delivered by other means. ID) No Waiver By Note Holder Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in full as described above, the Note Holder will still have the right to do so if I am in default at a later time. (El Payment of Note Holder's Costs and Expenses If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by Applicable Law. Those expenses include, for example, reasonable attornevs' fees,

-10 1 0 ~ 1 1

Page 3 of 8

8. GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given to me under this Note will be given by delivering it or by mailing it by first class mail to me at the Property Address above or at a dlfferent address if i give the Note Holder a notice of my different address. Any notice that must be given to the Note Holder under this Note will be given by delivering it or by mailing it by first class mail to the Note Holder at the address stated in Section 3(A) above or at a different address if I am given a notice of that different address. 9. OBLIGATIONS OF PERSONS UNDER THIS NOTE If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in this Note, including the promise to pay the full amount owed. Any person who Is e guarantor, surety, or endorser of this Note is also obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor, surety, or endorser of this Note, is also obligated to keep all of the promises made in this Note. The Note Holder may enforce its rights under this Note against each person individually or against all of us together. This means that any one of us may be required to pay all of the amounts owed under this Note. 10. WAIVERS I and any other person who has obligations under this Note waive the rights of presentment and notice of dishonor. "Presentment" means the right to require the Note Holder to demand payment of amounts due. "Notice of Dishonor" means the right to require the Note Holder to give notice to other persons that amounts due have not been paid.

11. UNIFORM SECURED NOTE This Note is a uniform instrument with limited variations in some jurisdictions. in addition t o the protections given to the Note Holder under this Note, a Mortgage, Deed of Trust or Security Deed (the "Security Instrument"), dated the same date as this Note. protects the Note Holder from possible losses that might result if I do not keep the promises which I make i n this Note. That Security Instrument describes how and under what conditions I may be required to make immediate payment in full of all amounts I owe under this Note. Some of those conditions are described as follows: (A) UNTIL MY INITIAL FIXED INTEREST RATE CHANGES TO AN ADJUSTABLE INTEREST RATE UNDER THE TERM STATED IN SECTION 4 ABOVE, UNIFORM COVENANT 18 OF THE SECURITY INSTRUMENT SHALL READ AS FOLLOWS: Transfer of the Proparty or a Eaneficial lnterest in Borrower. As used in this Section 18, "Interest in the Property' means any legal or beneficial interest in the Property, including, but not limited to. those beneficial interests transferred in a bond for deed, contract for deed, installment sales contract or escrow agreement, the intent of which Is the transfer of title by Borrower at a future date to a purchaser. If all or any part of the Property or any lnterest in e Property is sold or transferred (or if a beneficial interest in Borrower is sold or transferred and Borrower is not a natural person) without Lender's prior written consent, Lender may, a its option, require immediate payment in full of all sums secured by this Security lnstrume t. However, this option shall not be exercised by Lender if exercise is prohibited by Appiice le law. If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 day from the date the notice is given in

i
I

Page 4 of 6

accordance with Section 15 within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior t o the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. (6) WHEN MY INITIAL MXED INTEREST RATE CHANGES TO AN ADJUSTABLE INTEREST RATE UNDER THE TERMS STATED IN SECTION 4 ABOVE. UNIFORM COVENANT 18 OF THE SECURITY INSTRUMENT AS DESCRIBED IN SECTION 11(A) ABOVE SHALL THEN CEASE TO BE IN EFFECT, AND UNIFORM COVENANT 18 OF THE SECURITY INSTRUMENT SHALL INSTEAD READ AS FOLLOWS: Transfer of the Property or a Benaficial Interest in Borrower. As used in this Section 18. "Interest in the Property" means any legal or beneficial interest in the Property, including, but not limited to, those beneficial interests transferred in a bond for deed, contract for deed, installment sales contract or escrow agreement, the intent of which is the transfer of title by Borrower at a future date to a purchaser. If ail or any part of the Property or any interest In it is sold or transferred (or if a beneficial interest in Borrower is sold or transferred and Borrower is not a natural person) without Lender's prior written consent. Lender may, at its option, require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if exercise is prohibited by Applicable Law as of the date of this Security Instrument. Lender also shall not exercise this option if: (a) Borrower causes t o be submitted t o Lander information required by Lender to evaluate the intended transferee as if a new loan were being made t o the transferee; and (b) Lender reasonably determines that Lender's security will not be impaired by the loan assumption and that the risk of a breach of any covenant or agreement in this Security Instrument is acceptable to Lender. To the extent permitted by Applicable Law, Lender may charge a reasonable fee as a condition t o Lender's consent to the loan assumption. Lender may also requlre the transferee t o sign an assumption agreement that is acceptable to Lender and that obligates the transferee t o keep all the promises and agreements made in the Note and in this Security Instrument. Borrower will continue to be obligated under the Note and this Security Instrument unless Lender releases Borrower in writing. If Lender exercises the option to require immediate payment in full, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is given in accordance with Section 15 within which Borrower must pay all sums secured by this Securlty Instrument. If Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. 12. MISCELLANEOUS PROVISIONS In the event the Note Holder at any time discovers that this Note or the Security instrument or any other document related to this loan, called collectively the "Loan Documents," contains an error which was caused by a clerical or ministerial mistake, calculation error, computer error, printing error or similar error (collectively "Errors"), I agree, upon notice from the Note Holder, t o reexecute any Loan Documents that are necessary t o correct any such Errors and I also agree that I wlll not hold the Note Hoider responsible for any damage t o me which may result from any such Errors. If any of the Loan Documents are lost, stolen, mutilated or destroyed and the Note Hader deilvers to me an indemnification in my favor, signed by the Note Hoider, then I will slgn and deliver t o the Note Holder a Loan Document identical in form and content which will have the effect o f t h e original for all purposes.

4810 105-011

Page 5 of 6

WITNESS THE HANOW AND SEALtS) OF THE UNDERSIGNED.

pay to me order of

SV%WLJRED PRODUCTS, HJC

WASHINGT@UTUAL

Wiwu1 m

om

BANK,

ADDENDUM TO FIXEDIADJUSTABLE RATE NOTE

03-0643-070494803-3 This Addendum to FixedIAdjustable Rate Note is made this day of -1. 2005 and is incorporated into and shall be deemed to amend and supplement the FixedIAdjustable Rate Note (the "Note") of the same date given by the undersigned (the "Borrower") and made payable t o the order of Washinuton Mutual Bank. FA ("Lender"). Paragraph 3 of the Note is hereby restated in Its entirety as follows:
3. PAYMENTS

(A) Time and Place of Payments I will make my monthly payments on the first day of each month beginning on Novenber, 2005 . Until the first day of November, 2010 I will pay only the interest on the unpaid principal balance of this Note. Thereafter, I will pay principal and interest by making payments every month as provided below. I will make these payments every month until I have paid all of the Principal and interest and any other charges described below that I may owe under this Note. Each monthly payment will be applied as of its scheduled due date and will be applied t o interest before Principal. If, on October 1 2035 . , I still owe amounts under this Note, I will pay those amounts in full on that date. which is called the "Maturitv Date". i willmake my monthly payments & & or at a different place if required by the Note Holder. CA 91324 (Bt Amount of M y Initial Monthly Payments Each of my initial monthly interest-only payments will be in the amount of U.S. 9 5.235.55 . This amount may change. IC) Monthly Payment Changes Changes in my monthly payment will reflect changes in the unpaid Principal of my loan and in the interest rate that I must pay. The Note Holder will determine my new interest rate and the changed amount of my monthly payment in accordance with Section 4 of this Note. Notwithstanding any other provision herein, the interest-only payment identified above shall be based upon the unpaid Principal balance after any partial prepayment is made. WITNESS THE HAND(S) AND SEAL61 OF THE UNDERSIGNED.

DAVID W GATBB .

/ih&-dfiQff*

BC: 658006 MGC Loan #: I7114050 NOTE ALLONGE

This Allonge is to be attached to and made a part of that certain principal amount of Promissory Note made by David W. Gates, in th o~<ginal $1,142,302.00, dated September 20, 2005, and p yable to Washington Mutual Bank,FA, as amended or modified (the "Note'').

Pay to the order of LPP MORTGAGE LTD. a Texas Limited Partnership, ("Assignee")), without recourse and without repre ntation or warranty whether express, implied or created by operation of law.

ii

STATE O F CALIFORNIA COUNTY O F LOS ANGELES

1
)

PROOF OF SERVICE
ss.

1 am employed in the County of Los Angeles, State of Califomia. I am over the age of 18 and not aparty to the within action. My business address is: 300 South Grand Avenue, Suite 2600, Los Angeles, CA 90071. On February 21,2012, I served the foregoing document described as:

DECLARATION OF BRET MALONEY

on the parties or attorneys for parties in this action who are identified on the attached service list, using the following means of service. (If more than one means of service is checked, the means of service used for each party is indicated on the attached service list). BY PERSONAL SERVICE. I placed -the original or -a true copy of the foregoing document in sealed envelopes individually addressed to each of the parties on the attached service list. and caused such envelope to he delivered by hand to the offices of each addressee. BY FACSIMILE TRANSMISSION. I caused -the original or -a true copy of the foregoing document to he transmitted to each ofthe parties on the attached service list at the facsimile machine telephone number as last given by that person on any document which he or she has filed in this action and served upon this office. BY MAIL. I placed -the original or -a true copy of the foregoing document in a sealed enveloped individually addressed to each of the parties on the attached service list, and caused each such envelope to be deposited in the mail at 300 South Grand Avenue, Suite 2600, Los Angeles, CA 90071. Each envelope was mailed with postage thereon fully prepaid. 1 am readily familiar with this firm's practice of collection and processing of correspondence for mailing. Under that practice, mail is deposited with the United States Postal Service the same day that it is collected in the ordinary course of business. BY E-MAIL. I caused the foregoing documentfs) to be transmined by e-mail electronic transmission to the e-mail address on the attached service list as last given by that person on any document which he or she has filed in this action and served upon this office. BY EXPRESS MAIL. 1 placed -the original or a true copy of the foregoing document in a sealed enveloped individually addressed to each of the parties on the atrached service list, and caused each such envelope to he deposited in the mail at 300 South Grand Avenue, Suite 2600, Los Angeles, CA 90071. Each envelope was mailed with Express Mail postage thereon fully prepaid. I am readily familiar with this firm's practice of collection and processing of correspondence for mailing. Under that practice, mail is deposited with the United States Postal Service the same day that it is collected in the ordinary course of business. BY FEDERAL EXPRESS. I placed -the original or -a true copy of the foregoing document in a sealed enveloped or package designated by Federal Express with delivery fees paid or provided for, individually addressed to each of the parties on the attached service list, and caused such envelope or package to be delivered at 300 South Grand Avenue, Suite 2600, Los Angeles, CA 90071, to an authorized courier or driver authorized by Federal Express to receive documents. (State) 1 declare under penalty of perjury under the laws of the State of Califomia that the foregoing is true and correct. (Federal) I declare that I am employed in the office of a member of the bar ofthis court, at whose direction the sewice was made. Executed on February 21,2012, at Los Angeles, California

Antoinette Y. Taylor

SERVICE LIST
David Gates, Trusteefor the David K Gates Trust d a t e d d u p t 5, 1996 v MGC Mortgage, Inc., et al..

Santa Barbara Superior Court Case No. 1384851

Nancy Du@ McCarron, Esq. LAW OFFICE OF NANCY DUFFY McCARRON 950 Roble Lane Santa Barbara, California 93 103 Telephone: 805.965.3492 Facsimile: 760.345.0019 Email: [email protected]

Attorney for Plaintiff: DAVID W. GATES, TRUSTEE FOR THE DAVID W. GATES TRUST DATED AUGUST 5,1996

Nancy Duffy McCarron, CBN 164780 Law Office of Nancy Du@ McCarron 950 Robie Lane Santa Barbara, CA 93 103 805-450-0450 fax 805-965-3492 [email protected] I Real Estate Broker Lic. 853086 Notary Public Lic. 1791117 I Certified Arbitrator for BBB 30329 ,

SUPERIOR COURT o CALIFORNIA f COUNTY of SANTA BARBARA

FILED
MAR D 5 2012

Attorney for Plaintiff SUPERIOR C O U ~ T THE STATE OF CALIFORNIA OF FOR THE COUhTTYOFSANTA BARBARA (ANACAPA DIVISION)
DAVID W. GATES, Trustee for the DAVID W. ~ A T E S ) CaseNo: 1384851 Trust dated August 5, 1996 'laintiff' ) filed:2-1-12 CMC: 614112 8:30 MSC:nla Trial :"/a

vs.

MGC Mortgage, Inc., Texas Corporation

LPP Mortgage Ltd., LP, Texas Corporation ) Loan Acquisition Corporation, Texas Corporation ) Cal-Western Reconveyance Corporation, Texas Corporation ) DB Structured Products, Inc., Delaware Corporation ) ) as Deutsche Bank National Trust Com~anv. trustee Washington Mutual Bank, a national banking association ) Wamu Asset Acceptance Corporation, SPV vehicle bank ) Washington Mutual Mortgage Securities Corporation, bank ) JP Morgan Chase Bank., National Association, a bank ) DOES 1 through 50, inclusive, Defendants. )
\

REPLY to Opposition (MGC-LPP-LAC) lo Gates'

Motion for Preliminary Injunction filed together with: Evidentiary Objections to Bret Maloney affidavit Affidavits of: Expert William Paatalo; David Gates Nancy McCarron, Ron Landis, and NOTICE OF LODGING (Criminal Affirmance of Elite Crime) lForeclosure in California-A Crisis of Compliance) and Proposed Preliminary Injunction Order DATE: M a r c h 12,2012 TIME: 9:30 a.m.

-1

; DEPT: $9526 5 CCP

Honorable Colleen K. Ste~ne Cal. Rules of Ct., Rule 3.1 150(b)

II II

REPLY to Oppositio~l Application for Preli~ninaryInjunction to

A preliminary injunction evaluation is based on admissible evidence and decision rests on only two factors:

II II 11
II

1.)a likelihood ihat the applicant will prevail on the merits at trial

2.) the balance of any interim harm to the

I

I1

applicant if the injunction is denied compared with the harm to the responding party if the injunckion is issued.

Corn Cause v. Bd o Supr(l989) 49 Cal.3d 432,441;Right Site Coalition v.LA Schools(2008)160 c.A.4th 336,341; f Best Friends Animol Society v. Macerich Westside Pavilion Properties LLC (201 1) 193 Cal. klpd. 4th 168,174. Nichols v. Deutsche Bank Nut 7 Trust (SD Ca1.-2007) 07CV2039-L. (enjoining foreclosure is ap$ropriate remedy) Civil Code $3368 provides independent authority for injunctive relief when necessary f a prevent a p a w T'fmmdoing that which ought not to be done."

C i q ofPo.~adenav Superior Court (1410) I57 Cal.781.1

GATES is not trying to avoid an obligation; he just wants to pay the real obligees who a r e entitjed to be repaidnot some Texas swindler who hijacked his cash flow to the real beneficiaries--the investors wh4 funded his loan.

II

REPLY to Opposition ( b y

Injunction

FACTOR 1: ADMISSIBLE EVIDENCE SHOWS GATES WILL PREVAIL AT TRIAL

A court will grant preliminary injunction if verified complaint states sufficient claim for injunctive relief

& it is reasonably necessary to protect legal rights. Moreno Mut. Ir. v. Beaumont Irr.(l949) 94 CA2d 766,778
Even when a complaint is demurrable a court may grant inju~lction defects may be cured by an amendment. as Handvspot I: Buege1ei.w (1954) 128 C.A.2d 191,194; McPheeters
11.

Mctbfahon (1 933) 13 1 C.A.418,427.

Injunction is right remedy until accounting can bc done belore foreclosure. More v. Calkins (1 890) 85 C.177,188 The court must take un-denied allegations as true. KoldKist v. Meat Cutters (1950) 99 C.A.2d 191, 19 Matters judicially noticed may be treated as having heen pled. Evans v. Ct ofBerkeley (2006) 38 Cal.4th 1,6. iy Defendants didn't deny Gatcs' affidavits. Courtjudges credibility of affidavits & resolves conflicting documents Voeltz v. Bakery Kr Confection Workers Intil. Union (1953) 40 Cal.2d 382,386. Defendants know the assigrzmeni of Gates' trust deed, the endorsement to DR Structured Products, Inc. under his signature, and allonge are forged Fabrication is transparent. (see ariidavits of Expert William Paatalo, David Gates, Nancy McCarron, Ron Landis: Defendants offered only Bret Maloney's affidavit in opposition, which is replete with inadmissible hearsa) misleading statements: and a failed attempt to authenticate an undated, fabricated and robo-signed allonge. [see Evidentiary Objections to Bret Maloney's affidavit]. Coullsel peppered her argulnents with purported,fucts most of which are untme ---- all of which are not evidence. see CACl 106. Counsel's Request for Judicial Notice must fail as counsel has no personal knowledge about their contents (which she tries to validate in her arguments: nor call she authenticate them as she is not custodial1 of records. She did not submit cert~~edcopies; attache thus sxhibits are not self-authenticating. All the court may judicially notice is that they were recorded in this county. Ca~oi~untesCal(fornia Reconve~unce v. Co., 2010 WL 4055560,9 (S.D.Cal.20 lo); Darensburg v. Metropolitan Transp. Comnz41,2006 WL 167657, at *2 (N.D.Cal. 2006). Stephen R. Buchenroth aridGretchen D. Jeffries, Recent Foreclosure Cases: Lenders Beware (June 2007); Wells Fargo v.Jordan, 914 N.E.2d 204 (Ohio 3009).

A.

Gates wants to pay the real beneficiaries - not swindlers who hijacked his cash flow to the

lenders

Gates does not deny his obligation; he just wants to pay the real beneficiaries--not imposters. Defendants lrgue the "produce the note" theory is rejected. Many courts apply it. Calif f:hlbrrgages, Deeds o Trusl, and f Foreclosure Litigation, (4th ed Cal CEB 2009) 612, p. l 152. Early cases were filed inproper or by ineuperiencec ~ttomeys who did not understand securitizatio~~ Ulat banksters filed forged assiqments and periured aff~davits, or ludges were duped into accepting periured affidavits and fabricated allonges. Courts are now "getting it."

REPLY to Oppssition (by M G Z ~ L P P - L A C ) to

1~.36%

re-iminarli I n j u n c t i c n

[t was not until Congress and attorney generals in 50 states investigated that nafiomlide bank fraud came to light Elite banksters used shareholders' funds to buy immunity for their crimes for a paltry $26 billion. (Exh.A). This afirmed and encouraged more crimes. See Notice of Lodging "Criminal Affirmance" [in-depth 412311 1 -eport by Prof.Mary Rainirez (Washburn School of Law-13-years @ DOJ, Sen.Trial Atty U.S. Attorney's Oftice, 4t 81 pages it takes only a half-hour to read as 75% is detniled footnotes. It chronicles the 2008 banking dollapse iocumenting elite bankster crimes. including filil~gperjured affidavits and f o r ~ e d asriwments in all of our court: She explains how Wall Street brokers devised schemes to generate billions in commissions. knowing most ~f the toxic loans would default but investors would be paid as loans were guaranteed by govemnient (taxpayers) She explains how failure to prosecute affirms elite crimes and insulates elite banksters in a class above the law. rhis encourages more crimes. Banksters learn crime pays and law-abiding citizens who suffered harm become .esentfi~l ponder if thcy too should break the laws as they discover crime pays --resulting in a lawless sociec and 4nger percolates as citizens watch banksters get richer by continuing crimes whilc they lose homes and jobs. An nevitable revolution in its embryonic stage has emerged (occupy Wall Street). Only judges can protect us now. On a state level Califomia is taking action. On February 20, 201 2 Nancy Pelosi and Jackie Speier invoked 3ric Holder to investigate bankster violations of law in state foreclosures. (Exhibit B). This followed receiving 2 ,eport "Foreclosure in California, A Crisis of Compliance" by AEQUITAS auditors, which concluded on page14 'Califo~~~ia's foreclosure process appears utterly broken.'' See Notice of Lod~ing "Foreclosure in California." The audit found 99 percent of mortgages had irregularitics, 84% showed violations of the law and a high rate of :onflicting information regarding the actual beneficiaries, questioning if homeowners were denied duc process. Defendants used 4 pages to try to rebut Gates' no tickee, no laundv theme argued in his initial application >laintiffwarned the court to expect perjured affidavits about a lost note as it is the D o c X p r s t foreclosure trick. iealizing the court may not buy the first trick, defendants invoked the second DOCX trick---the floating allonge The allonge produced eith the opposition was undoubtedly fabricated by defunct DOCX $12.95 (Exhibit C) for Zxh. C shows a code & price list confiscated before DOCX abruptly closed after a regulatory investigation. was ,N02=Lost Note Affidavit: NAO I = Note Allonge; CFO I = Recreate Entire Collateral File for $9

DOCX advertised as a national network of "document creator?"'

mnners who guaranteed "speedy forcc1osu1-e."

DOCX'Sproduction of millions of fabricated and forged documents in 50 states resulted in a literal tsunami of
hreclosure and fraud litigation in 50 states, district courts across the USA, and all bankruptcy courts in America.

R3PLY t o

opposition

( b y MGC-LPP-LACI t o Preliminary I n j u n c t i o n
/ o r

51,g

B.

RELEVANT FACTUAL BACKGOUND (the real history)

9/23/05 Gates executed pro~nissory note &trust deed to Washin~on Mutual Bank. FA (ver.complt. Exh A-5-34 the note onlv had his signature - not t h e e "Cindy Riley to DB St~uctured Products, Inc."robostarn WaMu was the loan servicer; Gates does not know when the endorse~nent was stamped on---or by whon Gates made monthly payments to WaMu until it transferred loan servicing rights to GMAC on 9-1 -08 WaMuiCountrywide were failing created MGC to buv loan servicing rights (Ex D 1/17/08 Andrew Beal-sensi~~g Beal seized the opportunity to buy servicing rights from CW & WaMu loans from GMAC sub-service1 MGCIBeal hired FISERV to install servicing platform & create a new loan servicing o ~ e r a t i o q E (Ex Beal knew manv securitized toxic loans were defaultine & intended to foreclose & acauire the ~ronertie Beal knew trustee Deutsche National Bank had abandoned securitized loan pools & its certificate llolder Beal intended E M o r t r a x e to be a pretendlender whiles MGC senricer foreclosed to steal the homes Beal could then steal for&losed when his trustees "conveyed" homes to his LPP Mortgage

&

9/1/08 WaMu. ready to file BK transferred loans to DB and loan sewicing rights on Gates' loan to GMAC WaMu dumped loans & loan servicing rights so when it filed BK asscis wouldn't be on balance sheets 9/25/08 OTS seized WaMu;FDIC sold it to JPMorgan Chase;WaMu filed bankruptcy 9/27/08 (ver.complt Ex I) 10/1/08 Gates made his first mortgage payment to GMAC rather than WaMu and continued paying to 5/1/09 12/29/08 GMAC gets S5 of $700 billion TARP $ to help distressed homeowners under HAMP program (Ex Fl

5/06/09 Gates' homc burns-Jesusita fire; tenants relocated; Gates tells GMAC he lost renters & can't Day
5/21/09 GMAC gets $7.5 + $3.8 billion 12/30/09 (total $16.3 TARPP) with HAMP funding conditions (Ex F1) 2 weeks GMAC can't foreclose a defaulting debtor like Gates due to TARPIHAMP distress prohibitions (Ex F2 later) GMAC works a "deal with Beal" to unload Gates' "loan servicing" as HAMP rules prohibit foreclosinp Beal can foreclose Gates' home since Beal Bank did not get TARP $--he had too many billions in cash i/12/09 MGC fabricateslrecords 2 assignments: 1) to DP [back-dated to 8-30-06 before WaMu filed BK] 5 weeks and 2)DP to LPP Mortgage [back-dated to 3-16-09 before Gates' home burns) (ver.comp1t.Exh.B) after fire) Note: although recorded 4 days before Gates got notice of change in loan servicer from GMAC to MG( the purported sale date of the "master loan purchase" is 8-22-08 (4 weeks before WaMu filed BK) 5/16/09 4 days later GMAC/MGC both notify Gates on the same dav that MGC is new loan servicer (Ex G)
4 days later)

1-9-09
7 wks later)

7 weeks after MGC buys servicing of Gates loan Beal moves to foreclose and take Gates' home (Ex H

Usine LPP as prelmd lender & MGC to foreclose Beal's net income iumped $559 million in 2009 (Ex I: Beal has operated LPP Mortgage since 2000, gaining inside information from Wall Street buddies who .egularly borrowed from Beal Bank that WaMu and Countrywide would collapse in 2008. Real knew trustees ha( ~bandoned trusts after being paid commissions, default swap payoffs, short payoffs, and government bailoilt fund 3eal cut deals with trustees to buy servicing rights to pool loans intending to convert properties he'd foreclose on 3eal's buddy brokers at DB Structured Products, Inc. sold Beal trust notes WaMu had endorsed in blank (per the '&S agreement) after stamping DB Structured Products, Inc after the words pay to on those blank endorsements.

RZPLY to Oppasltlon (by MGC-LPP-LAC, to P r e l i m i n a r y Injunction

cs.srf?,

Real, either through staff or DocX recorded hundreds of fabricated assignments for "speedy foreclosures" via Cal-Western Reconveyance Co. as trustee, who used DocX regularly. Beal's modus operandi waslis to use MGC as loan senzicer and LPP Mortgage aspretend lender, a company hc has operated in 50 states since 2000. Beal knew Wall St. trustees would not foreclose on behalf of the real beneficiaries---the trust's certificate holders. Brokers told Beal investors submittcd clai~ns government insurer AlG after bonds stopped yielding in the pools lo lnveston were told borrowers had defaulted and homes were in foreclosure. B ~ a seized tlie opportunity to hijack l cash flows rrom performing i o a ~ and to foreclose on non-performing loatis---converting those propcrtics to LPP. ~s

WILLIAM PAATALO SHO\VS ASSIGNMEXTS WERE FABRICATED

Securitization expert William Paatalo traced Gates' loan in Bloomberg's database to a REMIC pool entitled, "WaMu Mortqage Pass-Throu~I1 Certificates Series 2005-AR16-t
[Ewh. J- Pooling & Servicing Agreement]

Paatalo included only the Title Page in his report. 'The P&S Agreement & Prospectus are available at websites:
h t t p : / / r : w w , secijnfo.com/d16VAy.z~-, , l ~ t m # l s t ~ a c ~ e ; l l/hw. d t t ~ : secinio.c o m / d s v R a . Z4?%.P.tm~Ss:Pag

Paatalo explains how tie discovered tlie recorded assignments were fabricated. Gates loan was transferred into 2005-AR 16 Trust in October, 2005-for the Nov. 1,2005 cut-off date. (Exh. J-1) The participants in the P&S Agreement are recited: E a M u Asset Acceptance Cornoration ((Depositor); Washineton Mutual Bank (Servicer); Deutsche Bank National Trust Compa~iy ('Srustee); Deutsche Bank Trust Co~npanv Delaware (Delaware Trustee). TheNov. I , 2005 cut off date and total collateral in the loan pool, i.e. $924,385,186.87 are recited. (Exh.J-1,2) Per the P&S (52) the depositor (aka "the Company") on the closing date was to sell lo [he 2005-AR16 Trust: in exchange lor an equal dollar amount of cert{ficfrcn~es which depositor would issue to certificate holdersiinvestors The trust was created for the benefit of holders (34). The mortgage tile consisted of: Mortgage Note endorsed in blank, without recourse, and all intewening endorsements evidencing a coniplete chain of title from originat01 to Trustee for safekeeping. (J6). The Trust was a REMIC (58)subject to IRS codes 5860A-860G (J9 and 110). Collateralized assets (original notes, trust deeds & Title Policies) were to be maintained by the Trustee (J11)
I f

the institutions acting as Trustee or Delaware Trustee. or anv Person claiminr through either. Trustee nor the Delaware Trustee shall have the power or authority to transfer, assign, hypothecate, pledg! or otherwise dispose of any of the asseb of the Trust. (J12) No commingling of fundslassets was allowed (J14)

REPLY to Oppositlcn

(by YIGC-LPP-LAC)

lo4 1' 31

to Preliminary T n j l l n c t i o n

The Company sale of assets to the trust was irrevocable and absolute. (514) All mortgage files were t( e delivered to Trustee who shall identifylmaintain files.(J 15) All assets are held for the benefit of the Trust ( J l i .oan Servicer could not allow any modifications on pool loans (J18) maintain primary mortgage insurance (519) iaintain Hazard Insurance (J20). Liability was limited only when parties acted in good faith. (521). The Trust ir *evocable (522) All participants signed P&S Agreement. (J25, 26,27). Trust would be kept in Santa Ana. (528)

hk trust filed inactive status Form 15 with SEC 1111106 discharging its duty to file any other SEC fonns (J29-3(
'he Prospectus was given to investors before they purchased certificates issued by WaMu depositor. (Exh. K) idestors who bought certificates (@ $25,000 each) were the true lenders/benefieiaries/holders in due course. ~vestorilenders the only persons entitled to be repaid and the only persons with standing to foreclose loans. are When Gates signed the note on 9123105 there were no stamps under his signature. (Gates affidavit, p. 1) lindy Riley's blank endorsement stamp was used because P&S required WaMu to endorse notes in blank (J6 .iley's endorsement in blank stamp could only be used to transfer the note to the depositor to sell to the trust (52: lo one could endorse "pay to DB Structured Products, 1 " because it was a stranger to the P&SAgreement. % ince Washington Mutual Bank, FA was defunct by 4-4-05 (see Paatalo affidavit) its "endorsement" was a nullit 'Cindy Riley were really Vice President she would have known this on 9-23-05. The only reasonable conclusioi :the stamping of "pay to DB Structured Products, TIE" was a fraudulent forgery and void ab initio. A subsequen

;signment from DB Structured Products. Inc. to LPP Mortuane Inc. was a nullity because the first one was void. IGC's name is hand-written on the top left corner of the second assignment (see ver. complt., Exh. B1) showing tat MGC created it. The bottom half of the subsequent assignment (a cut & paste job) was purportedly executed
I

Duval County. Florida 3 years earlier-8/30/06 when MGC didn't exist. Beal created M G C 1/17/08 (Exh.D)

UNIFORM COMMERICAL CODE APPLIES TO NEGOTIABLE INSTRUMENTS (NOTES) Defendants argue UCC is "not the law in California or anywhere else" but is rather "one of a number of

niform acts promulgated in an attempt to harmonize the law in various Gates" . ... (Opposition, P. 6, fn 1) his research is misplaced. UCC was adopted in 50 states, including California in 1963 (ch 819) effective 1965. CC $1 101 recites, "This code may be cited as the Uniform Commercial Code. (last amendment Jan. 1, 2007). CC $3 10 1 recites, "This division may be cited as Uniform Commercial Code -Negotiable Instruments." CC $31 03 recites, "Definitions.. .(a) In this division: . . .(5) "Maker" means a person who signs o r is identified in a note a s a person undertaking to pay

REPLY t o O p p o s i t i o n ( b y MGC-LPP-LAC) to P r e l l r n i n a r y I n 2 u n c t i o n

10,35'231:

JCC $9101 recites, "This division may be cited as the Uniform Commercial Code - Secured Transactions. JCC $9102 recites, "Definitions.. .(a) ...(12) "Collateral" means the property subject to a security interest )r agricultural lien. The term includes all of the following: (A) Proceeds to which a security interest attaches (B) Accounts, chattel paper, payment intangibles, and promissory notes that have been sold (32) "Encumbrance" ineans a right, other than an ownership interest, in real property. The term includes mortgages and other liens on real property. (47) "Instrument" means a negotiable instrument or any other writing that evidences a right to the payment of a monetary obligation, is not itself a security agreement or lease, and is of a type that in ordinary course of business is transferred by delivery with any necessary indorsement or assignmen ( 6 5 ) "Promissory note" means an instrument that evidences a promise to pay a monetary obligation, JCC 59109 recites, " (a) Except as otherwise provided in subdivisions (c) and (d), this division applies to each of the following: (1) A transaction, regardless of its form, that creates a security interest in personal property or fixtures by contract. (2) An agricultural lien. (3) A sale of accounts, chattel paper, payment intangibles, or promissory notes. f defenda~its ccliin right to foreclose based on buying a promissory note (and assignment of TD) UCC governs DEFENDANTS FAILED TO SUSTAIN A BURDEN OF PROOF UNDER UCC3308 Where instrument validity is denied the burden of proof is on the party asserting validity to prove validity. JCC 3308(a) Defendants failed to provide any admissible evidence to prove validity of either assignment
i Request for Judicial Notice of uncertified, unauthenticated docninents woefully fails to sustain such burden.

Jo answer denying allegations was filed. Maloney's affidavit fails the burden. (see Evidentialy Objections to it) Aaloney works for Saxon Mortgage. (Exh L) Beal (MGC) borrowed him for the affidavit. Paatalo explains why he undated, un-notarized allonge is a fraud.
3

Shirley Arroyo appears as VP allonge endorser. It's a real stretcl

believe DP Structured Products. Inc., a sopllisticated Wall Street Securities Finn with 10,000 employees would

ppoint a young lady who "studied at Monroe Community College" as its Vice President. (Exh. M). Arroyo's acebook page shows she "workedat Deutsche Bank.'% is likely that after she quit banksters cut her signature lock off some other document and pasted it onto the fabricated allonge. (Exb.N) The floating allonge was never rodnced in MGC's response to a QWR request Gates served on MGC, LLP & GMAC. (see Gates affidavit, p. 1) 'he MGC note had two black holes on each page (from a two-hole punch) which do not appear on the allonge. Jnder LrCC endorsement must be on the note itself--not a separate page unless there is no room on the first page.

REPLY to opposition (by MGC-L F-LAC) to Preliminary i n ~ u n c t i o n

1,o.m3

D.

EVEN IF MGC HAS GATES' ORIGINAL NOTE IT DOESN'T PROVE LPP IS BENEFICIARY
Any loan servicer can request transfer of a loan file from the Trustee's office, as explained in the recent

testimony of Ronaldo Reyes, Administrator of Deutsche Bank National Trust Comyanv. (Ex 0 ) On p.133 of his depo (02) Reyes explains how on closing day the Trustee takes all right, title and interest in the mortgage pool, and that the Trust is owner of the loans for the benefit of the certificate holders. (02). At p. I58 (05) he explains how loan files are held in a vault but under a P&S agreement a servicer may request a file to litigate or foreclose. On p.166 -167 (07) Reyes testifies that files are transferred to the loan servicer by over-night delivery and then returned to Trustee when litigation or foreclosure concludes. MGC merelv requested and received the loan file. This does not make LPP beneficiary. It means only that a trustee complied with a request to transfer the original:

E.

GATES IS NOT REQUIRED TO TENDER WHERE VALIDITY OF THE NOTE IS CHALLENGE1

Defendants argue tender is required. This is not true as it is not be required where it would be inequitable.

Onofrio v. Rice (1 997) 55 CA.4th 413,424; Dinrockv. EmeraldProperties (2000) 81 Cal.App.4th 868, 876. "Si~~~il;~rly. tllc persol1 n:nling the cus ivhe~l n c o ~ ~ n t c , ror iset-oliilrdillbt rlie benrfivisn:. . . it is a d e ~ ~ ithat tlle\dctccli il o h and if the offset is errllnl to orgrcater than ihr amount due. a tender is not reauired ...if the action attacks the validity of the underlying debt, a tender is not required since it would constitute an affirmation of the debt." Onofrio 6 4 2 4 see HumboIdt u. Savings Bank u. McCleuerty (1911)161 C.285,291; SPC u. Hollis (1987) 196 CA3d 948 Gates (1954) 42 Cal.2d 752, 755 V see Hauger 1~. d the amount owed on debt]

Even if LPP were the lender Gates is entitled to an offset for insurance proceeds MGC wrongfully convertec of At ~ 1 7 , 7 8 9 verified complaint Gates alleged that after he used $1 00,000 borrowed on credit cards and $50,00( :ash materials to rebuild, Fanners sent $202,548.64 payable to GatesiMGC. After he endorsed the check and ser it to MGC, after promising to endorse and retun? it to him, MGC converted his $202,548.64. MGC only released the funds after his counsel threatened to sue 5 months later. On 5-12.] 0 MGC sent $1 13,622.96 but still kept $88.925.68 (ver. complt. Exh. F2. F3). The amount MGC wrongfully retained and converted exceeds the amour MGC. said was due on its NOD -$73,351.90 (ver. complt, Ex B5). Under Onofrio no tender is required.

Gates alleged the assignments MGCILPP based their asserted right to foreclose on are a fraud on the court Where plaintiff alleges fraud tender is not required. Bank ofAmerica Assoc. v. Reidy (1940) 15 Cal.2d 243 248; 4ngeN v. Supr Ct (1 999) 73 CA.4th 691,700; Stockton v. Newmun (1957) 148 Cal.App.2d 558,564.

REPLY to Oppositran (by MGC-LPP-LAC1 to Preliminary Injunction

lo. 37q

*
3

11

Stockton u. Nrwr~an (1957) 118 CA2d 558,564. Courts excuse tender on injunction requests in foreclosure cases. Carter v. Deutsche Bank OJD Cal-20 10) C09-3033 B2 (20 10 US Dist.Lexis 49984): Ohlendorf v. Am. Home Mtg. (ED Ca1.-2010) Civ S-09-2081; 2010 US Dist.Lexis 31098; Stor~n Anr.Sl.s.Co (SD Ca1.2009) 09cv1206-IEG v.

4
5
6

1
9
lo

(JMA); Azzine v. Counbywide (SC Cal. 2010) 09cv-787 PMS (CAB) 2009 US Dist.Lexis 120599; Vissuit v. Indymac Mtg. Svs. (SD Cal 201 0) 09-cv2321 1EG) (CAB) 2010 US Dist.Lexis 2624 (rejected tender- injunction)

11

(1 F.

MGC WAS NOT ENTITLED TO CONVERT GATES INSURANCE PROCEEDS

Defendants argue MGC could keep insurance proceeds under the assignment o insuranceproceeds clause. f

This clause protects a lender from an owner collecting proceeds and abandoning the land. GATES borrowed on
12

credit cards and uscd his own cash to rebuild 80% of the home betbre Fanners would issue any reimbursement.
13
14

The assign~nent insurance proceeds clause is statutory. CC &2924.7(b). However, the legislative Comment to of CC 2924.7(b) acknowledged an exception created in Schoolcraft v Ross (1978) 81 CA3d 75 when trustor uses to insurance entitle~nent restore or repair the security. see Stats 1988, cli 179. 53. The exception applies herein. Under the P&S Agreement servicer was required to use proceeds to return the asset to income producing status.

15 16

17
1e

19
2o

G.

DEFENDANTS FAILURE TO COMPLY WITH CIVIL CODE 52923.5 IS A QUESTION OF FACT

Defendants next argue they coinplied with Civil 52923.5 because their robosigner asserted trustee complied

and that because Gates' note contained a second home rider it was not a primary residence, Whether defendants

I/ /
I!

complied is an issue of fact and is not resolved with a perjured affidavit from soine robo-signer in Illi~iois, who
has no personal knowledge about whether MGC. LLP or CWRC ever contacted Gates, as required by $29235. Legislative comments recite that the purpose of this emergency legislation was to ensure that lenders disclose modification options to homeowners, and give them the HUD's contact number to call for advice about HAMP programs for distressed homeowners. Gates testified
ill

I
I!

affidabit submitted with application for a preliminary

injunction that he was never contacted. Defendants filed no answer or affidavit denying Gater testimony. Accordingly, the court must accept Gates' affidavit as true. Compliance is a prerequisite for a valid foreclosure.

REFLY to Opposition

(by MGC-LEP-LAC] t o Preliminary Injunction

1 0 , 33s

FACTOR 2 DEFENDANTS FAILED TO SHOW ANY HARM IF INJUCTION IS ISSUED

The only argument proffered on balancing harm is that it is .'not in the public interest" to allow Gates to clnain on his property and gain "something the party is not entitled to" (Opp, p.15) This is not the right test. The test is a balance between the harm to Gates if injunction is riol issued v. harm to defendants if it is issued. :quity does not allow one to take advantage of his own wrongs nor will it assist in perpetration of outright fraud.
3 ofA Nnt.Trzrst v. Reid)) (1940) 15 Cal.2d. 243,248 Whitnian v. Translate Title Co. (1985) 165 CA3d.312.322

The hardship to Gates-losing

his home-represents

irreparable injury and harin, diminishing his requirement of

howi~ig probabilit). of success on the merits. Hoine foreclosure constitutes il~eparable injuiy. Demaresr v. QuicI

;oan Fund In. (2009) WL940377 (CD.Cal.Wrobel v. S1.Pope & Assoc.. 2007 WL 2345036 @I (S.C. Cal. 2007) Jichols v. Deutsche Bank Natl. Trust 2007 WL 41 81 1 I, at 2 (S.D. Cal. 2007). United Church ofMed. Ctr. v. Me,
% Corn. 689 F.2d. 693, 701 (7'h. Cir. 1982). If defendants foreclose, plaintiff will lose his home of 30 years,

vhile disabled at 69. A harsher outcome could scarcely be imagined. Balance of harm clearly weighs in his favor,

V Bond Should be Required o

Undertaking required by CCP 529(a) is a form of security intended to protect a party from potential injuq

bizover v. Hall ( 1 974) 1 I Cal.3d 842, 85 I . Courts retain comtnon law authority to waive the requirement of an
:ndertaking in cases involving needy litigants. Id see CCP 5 187 (broad statutory authority wherc not recited) :ourts have broad discretion in determining the amount of bond, or can waive the bond where it is equitable.

:onnecticz~tGen. L!fe Ins. Co. v. New Inzage.~ qfBeverly HiN.r- 321 F.3d. 878, 882 (9"'. Cir. 2003). CRC 1: 100
'he court may dispense with the filing of a bond when it concludes there is no realistic likelihood of hann to the efendant from enjoining his or her conduct. Jo~gensen Caxsidy, 320 F.2d. 906,919 (9"' Cir. 2003) v. Defendants did not file an answer denying Gates allegations of harm in his verified complaints. Defendants ailed to file any affidavit alleging harm in opposition to this (notion. The court is required to accept Gates llegations as true because they are uncontroverted by answer denying them or aff~davit alleging h a m .
f the alleged assignments are valid defendants are adequately secured by the property--worth more than a millior

'hleger v. Countrywide. 2007 WL 41 05672 at 6. (N.D. Cal. 2007). MGC still holds $88,925 of Gates' insurance
iroceeds issued by Farmers for-Gates' benefit exceeding the $71,000 default listed on the NOD. (ver.com Exh. B

REPL> to Opposition ( b y MGC-LEP-LAC1 t o Preliminary Injunction

Ib ' 37C

CONCLUSION:
A security interest cannot exist without an underlying obligation. Henley v Hotaling (1 871) 41 C 22; rurile~ Gosden (1932) 121 CA 20: l a e v.loseph (1968) 267 CA2d 30. see Civil Codes $52872,2909,2920. v

The primacy of the obligation is such that if there are inconsistencies between language of the note (evidence of he obligation) and the deed of trust (evidence of the security), the terms of the note will control. PacificFruit

%ch. 1: Duke (1 930) 103 CA 340. Gates note is owned by the 2005-AR-I6 trusl. The obligation Gates owes is tc
he investors wl~o funded his loan in the 2005 AR- 16 trust--not to a Texas swindler! For a bmsferee of a note to :ain holder in due course status Cal. Commercial Code $3302 requires that: I ) the note must be negotiable and
!) the transferee must act: a in good fnith; b) give valve; and )

c) 1 165,1168. Defendants acts reak ofbad faith.

.amGenmer v. Wells Fargo (1999) 76 C.A.4th l i .

issignment shows $10 consideration for a $1 million security. $10 wauld not w i s e the "give value"prong. k e admissible evidence presented shows defendants are not tho lender or beneficiary under his note and therefor lave no standing to foreclose on Gates' property. Only the trustee of the 2005-AR 16 trust can move to foreclose The injunction should be granted not only because it is equitable but also because special accommodations nder CRC 1 :100. (a) (3) should be givcn to any elderly, disabled man. Gates lost his wife, lost his home to fire, ad heart surgery from all the stress, spent the last 3 years rebuilding his home on funds borrowed on credit cards ~nly have Texas swindlers convert insurance proceeds issued to reimburse him for materials, iutd then as soon to
s he rebuilt SO%, moved to foreclose, whilc wrongfully withholding funds he needs to finish the remainins 20%.

'he elite banksters should not be rewarded for such egregious fraud and malignai~lt disregard for human dignity. hie could not imagine a more inequitable result.

*-QMJ Wbil
/Van9

VEIUFICATION

P*wn 3&$/=3~2

I, DAVID GATES, trustee for the David W. Gates Trust dated August 5, 1996 declare:
I am plaintiff and read this REPLY to OPPOSITION to application for preliminary injunction in its entire? dcclare. under penalty of perjury and the laws of Califoinia, the allegations set forth herein as they relate to me, nd as the facts presented are true to the best of niy knowledge. Executed March 4,2012 in Santa Barbara, CA

S, as trustee for the ~ a k W. Gates Trust dated August 5, 1996 d

.f&

~(EPLY t o

oppositmn

(by MGC-LPP-LAC) ta Preliminary ~ n j u n c c ~ o n

10,377

DECLARATION OF NANCY DUFFY MCCARRON for REPLY I, NANCY D. MCCARRON, make these statements based on personal knowledge and can testify to them/

I.

Before deciding which entities to name as defendants J completed extensive research on the internet,

including searching databases at the Secretary of State Offices in each relevant state to trace who owned and controlled the various entities involved in this lawsuit. I created the database shown at Exhibit D to this REPLY showing the incestuous relationships among various entities controlled by Andrew Beal in Texas, by noting whet the entities were located (most at Beal's office in Piano, Texas) and by researching who were controlling officers

2.

Before filing the lawsuit Gates delivered various documents. Gates gave me MGC's production response t~

a statutory QWR request including what they claimed was his mortgage loan file. It included a 6-page note he had signed with two black hole marks on the top of each of the 6 note pages, where a two-hole punch was used. THERE WAS NO ALLONGE attached to the note MGC produce as Gates "complete mortgage file." 3. We were served with Opposition to Gates application for Preliminary Injunction, including the affidavit of

Bret Maloney, in which he attached as Exhibit 1 , which he identified as the "original note" and ALLONGE. We bad never seen this ALLONGE previously. It differed significantly from the copy we received previously from MGC in its response Gates QWR request in that Maloney's copy did not contain any black marks at the top of the 6 pages like the one MGC produced previously. It also contained the floating allonge never seen before. 4. Fidelity Title served its response to our depositions subpoena served right after filing this lawsuit. Fidelity'

package included a copy of the original note Gates had signed on 9/23/05 at Fidelity. Fidelitv's coov of the note &d not contain a robo-stamped endorsement by Cynthia Rilev.VP of WaMu to DB Structured Products. Inc. There are 3 different versions of Gates note. The one Fidelity produced is a copy of the REAL note Gates signed. (See declaration of David Gates, Exh. A). The one MGC produced with the two black holes and a robo-stamped endorsement is not the note Gates signed at Fidelity nor does it look like the one Fidelity has in its internal files. The copy Bret Maloney submitted, with an ALLONGE, and NO BLACK HOLE MARKS on the top of the six pages, is a THIRD version never seen previously. I believe it was fabricated and forged. The allonge is undated, and not notarized as is required when conveying any interest effecting real property in California.

I have been a notary public for 4 years and a real estate licensee since 1983. I have never seen such a conveyanct
- 12 REPLY to O p p o s ~ t i o n (by MGC-LPP-LAC1 to Preliminary Injunction

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paid interest in advance until October I, 2001 at closing. This matches C x h CI to Gates's declaration which is his loan contained in the W A W 05-AR 16 trust, which shows an originatiot~ date of 1012005, and the exact amount of his loan $1,142,303 in zip code 93105 -the zip code for the subject property -1200 Palomino Rd

4
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6.
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Exh. C2 to Gates affidavit identifies the various trances in which Gates' loan was included as collateral in

CDO olTcrings to investors from WAMU 05-AR-I6 trust. It shows that 6 out of 17 have already been paid.

Gates' Exh. C1 and C2 are also authenticated by expert William Baatalo who printed them from Bloomberg site.
9
16

(see affidavit of William Baatalo submitted with this REPLY) 7. Before this lawsuit was filed Gates delivered a form he received in early 201 1 included as Exhibit D to his

l1

declaration. It was entitled "cancellation of debt" form. The form recites that it has been filed with the IRS and is identified as being from Dovenmuehle Mortgage, Inc. which Gates had never heard of before receiving it.

l3 ( ( I tis unasual in that it recited Gates debt at ,200 Palomino had been cancelled but "fair market value" war empty.
l4

11

I sent Gates to 1RS ofice with Exh. D to r e what they had. IRS staff said they did not hare the matcbinp original

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IRS gave Gates a computer report (Exh. E to Gates declaration) showing all fonns submitted to IRS in 2010.
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IRS said it was unusual that Gates got the form hut IRS had not received one, and it sliould have included a value. We believe MGC submitted some type of insurance claim and received a payoff for the amount of Gates'

118.

loan hecause lenders only create such forms when they have cancelled (charged off) a loan. This certainly created reasonable doubt in my mind as to \vl~ether MGC, through a related Beal entity Dovenmuehle submitted an insurance claim and was fully paid off, which is why I included an accounting cause of action in the complaint. We believe fraud has been committed in various ways by the entities related to Andrew Beal in Texas Gates told1 me he wants to pay his obligation, but only to the investors who h d e d his loan, and only if they have not alreadyl been paid. Gates does not want to pay anyone in Texas who is not entitled to be paid. Full accounting is needed.

21

22

23

25

26

II

I declare these statements to be true under penalty of perjury and CA law. Executed in Santa Barbara on 3-4-12.

EXHIBIT LIST Press Release - $26 Million Settlement (50 states) US Attorney and Five Largest Banks Letter -Nancy Pelosi, Jackie Spear to Eric Holder - Investigation of Fraudulent Foreclosure in CA DocX
-

Website price list for "creating documents" for lenders to ensure "speedy foreclosure"

ENTITY Sheet created by attorney McCarron from SOS websites (Corporations, LLC registrations) Press Release - FISERV consultants hires to create MGC's loan senicing operation ground up 2005 GMAC gets $16.3 Billion TARP $ but must comply with HAMP distressed homeowners program GMACIMGC both notify Gates on 6-1 2-09 that MGC will be his new loan servicer Notice of Default - 8-9-09 - MGC starts proceedings to foreclose on Gates home Real's net income jumps $559 million in 2009 after starting up MGC as sewicer and foreclosings Pooling & Servicing Agreement - WaMu Mortgage Pass Through Certificates Ser~es 2005 AR-16 Prospectus Supplement Given to Investors for purchase of 2005 AR-16 certificates @ $25,000 each Internet Linked-In shows Bret Maloney works for SAXON Mortgage - not LPP Mortgage Facebook page-Sheily Arroyo sl~ows "worked at Deutsche Bank" and went to Monroe College she Allonge attached the affidavit of Bret Maloney submitted by MGCILPP in opposition to Prel.111j Deposition of Ronaldo Reyes, VP of Deutsche National Bank Tn~stee

REPLY to Opposition ( b y MGC-LPP-LAC) to Prelininary Injunction

10.3m

After monlhs of wrangling, the long-awaited foreclosure settlement between the government and the banks appears to be at hand. A $26 billion settlement was announcedThursday morning between the federal government,state attorneys general and the five biggest banks in the mortgage market: Ally Financial(the old GMAC), Bank o f Amerlca, Wells Fargo, JP Morgan and Citigroup. (Ed/ttor!s note: An earlier version Incorrectly idenflfied A l l y Financialas being the old GE CapitaL) The sefllement is being haiied as the biggest multi-state sealemmi since the 1998 tobacco agreement. But as Henry and Inote in f e accompanying video, the seftlement is too small to really help me housing market. or even do much for h individual victims of fraud and abuse. The deal may, in fact, hurt housing by sending a message to people who've stayed current on their mortgages that ifresponsiblebehavior is what gets rewarded in America. That, presumably, is hazard" fallout from the settlement. More Americans may "walk away" not the Atention of policymakers but thewmoral irom uneconomic loans. which will put additional pressure em local housing markets. Furthermore, soveral experts note lhat for all the rhetoric about punishing mrporate crimes and helping victims of of ~ ..-... - .abuse, Me banks have once wain gotten awav with a slaD on the wrist and mav end uo benefitino most ~- all from the ~~" ~ settlement. According to The Wall &eet ~ouma!, the seilement w4l be broke&as follows:

$5 billion in cash payments, including $1.5 billion to borrowers who were wrongly or illegaIly foreclosed on between September 2008 and December 2011. Borrowers could receive up b $2,000, depending on the number filing claims.
$20 billion in " d t s n the banks will receive for principal write-downs and other aid to homeowners at risk o f default, up to $20j000 per. This tally includes $3 billion for refinancing of mortgages currently under water.

(Yes, know 20 + 5 = 25, not 26. It's unclear what the "extra"$1 Oillion will be earmarked for as details are still emerging I on the plan.) A Drop In the Bucket
Now, $26 billion is a lot of money but Cs adrop in the bucket compared with the trillins of dollars of household wealth that's been lost sin@ the bursting of Me credit bubble in 2008. Furtharmore, $2,000 is a small price ta pay to homeowners who W Meir homes in illegal foreclosures. The $20,000 mortgage m o d i d i o n is great, except the average deficit for underwater mortgages in America is $50,000. In addition, the $20,billion isn't coming out of the banks' pockets; iPs coming from investors and, ultimately, taxpayers. "The mortgage principal writedowns are guaranteed to come almost entirely from securitiz& loans, which means from investo~, which in turn means taxpayers via Fannie and Freddie, pension funds, insurers, and 40i (k)s: writes Yves "That $20 billion actually makes bank second lie* sounder, so t i deal is a stealth bailaut hs Smith at Naked Ca~italism. that strengthens bank balance sheets at the expense of the Woader public." (See: - a ms ' Refi Plan Is Another Bank Bailout. Stackman Says: "The Worst Kind of Crony S o c m ) Meanwhile, severai Fed watchers believe the central bank is gearing up for another round O quantitative easing that will f focus on (wait for it) mnigage-backed securities. If QE3 is focused on MBS, it will further ease pressure on bank balancesheets and make any hit from modifications easier to digest. Every state AG, with the exception of Oklahoma, has reportedly agreed to the settlement. One housing expert speculates key holdouts such ab New York Eric Schneidermanand California's Kamala Harris agreed to the settlement in return for promi& that the bhnks aren't being completely left off the hook.
I

During the State Of'We Union address last month, President Obarna called f r a new financial crimes unit to punue o mortgage-relatedfraud. Not coincidenially, the SEC is now reportedly stepping up its investigations of illegal marketing and selling of mort~age-backed securities during the boom. TheJoumal reports Ally, Bank of America, Citigroup, Goldman Sachs and Deutsche Bank are among the firmbeing examined in the civil Investigation.
Aaron Tank is *e hoat of'The Daily Tickcr. You can follow hrm on Twilrer at (illa2mmtask or email lamalta?.k~vahm.com

.WJlcslifomi .realestate r a m a . c a n / 2 0 t 2 / 0 2 , 2 0 I ~ ~ i o s i s ~ e i e r ~ u o s t ~ - d e ~ a ~ e n t a 9xnmintlU-ns-of-federal-law'rtlxiia!y 25. I: -ty S t: @ Washlnglon. D.C. -February 20,2042- (RerilEstateRan% Dcmouabc Leader Nancy Pelosi and Congresswoman JaMe &eier sent a l e t k c today t Mtomey G m m \ Efic Holder reqwthp a ha d i w d the Jusilce Depament's Finanaal Fraud EnforcementT a d Force to examlne d t h e r violations of Federal taw occuned in the processmg dbredosures in San f r a ~ i s m . The COUn(y of Ssn Fmncisco's Office of the Aswrsaaeeerder reccok conlmisstuned a S ! aSSwseiog compiiam? ruith app!icable foredosure l a w by certain entities hlhe mrdonna . l W industry opcmting in San FranUSw. Below the f u text o the bit%. u f

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Februan 17.2012 The i~iono~sble H. HoKler. Jr Eric k m e y General Robert F. Kennedy Department of Justice Buiding 850 Pennsylvania Ave., W Washington, DC 20530 Dear AtlOmey Generai Holder: We am wiling to request ffiet you direa the Justice Depatment's Financial Fraud Enforcement Taek Force ta exalnirie mether sny violalions of Fedeal law ocwned in the processing of ~Omc4osures Sen Francism. in The Counly of San Frmcim's OfRce of the Assessor-Recorder remnw camissloncd a report, which Is enclosed, assessirg oompllance with appiicabte foreclosure iinvs by m a i n entiiies in the merillage iml~rslry operating in San Francsdl. The repoi?, based on a review of a ratidan sample of mortgage loans !hat entered into foreclosure between January 2009 and Oclobrr 2 1 1, found 0 'hawpercent of !he San FranciscoM g a g e s reviewel s h W inegulariiies in thefmrlosore process. and 8rl p e m k s ~ ~ m w r i poientiahviobtims of Califonlia non-judicial foreclosure laws, it1 addiIion, foreMsures invoivhg mongages tnat rrerc part of Uw Mortgage Electronic Registmion System (MERS), v.hicn ere more likely u~ have been sewrihed. s M a high rate d conflicting i~fOnnation regarrring the actual beneflcia~y, m rakesquestions abcut whsthw homeavners whi were denied their due pmeers rights. We fmd H s F n t i i s very tmubthg. xe

Becalrse the report does not specify Vle motgage senricers involved,it is 1101 possible to deiermine whelher affected bormwers cell aeeK remedies under provisions in Ve multi-state mortgage seltlemenl. However. even ifsolne homowen can seek rsdmss thmugh the selttelnent process, or thmugh pllvale right8 of action. the irregularifies and violations cited in the report wnvlnce US mat furlher investtgatlmat the Federal level is warranta to determine whelher any violations of Federal Civil and mmlnai laws might have occurred. The Asse$$orAgwrdei has already rekrred the repon's findings to California Anorney General. Kamala Hatrls, for her review. We belleve ffie severily ol the teport'6 mdlrslons also warram a lhorough review Rt the Federalfever by the Task Force. We zppreclalethe hard v h of t k Obama Administmtion and !he stale Anomoys G c n ~ a i . n Including the hewful pmtedjons for bormwers s e w e d by Callfomla A n o w Generai Kalnaia Harris, In achieving a mu~~-state rnurtgm smlement. We are hopsful that prewwing the abilily Of the slates and l Federal government W conlinrme to pursue actions not coveted by the lermS Of k me setUement will ensure that homwners who experienced losses unfaidy, partiwlarly where abusive praclices were rhe cause, \ni,\Lbe abk to seek 8 iemedy. Thank you for yWr ahention lo lhis maw,.
best regards. Nancy PelQs( Democratic Leader Jackie Speler Member of Congress

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The Honorat&@Edwin M. Lee, Mayor. Sen Francism, callmmla

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MGC Mortgage Chooses Fiierv to Streamline Loan Sewicing Business Processes

Texas foan sowicer building infrastructure to suppM

Brookfieid, Ms., October 12,2009- Fiserv, Inc. (NASDAQ: FISV), the leading global provider of financial services technology solutions. today announced that Dallas-based MGC Mortgage, lnc. (MGC) has selected severat Fisaw solutions, including lhe company's flagship Loan Servicing Platform, to streamline its back-office procedures. singlefamily residential mortgages. MGC's mortgage loan servicing portfolio is growing through Specializing in SetVi~ing WMolio acquisitions. Under the terms of the agreement MGC will install the Loan Servicing Platform and F i s e will assist ~ MGC in creating a servicing operation horn the ground up. Fiserv will develop and implement best-practice policies and procedures, including integrated solutions fr paperless automation and perfarrnanoe management reporting and analytics. o 'When our mortgage loan porffolio began grow in^ mpidfy. we realized we needed proven technology and new pahers to ensure that we service our investors' assets effectively and efficiently, with best-in-class practices." said Larry Walker, MGC President. "Fiserv was overwhelmingly responsive in providing a solution that fit olir unique infrastruchre."

By using Fisew loan servicing technology. MGC will be able to diversify its portfolio base and deliver high-quality customer service to its customers. "UMizing FiseN's considarable expertise in outsourced servicing, MGC Mortgage can build a more streamlined loan &nriang operation with the technology platform, staff and processes to administer our current loan portfolio, while accommodating future poMolio growth," said Walker.
"MGC has chosen b utiike our in-depth knowledge of the servicing environmentand to implement our Loan Servicing Plalforrn, data warehouse and conlent managementsolution," said Thomas Gorman, president Loan Servicing Solutions. Fiserv. "The servicihg platfon's versatility andcutting-edge technology provides the flexibility and scale that is essential for a diverse r n ~ r t g a ~ ~ ~ o r l f Our expertise and the platform's abilify to handle millions of loans allow our clients to develop olio. and enhance their loan-servicing capabilities within a fairly short tihe frame. Enhancing loan servicing-related capabilities appealed to MGC and allows them to thrive in W most challenginb market environments." e
The Loan ~ewicind Platformis an example of me Fiserv core codpetency in processing services and provides a one-stop source for loan se*icing that indudes real-time processing, consolidated customer information files and sophisticated workflow. By consotidating back-office servicing functions. F i s e streamlines internal processes and accelerates ~ information exchange, pmviding a single, blended debt sewice operation. About Fisenr ' Fiserv, lnc. (NASDAQ: FISV) is the leading global provider of information management and electronic commerce systems for the financial sewices indusby, d i i i n g innovation that transforms experiences for financial institutions and their custwners. ~ankedNo. on the FinTech 100 survey of top technology partners to the financial sewices inddshy. Fiseru 1 celebrates its 25th year in 2009. For more information, visit ~ . C s e r v . c o m . For more information contact: Media Relations: Julie Nixon Public Relations Manager Financial InstitutionSeMMces Fiserv, Iflc. 678-375-3744 . julie.nkon@~~e'v.a)m Additional FZoenr Contad: Lori Stafford-Thanas Assistant Vice President Corporate Cornmunicattons Fiserv, Inc. 262-879-5130
[email protected]

Ally Financial hc. is a bank holdina company headquartered in Detroit. Michipan. United States at Tower 200 of the Renaissance Cente~. The bank has more than 15 million customers worldwide and provides a range of financial services including auto financing, insurance, mortgage services, and online banking. In 2009, Ally employed 18,900 people. In 2008, the firm provided financing Lo 75% of the 6,450 GM dealers. On 24 December 2008, the Federal ReserveacceptedthenGMAC's application to become a bank holding company.a Ally returned to profitability in 2010, posting a net profit of $1-075 billion for the fiscal year.m Ally planned an initial public stock offering in 2011.

As of December 2010, 73.8% Of Ally was owned by the United States Treasury, with the remainder divided between Cerberus Capital Manaqement General Motoq, and other investors.u The company's Gbbal Automotive Services offer retali auto flnanclng and leasing; dealer lines Of credit for vehicle inventory. aquipment or faciiilies; insurance coverages including retail vehicle service contracts and commercial insurance; and remarketlng services through physical auctions and online services. Ally Financial also operates Ally Servicing (previously Semperian) wlthin its Global Automotive Services division. Ally Servicing provides Customer relationship management, servicing, and collection through several inbound call centers across the U.S. Ally Financial's mortgage subsidiaries include Residential Capital, LLC (ResCa~) the mortgage actiwities of Ally and Bank and ResMor Twst. Through these divisions, the company focuses primarily on the residential reai estate market in the U.S. Business activities include the origination, purchase, servicing, sale and securltization of residential mortgage loans. GMAC Home Sewi& is the parent far GMAC Real Estate, formed by the purchase of Better Homes and Gardens Real Estate in 1998, andGtiS Mortaaae. Brookfield Residential Poperty Services purchased the GMAC Home Services business in September 2008. BrookFeld is a whOlly owned subsidiary of Brodmdd Asset Management, a global asset manager located in Toronto, Canada. Ally Financial's subsidiary bank in the U.S., Allv Bank, offers savings products, including certificates of deposit'(CDs), online savings accounts, interest checking accounts and money market accounts. ResMor Trust Company offers Ally-branded deposit products in Canada, including online savings, guaranteed investmentcertifites (GIC) and tsx free products. Ally Bank and ResMor Trust Company are members of the Fedeml Deoosit Insurance Cor~oration Canadian Dewsit hsurance Comoration respeaively. and

History The company was renamed Ally Financial in 2010. It was founded in 1919 by General Motors Coporation as the General Motors AcceDtance Corporation (GMAC) to be a provider of tinancina to aulomotive cuslomers. Since lhei, the business has expanied to include insurance, o n k e banking, mortgage operations, and commercial finance. In 1919. GMAC branches opened in Detroit. New York, Chicago. San Francisco, and Toronto.m In 1985. GMAC formed GMAC Mortgage after P acquired the mortgage loan Operations of the Colonial Mortgage Service companies and the servicing arm of the former N o m f Mortgage. Inc. In subsequent years, the dlvlsion acquked additional mortgage-related opemtions, including ditech.cam.:and in 2005 the division was reorganized into Residential Capital (ResCae). By that time, the company was heavilJ into subprime 1ending.N In 2000. GMAC was given conditional approval to form GMAC Bank. In 2006, G n r l a 51% interest in GMAC to -s e e a sold u Ca~ital Manatiement, a private equity company. (The next year, Cerberus acquired Chrvsler Comoration.) Aiso in 2006.GMAC divested a maiority stake of G W C Commercial Holdings, its real estate division, to a trio of investors Goldman Sachs. KKR and Five Mila CaeiW thereby creating Capmark Financial Group.aCapmark later filed for bankruptcy and was acquired in part jointly by Leucadia and Bedishire Hathaway.l?lW

On December 29,2008, the United States Deaartment of the Treasury invested $5 billion in GMAC from its $700 billion Troubled Asset Relief Prosram (TARP). On May 15,2009, GMAC's banking unit changed its name t Allv Bank. o On Mrrv 72, - ~~~. U.S Treasuw announced it would invest an additional $7.5 billion in GMAC LLC, which gava the U.S. - . 2009. the: .. government a majoriG stake in the iompany.m On December 30,2009, the U.S. Treasury department said that they would invest another $3.8 bjllion in GMAC because the company had been unable to raise additional funds in the private sector. This raised the total government investment in GMAC to $16.3 billi0n.m On May 10, 2010, GMAG Inc. announced that it re-branded itself as Ally Financial 1nc.m On December 30,2010, the U.S. Treasury announced it would be converling $5.5 billion of interest-bearing p ~ f e r r e d stock into common equity.[l2l On March 31, 2011, Ally Financisl fled with the Ally SEC for an initial pubtic 0ffering.M although this has reportedly b e y delayed by the stock market volatility of Summer 2011 On November 9,201 I.the bank announced it was considering filing for bankruptcy-protection for its ResCap mortgage unit, after the unit's loan write-downs of around half a billion dollars brought it close to the legally required net asset value thresholdof $250 million.As of January, 2012, TARP had abed $12 billion invested in Ally. M

.m

HAMP Loan Modifications - A Critical Foreclosur Help Solution

Please read this sectfon carefully because HAMP loan modifications be followed. ~ou:must keep in mind that banks a t want to program, but they are forced to do so if you meet all the criteria

i
I

I
guidelines which must under this '

Critical information about HAMP that yob must knovb: ..-.-.~ ~~

HAMP or Home Affordable Momgage Program, originated from and Stability Plan that took effect in February 2009. The homeowners who are in financial distress and are in

Obama's Home Affordabilrty help up to 9 million

I
Why banks are forced to perform loan modifications-HAMP is an offshoot of the Troubled ASS& Rellef Program (TAR?) that was originated by the Bush Administration In late 2008. In order to stop the failure o f banks, the government had to step in and provide liquidity. This liquidity has been referred to certain banks as "TARP money, and was provided to banks fho were in danger of falling. When these banks recerved the TARP money. they were required by the goveknment to sign contracts b~ndlng them to perform loan modification and refinancing programs. How long will HAMP last-As long as the banks have the TARP money from the government (which essentially is from taxpayers), they are forced to follow the gurdel~nes established by the Obama Plan. For now, the government has stated that HAMPwill be avallable untfl December 31,201 2.
1

Once they repay <he money. they are no longer under obligation to follow HAMP loan modification guldellnes. However, banks can't just pay the TARP money back to the government. They must first pass aigovernment required "stress test". Th15 test calculates how deep into a recession the bank can keep afloat before they fail or go out of business Most banks have a long way to go before they can pass the government's stres -st so that means most banks will more than likely continue to be forced ro offer these loan modif~catlon programs until 2012, as specified by the central government.

'7

How many time can yon apply for a RAMP loan modification - Only -...So don't blow it! Follow these HAMP guidelines so the bank w i l l have no choice but to grant you an approval1 Just a caveat: Some banks are being veIy tricky about this rule. They will be calling you once you start to miss payments or once for you call them to *quire about modifying your loan, and they w i l l ask you questions and start an applicatiol~ you right away. They've been known to use this trick with the intent to deny your apphcatinn and they are not obligated to give you a second chance to resubmit (unlike with a traditional loan modification) so be careful not to l e t them take your application over the phone!

DAVID W GATES
1200 PALOMINO DR SANTA BARBARA CA 93105-0000

GMAC Mortgage, LLC MGC MORTGAGE, INC

Property Address: 1200 PALOMINO DR

A c c t Number: 0359525807 Acct Number: 0000002803

SANTA BARBARA CA 93105-0000 Dear DAVID W GATES Effective 07/01/09, the servicing of the above referenced account, that is, the right to collect payments from you, is being assigned, sold, or transferred from GMAC Mortgage, LLC t0 KGC MORTGAGE, INC The assiynment, sale, or cransfer of servicing does not affect the terns or conditions of your mortgage docurnents/security insrruments, other than the rerrns directly related to the servicing of your account.

Your present servicer is EMAC Mortgage, LLc Prior to 07/01/C9, any questions regarding your account shouid be directed to our Customer Care Department at 866-725-0'782.
Your new servLcer will be MGC MORTGAGE, INC Beginning 07/01/09, any q ~ e s t i o n syou have regarding your account should be directed to MGC MORTGAGE, INC You can contact their Customer Service Department at 866-973-3399. Also beginning 07/01/09, written inquiries regarding your account should be directed t o MGC MORTGAGE, INC ' S Customer Service Department at the address below.

D z ~ q . e n tInforrcation to MGC MORTGAGE, I h ' C

Effective 07/01/09, please dire- paymerlts 's Payment Processing

PO BOX 7 8 0 WATERLOO, I A 5 0 7 0 4 - 0 7 8 0

'

---

DAVID W G n T E 5 1 2 0 0 PALOWTNO OR SANTA BaRBAIGZ

CI 9 9 1 0 5 - 0 0 0 0 I

LOnN TYPE 1-0 CONVENTIONXI. ACCCWhiT N u l l 359525807

DESCRIPTION

TRANSACT^^^

2 0 0 8 D E T A I L BY TRANSACTION R A N ~ IA S T ~POST ~ PRINCIPAL A ~ ~ ~ INTEREST PAID DATE AMDUNT PAID PaiD 5705.29 5705.29 7.50 7.50 5705.23 37.21 7.50 7-50 10/08 ll/OB 12/08 12/08 12/08 12/08

ESCROW C R L I F E / PAID DISAB

L T CHRG/

PAYM~T PAYWENT S P E E D P A Y E-FE SPEEDPX? F E E PAYMENT ADDL PRXN SPEEDPAY FEE SPEEDPAY FEE

Inlo8
11/16 12/15 12/15 12/15 12/15

FEES

e R I N C I P A L 8*1 ESCROW BAL UNAPP FUNC AFTER TSAN TRAN RETER 7-N 1,141.058.68 1,141.058.6B 1,111,058.68 1,141,058.68 1.141,058.68 1,141.021.17 1,141,021.47 1,141,021.47

11/06' 11/18 11/08 11/18

5705.29 5705.29

7.50

37.21

5705.29

7-50

7.50

7.50
SUMMARY TOTALS P R l N C i P A L BRiANCE START O-P P E R I O D PRTNCIPl\lr PATD DURING PERIOD P R I N C I P A L BALANCE END OF P E R I O D ESCROW ESCROW ESCROW FSCROW BALANCE START O F P E R I O D P R I D DURING P E R I O D DISBURSEWENTS BALANCE M D O F P E R I O D l,lll.05Br68 37.21 1,1~1,021.47
0.00 0.00 0.00

P&iPAYNENT

5,705.11

TOTAL PAYWENT

5,705.11

0.00
11115.87

REFUND O F OVERPAID I N T E R E S T INTEREST REPORTaBLE D U R I N G PISZOO PROPERTY T a X I S P-TD DURING PERIOD POINTS P A I D

0.00

0.00 0.00

20-9

H I S T O R Y STATEMEUT O F MORCGACie ACCoONr

=MAC flOF.TGAGE PO BOX 7 8 0 WATERLOO. 13 5 0 7 0 4 - 0 7 8 0

D I V I D W GUTES 1230 e & L o u r n o DR SANTA BARBARA

CA 9 3 1 0 5 - 0 0 0 0 CONVSNTIONAt LOAN T Y P E 1-8 ACCOUNT YUM 3 5 9 5 2 5 8 0 1

?.RANSACTION OESCRIPTIQN
PAYMENT

TIVINSACTION
AMOUNT

2 0 0 9 D E T A I L BY TRAYSIICTION LAST POST PRINCIPIL INTEREST PRXD O~TE PAID PAID

ESCROW C R LIFE/ PAID DISAB

LT CHRG/
FEES

PRINCIPIIL BRL FSCROW BXL ONAPP NNI: R ~ E H T ~ AFTER T R A K N AFTER TRAN

PAYMENT PROP I N S P E C T PROP I N S P Z C T PAYMENT SERV REL FROP Tm5PECT P R o e INSPECT SUMMARY TOTALS P R I N C Z P A L BALANCE START O F P E R I O D P R I N C I P A L P A l D DURING P E l l O O P R I N C I P A L BALaNCE END O F PERTOO ESCROW ESCROW ESCROW ESCROW REFUND BALANCE START O F PERXOD PATO DURING PERIOD DISBURSEMENTS BALANCE END OF P E R I O D O F OVERPAID I N T E R E S T lrl4l,O2l.4l 1.111,021.K? 0.00 0.00
0.00

P 6 I PAYWENT

5,705.11

TOTLL P&YHSNT ACCUPI LATE CBRG

5,705.11 1,711.53

0.00 0.00
0.00 17115.33 0.00 0.00

INTEREST REPORTABLE DURING P E R I O O PROPERTY TDXGS earo DURING p ~ n r o o P O I N T S PAID

Ent~ty0790rg30018

TABLE OF C O W E M S
Page
STAlZ OF OHIO, ex rel. MICHAEL DEWIN& ATTURNEI' OENERAL, uat.
:

C w N o . 201 1.0890

TABLE OF CONTEXTS
TABLE
AUIHONTIW'...............

Pttoe, eiinn
v.

: : :
;

onRcvicw of Catified Q'Wons f m

NorththeUnikdStales Dktrict CmulfordU *ict of Obi0

.......................................................................... iii

INTRODUCTTO

STATEMENT OF THE CASE AND FACTS.

A
GMAC s(rviwItwwndd of~esidmtial ormaage8 in W

U S Dintriot CoId CaseNos ..

No. 3:10-ev.(12537,1:10-cv-02709

GMAC MORTGAGE LLC, et J.

m ................

. . ...................... 3

B .
MRPII B1IIF.F OF PETITIOSER
ORIO ATCORNEY GFNFUAL MICH4EL DEUlNk'
... .. ..

O I * U C p s d forcchane &b o b w~thfdw k0implop.r .aWdavih............ and 4

Tk

Rnm'ces Act&

Atramey Genclal s u d OMAC for c o m n law6

violdm of the Obia Codsumcr Salas

ARGUMENT.......... . . .............................................................................................................. . : 6
Obb Mormpv Gmeral's Pm~bsltallLm ailnw No. I:
rsside&I mongoge loonis o "con-, Ohio Corznnncr Sales Procries

<

~~

DAVID A. WALLACE (0031356) CerrmtnLbos & I i e h d

AUXANDNLT. SCHULhlW' (075732)

*Coun~el qF&wrd DAV& M.L I E I ) ~ ( O D ~ M X ) ~ ) DBpUty o i 1 DBputy S l d m I CHOE(OO67032) SUSAN k CHOE (0067032) IR. JEFFREY R. L O S W (0082114) Colurmhs, Ohio 43215 614-466-8980 614466-5087 fax
A

Ihc srviclng o / u

h.artrofHon" mdm,bho

Colmbus. 0fi 43215

[email protected]
614365-41lW 614-365-9145 fix

M o n m nvicing involves (bs 'Wferof a service''

m the b w w n e r....................... 7

B.
C.

Mmtpgo m ' c i n g does n fill under the 'Yealestate exem&n." a

...............................

Noneafthe rla1lnorysx:mplionsinRC. 1 3 4 5 . 0 1 i A ) ~ ~toyutaslgagr servicing. ....... l 10

RICUARD M.KERGER* (0015864) *Courrscl ofRecor.i KHAKY HANIULE (0077095)

b e r & 13armwm LLC

Q&Anornw Gmerd's P ~ D O S ~ & M w NO,n: Olh

A m n IRoZ ofis m l g o g p .Q#N&ibg lo bomoauners i3 a "sylplier'' u n l w the wy Ohlo CownmSalas PracricwAn .......................................................................... 1 I

altmddiarhimm~rQ~1hi~~y&ed.%a~
~ eh PeLitioner r i Ohio . W Grnwl Micheel DtWLw q

Dhio A t r n r . ~&@eml'sPnwaitian of Law Na U : I

C m c t for Respondent JeiEey *ban

CLEAK OF COURT

Regloald A. Pmne-a

isla D W . ~ V. ~ ~ u m c n ,

"
W A C H.**,LLC.

No.21W90.
dlablmr Cumof Cnd 'ippr.rlr.

c , .

~ollowing bemil Via regarding the ipsue whemer the Pnttemns h d received n o w o i a GMAC Mona~ne'b n d fm wsssioo, tha trial mu9 enterad e Wment(1L finding that h GMAC 080 6;wrsons nctke of demslofar &a;6on. (2iorner.G~ be PalAersDrr (o 4 & ~ , Poule8(vor 01 ma Prnplm to GM4C Mol*Ow aid (31 wlklg :1* W Paue(53r~ n~CtOllem the,, nor lo reaeam tns m D a W mueve,. u s yia coun a00net euara any damages for wmngful deiention of h e p p p a y The Peitemw bmdy sppoald 0 tOB upreme murt vrtlicn transferred me appeal m Lhs cllud punuant (o 5 12-2-7(8) Ala Cork

~oGde the

la

On appsai. the p a l b n m s asaan. a m g other mmos that the tn3 a u n ened in deleminim. mei me fomdotunwao vald. W e ma Pml(en0ns mwel rvat ~cndinama wurt A

&ides Jmunr?. 20.2OiZ

h i a bean k i g m d to BAC. a C insn hdd-a foreclwure sale al whlch ll purchased ShlmiiYBnrs house. and ma auotioneer executed s foredoare deed ournortino t mnw tlua lo o ~.~ Shrddol; housit. BAC. B ~ C aarigna Qe mOrQagc me sdmi day i s % e f&dosun was sale. mcreafler BAC brnuaht en elebment adloo a~ainst Lurdimnt, clsimlng mat i owned ltle l b h3r hause by virtuaofthefomcbsure dsed. A W the tnri coun entwed a summary lvdgment h f e w M SAC. SBrdrnnl appealed to me s u p m e wud, which bansferrad b e appeal b mls wult. We held hat BAC i W e d authoriN lo bmdoa. the moripsge bcauec It had n d besn ass$nea me nlongala b e r m I initialed for&lmra poceedinge and met, therefom, me faradwlim m d the iuedosun~ deed were Inwlld. We (urtmr held that bemurethe b m l m u r e and the forsclosurt d s a were Rratld, BAG dld not acquire 14al U? b Slurdivanls hou* U UKWgh the foreclorum d e d and mu6 BAC dm not wm an Intereat in the we wMn it e commenced ib ejactment actielr. Wefunher M d OM, D H I u m aAc d l not m any hareet in n Sblflrvana house h e n It commenced ia ejaamentenion, BAC did rwt hew standing b bring met adon and, mnsequenuy, the Irk1 clrun nevar s q u i r d hub]--matter jurisdldon over me Bjsamem acbsn.Because 04C did not here Wanding to bring i s e j e c m n t action and the WFl coun nwer acqdra l u i u l i W n over tne epxment aabo,we W d t h l $ h a iiudgmentof the ma1 m u n waa mid, end we vaeatad met fud8msnt Mawover, because s void judgment Mi not suppolt en e p p d , we dismia& thz appeal. hed n d been in me e u s nnu bhfon us. GMAc Momags, w e aAc in nssbned me molgage f i r e it mlliated f o n d ~ a u wproceedings. ConquenUy, under our holdiw in G M K Marlpaga l&ed eutCorily UI torrrlme me morigaue when 1 inlated Bdme raedcaure pmcredinus. and, mewfore, the forsdosw. and &z foredosure d e d u w n M& GM&C bsssd i t eiecbnenl daim are invslld. Moreear. under our M l d h I n ib a s w e GMAC Mortgage did not own any i m s t in me Inuse, it lacked standing lo bring te j e m n l ecwn sgalnst ms Palkmns. Becawe GMAC Mor&ep lackcd standing ro bdng the eiectnsnt &a,the Msl m u m nrucr a q I W subject-mabr pri6Ucti3n over the qadment adon. Acamiingly, the I u d g d of tho t h l mud In vold and is hereby vacated. Mmourti, W u 6 a o Midjudgmernvill n d r u p l t an wpd,wc dismiss th4r appeal. IQ JUDGMENTVACATED; APPEAL DISMISSED. P h a n . M a r , end Moore. JJ., m u r . mompMn, P.J.,mncunin theresun wllh wnting. Bryan. J.. diseentr,with wdng. THOMPSON, Plaifi- ad*, WnolnNg in W RSUI~. Regindd A. Patternon end mane V. PaWraon exewte-d e moltpege, aacured by t b b mum. to Option One M-age Corpr-4.6.n .n January 25. 2006, and they Later delaulUd on the moqaee. GMAC Maqege. L C , insated fareaosun mocwdlngs, and, in May 2007, GMAC began puYiihing n d o e of ik inlent to mndud a fmdoaura .arc. On August 0 , 20W. o p b n One asgned h e mortgage lo GMAC, sod tne next day. August 7, ZM17. W C
mng-e
~ ~ ~

-.

PER CURIAM. Reginald A. Pawtwo and Diana V. Paltetwn appeal f m a iudgment in famr of GMAC Monsaas. LLC C'GMAC Mortgeae"). We vacate the judgment ar t bisl awri ana d'smiss me h eppwl. On SSWnbm 4, 2007. GMAC M m a g c bmught an ejEctmsnt acmn eQeln.1 me P a t e r s ~ eGMAC MorQaae alleged that thg P a t k ~ a n s m q s g s d their house located on . had SQhmcrert Trait in Beuemer ('*ha houss") m O w n One Mongags C o r p o n t l ~Option One.), (.' hat O p b n One had mesferred h e monpaaa l o CMAC Maaage, 1t OM% Martpge had h . f m c l o s d me m a g = on August 7. 2007. and that GMAC Meripage was Ule owmr d m . houw by vi&e of h e t o ~ c d w u m i e . GW s Moltgage f h e r ellsped that il hrd made a w m n demara tor pc-m&sion or the house in somrdaoce wlm 5 5-bP5lla). Na. C 3 8 1975, hOt lhe PBllMsonL had nol vewmd houae. As 6 4 GMAC Mortgsae soylht ~ O s s e s ~ Of ihe hwse. damages Wr wmngful deestlon or me house, and adetecmiMUon lhat lm me P a a n o n s had forfeited their right 19 redeem t e noune by felllng b v ( itwithin 10 day. h we affcr GMAC M-ge dam~ndea o m ! m A O % ~ ( i n gme Penemnr a s m 4 , among amer p . thaw, mat me fowdosure was unlswful. They s l w assert& e munlwclsim Seeking e deltrminatbn mat ma fweclosura wes u d e h l . GMAC Mengags moved for a smmery judgment and i W r su~brnanw summarylb Judsment rnol'm w%taddMona1 widen-. The Palkrsons submmd svidene in oppceltb to the aummry-Wgmeot mmtion. me &&as submitled by GMAC Mongege in s u p p n of its summary-judgment motion Indudcd me f m d o w w dead pupnrting to mnvey riUe a m r harac lo GMAC 401tgme.Tne roreaosure d&d recites mat GMAC Mortgage aaalerstsd the deb( e m r e d by me wongage. The f w s c w r e dead elm red& ma1 GMAC Mortgsge gave M U D d the foreciasure of the monsage in a newspaper olpensral circulauon in J&nm Cwnty rn May 19, May 26. and June2.2007, andmet GMAC MoWneioredo%d the mortpaue on Alrgurli, 2007. Theevidenm t u b m i w by GMAC Moltgage as0 Included s writlsn aaaignment -utM by Own One on August 6. 2007. in W k h Oman One assigned me m a m e lo GMnC Momage. Fdlmlng a hearing, the trial mun entend en order scanting CM4C Martpaneb summatyjGdgmmt nntlon lnsolpr sa It sought a deeminstion mat the f d o s u n r rrab ueU* but denlm me motbn i all dher resPeM on the grnund that e genuine irsue of mstwlai Wet erlsw n regsdins whether the Paitemom had received notice of GMAC M o r M w ' s dsmmd for CO888.810114 tho hoY* *IX t h e D r a W r r .

<-

7195 MissP a 0 TX 75024-4922 ln, 1-866973-3399

Mortgage, Inc.

June 16,2009

DAVID W GATES I200 PALOMINO RD SANTA BARBARA CA 93105-2100

RE:

MOUS Lorn Number 359525807 GMAC NAI MCC Mortgage, Tne Lonn Number 00000M803

Da Borrower: er
Effective~JuIy 01.2009, the servicing ofyourm-age loan. that is, the right to collect payments from you, was transferred h m GMAC to MGC Mortgage, Tnc. The tramferof servicing of yaw mortgage loan does not affect arry tern or d t i o n of yous mortgage instmwnfs, other thao, terms related to the servicingof your loan.

GMAC is no longer servicing your loan, which includes the collection of payments, as of July 01,2009 Should you have any questions relating to the servicing of your loan prior to July 01,2009pIease contact GMAC. Their Customer Service toll-ffee number is 1-800-766-4622Begimning July 01,2009,all payments and correspondence should he direchd to MGC Mortgage, Ine. a t the followiltg addresses.
Pavments should d addressed to: MGC Mortgage. ~ n c ] 75 Remittawe ~ r i v $ Suise 4664 Chicago, IL 60675 664
1

Compondeoce should be addressed to: MGC Mongage, Inc. Attn: BOIT& Relations Department
7195 Dallas Pkwy

All payments should be mad payable to MGC Mortgage, lnc. Any payments received by GMAC from you afterJuly 01,2009, will forwarded directly to MGC Mortga$e. Ine. Until you receive yow first monthly billing statement MGC Mortgage, Inc.,please note your mew MGC Mortgage, Inc. Ioau number on your check identification. I
If you ermently makeyour ents via automatic m f e r (ACH haft) from your checking or savings account, this servicewill be nceuedas of July 01.2009. Yoor mortgsge payment win no longer draft from pour chsking o savings aceonnt u s b s you eompkte and m&rn tbe enclosed form.

Plano, TX 75024

Y o u may also use the enclosed form to establish ACH Drafting of your mortgage payment even if you have not used it in the past. Upon receipt of the ACH form, we will process your requesr and noti@ you in writing of the effective date on which we will begin to draft your mortgage payment. MGC Mortgage will consider draftii your mortgage payment on a specific day ofthe momh as long as that date requested is within your grace period as defined in your Note. Until you receive this notification please coutinue to send payiientsio the mailing address above or call h C Moxtme. Iric st 1-866-973-3399 mnkc & t o a one time phone payment with one of our customer service representatives.
r.

Requested By Tie Court Service

Recording Requested BY When RecordedMail To
(3-Western Rwonveylnee Corp P 0 BOX . . 22004 525 East Main Street EICajon CA 9m2-9008

'

~ ~ ~ l ~ ~ ~ l ~ ~ ~ l ~
aecosded Offimxal Records county of

2011-0045189 I REC FEE

I

21.a0

I
[

Joseph &. Rolland I County clerk Reooderl

santa Barbara

I
08:OoAM 09-Aug-2011

I IC I Page 1 of 2
'8

No. a Use Ref: GATES, DAVID W

Trustee Smle

133689582

Propew Addr~8: i2OO P a O M h l O DRlW, SANTA BABBARA CA 93105

NOTICE OF DEFAULT
IMPORTANT NOTlCE

pay other

LPP MORTGAGELTD.

c/o A L - w mRECONVEYANCE CORWRATION c

525 EAST MAIN STREET P.O.BOX 22004 EL CAJOW 9004 CA 920229004
(619)590-9200

If you have m y ' q u ~ n syou should contact a lawyer or the g# , o1

innured your loan.

rgency which may bave

NODCA

Nohn#bstnmdhg t f.et that p u r properly is im'foreclosure, yau auy ofler your TO k provided the sale h eondudcd (ulor to the coudutiom ofthe forcdocnre. Remember, $ & Y

for rsle,

L05E LEGAL RIGHTS IT YOU DO NOT TAKE PROMPT ACTION.

NOTICE OF DEFAULT AND ELECTION TO SELL UNDER DEED OF TRUST

NOTICE IS BEREBY c;TvEN:
CAGWESTERN RECONYEYANCE CQRPORATlON is either the original &ushe, the duly appohtted substituted imslee, or acting as agent for the trustee or beneficiary ~ d ea rdeed of trust dated September 20,2005 executed by

DAVLD W. GATES, TRUSTEE OF THE DAVID W. GATES TRUST DATED AUGUST 5,1996 as trastor. to secure certoln oblimtiom in f m r of WASEINGTON MUTtJAL BANK FA,A FEDERAL ASSOCIATION aa bcneffrk;jr, recorded as document 2005-0094620 on September29,2005 i book XX n page XX ofScifalrre~rds tbe office ofCounty Recorder of SANTA BARBARA County, California. in de&ibing land therein as:

COMPLETELYDWCIUBSD IN SAID DEED OF TRUST,

snld obIi@io~lshdudhg a pmmhdory note for the prheipalsum o $1,142,302.00. f That r brereb of, and defrult in, the obligatioas for which rueb Deed of TNst i security hss occurred In s that payment ha$not Been made of:

Failure t pay the monthly peyment d ~ December 1,2010 of prhclpd, inter& and impounds and o e subsequent imstaBments dm thereafter; plus late charges; together witb all subsequent sums advanced by beneticiary pursuant Lo tb* terns and condftiona o said deed of trust. f That by rep6011 thereof the p-t beaeflciary g n d u such Deed of Trust baa deparited witb add trustee such Deed o Trust snd all d o m t s evidencing obligationsseeured thereby nrrd h a declared and does f hereby declare all sumssecured thereby immediately due and pwable and has elerted md doer hereby el@ lo muse the trust p r o to be sold te satisfy the obliga~ms m secured thereby.
The mortgag8e, 6aaefldary or authorized agent for the mart-e or bea&rSuy punmmt to California Civil Code 5 Z923.5@) dcelarw tbat the mortgaget, hen-ry or the morQap?'s or benefkhy's aulhorbd agfint hra either contacted the borrower or tried wim due diligeare to contact the borrower as required by Crlifornia Civil Code 2923.5.
T.S. 1336895-02 Dated: August 08,2011
CAL-WESTERN RECONVEYANCE CORPORATION

Narc0 Maquez
By LSI Title Company. As Agent

NODCA

Beal Becomes Billionaire With FDIC Assets

Beal Bank Nevada is stockpiled for Armageddon. It had $2.2 billion of equity capital at the end of 2010. Equity for a bank is the amount of assets its outstanding loans minus liabilities, or deposits. Beal Bank Nevada's equity capital accounts for 35 percent of total assets, according to FDIC data. The average U.S. bank had an equity-to-asset ratio of just I percent at the end of 2020. I

Beal gets most Of his deposits not from moms and pops who walk into his branches to open accounts, but from Waf1 Street h s . They raise money from investors who want FDIC protection, and then sell to banks.
like Beal's, that T e r the best rates. Banks insure individual accounts to $250.000 each, and depositors can

have accounts at as many banks as they like. The so-called brokered deposits are regulated by the FDIC because they worsened the savings-and-loan crisis in the mid-~1980s.Many S&Ls offered high interest rates to get the deposits quickly, then invested them in risky assets to pay the promised rates and make a return. After many of the investments failed, the industry requireda $124 billion taxpayer bailout, mostly by the Resolution Trust Corp. To try to curb such reckless lending, Congress in 1991 passed a law requiring banks using brokered deposits to hold more capital reladve to their assets or outstanding loans. Beal also mines cheap money from the Federal Home Loan Bank of Dallas. It's one of the 12 private cooperatives set up in 1932 to encourage lending for housing and development. The FHLBs have the implicit backing Of the U.S. government. meaning that investors expect that the Feds won't let them fail, just as the governmrult took over mortgage lenders Fannie Mae and-ddie Mac in 2008 rather than let them collapse.

2008 5argaini~unfer
For a bargain hunter like Beal, 2008 and 2009 were bumper years. While hedae funds dumped assets, any assets, to raise money for panicked investors, and banks stopped lending to stanch losses, Beal went shopping. He br&ught in hundreds of analysts and other employees -- many of them straight out of college -

- to sift through iortgage bonds and other debt that had plunged in val"e.

Beal says he spent $5 billion on these loans and other assets in a 12-month span that started in 2008. "I wish we'd done twice as much," Beal says. "The sky was falling. We thought it would get cheaper." Instead, the U.S; government stepped in and stopped the panic, shoveling taxpayer dollars into the markets via the Fed and ke Treasury. Asset prices rose, and Beal stopped his spending spree and cut workers.

Another boom Beal Financialwas over. He had bought enough to make another fortune, though. Net income at Beal's banks soared to $559 miltion in 2009 from $281 million in 2008,
Citiaroup Inc. (C], by contrast, lost $1.6 billion in 2009.

&

EXECUTION VERSION

M7&u ASSET ACCEPTANCE CORP.,

as Depositor
and
WASHINGTON MUTUAL BANK,
as Servicer

and
DEIJTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee

and
DEUTSCHE BAJSK TRUST COMPANY DELAWARE,
as Delaware Trustee

POOLING AND SERVICING AGREEMENT

$924,385,186.87

WaMu Mortgage Pass-Through CertificaLes Series 2005-AR16 Trust

WaMu Asset Acceptance Corp.

WaMu Mortgage Pass-Through Certificates
Series 2005-AR16
Cut-Off Date: November 1,2005

'Ibis Pooling and Servicing Agreement, dated as of November 1, 2005 (this "A~reement"), is by and among WaMu Asset Acceptance Corp., as depositor (the "Comuany"), Washington Mutual Bank, as Servicer, Deutsche Bank Kational Trust Company, as Trustee, and Deutsche Bank Trust Company Delaware. as Delaware Tmstee. Capitalized terms used in this Agreement and not otherwise defined have the meanings ascribed to such tenns in Article I hereof.

PRELIMINARY STATEMENT
The Company at the Closing Date is the owner of the Mortgage Loans and the other property being conveyed by it to the Trust. On the Closing Date, the Company will sell the Mortgage Loans and certain other assets to the Trust in return for the REMIC I Regular interests atld the Class R-I Residual Interest and will be the owner of the REMlC 1 Regular Interests and the Class R-l Residual Interest. Thereafter on the CLosing Date, the Company will acquire the Certiticates (other than the Class R Certiticates) and the Class R-2 Residual Interest from the Trust as consideration for its transfer to the Trust of the REMIC I Regular Interests and will be the owner of the Certificates. The Company has duly authorized the execution and delivery of this Agreement to provide for (i) the sale to the Trust of the Moitgage Loans and certain other assets, (ii) the issuance to the Company of the REWC I Regular Interests and the Class R-1 Residual lnterest representing in the aggregate the entire beneficial interest in REMlC I, (iii) the conveyance to the Trust of the KEMlC I Regular Interests and (iv) the issuance to the Coinpany of the Certificates, such Certificates (other than the portion of the Class R Certificates representing ownership of the Class K-l Residual Interest) representing in the aggregate the entire beneficial interest in REMIC IT. The Company and the Senricer are entering into this Agreement and the Trustee and the Delaware Trustee are each accepting the trust created hereby, for good and valuable consideration, the receipt and suficiency of which are hereby acknowledged. The Certificates issued hereunder, other than the Junior Subordinate Certificates, have been offered for sale pursuant to a Prospectus, dated October 21, 2005, and a Prospectus Supplement, dated November 21,2005, of the Company (together, the "'Pros~ectus").The Junior Subordinate Certificates have been offe~rd for sale pursuant to a Private Placement Memorandum. dated November 23. 2005. The Trust created hereunder is the ''Trusr described in the Prospectus and tho Private Placement Memorandum and the Certificates are the "Certificatcsn described therein. The folluwing tables set forth the designation, type of interest, initial Class Principal. Balance and Final Maturity Date for the REWC 1 Certificate Interest Ratee, Regular Intcrcsts, the Class R Residual Interests and the Certificates:

chi 1.u
Clan 1.A4A Ow >.A48
C*nr 1.U

a. a .

Clam 2.Al

2x

c1as 1A3 CIes12.A6 cIIs 5.1 Class 0.1

OcsB.3

(21

Forach Oistribullmb.. hr Ce"licah I n t a ~ W m Lhe Clur Y-1 iinriClss 2 R<eulv t 1 . l n r ~ a > 4 l a ql u d h c u a n (imup 1Uiu&lrd AvsrsgrVag~.ThmughHa~lor l mbD8lbubm

oak

(3:

For *h D I m * r t i m b e . lhccerufia~c . a Imcru>Rar.o,c ihrr1.v Yd md Clpr Z ~ l Rrguliv

I.war*ull

I -

Uxlioan (jrwpl Waagl~lrd v a r r g ~ T h r n u ~ h R lrmm&Drnbl;lob X m

-.

As pvided herelo, wth respect lo REMlC I the Servlcer will cause an election Io be , made an behalf Of REMC I to k lruued ior federal m o m tax purpaseJ a~ n REMlC. Thc REmC IRyular lnlrrrs~ be drrignaled regular i n l a e n s lo REMIC 1 and rhr Cia$$R-1 wit1 Residua[ Interest w i l l be designated ti18 sole $ass af reridual inkrest i REMIC 1 for purposes n , of tk REMIC Pravisionr

I
I
I

(2)

ThcC~W7rh; ~ e s PM.BrtheCIm I A 1 , C I w 1-42,C141 '-A& Class I - A 4 k Clan I.A*B.nd b u

C119 I - A 5 C m t f i r ~ r r f a r s l d l D i n n b u l c ~ ~ ~ rqdlllcLcm(fmup IU'rightsdAwrrgcPw 5lllll nravgh h a

T h B C d s P B i ~ m ~ r R ~ #r r r u ~ a s t . h l . C l u I A2, Clv.2-A3 l v l l E L . s l I - A I C C n l ~ ~ L I L r h~Cl whDivkibunoaDaR &bdqua1 d l e h E n o u p 1Weighlrd kwm&PM.%uhUak

0)
(6)

The Cmincvr hrrertR8* b r w h c l n a ofdm Clrrr B C c d h l e i L r p f h D'snibullon Dab rhd: rquslhr n i r s".rsg.d,kCaiCrln 1n(Erbl Rater f"r IlicCl... rw l Y-1 . d C h Y2.1. IIUCWm

h b p,o$(dcd b;r:ltj, u l i t rapeo l o R U 4 l C I .tihe Senicrr w i l l 8%I an rernou w be anow on irhalf 01W M I C I to bs ! l e a d for fulcn: atco8nc l ,~vpc:es as IRTWC Tile 1 u Ccmtirnzr lother then h s C ~ U J CrrUG:a!e: uil. br ler:@lra irtrrr intarlu .n RIl*UC R !I.and the Clarr R-2 Rc5;dus. I m e m u1 be arrieusd 1 >ole elm ofre.:aual mlerr-rl tn .1 k " REMIC 11, for purposer ofthe REMlC Rovcnois

As of tile Cut-Off Date, the Mortgage Loans have an aggregate Principal Balance. of $924,385,186.87 and, as of the Closing Date, the Certificates have an Aggregate Ce~ificate Principal Balance of $924,385,186.87.

WITNESSETH:
WHEREAS, the Company is a corporation duly organized and existing under and by virtue of the laws of the State of Delaware and has full corporate power and authority to enter into this Agreement and to undertake the obligations undertaken by it herein;

WHEREAS. the Servicer is a federal savings association and has full power and authority to enter into this Agreement and to undertake the obligations undertaken by it herein;
WHEREAS, the Trustee is a national banking association duly organized and existing under the laws of the United States of America and has full power and authority to enter into this Agreement; WHEREAS, the Delaware Trustee is a banking corporation duly organized and existing under the laws of the State of Delawate and has full power and authority to enter into this Agreement;

WHEREAS, prior to the execution and delivery hereof, the Company and the Delaware Trustee have entered into the Original Trust Agreemeni, and the Delaware Trustee has tiled the Certificate of Trust;
WHEREAS, it is the intention of the Company, the Servicer, the Trustee and the Delaware Trustee that the Trust created by this Agreement constitute a statutory trust under the Statutory Tmst Statute, that this Agreement constitute the pverning instrument of the Trust, and that this Agreement amend and restate the Original Trust Agreement;
WHEREAS, the Company is the owner of the Mortgage Loans identified in the Mortgage Loan Schedule hereto having unpaid Principal Balances on the Cut-OR Date as stated therein; and

WHEREAS, the Company has been duly authorized to create the Trusl to (i) hold the Mortgage Loans and certain other property, (ii) issue the REMIC I Regular Interests and the Class R-l Residual Interest, (iii) hold the REMIC I Regular Interests and (iv) issue the Certificates.
NOW, in order to declare the terms and conditions upon which the REMIC 1 Regular Interests, the Class R Residual Interests and the Certificates are to be issued, and in consideration of the premises and of the purchase and acceptanoe of the Certificates by the Holders thereof, the Company covenants and agrees with the T~ustee,the Servicer and the Delaware Trustee, for the equal and proportionate benefit of the respective Holders from time to time of the REMlC 1Regular Interests and the Certificates, as applicable, as follows:

THEREFORE,

CuWailment: Any payment of principal on a Mortgage Loan, made by or on behalf of the

related Mortgagor. other than a Monthly Payment a Prepaid Monthly Payment or a Payoff, which is applied to reduce the outstanding principal balance of the Mortgage Loan. (Prepayment penalties are not payments of principal and hence Curtailments do not include prepayment penalties.)
Uunnili~tent Shortfall:For any Distribution Date and for any Curtailment received in the Prior Period, an amount equal to one month's interest on such Cmtailment at the Pass-Through Rate for the applicable Mortgage Loan.
Czr.vYodiaf Accountfo~ P&l: A cuslodial account for principal and interest established and maintained by the Servicer pursuant tu Section 3.02 either (a) with the corporate tmst department of the Trustee or another financial institution approved by the Servicer such that the rights of the Servicer, the Tmstcc, the Trusi, the Delaware Trustee and the Certificateholders thereto shall be fi~lly protected againsl the claims of any creditors or depositors of thc institution in which such account is maintained, (b) within FDlC insmd accounts (or other accounts with comparable insurance coveragc acceptable to the Rating Agencies) created, maintained and monitored by the Servicer or (c) as a separate account at an Eligible Institution. In the wcnt that a Custodial Account for P&l is established pursuant to clause (b) ofthe preceding sentence, amounts held in such Custodial Account for P&I shall not evceed the level of deposit insurance coverage on such account; accordingly, more than one Custodial Account for P&I may be established. In the event that a Custodial Account for P&l is established pursuant to clause (c) it shall be entitled "mame of Servicer] in trusf for holders of WaMu Mortgage Pass-Thmugh Certificates, Series 2005AR16."

Custodial Agreement; The agreement, if any, between the Trustee and a Custodian (or the Trustee, a Custodian and the Servicer) providing for thc safekeeping of the Mortgage Files on

behalf of the Trust.

Custodian: The Initial Custodian or a successor custodian which is appointed by the Trustee with the consent of the Servicer, as provided in Article I1 hereof, pursuant to a Custodial Agreerncnt. Any Custodian shall act as agent on behalf of the Trustee. The msonable fees and expenses of the Custodian shall be paid by the Servicer.

Cz&OffDate: November 1,2005.

Uqfinirive Cerb$cales: Certificates in definitive, fully registered and certificated form.

Delaware Trus~ec: Deutsche Bank Trust Company Delaware, or its successor-in-interest as provided in Section 8.09, or any successor trustee appointed as herein provided.

Depositary Agreemenf: The Lerter of Representations, dated Novernher 22.2005 by and among DTC, the Trust and the Trustee. The Trustee is authorized to enter into the Depositary Agreemenl on hehalf of the Trust. Drsfropd Mortgage Nofe: Mortgage Note the original of which (or a portion of the A ofwhich) was permanently lost or destroyed and has no1 been replaced. original

Margin: For each Mortgage Loan, the applicable fixed per annuln percentage rate specified in thc applicable Mortgage Note and designated as such in the Mortgage Loan Schedule.
MERS: Mortgage Electronic Registration Systems, lnc., a Delaware corporation, or any successor thereto.
W R S Loam Any Mortgage Loan registered on the MERS@ System for which MERS appears as the mortgagee of record on the related Mortgage or on an assignment thereof.
MERS@ ,%fern: The system of electronicdly recording transfers of Mortgages maintained by MERS.

MIN: The Mortgage Identification Number for a MERS Loan.

MOM Loan: A MERS Loan that was registered on the MERS@ System at the time of origination thereof and for which MERS appears as the mortgagee of record on the related Mortgage.
Monthly P&IAdvance: An advance of hnds by the Servicer ptlrsuanl L Section 4.02 to o cover delinquent principal and interest installments.

MonrlJy Pn~menx:The scheduled payment of principal (if any) and interest on a

Mortgage Loan (including any amounts due from a Buydown Fund, if any) which is due on the related Due Date for such Mortgzge Loan.

Moorly'.~: Moody's Investors Service, Inc., provided that at the appliable time it is a Rating Agency.
Mortgage: The mortgage, deed of trust or other instrument securing a Mortgage Note. Mortgage FiIe: The following documents or instruments with respect to each Mortgage Loan, (X) with respect to each Moltgage Loan that is not a Cooperative Loan:

The original Mortgage Note endorsed (A) m blank, without recourse, (B) (i) to the Trustee, without recourse, or (C) to the Trust, without recourse, and all intervening endorsements evidencing a complete chain of endorsements from the originator to the endorser last endorsing the Mortgage Note, or, in the event of any Destroyed Mortgage Note, a copy or a duplicate original of the Mortgage Note ior portion thereof, as applicable), together with an original lost note affidavit from the originator of the Mortgage Mortgage Loan, the applicable Seller or the Company stating that the or~ginal Note (or portion thereof, as applicable) w s lost, misplaced or destroyed, together with a a copy of the Mortgage Note (or poriion thereof, as applicable); provided, hol+,ever,that in the event that either (a) Washington Mutual Bank or Washington Mutual Bank fsb is the Seller of the Mortgage Loan or (b) Washington Mutual Mortga$e Securities Corp. is the Seller of the Mortgage T.onn and purchased the Mortgage Loan from Washington Mutual Bank or Washington Mutual Bank fsb, then the hlortgage Note need not be endorsed in blank or to the Trustee or the Trust as ~mvided above, but if not so endorsed, shall be

aa in the event that either (a) Washington Mutual Bank or ht t Washington Muhlal Bank fsb is the Seller of the Mortgage Loan or (b) Washington Mutual Mortgage Securities Corp. is tho Scller of the Mortgage Loan and p u r c h d the Mortgage Loan from Washington Mutual Bank or Washington Mutual Bank fsb, then the Mortgagc File need n d include (1) a UCC assignment or amendment of the UCC financing statement referenced in clause (YXvi) above to the T111stee or the Trust as provided in clause (Y)(vii) above. but the Mortgage File shall, unless the Cooperative Loan was otiginafd by Wmhington Mutual Bank or Washington Mutual Bank fsb, include a UCC assignment or amendment of such UCC financing statement to Washington Mutual Bank or Washington Mutual Bank fsb, as applicable, or (2) an assignment of the interest of the originator in the Security Agreement, the Assignment of Proprietary Lease and the Kccognition Agreement to the Trustee or the Trust as provided in clause (Y)(viii) above, but the Mortgage File shall. unless the Cooperative Loan wzs originated by Washington Mutual Bank or Washington Mutual Bank fsb, include an assignment of such interest to Washington Mutual Bank or Washington Mi~tual Bank fsb, 3s applicable.
provided, h w e r ,
Aforlgage Inzerest Rufe: For any Mortgage Loan, the per annum rate at which interest accrues on such Mortgage Loan pursuant to the tenns of the related Mortgage Note.
Mortgag~ Loan P I I Y C ~ B ~ Thc Mortgage Loan Purchase and Sale Agreement, Apemen;: dated as of October 25, 2005, among the Company, Washington Mutual Bank and Washington Mutual Bank fsb, as supplemented and amended by the Term Sheet, dated the Closing Date, between the Cornpany and Washington Mutual Bank wd relating to the Certificates.
,Mortgage Loarc Schedz~h: The schedule, as amended from time to time, of Mortgage Loans attached hereto as Exhibit D. which shall set forth as to each Mortgage Loan the following, among other things:

(i)

its loan number,

the city, state and zip code of the Mortgaged Property, the Monthly Payment as of the Cut-Off Date, the Appraised Value of the property subject to the Mortgage, the Principal Balance as of the Cut-Off Date,

(ii)
(iii)

(iv) (v)

(vi) the Mortgage Interest Rate, as of rhe Cut-Off Date, under the Mortgage Note and the Rate Ceiling and Mortgage Loan Margin under the Mortgage Note,

(vii) whether a Primary Insurance Policy is in effect as of the Cut-Off Date, and, if so, whether such Primary Insurance Policy is a Special Primary Insurance Policy,
(viii) the maturity of the Mortgage Note,
(ix)

the Servicing Fee Rate. and

lo.4 o v

(h~ercollateralized Group: Either Loan Group. if on any Distribution Date such Loan Group is not an Undercollateralized Group and the other Loan Group is an Undercollateralized Group. (hunership i ~ r e s f With respect to any Residual Certificate. any ownership or security : interest in such Residual Certificate, including any interest in a Residual Certificate as the Holder thereof and any other interest therein whether direct or indirect, legal or beneficial, as owner or as pledgee. P~s.s-Tl?rough Enfity: Any regulated investment company, real estate investment trust, common trust fund, partnership, trust or estate, and any organization to which Section 1381 of the Code applies. Pass-Throzrgh Rate: For each Mortgage Loan, the Mortgage Interest Rate for such Mortgage Loan less (i) the Servicing Fee Rate for such Mortgage Loan and (ii) if such Mortgage Loan was covered by a Special Primary Insurance Policy on the Closing Date (even if no longer so covered), the per annum rate at which the applicable Special Primary Insurance Premium for such Mortgage Loan is calculated. For each Mortgage Loan, any calculation of monthly interest at such rate shall be based upon annual interest at such rate (computed on the basis of a 360-day year of Melve 30-day months) on the unpaid Principal Balance of such Mortgage Loan divided by twelve, and any calculation of interest at such rate by reason of a Payoff shall be based upon annual interest at such rate on the outstanding Principal Balance of such Mortgage Loan multiplied by a ftaction, the numerator of which is the number of days elapsed from the Due Date of the last scheduled payment ofprincipal and interest to, but not including, the date of such Payoff, and the denominator of which is (a) for Payoffs received on a Due Date, 360, and (b) for all other Payoffs, 365.

Pqving Agem: Any paying agent appointed by the Trustee pursuant to Section 8.12.

Pay$ Any payment by or on behalf of a Mortgagor of principal on a Mortgage Loan equal to the entire outstanding principal balance of such Mortgage Loan, if received in advance of the last scheduled Due Date for such Mortgage Loan and accompanied by an amount of interest equal to accrued unpaid interest on the Mortgage Loan to the date of such payment in full. (Prepayment penalties are not payments of principal and hence Payoffs do not include prepaymentpenalties.)
PayqfEurnings: For my Distribution Date with respect to each Mortgage Loan on which a Payoff was received by the Sewicm during the Payoff Period, the aggregate of the interest earned by the Servicer from investment of each such Payoff from the date of receipt of such Payoff until the Business Day immediately preceding the related Distribution Daie (net of investment losses).
Payofllnleirst: For any Dislribution Date with respect to a Mortgage Loan for which a Payoff was received on or after the first calendar day of the month of such Distribution Date and before the 15th calendar day of such month, an amount of interest thereon at the applicable PassThrough Rate from the first day of the month of distribution through the day of receipt thereof; to the extent (together with aggregate Phyoff Earnings and the aggregate Servicing Fee) noi

Recording W m e n t s : With respect to each Mortgage Loan, the original recorded Mortgage relating to such Mortgage Loan and any intervening assignment thereorrequired to be included in the .Momage File with evidence of recording thereon (or a copy of such original Mortgage or intervening assignment certified by thc applicable recording office) (which may be in electronic form).

Record Dafe: 'l'he last Business Day of the month immediately preceding the month of the related Distribution Date.
Regzrlnr Interests: (i) With respect to REMIC I, the REMIC I Regnlar Interests and (ii) with respect to REMIC 1, the REMIC T Regular Interests. 1 I
ReiiefAcr ShortfaEI: W~th respect to a Loan Group, for any Distribution Date for any Relief Act, Mortgage Loan in such Loan Group with respect to which the Servicemembers Civ~l as amended, formerly known as the Soldiers' and Sailors' Civil Relief Act of 1940. or any comparable state legislation (wllectively, the ' ' R e w ) . limits the amount of interest payable by the rclated Mortgagor, an amount equal to one month's interest on such Mortgage Loan at an annual interest rate equal to the excess, ifany, of (i) the annual interest rate otherwise payable by the Mortgngor on the related Due Date under the terms of the related Mortgage Note over (ii) the annual interest rate pyable by the Mortgagor on the related Due Date by application of the Relief Act. IIEMIC A real estate mortgage investment conduit, as such term is defined in the Code.

REMIC Proviszonr: Sections 8hOA through 860G of the Code, and the related Code
provisions and regulations promulgated thereunder, a the foregoing may be in e f f i t ftom time q to time.
REMZCI: The segregated pool of assets of the Trust consisting of the REMIC I Assets.

REMCIAs,sers: All ofthe Mortgage Pool Assets and any proceeds thereof.

REiWC I Available Distriburion Amount: For each Loan Group for any Distribution Date, the sum of the following amounts with respect ~o the Mortgage Loans in such Loan Group:
the total amount of all cash received by or on behalf of the Servicer with respect (1) to such Mortgage Loans by the Determination Date for such Distribution Date and not previously distributed, including Liquidation Proceeds, hsumnct. Proceeds and scheduled amounts of distributions t?om Buydown Funds respecting Buydown Loans, if any, except: all scheduled payments of principal and interest collected but due (a) subsequentto such Distribution Date;
(b)

all Curtailments received after the Prior Period;

all Payoffs received after the Payoff Period immediately preceding such (c) Distribution Date (together with any interest payment received with such Payoffs to the extent that it represents the payment of interest accrued on the Mortgage Loans for the

Servicer with respect to such Mortgage Loans hereunder and (iv) all interest due but unpaid with respect to such Mortgage Loans not covered by a Monthly P&I Advance.

T m Matters Person: With respect to each of REMlC I and REMIC 11, a Holder of a Class R Certificate with a Perceoctlge Interest of at least O.OI'% or any Permitted Transferee of such Class R Certificateholder designated as succeeding to the position of Tax Matters Person in a
notice to the Trustee signed by authorized representatives of the transferor and transferee of such Class R Certificate, which Tax Matters Person shall be the tax matters person for each REMIC within the meaning of Section 623l(a)(7) of the Code and Treasury Regulation Section 1.860F4(d). The Servicer is hereby appointed to act as Tax Matters Person so long as it holds a Class R Certificate with a Percentage Interest of at leas . In the event that the S e ~ i c eceases to r hold a Class R Certificate with the required Interest, the holder of the Class R Certificate with the largest Percentage Intere Tax Matfen: Person, and such Tax Matters Person shall be deemed to have app ervicer to act a agent for the Tax s Matters Person. t per6orm the functions of su a Pcrson as pi.ovided herein. If the ast preceding Hvlder. that is not a Tax Matters Person becomes a Disqualified Or Disqualified Organization, of the Class R Cert e Disqualificd Organization shall be Tax Matters Person pursumt to and as p d by Section 5.01(c). If any Person is ice pursuant to the Code. such appointed as t x matters person by the In a Person shall be Tax Matters Person.

Ternrimtion Ume: The date upon which fin payment of the Certificates will be made pursuant to the procedures set forth in Section 9.01(b .
Termination Payment: The fmal Termination Date pursuant to the

to the Certificateholders on the

'li,tal P~nqLer Amount: For m y Distribution ate and for an Undercollateraiized Group,

an amount equal to the sum ofthe Interest Transfer mount and the Principal Transfer Amount for such Undercollateralized Group.

Tran,fir:Any direct or indirect transfer

Certificate.

of any Ownership lnterest in a Residual Transfer any Ownership interest in a and agreement in the form attached

Transferee: Any Person who is acquiring Residual Certificate. Trmgeree A$dmdt hereto a s Exhibit J.
and Agreement: An at3

Trust: WaMu Mortgage Pass-Through Cenifi as Series 2005-AR16 Trust, a Delaware Trust greemcnt. statutory trust created pursuant to the Origi~~al
Tnasfee: Deutsche Bank National Trust Comp y, or its successor-in-interest as provided

in Section 8.09, or any successor trustee appointed as erein provided.

UncoNecfedZnteresf: With respect to any

which a Payoff was made by a Mortgagor during

Date for any Mortgage T,oan on PayoCT Pcriud, except for Payoffs

~i~hdrmaI Any day during the period commencing on the 18th day of the month Date: of the related Distribution Dafe (or if such day is not a Business Day, the immediately preceding Business Day) and ending on the last Business Day prior to the 2lst day of the month of such Distribution Date. The "related Due Date" for any Withdrawal Date is the Due Date immedintcly preceding the related Distribution Date.
ARTICLE I 1

Creation of the Trust; Conveyance of the Mortgage Pool Assets and REMIC 1Regular Interests; REMC Election and Designations; Original Issuance of Certificates
Section 2.01. Creation of flte Tru.sf. The Trust was created pursuant to the Original Trust Agreement and is hereby continued. As set the Original T~ust Agreement, the Trust shall be known as "WaMu Mortgage Series 2005-AR16 Trust". The purpose of the Trust is, and the authority, to engage in the following activities, all as (i) to acquire, hold, lease, manage, adm nister, control, invest, reinvest, operate andlor tuansfer the Moltgage Pool Asse and the KEMJCIT Assets; to issue the REMIC 1 Regular Interes , the Class R-1 and Class K-2 Residual Interests and the Certificates; Interests and the Certificates; and to make distributions to the REMIC I ~ & u l a r

(ii)
(iii)

I
t

(iv)

to engage in such other activities, in uding entering into agreements, as are described in or required by the terms f this Agreement or as arc necessary, suitable or convenient to accomplish the oregoing or incidental thereto.
trustee of the Trust, to have the Trust expressly set forth cepts such appointment and is hereby appointed as the bligations of the Delaware Trust company Delaware It is the intention of the e Trust constitute a statutory the governing instrulnent of st Agreement. The parties that the Trust includes ' constituting separate available to make MIC I Distribution the Trustee or the Custodian. on s to the credit of the Trust shall be

Ueutsche Bank National Trust Company is hereby all the rights, duties and obligations of the Trustee hereunder, and Deutsche Bank National Trust Co the trust created hereby. Deutsche Bank Tnrst C Delaware trustee of the Tmst, to have all the ri Trustee with respect to the Trust hereunder, hereby accepts such appointment and the trust cr Company, the Servicer, the Trustee and the Delaware trust under the Statutory Trust Statute, that this the 'Trust, and that this Agreement amend and hereto acknowledge and agree that. prior to Trustee has filed the Certificate of Trust. The two sepmate pools of mortgage loans referred subtrusts for ERISA purposes, and that &he payments to the holders of Certificates as p Amount" and "REMIC I1 Distribution Amo

The assets of the Trust shall remain in the cu behalf of the T m and shall be owned by the Trust.

held by the Trustee and invested a provided herein. All m e t 5 received and held by the Trust s will not be subject to any right, charge, security interesf lien or claim of any kind in favor of either of the institution acting as Trustee or the institution acting as Delaware Trustee in its own right, or any Person claiming through either. Neither the Trustee nor the Delaware Trustee shall have the power or authority to transfer, assign, hypothecate, pledge or otherwise dispose of any of the assets of the Tn~st any Person, except as permitted herein. No creditor of a beneficjaw to of the Trust, of the Trustee, of the Delaware Trustee, of the Servicer or of the Company shall have any right to obtain possession of, or otherwise exercise legal or equitable remedies with respect to, the property of the Trust, cxccpt in accordance with the terms of this Agreement. Section 2.02. Re.~triciiiorrson .dd./ii>i~ies rhe Tru~f. 4 Notwithstanding any other otherwise so empowers the Trust, so provision of this Agreement and any prodsion of law t h a ~ long as nny Certificates are outstanding/ the Trust shall not, and none o f the Trustee, the Delaware Trustee, the Company or the ~&icer shall (except by amendment of this Agreement permitted by Section 10.01) knowingly cadse the Trust to, do any of the following:
I

(i)
(ii)

engage in any business or a4tivity other than those set forth in Section 2.01; incur or assume any indedtedness except for such indebtedness that )nay be incurred by the Trust in cdnnection with the execution or performance or this Agreement or any other agrdement contemplated hereby; guarantee or otherwise assufne liability for the debts of any other party;

(iii)

(iv)
(v)
(vi)

do any act in contravendion of this Agreement or any other agreement contemplated hereby to whidh the Trust is a party; do any act which would inakc it impossible to carry on the ordinary business of the Trust; confess a judgment againstt i e Trust; possess or assign the assets df the Trust for other than a Trust purpose;

(vii)

(viii) cause the Trust to lend any funds to any entity, except as contemplated by this Agreement; or (ix) change thc purposes and bowers of the Trust h m those set fwth in this Agreement. Notwithstandic~g other provision of this arry so empowers the Trust, so long as any

Section 2.03. Separateness Agreement and any provision of law Certificates are outstanding, the Trust (i)

except as expressly permitt d by this Agreement or the Custodial Agreemenl,

maintain its books, records, bank accounts and files separate from those of any other Person;

(ii)

except as expressly permitted by separate name and in such a identify, or ascertain such assets;

Agreement, maintain its assets in its own it is not costly or difIicult to segregate.

(iii)

consider the interests of the Trust's reditors in connection with its actions; hold !&If out to creditors and the[public as a legal entity separate and distinct from any other Person and correct any known misunderstanding regarding its separate identity and refrain kom engaging in any activity that compromises the separate legal identity of the Trust; prepare and maintain separate records, accounts and financial statements in accordance with generally accepted accounting principles, consistently applied. and susceptible to audit. To the extent it is included in consolidated financial statements or consolidated tax returns, such financial statements and tax returns and will reflect the separateness of the rcspcctive entiti~s indicate that the assets of the Trust will not be available to satisfy the debts of any other Person; allocate and charge fairly and reasonably any overhead shared with any other Person: transact all business with afftliate on an ann's-length basis and pursuant to written, enforceable agreements,

(iv)

(v)

(vi) (vii)

n (viii) conduct business solely in the name of the Trust. J that regard all written and oral camrnunications of the Trust, including, without limitation, letters, invoices, purchase orders and contracts, shall he made solely in the name of the Trust;

(ix)

maintain a separate ofice through which its business shall be conducted, provided that such oftice may be an office of the Trustee, which oftice shall not be shared with the Company or any affiliates of the Company; in the event that services have been or are in the future performed or paid by any Person on hehalf of the Trust (other than the Trustee, the Dclowarc Trustce, the Servicer or the Tax Maners Person as permitted herein), reimburse such Person, as applicable for the commercially reasonable value of such services or expenses provided or incurred by such Person. Accordingly, (i) the Trust shall reimburse such Person, a applicable, for the commercially reasonable value of such services s or expenses provided or incurred by such Person; (ii) to the extent invoices for such services are not allocated and separately billed lo the Trust, the amount thercofthat was or is to be allocated and separately bllled to the'rrust w s or will a be reasonabIy related to the scrvices provided to the Trust; and (iii) any other allocation of dircct, indirect or overhead expenses for items s h a d between the Trust and any other Person, was or will be, l the extent practicable, allocated on o the basis of actual use or value of services rendered o otherwise on a basis r reasonnbly rciated to actual use or the value ofservices rendered;

(x)

(xi) (xi)

except as expressly permitted by this Apement, not commingle its asseis or finds with those of any other Person; except as expressly permitted by this Agreement, not wsume, guarantee, or pay the debts or obligations of any other Person;

(xiiit except as expressly permitted by this Agreement, not pledge its assets for the benefit of any other Person; (xiv) not hold out its credit or assets as being available to satisfy the obligations of others;

(xv)

pay its liabilities only out of its funds;

(xvi) pay the salaries of its own employees, ifany; and (xvii) cause the agents and other representatives of the Trust, if any, tb act at all times with respect to the Trust consistently and in furtherance of the foregoing. None of the Trustee, the Delaware Trustee, the Company or the Sewicer shall (except by amendment of this Agreement permitted by Section 10.01) take any action tMt is inconsistent with the purposes of the Trust or Section 2.02 or Section 2.03. Neither the Company nor the Sewicer shall (except by amendment of this Agreement permitted by Section 10.01) direct the Trustee or the Delaware Trustee to take any action that is inconsistent with thd purposes of the Trust or Section 2.02 or Section 2.03.

f Section 2,04. Conveyance o Mortguge PooZAssets; Securiiy Interesl.

The Company does hereby inevocably sell, transfer, assign, set ovei and otherwise convey to the Trust, without recourse, all the Company's right, title and interest in and to the Mortgage Pool Assets. The Trust, as payment of the purchase price of the Mortghge Pool Assets, shall issue the REMlC I Regular Interests and the Class R-I Residual Interest to the Company on I the Closing Date. It is the express intent of the parties hereto that the conveyance of the Mortgage Pool Assets to the Trust by the Company as provided in this Section 2.04 be, and be construed as, an absolute sale of the Mortgage Pool Assets. It is, further, not the intention of the parties that such conveyance be deemed the grant of a security insrest in the Mortgage Pool Assets by the Company to the Trust to secure a debt or other obligation of the Company. However, in the event that, notwithstanding the intent of the parties, the Mortgage Pool Assets are held to be the property ofthe Company, or if for any other reason this Agreement is held or deemed to create a security interest in the Mortgage Pool Assets, then
(a)

this Agreement shall constitute a security agreement;

the conveyance provided for in this Section 2.04 shall be deemed to be a grant by (b) rs the Company to the Tut of, and the Company hereby grants to the Trust. to secure all of the

Company's obligations hereunder, a security interest in all of the Company's right, title, and interest, whether now owned or hereafter acquired in and to:

(0

The Mortgage Pool Assets;

(11) All accounts, chattel paper, deposit accounts, documents, general il~taagibles,goods, instruments, investment property, letter-of-credit rights, letters of credit, money, and oil. gas, and other minerals, consisting oT, arising from, or relating to, any of the foregoing; and
(111)

All proceeds of the foregoing.

The Company shall filc such financin:: statements, and the Company, the Servica and the Trustee acting on behalf of the Trust at the direction of the Company shall, to the extent consistent with this Agreement, take such other actions as may be necessary to ensure thab if this Agreement were found to create a security interest in the Mortgage Pool Assets, such security interest would be a perfected security interest of first priority under applicable law and will be maintained as such throughout the tnm of the Ag~ernent. connection herewith, the Trust shall In have all of the rights and remedies of a secured party under the Uniform Commercial Code as in force in the reievant jurisdiction.

Section 2.05. Delivey oJWortgage Files. On the Closing Date, the Company shall deliver to and deposit with, or cause to be delivered to and deposited with, the Trustee or the Initial Cus~odian Mortgage Files. which the shall at all times be identified in the records of the Trustee or the Initial Custodian, as applicable, as being held by or on behalf of the Trust. Concurrently with the with respect to each Cooperative Loan t (Y)(vii) of the definition of '-Mortgage Loans, the Servicer shall use its best with regard to each financing hrrsuant to the Initial C the Senricer to he appointed by th functions of the Trustee hereunder release of the Mortgage Files, as terminated under rhe Mia1 Custo consent, tu appoint on behalf of perform such custodial responsibilities and release of the Mortgage Files, an The Trustee shall not be liable for the Custodian appointed in accordance shall remain liable for its own neg willful misconduct to the extent provide the Sewicer to the Custodian shall be purposes hereunder; and any docum hereof. the Company shall cause to be filcd UCC assignment or amendment referred to in clause In connection with its servicing of Cooperative file timely continuation statements, if necessary, to a Cooperative Loan.
tial Cubtodiin has been designated by

n behalf of the Trust and to perfom the

elivery, receipt examination, custody and n the event that the Initial Custodian i s lustee is authorized, with the Servicer's st company as successor Custodian to ct to the delivery, m i p f oramination, custody into a Custodial Ageemcnt for such purpose. ssions of the Initial Custodian or any successor ement; provided, however, that the Tm*e own negligent failwe to act and its own . Any documents delivered by the Company or to have been delivered to the Trustee for all ustodian shall be deemed to be held by the

Trustee for all purposes hereunder. There shall be a written Custodial Agreement between the Trustee and each Custodian. Each Custodial Agreement shall contain an acknowledgment by the Custodian that all Mortgage Pool Assets, Mortgage Piles, and other documents and property held by it at any time are held by it for the benefit of the Trust.
On or promptly after the Closing Date, the Servicer shall cause the MERS@ System to indicate that each MERS Loan, if any, has been assigned to the Trustee, wirhout recourse, or to the l'rust, without recourse, by including in the MERSB System computer files (a) the code necessary to identify the Trustee and (b) the code necessary to identify the wries of the Certificates issued in connection with such Mortgge Loans; provided, however, that in the event the Company acquired such Mortgage Loans from an affiliate of the Company, then the Servicer need not cause the MERS@ System to indicate such assignment. The Sewicer shall not alter the codes referenced in this paragraph with respect to any MERS Loan during the term of this Agreement except in connection with an arsignment of such MERS Loan or de-registration thereof from the MERS@ System in accordance with the terms ofthis Agreement. Section 2.06. REM7CElectionfor REWC I. The Servicer shall, on behalf of REMIC I, elect to treat REMIC I as a REMlC within the meaning of Section 860D of the Code an& if necessaq, under applicable state laws. Such election shall be included in the Form 1066 and any appropriate state return to be filed on behalf of REMIC I for its first taxable year. The Closing Date is hereby designated as the "startup day" of REMlC I within the meaning of Section 860G(a)(9) of the Codc. The regular interests (as set forth in the table contained in the Preliminary Statement hereto) relating to REMTC I are hereby designated as "regular interests" in REMlC I for purposes of Section 860G(a)(l) of the Code. The Class R-l Residual Interest is hereby designated as the sole class of "residual interest" in RENlC I for purposes of Seetion 860G(a)(2) ofthe Code. The REMIC I Regular Interests aod the Class R-1 Residual Interest shall together be a separate series of beneficial interests in the assets of the Trust consisting of the REMC I Assets pursuant to Section 3806(b)(2) of the Statutory Trust Statute. The parties intend that the affairs of REMlC 1 shall constitute, and that the affairs of REMTC I shall be conducted so as to qualify REMIC I as a REMlC. In furtherance of such intention, the Servicer shall. on behalf of REMlC I: (a) prepare and file, or caiise to be prepared and filed a federal tax return using a calendar year as the taxable y m and using an accrual method of accounting for REMIC I when and as required by the REMIC Provisions and other applicable federal income tax laws; (b) make an election, on behalf of the trust, for REMIC I to be treated as a REMTC on the federal tax return of REMlC I for its f i t taxable year, in accordance with the REMIC Provisions; (0) prepare and forward, or cause to be prepared and forwarded, to the Holders of the REMlC I Regular Interests and the Class R-7 Residual Interest and the Trustee, all information reports as and when required to be provided to them in accordance with the REMIC Provisions, and make available the information necessary for the applicatio~~ Section 860E(e) of the Code; (d) conduct the affairs of REMIC I at all times that of any REMIC 1 Regular interests are outsianding so as to maintain the status of REMlC I a9 a

not paid by the Servicer pursuant to clause (0 of the'immediately preceding paragraph, the Trustee on behalf of the Trust shall pay such taxes from amounts on deposit in the Certificate Account in reduction of the REMIC I Available Distribution Amount for the applicable Distribution Date. The amount so reimbursed or paid pursuant to either of the immediately preceding two sentences shall be allwted as a loss to the Class R-1 Residual Interest. in reduction of the Class Principal Balance thereof. Neither the Trustee nor the Tax Matters Penon shall knowingly or intentionally take any action that would cause the termination ofthe REMIC status of REMIC TI. Section 2.1 4. Acknmvfedgement o Transfer o REMC 11 A,rsefs. The Trustee hereby f f acknowledges and accepts on behalf oltha Trust the assignment to the Trust pursuant to Section 1 2.12 of the REMIC 1 Assets and declares that as of the Closing Date it holds and shall hold any documents constituting a part of the REMIC I1 Assets, and the REMIC I1 Assets, as i'rustee in tnrsr, upon the bust herein set forth, fr the use and benefit of all present and future Holders of o the Certificates (other than the Cia.;$ R Certificates) and the Class R-2 Residual I~itemst. Section 2.15. Leg01 Tille. Legal title to all assets of the Trust shall he ves!ed at all times in the Trust as a separate legal entity. Section 2.16. CompZiance with ElUSA Requifamenfs. For purposes of ensuring compliance with the requirements of the "undenvriter's exemption" (U.S. Department of Labar Prohibited Transaction Exemption 2002-41, 67 Fed Reg. 54487 (Aug. 22, 2 0 ) , issued under 02) ERISA, and for the avoidance of any doubt as to the applicability of other provisions of this Agreement, to the fullest extent permitted by applicable law and except as conte~nplatedby this Agreement, the Trust shall not be a party to any merger, consolidation or reorganization, or liquidate or sell its assets. Section 2.1 7. Additiond Repre.semation Concerning the Moflgage Loans. Based on the applicable Seller's obligation, pursuant to Section 3.3 of the Mortgage Loan Purchase Agreement, to repurchase or substitute for the affected Mortgage Loan in the event of a breach of the representation set forth in clauses (xxvii) or (xxviii) of such Section 3.3 thereof, the parties hereto agree and understand that it is not intended for the Mortgage Pool to include any Mortgage Loan that is a "'high-cost borne loan" as detined under the New Jersey Home Ownership Security Act of 2002, the New Mexico Home Loan Protection Act, the Massachusetts Predatory Home Loon Practices Act or the Indiana Home Loan Practices Act (Indiana Code, Section 24-9 et seq.).

Administration and Senking of Mortgage b a n s Saction 3.01. 17re Senpicer. Washington Mutual Bank shall act as Servicer to service and administer the Mortgage Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistellt with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other

portfolios, and shall have full power and authority to do or cause to be. done any and all things in connection with sucll servicing and administration which a prudent sewicer of moltgage loans would do under similar circumstances. including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the tenns of the Mortgage Noles. The Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released &om any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the Mortgage Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy. any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located. The Servicer shall enforce "due+n-sale" clauses with respect to the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing practices, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment o f any Mortgage Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be n~aterially adversely affected, arrange a schedule, running for no more than 180 days afkr the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Scction 3.01, the Semicor may waive, modify or vary any term of any Mortgage Loan or consent to the postponement of strict compliance with any such term or in any manner grant indulgence to any Mortgagor if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan. that the security for, and the timely and full collectability oE such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or induIgence; p~ovided,however, that (unlesq the Mortgagor i s in def%ult with respect to thc Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to m y Mortgage Lorn that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual myments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be. inconsistentwith the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranw, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall nor permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including any proposed, temporary or final regulations promulgated thereunder) (other than in connection w i a a pmposed conveyance or assumption of such Mortgage Loan that is treated as a Principal Prepayment or in a default situation) and cause any REMlC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial

notice thereof to the Trustee prior to no+ New York City time two Business Days prior to the applicable Distribution Date; i (vii) To make any deposit, req?ired or permitted hereunder, of withdrawn funds to the Investment Account or the certifi4te Account; and
i

aRer making or providing for the above ~ithdrawals (viii) To clear and terminate the investment Account and the Certificate Account following termination of this Ag ement pursuant to Section 9.01.

i. I

Since, in connection with withdrawals pursuant to Section 3.05(a)(i), the Semicer's entitlement thereto is limited to collections or other recoveries on the related Mofigage Loan, the Servicer shall keep and maintain, separate accohting for each Mortgage Loan, for thc purpose ofjustifying any such withdrawals.
The Servicer is authorized to ma& withdrawals, from time to time. of Buydown (b) Funds from the Buydown Fund Accounts or Custodial Accounts for P&I (and, m the cx*ent applicable, to make deposits ofthe amounts withdrawr~)), follows: as
I

To deposit each month in the Investment Account or the Certificate (i) Account the amount necessary to suppiemknt payments received on Buydown Loans; In the event of a payoff of any Mortgage Loan having a related Buydown (ii) Fund, to apply amounts remaining in Bubdown Fund Accounts to reduce the required amount of such principal Payoff (or, if thd Mortgagor has made a Payoff, to refund such remaining Buydown Fund amounts to the terson entitled thereto); (iii) In the event of foreclosure br liquidation of any Mortgage Loan having a Buydown Fund, to deposit remaining Buy$own Fund amounts in the Investment Account or the Certificate Account as Liquidation Pkoceeds; and
1

(iv) To clear and terminate the portion of any account representing Buydown Funds following termination ofthis Agteer(lent pursuant to Section 9.01. The Trustee is authorized to m&e withdrawals from time to time from the (c) Certificate Account to reimburse itself for advances it has made as successor Sewicer pursuant to Section 7.01(a) hereof that it has determined to bebonrecoverable~dvances. Section 3.06. Maintenance of Primary hzdurance Policies: fi>ll~clionr Thereunder. The Servicer shall use commercially reasonable effod to keep in full force and effect each Primary Primary ~bsuraniePolicy) required with respect to a Insurance Policy (except a n y - ~ p e c i a ~ Mortgage Loan until no longer required, and tltq Senricer shall use commercially reasonable efforts to keep in full force and & a t each iSpecia1 Primary Insurance Policy, if any. Notwithstanding the foregoing, the Servicer shall\have no obligation to maintain any Primary insurance Policy for a Mortgage Loan for which thk outstanding Principal Balance thereof at any time subsequent to origination was 80% or less of the Appraised Value of the related Mortgaged Property, unless required by applicable law.

Unless required by applicable law, the krvicw shall not cancel or rehse to renew any Primary Insurance Policy in effect at the date df the initial issuance of the Certificates that is required to be kept in force hereunder; providek however, that the Servicer shall not advance finds for the payment of any premium due undet (i) any Primary Insurance Policy (other than n Special Primary Insurance Policy) if it shall hetennine that such an advance would be a Nonrecoverable Advance o (ii) any Special J%m& Insurance Policy. r The Servicer shall cause to bc Section 3.07. Mazntena~ce of maintained for each Mmgage Loan ih Loan) hazard insurance w t extended cuverage in an amount which is not liss than the original principal balance of such Mortg~e Loan, except in cases approved by the Servicer in which such amount exceeds the value of the improvements to the Mortgaged pAPerty. Thc Scrvicer shall aiso require hazard insurance with extended coverage in a com&ab\e amount on property acquired upon foreolosure, or deed in lieu of foreclosure, of any Mortgage Loan (other than a Cooperative Loan). Any amounts collected under any such (other than amounts to be applied to the restoration or repair of the related Mortgaged Pbperty) shall be deposited into the Custodial Account for ?&I, subject to withdrawal pursuant to Section 3.03 and Section 3.05. Any unreimbursed wsts incurred in maintaining any inburance described in this Section 3.07 shall be recoverable as an advance by the Servicer pursu;Slt to Section 3.05(a). Such insurance shall he with insurers approved by the Servicer or Fafinie Mae or Freddie Mac. Other additional insurance may be required of a Mortgagor to such applicable laws and regulations as shall at any time be in force and as shall require suLh additional insurance. Where any part ofany improvement to the Mortgaged Property (othed than a Mortgaged Property secured by a Cooperative Loan) is located in a federally de9ignated special flood hazard area and in a community which participates in the National ~ l o o lnsurance Program at the time of origination b of the related Mortgage Loan, the Servicer shall cause flood insurance to he provided. The hazard insurance coverage required by this Sec$ion 3.07 may bc mot with blankel policies r providing protection equivalent to individual polic s otherwise required. The S e ~ i c eagrees to present, or cause to be presented, on behalf of the benefit of the Trust, claims under the hazard insurance policy respecting any Morlgabe Loan, and in this regard to take such reasonable actions as shall be necessary to permit rkcovery under such policy. Section 3.08. Enforceemem of he-on-~alej~iauses; Assumption Agreements. When any Mortgaged Property is about to be conveyed by thq Mortgagor, the Servicer shall, to the extent it has lolowledge of such prospectiv~conveyance i d prior to the time of the consummation of such conveyance, exercise on behalf of the Trust the T ~ s t ' s rights to accelerate the maturity of such Mortgage Loan. to the extent that such accelehtion is permitted by the terms of the related Mortgage Note, under any "due-on-sale" clause applicable thereto; prmlidcd, however, that the Servicer shall not exercise any such right if the dueton-sale clause, in the reasonable belief of the Servicer, is not cnforccablc under applicable la-,$ or if such exercise would result in noncoverage of any resulting loss that would odlerwi$e be covered under any insurance policy. J n the event the Servicer is prohibited from exercising: such right, the Servicer i s authorized to take or enter into an assumption and modification agr$ement from or with the Person to whom a Mortgaged Property has been or is about to be:conveyed, pursuant to which such Person becomes liable undcr thc MortgageNote and, unlesk prohibited by applicable state law or inl less the Mortgage Note contains a provision allowing qualified borrower to assume the Mortgage Note, the Mortgagor remains liable thereon; provided that the Mortgage Loan shall continue to

Section 5.1 0. O$iccfor TranSferof Cerf~crbes. Tnrstee on behalf of the Trust shall The maintain an oftice or agency where Certificates may be surrendered for registration of transfer or exchange. The office of the Tntstee's agent at DB Services Tennessee, 648 Grassmere Park Road, Nashville, TN 37211-3658, Am: Transfer Unit, is initially designated for said purposes. Section 5.1 I . Nutwe o CerI~icufes. Certificates shall be personal property giving f The only therights specifically set forth therein and in this Agreement. The Certificates shall have no preemptive or similar rights and when issued and delivered to the Holders against payment of the purchase price therefor will be fully paid and nonassessable by the Trust. The Holders of the Certificates, in their capacities as such, shall be entitled to the same limitation of personal liability extended to szockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. THE RECEIPT AND ACCEPTANCE OF A CERTIFICATE OR ANY INTEREST THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER WITHOUT A h 4 SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, S W L C O N S T T T ~ THE UNCONDITIONAL ~ ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST I SUCH CERTIFICATE OF ALL THE TERMS AND PROVISIONS OF THIS N AGREEMENT, AND SHALL CONS'I II'UTE THE AGREEMENT OF THE TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS AGREEMENT SHALL BE BINDING, OPERATIVEAND EFFECTlVE AS BEI'WEEN THE TRUST AND SUCH HOLDER AND SUCH OTHERS.

ARTICLE M
The Company and the Sewicer Section 6.01. Liability o the C o n i p q ~ thc Scr+icer. Each of the Company and the f and Semicer shall be liable in accordance herewith only to the extent of the obligations specifically imposed upon and undertaken by the Cornpany or the Servicer, as applicable, herein. Section 6.02. Merger or Comolidation of t h Company or the Servicer. Any Corporation into which either tho Company or the Servicer may be merged or consolidated, or any Corporation resulting from any merger, conversion or consolidation to which either the Company or the Servicer shall be a party, or any Corporation succeeding to the business of either the Company or the Servicer, shall be the successor of the Company or the Servicer. as applicable, hereunder, without the execution or filing of any paper or any further act on the part orany of the parties hereto, anything herein to the contrary notwithstanding. Neither Section 6.03. Limitation oil LiabiZa of rite Conlpnnzy, IIE Sewicer 4 O~hers. the Company not the Servicer nor any of tile directors, oMicers, employees or agents of the Company or the S e ~ i c e shall be under any liability to the Trust, the Holders of the REMC I r Regular Interests or the Certificateholders for any action taken by such Person or far such Person's refraining from the taking of any action in good faith pursuant to this Agreement, or for errors in judgment; pmvidederl, however, that this provision shall not protect the Company, the Servicer or any such Person against any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligcncc in the perfornlanw of duties or by reason of reckless disregard of duties and obligations hereunder. Each of the Compaiiy. the Servicer and

REMIC 1 and REMIC 11 as described in Section 860F of the kode, or (ii) cause REMIC I or REMIC 11 to fail to qualify as a REMIC at any time that any Certificates are outstanding:
Within 90 days prior to the final Distribution Date set forth in the notice (i) given by the Trustee under Section 9.01, the Tax Matters Person shall prepare the docwne~itation required and the Tax Matters Person and the 'I'rustee shall adopt a plan of complete liquidation on bchalf of REMIC I and REMlc IS meeting the requirements of a qualified liquidation under Section 860F of the Code and any regulations thereunder, as cvidenccd by an Opinion of Counsel obtained at the expense of the Servicer, on behalf of REMIC I and REMIC II; and
At or after the time of adoption of such a plan of complete liquidation and (ii) at or prior to the final Distribution Date, the Servicer on behalf of the 'Trust shall sell all of the assets of REMIC I and REMIC I1 to the Scrviccr for cash in the amount specified in Section 9.01.

By its acceptance of my Residual Certificate, the Holder thereof hereby agrees to (b) authorize thc Tax: Matterj Person and the Trt~stee adopt such a plan of complete liquidation to and to take such other action in connection therewith as may be reasonably necessary. Section 9.03. T m I r ~ ~ ~ a c a Except as expressly providd herein, the hL. hereby is irrevocable.
ARTICLE X
Miscellaneaus Provisions
trust created

Section 10.01. Arnei~dinent.

This Agreement may be amended from time to time by the Servicer, the Company (a) and the Trustee, without the consent of any ofthe Certificateholders:
(i)

tocure any ambiguity;

to correct or supplement any provision herein which may be defective or (ii) inconsistent with any other provisions herein;

(iii) thereunder;

to comply with any requirements imposed by the Code or any regulations

(iv) to correct the description of any property at any time included in REMlC 1 o REMIC 11, or to assun the conveyance to the Trust of any property included in r REMlC I or REMiC 11; (v)

pursuant to Section 5.01 (c)(v); and

Section 10.04. Access to Lisr of ClertificatehoZ&rs. The Certificate Registrar shnll furnish or cause to be furnished to the Trustee witbin 30 days after receipt of a request by the Trustee in writing, a list, in such form as the Tmstee may reasonably require, of the names and addresses of the Cenificateholders as of the most recent Record Date for payment of distributions to such Certificateholders. If three or more Certificateholders fiereinafter referred to as .'applicants3') apply in writing to the Trustee. and such application states that the applicants desire to communicate with other Certificateholders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such applicants propose to transmit, thcn the Trustce shall, within five Business Days after the receipt of such list from the Certificate Registrar, afford such applicants access during normal business hours to the most recent list of Certiticateholders held by the T ~ s t c o If such a list is as of a date more than 90 . days prior to the date of receipt of such applicants' request, the Trustee shall promptly request from the Certificate Regisb-ar a current list as provided above, and shall afford such applicants access to such list promptly upon receipt. Every Certificateholdcr, by receiving and holding the same, agrees with the Servicer, the Company. the Trust, the Trustee and the Delaware Trustee that none of the Servicer, the Company, the Trust, the Trustee or the Delaware Trustee shall bc hcid accountable by reason of the disclosure of any such information as to the names and addresses of the Certificateholders hereunder, regardless of the source &om which such information waq derived. Scction 10.05. Goaferningfm~. Agreement shall be construed in accordance with the This laws of the State of Delawarc without giving effect to its conflict of laws provisions and the obligations, rights and remedies of the panies hereunder shall be determined in accordance with such laws without giving e f & to conflict of laws provisions. Section 10.06. Notices. All demands, notices and communications hereunder shall be in writing and shall be deemed to have been duly given if personally delivered at or mailed by registered or certified mail, return receipt requested, or overnight courier to the applicable Notice Address Notices to the Rating Agencies shall also be deemed lo have been duly given if mailed by frrst class mail, postage prepaid, to the above listed addresses of the Rating Agencies. Any notice required or permitted to be mailed to a Certificateholder shall he given by first class mail, postage prepaid, at the address of such Holder as shown in the Certificate Register. Any notice so mailed within the time prescribed in this Agreement shall be conclusively presumed to have been duly given, whether or not the Certlticateholder receives such notice.

k Section 10.07. Severabiliry of Provi,sionc. If any onc or Inore of L covenants. shall be for any reason whatsoever held agreements, provisions or terms of this terns shall be deemed severable from the invalid, then such covenants, agreement& of this Agreement and shall in no way remaining covenants, agreements, of this Agreement or of the affect the validity or Certificates or the rights
Section 10.08. Counterpart this Agreement as herein

For the purpose of facilitating the recordation of purposes, this Agreement may be executed

simululneously in any number of counrerpark, each of which counterparts shall be deemed to be an original, and such counterparts shall constitute but one and the same instrument. Section 10.09. Beneftv of Agreement. Nothing in this Agrcemmt or in any Certificate, expressed or implied, shall give to any Person, other than the parties hereto and their respective successors hereunder, any separate trustee or co-m\steeappointed under Section 8.10 and the Certificateholden, any benefit or any legal or equitable right. remedy or claim under this Agreement. fi Section 10.10. ~ b ~ i c and Copies to Rnlingdgencies. es The Trus ee shall notify the Rating Agencies of the occurrence of any of the (a) following events, in the anner provided in Section 10.06: of an Event of DeFault pursuant to Section 7.01, subject to (ii) thk appointment of a successor Servicer pursuant to Section 7.02;

shall notify the Rating Agencies of the occurrence of any of the of clauses (iii), (iv). (v), (vii) and (viii) promptly upon receiving notice thereoc in the mar/ner provided in Section 10.06: (i)

an amendment nfthis Agreement pursuant to Section 10.01;

1
I

thd appointment of a successor Trustee or successor Delaware Trustee (ii) pursuant i o ~cctiJn 8.08;
(iii) th filing of any claim under or the cancellation or modification of any fidelity bond and errors and omissions coverage pursuant to Section 3.01 and Section 3.06 with respect o the Servicer; (iv) an$ change in the location of the Certificate Account, any Custodial Account for P&I dr the Investment Account; purchase of any Mortgage Loan by the Company pursuant to Section (v) 2.08 or by a Seller pursuant to the Mortgage Loan Purchase Agreement, or the purchase of the outstanding Mortgage Loans pursuant to Section 9.01 1 (vi) the occurrence of the final Distribution Date or the termination of the Trust pursuant to Section 9.01 (a)(ii); (vii) the failure of the Servicer to make a Monthly P&1 Advance pursuant to Section 4.02: and (viii) the failure of the Servicer to make a determination by the close of business on the second Business Day prior a Distribution Date regarding whether it will make a Monthly P&l Advance for such Distribution Date pursuant to Section 4.02.

Ih

IN WITNESS WHEREOF, the Company, the SmQV1cer, Trustee and the Delaware the Trustee have caused their names to be signed haeto by their respective officers,thereunto duly authorized, all as of the date h above winen. t
WaMu ASSET ACCEPTANCLCORP.

By:
Name: ThomasQ. Lehmann Title: First Vim President WASHINGTON MUTUAL BANK
a8 Scrvica

By:

Name: Barbara Loper u

Title:

Vice P r a k h t

DEUTSCHE BANK NATIONAL TRUST

COMPANY,

as T M e e

By.
Name: Title:

Name:
Title:

DEUTSCHE BANK TRUST COMPANY

DELAWARE,

as DelawareTmstec

BY:Name:
Titie:

[Sigmrmre page to Pooling and Savicing A p m e m for WaMu S e i a 2005-AR16J

WITNESS WHEBBOF, the Company, the SSentiocr. the Tnrstsc end tho Dslawar. Trustee have cmsed their names m be signed h a t o by their rupedvc ofliwm, themto duly nutborized, all as ofthe daip iirst above w&m.
WaMu ASSET ACCEPTANCE CORP.

By:
Name:
Title:

WASHINGTON MUTUAL BANK

a4 Servjcm

By:

Name; Title:

DEUTSCHE BANK NATIONAL TRUST

COMPANY,

as Trustee

By:

N~~~:BRENTHOV~E~ * Tide: ASSOCIATE

'

DEUTSCHE BANK TRUST COMI'AT'R

DELAWARE, as Delaware TIUS&
By:

Name:
Title:

[Slgnaturep3gcto P d i md Swicing Agrccmcn~ WaMu S for &

2WJS-AR161

I WiTNFEiS WHEREOF,the Company, the Scrvicer, the T u t n and thenelaware N rse T~ustee have caused their names fabe signed hereto by their respective ot?icers, thereunto duly authorized, all as ofthe date first above written.
W d u ASSET ACCEPTANCE CDRP.

By: Name:
Title:

WASHINGTON MUTUAL BANK

as Smicer

By:

Name:
Title:

DEUTSCFIE BANK NATIONAL TRUST

COMPANY,
as T u t e rse Name: Title:

DEUTSCHE BANK TRUST COMPANY DUWARE, as Delaware Trustee

BY:

Name:~~ZRBSTH 8. FWRY
Title: pssistan[ Qra W d e n i

A 3~

tSiEnaNn p a s t Pornling a d Servicing Agreemoll for WlMu Swier 2005-ARI6] o

Exhibit D

Mortgage Loan Schedule

Copies of ihe Mortgage Laan Schedulc (which has been Intentionally omitted fmm this filing) nley be obtained from WaMu Assd Aaeptanoc Corp. o Oeutschc Rank National Trust Company by conlecting: r

in the case of WaMu Asset Acceptance Carp,

bhn Race

WaMu .lsset Acceptance Corp.

Washinan Mutual Mnfgage Securities Corp. 75 N. Fainvay Drive,\'HI:2AOl Ven~OnHills, 60061 IL Telephae: (847) 549311 3 Facsnnile. (847) 549-3680
c/o

in the m e of Deutxhe Bank Nalional Tmst Company,

Alan Sueda Trust Administrator Deutsche Ear& Notional Tmst Comrranr 1761 E. St. Andnw Place Smxa Ann, CA 92705 Teleuhone: 1714) 217-6315

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SEC Info - WaMu Mortgage Pas-Thm... ivly Interests U L T nmcydafi

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WaMu Mortgage Pass-Throagh CertificateslSeries 2005-AR16

Click on these rubs to view other infirmation refuted to WaMnMorgagePass-Through Cert&ates/Sries

Yti:

Regishant

S E

2005-AR16.

Files WO&S
Registrant

J~J&

& l

Possibly Inactive per 1111106 Fom 15

m s Map.. 1201 T l d Avenue, 17th Fbor
Seat&,

Washimon 98101

U.S.A.

~ h o &umber Incorporafed Zn IRS N u d e r Fiscal-Year End SEC CTK # 1-z-461-2000 Dda~are. U.S.A. 11 1 23 I345116

'

'

SIC Code
6189

Industry Source As Of Asset-Backed Securities (ABSs) SEC 3/30/06

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WaMu Mortgage Pass-Through Certificates, Series 2005-AR16

WaMu Asset Acceptance Corp.
Depositor

Washington Mutual Bank

Servicer

$917,915,100
(Approximate)

PROSPECTUS SUPPLEMENT

L'ndewrfrers

WaMu Capital Corp.

(Co-L.eod U ~ ~ d ~ m r i and sJoin! Bonk Runni11.q Managers) fer
d

You ~ h ~ n rely only on the information cuntained o r incurpomted by reference in this prospectus ld supptement and the acoolopamying prospecfls. We haw not a n t h o r i d anyone to pmwde you w t ih diFIerent information.

We are not oEering the Ofpered certificates in any slate where the offer in not permitted.

We a0 not claim the scarracy of the information in this prospectus supplement and the accompanying prospectus as of any date other than the dates stated on their reppective rovera.
Deakm will deliver a prospectus supplement and prospcrtus when acting as underwriters of tile offered eertifintefi and with respect to their unsold nllotments o r subseriptiora In a d d i m , all dealers s li $ the en ! offered cerlificates will detiver a prospectus suppIement and prospestus untU February 19, 2006.

THE TRUST

The issuer of the certificates, the WaMu Mortgase Pass-Through Cenificates Series 2005-ARIG Trust ithe 'Trust"), will be a stamtog hust formed under the laws of the State of Delaware pursuant to a hmt a g e m e n r iletween WaMu As.d Acceptan- Corp., as depositor, and Deutsche Rank Trust Company Delaware, as Delaware trustee. The pooling agreement. dated as of November 1, 2005, among the depositot Washington Mutual Bank, as servicer, the Delaware mstee and Deutsche Bank National Trust Company. as trustoe. will r e m e thc trust agreement and will be the governing instrument of the Trust. As used in this prospectus supplement, the "tmstee" will refer to Deuuche Bank National Trust Company acting in its capaciv as tnlslee under the pooling agreement.
A pool of mortgage loans, as described in this praqpectus supplement, will be s d d to the Tnln on Novenlher 23. 2M)5 (the UClosing Date"). The 'bust will own the right to receive all payments of principal and interest MI the mortgage loans due aRer Nove~nber1, 2005 (the "Cut-Off Date"). A schedule to thc pooling agreement will include infonnarion about each mortgage loan. including: the applicable loan w u p ;

the outytanding principal balance an of tlie close of business on the Cut-Off Date;

the tern of the nnmgage loan; and the mortgage interest m e as of the close of business on the Cut-Off Date and information about how that mortgage interest fate adjusts.

The mortgage notes will not be endorsed to the Trust and no assignment of the mortsages to the Trust will be prepared. Washington Mutual Bank fsb, a wholly-owned subsidiary of the sewicer. will retain possession of and will review the mortgage nntes and mostgages as custodian for tlie Trust and financing statements will be filed evidencing the Tnlst's interest in the mortgage loans. The mortgage pool will be the primary usset of t e T u t The Tmt will also contain other asst;, h rs. including: insurance policies related to individual morrgage loans. if applicable; any pmpmy that the Tmst acquires syter the Cut-Off ate by foreclosure or deed in lieu foreclosure; and amounts held in a certificate account established un&r the pooling agreement. In exchange for the mongage loans and the other assets described abox~e.the trustee will authenticate and deliver the certifiwtes pursuant ro the order of the depositor. The pooling ageenlent r i l l permit the serviczr to place funds collected on the morte@ge loans in an invesunent account and invest them in m a i n eligible investments, as described in the pooling a-greement. for it$ own benefit, before those funds arr reinittcd to the trustee t he distributed to certificateholders. a

WESCRIPTlON OF THE MORTGAGE POOL*

The mongage pool will cmsist of 1,252 morrpage loans That will have an a w p t e principal balance as of the Cut-Off D r ,after deducting payments due on or before thar d a , of approximately ae %9?4.385,187. The group 1 lwns and g o u p 2 loans will have an aggregate principal balance ns of and the Cut-Off Date. after deducting payments due on or before that date, of approximaiely RRZ4,418,904 $99,966,283, respectively. The mortgage loans are secured by first mortgages or first deeds of trust or other similar security insmlmenb cleating fint liens on fee simple or leasehold interests irr one- to four-family residential properties or shares of stock relating to eoopemtive apartmenrs. These mongaged properties, which may include detached Lomej, duplexes. townhouses, individual condominium units, individual units in planned unit developments and other attac11ed dwelling unit.< chat are part of buildings consisting of more than four units (so long as the mortgaged property consists of no more than four u n h other than cooperative apanments), have the additional characteristics described below, in Appendix B to this prospectus supplement and in the accompanying p m s p e c ~ s . As of the Cut-Off Date, approximately 0.088 of the borrowers an obligated on more than one mortgage loan underlyi~~g catificates. As of the Cut-Otf Daie. the maximum number of mortgage the loans relaled to a single hormwer is two. and the maximum aggcgate principat balance of nlongage loans related to a single borrower obligated on inore than one morrgage loan represents approximately 0.26 of the morlgilge loans by principal balance. Each mortgngc loan will have a 12131 payment date during the period from December 2003 through December 2W. inclusive, and will have an original term to n~aturityof not more than 30 years. Each mortgage loan will bave interest and, if applicable, principal payable on the first day of each month (the 'GD~~e Date"). As of the Cut-OR Datc. nppmximately 93.9% of the mortgage loans (each, a n "Interest Only Loan") mi only bave interest payable on each Due Date until thek respective initial Arljushnent Dales (as defined in this prospectus supplement). Beginning on t h e f'lt?b or seventh anniversary, ZE appliclicnhle, of (heir respective first Due Dates, the Interest Only Loans will have interest aud principal payable on each Due Date in amounts sufficient to fully amortize those mortguge loam on their m~peetive mahrrity dates. Each mortgagc loan will b a wnvualional mortgage loan evidsnced by a mortgage note. Each e mongage loan in loan p u p 1 has a f i d mortgage interest rate for approximately the firs1 Cve years after the origination of &at mortgage loan. Each mongage loan in loan group 2 has a fixed mortgage interest rate for appioximately thc first ncven years after the hexigin~tionof that mort@ip lorn. Eacll mortgage note will provide for adjustments to its mortgage interest rate at the end of the fired-late period and annually thereafter {each, an "Adjusunent Date"). On each Adiustment Date, the mortsage interest rate Mil djujua to the sum of the applicable Index (as d d n e d in this prcspeclvs supplement) and the *The description of the mortgage pool and the mortgaged psoperties in this section and in Appendix B is based on the mortgaxe loans as of the close of husinesr on the Cut-OR Date, after dducting thc scheduled principal payments due on a before that date, nhether or not actually received. A11 references in this prospectus supplement tc "principal balance" refer to the principal balance as of the Cut-Off Date. unless otherwise specifically stated or required by !he context. Due to mljnding. percentages lnay not w m to 100%. References to percentages of mortgage loans refer in each case to the percentage of the aggregate principal balance of the mortgage loans in the related loan group or in the ame!3ate. as applicable, based on the outstanding principal balances of the mrmpane loans after giving effect to scheduled monthly payanens due on or before the Cut-Off Date. References to weighted averages refer in each case to weighted averages by principal bahmce as of the Cut-Off Date of the related mongage loans determined in the sanie way as described in the previous sentence. Before the issuance of the certificates. mongage loan.. niay be removed kom the mortgage pool as a result of Pnyoffs. &delinquencies or othwwise. If that happens, other mortgage loans may be included in the mortgage pool. The depositor believes that the information in this prospeCNs supplenlatl for the mortgage pwl is representative of the -e pml as it will llctually be constituted when the certificates are issued characteristics of the mE although the range d morrgase inter=* rates and other characteristia of the mortgage l0anS in the mortgage pool may vary. See '-ildditionol infornmtion" in ?his pmpecfus supplenrent.

On each Distribution Date, certificateholders of each Certificate Group will he entitled to receive principel distributions from the related Available Disnibution Anor~sr the extent and in the priority ro described in this prorospecius supplement. See " - P r i o i i ~ qf Disfriburinm" in fk.7prospectm supPlempnt. The Oroup I and Group 2 Ce~lificdteswill receive principal mUected from the group 1 and group 2 loans, respeaively. except in the limited circumstances deqcribed in this pmspectus supplement under "-Qoss-Collateralimtion" ' k Class B Cerrjficarcs will rweive principal mllected from all of the I mortgage loans. For any Disrribution Date and for any loan group. the ''Principal Payment Amounf" is the. sum with respect to the mcnrgage loans in that 1oa11group of (i) the principal portion of the scheduled payments on the m a r t m e loans (which for eaull interest Only Loan is rxlo until the fifth anniversaty, in the case of the gtoug 1 loans. or the seventh anniversary. in the case of the group 2 loans, of its initial Due Dare) due on the Due Date immediately before the Disbibution Date, (ii) Lhe principal portion of Repu~hnseProceeds fas defined belmv) that were received on the mortgage loans during the preceding cnle.ndm- month and (iii) my other unscheduled payments of principal that w e e received on thc mortgsge loans dunng the preceding calendar month, other than Payoffs, Curtailments, Liquidation Principal or Subsequent Recoveries (each. a defined below). Tayoffs" are prepaynEnts in fuU on a mortgage loan and "Curtailments" are partial prepayments on n mortgage loan. For aily Dhihution Date and for any loan voup. tbe "Prindpal Prepsymcnl Amount" is the suln with respect to &e m n m e loans ihthat loan gmup of all Payoffs and Curtailmenrs relating to the mortgage lonns in that loan group that were receired during the related Prepayment F'eriod. "Repurchase Proceeds" are pmceeds nceived with respcn to a mortgagc loan that was repurchased by the depositor or the mortgage loan seller because of a material breach of the representations and warranties with respect l that mortgage loan. or because a required loan document was not includod in o the mortgage file, as described under '~escripionof the Mortgaxe Pwl-Representations and Warranties Rexarding the Mortgage Loans" in this prospectus supplement.
For each Distribution Date and each PaynR, the related Twpayment Period'' will =art on the 15th ~ day of the month preceding the month in which the related Distribution Date occurs (or, in l l case of the first Distribiition Date, beginning on the Cut-Off Date) and will end on the 14th day of the month in which the Distribution Dale occurs. For each Distribution Dare and each Cumilmmt, the related 'wl be thc nwnth preceding [hi: mona in which the related Disrrihutioit Date "'Repayment Period " i OCCUTS.

"Liquidatjon Pn'ncipal" is the principal portion of Liquidation PNceeds and Insurat~a?m d s (each, as defined in the pooling agreement) received wih respect to each mongage loan t h t became a Liquidated Mortgage Loan (a5 defined below) (but not in excess of the ptincipal balance of chat mongqe loan) du~ing calendar month preceding the month of die Dismbution Date. A "Liquidated Momage the Luan" is n mortg@e lm for which the servicer has determined that it has received all anxlunts that i t expects to remver fmm or on account of the mortgage loan. whether fmm Insurnnce Proceeds, Liquidation Proceeds or otherwise. Distribiitions to certificateholders on each Distribution Date will include any S ~ l h s w ~ ~Recoveries ent w i v e d by the servicer during the calendar mont11 preceding the month of the Dislribuiion Date. "Snbseqnent Recoveries" are amounts received by the servicer in connection with the liquidation of dcfaultcd molwge ioans after rhose mortgage loans heca~neLiquidated Mortgage Loans, up to the amount of losses previously allocated in respect of thase mortgage loans. On each Distribution Date on which Suh,qnenr R-verier are distributed to ccrlificatcholdnr, Ihc Claxs Primipal Balance of the class of Subwdinate Cenificatcs with the lowest priority outstanding g e n d l y will be increased by Uie amount of thaw Subsequent Recoveries. 5-32

Mo-ge bThm~gh Certificates Mortgage Trust Certificates Mortgage-Backed Notes amable in Series)
WaMu ASSET ACCJZTANCE CORP.

Depositor

You should consider carefully the risk factars beginning on page 5 of this prospectus and in the prospectus supplement.
The p109pectus together with the a w t n p n y i n ~ pmrpecius supplemcnl will constilute the full pmspcclus.

The Securities:

WaMu Asset .4cceptance Grp., as depositor, uill sell the &tics, which may be in the fam of mortgage pass-lbmyh certificates, mongage-hacked notes or mortgage trust certificates. Each issue of becunties will have its own series designation a18d will evidence either:

! e ownership .hipof ;~szets h held by a must. o r

debt obligations secured by as.wts held by a tnlst.

The T m t and its A m t x

The assets of a rrust wiIl primarily include any combination of various ~ one-to-four-family residential tirst and junior lien mortgage loans, inultifamily first and junior momgage b n , as comme~ialiilul and junior mortgage loa1i5.
rnixea-use resideutial w d commercial fimt und junior

. . . . . .
.

~ of: e

mvitgase loans,

home equity lines of credir. cocqerative apartment loa~is,or home equity revolving lines of credit, inclnding partial balances of tho.% lines of n-edit or beneficial infem?rs in tho% lines or credit.

The assets o f the trust may alsa include ruorlgilge secnriries. rights to excess servicing fees and whole or partial participations in rnongage loans.

The assfis of the trust for a series of s a r i t i e s may also include financial guaranty insurance policie.5, pool insmance policies, letters of credit reswve fonds m currency or interest rate cxchangc a g f 5 or i 1 y ~ ~ 1~ 1 combinafion of credir support. Credit enhatlcement nay also be pmvided by means of subordination of one or more classes of securities. cross-collateialization w hy overcnllat~ralizntiar.
Nelther Uve Secorities and Exchange CommisZon wr any state securities commission ha8 approved t b w securities or determined that this pmpeetns i s armrate o r wlnplete. Any representation

to the contrary is a criminal oP n e fes

The dare of this pro.-pectus i s O c t o k 21. 2005.

related pmspectus supplement. This pajment will be made m the securityholder of record as of the applicable record date.

Assignment of Trust Assets; Review d Files by Tntstee

At the time of isruance of any sarjcs of securities; he depositor will cause the pool of mortgage mseB or Mortgage Secllrities lo be transferred to the related trust. togethm with all pi,incipal and intemt received on or with respect to the mortxage assets nr MmEage Securitief after the related cut-off dau, other than principal and interm1 due on or before the cui-off date and other than any retained interest. The trustee will. concurrently with the assignment of innrt@geassets or Mortgqe Securities, deliver the sccnriliw t Lhe depositor in exchunge tor the uust assets. Each mintgage asset will be identified in a scliedule appearing as an exhibit to the related agreement. The ~ l t e d u l e mort~ageassets will include a derailed information as to the mortgage asassct~held bv the trust, including the outstanding pnncipd balance of each mortgage asset afrer application of payments due on the cut-olf date, infonnation regarding the interest rate or1 the morigqe asset. the interest late net of the sum of the rwes at which L a servicing fee and the retained interest. if any, are calculated, rlie reained interest, if any, the current scheduled monthly payment of principal and interest. the maturity of the mortgage note. the value of t l ~ e mmtgagcd property and other informatioti with respect to the mmgpge asses. Each Mortgage Security will be identilied in rhs related agreement, which will specify as to each Mortgage Security information regarding the original principal amouor and outstanding principal balance of each Mortgxge Security as of the cul-off date, as well as the annual pass-through rate or intcresi rate for each hiortgage Secuiity sold to the tN??t.

If so specified in the related prospectus supplement, and in accordance with the ~ l e of membership s r of Merscorp. Inc. andlor Moagage Elecbonic Regi.%trationSySCems. Inc., o MERS@'. assignments of the 1nortgage.S for the mongage louns held by the related rmst will be regislemi electronically through Yongage Elecuonic Regisnation Systems, Inc.. or MERS* System. With respect to mongage loans registered througli the MERSe System. I E S shall serve as mortgagee of record solely as a nominee in v R* an administrative capacity on behalf of the bus1 and will nor have any interest in any of those mortgage
loans.
The depositor will; with mpect tn each mortgage a5set, &liver or cause lo be delivered to the tnistee, or to the custodian, rhe mortgage note. an awignrnent (exccpt as t any mortgage loan registered n on the MERS" System and unless otherwise indicated in the applicable prospectuv suppiement) to the tlustee, The trust, or in blank of the martsage in n form for recording or tiling as may be amnpriare in the state where the mrtgagcd property is located, and the original recorded mortgage with evidence of recording or filing indicated on i t or, in the~case each cooperative loan, the related cooperative note, of the original secmrity agreement, the proprietary lease or occupancy afgeement, the assignment of proprietary lease, the recognition agreement the related stock certificate and related blank stock powers, and a copy of the origirlal filed financing stafement together with (unless otherwise indicated in lhc applicable prospecms supplement) assi,smients thereof to the trustee or in blank in a form sufficient for filing.
With respect t any mortgap loan secured by a mortgaged property located in Puerto Rico. the o mortgages with respect to these mortgage loans either (a) secure a specific obligation for the benefit of a specifid person or @) secure an i m m e n t tnnjfenble by endmerne~ilEndorsable Puerto Rico &lmgages d o not require an aysignment to transfer the related lien. Rather, transfer of endorsable mortgaees fo1low.s an effmive endorsemcnf of the related mortgage note and therefore, delivery of B e assignment referred to in the paragr.aph above would be inapplicable. Direct Puertn Rico Mortgages that secure a specific obligntion for the benefit of a specified perurn. however. require an assigment to be recorded with revpecl to any tnnsfer of Uie related lien and the arsignment for that purpm would be delivered to the tistee. With respect to any security backed by a Moltgage Security. the depositor will uansfer, convey and of assign to the rmst all right: title and i~~terest the depositor in the Mnngase Securities and related property. Thc ussignment will include all principal and interesl due on or with respect to the Mortgage Securities after the cut-off date spffified in the accompanying prospecrus supplement The dewsitor will cause the Mortgage Securities to be registered in the nnmo of thc mst, the uushet: or its nurninee.

any failure by tlte servicer duly to ohsene or perform in any material m p m t any of its other covenants or obligations under the agreement which continues unremedied for a specified number of days after the giving of written nolice of the failure to the servicer by the trustee: or to the s m i c e r and the trustee by the holden of certificates evidencing not less than 25% of the voting rights; and events of ilaolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings regarding tht! servicer and actions by or on behalf of the. servicer indicating its insolventy or inability to pay its obligationa, SO long as an event of default under a pooling and servicing ogeement remains unremedied. rhe trustee may, unless otherwise provided in the related pmspecms supplemen4 and at. tile direction of holders of certificates evidencing not less than 256 of the voting rights, the trustee shall, terminate all of h e rights and obligations of the servicer under the pooling and sen~icingagreement, othw than any retained interest of the servicer and its right to reimbursement for advances. whereupon the tiustee will succeed to aU of the responsibilities, duties a i d liabilitia? of the servicer under the agreement and will be entitled to similar compensation anangemens. If the tru.stee is prohibited by law h m obligating itself to make advances on delinquent mortgage assets. then the trustee will not be so ob8gatul. If the mtstee is lmwilling to so act, it may, w if the trustee is unable to so act. it shall. appuint, or pedtion a coun of competent jurisdiction for the appointment of, a loan servicing in.rtitutioi? with a minimum net worth at the time of the appointment as is set forth in the pooling and servicing agreement, to act as successor to rhe servicer under the pooling itlid servicing agreement. Pending the appoiement of a successor, the trustee is obligated to act in the capacity of servicer. The trustze and any successor servjcer may agree upon the servicing cornpenration to be paid, which in no event may be greater ihan the compensation payable to the s e n k e r under the related agreement. If the mvicer shall have been temlinated following an event of default described in the first bullet point ahove. the servicer will have the right, in limited circun~stancesdescribed in ihe pooling and servicing agreement, to remedy such event of default and rhereafter resume its rights and obligations a servicer. No securiyholder will have the right under any pooling and servicing agreement to institute any proceeding under the agreement unless: the securityholder previously has given to the t w t e e written notice of debult. the bolders of securities evidencing not less than 25% of the voting rights have made written request upon the trustee m institute the proceeding in its own name as trustee. there shall have heen offered to the trustee reasonable indemnity, and the hustee for a specified number of days after i a receipt of notice has neglected or refused to institute a proceeding.

The trustee. however, will be under no ohligatioo to exercise any of the nusts or powers vested in it by any pooling and servicing agreement or to make any investigation of matters arising under that pooiing and servicing agreement or to institute, conduct or defend any litigation at the request. order or direction of any of the holders of securities covered by t agreement, unless the securityhoIders have o f i r e d to k the mistee reasonable security or indemnity against the costs, expenses nnd liabilities which may be incurred.
Service Agnemnt
A senicing default under the related servicing agreement will include each of the following unles otherwise provided in the related prospectus supplement:

my Failure by the servicer to make a required deposit to a specified account which contirmes

unremedied for a specified number of busi~iel;~ after the giving of written notice of the days fnilure to the servjcer by the nustee or by m y other specified party:

any failure by d~ servicer duly to observe or perfom1 in any material respect any other of its covenants or agreements in the servicing agreement with re-pect to the series of notes which

53

servicing fees and retained interest. if any, are calculated. plus (2) the nmount of related advances and servicing expenses, if any, not reimbursed to die servicer fmm Insurance Proceeds paid under the related primary hazard insurance policy or any s p e d hazard insurance policy; and

(3) Far a ~ mortgage asset that har been subject to bankruptcy proceedings, the amwnt of any ~ y debt service reduction or the amount by which the principal balance of the mortgage asset has been reduced by the related bankruptcy court.
If the related prospectus supplement so provides, upon payment by the letter of M issuer with i a liquidated %%t, ur a payment of the full amount owing on a mortgage asset as to which the mortgaged property hns been damagd, as dzscribed in (2XB) above, tlie liquidated m e t will he transferred hy the related mist in accordance with the terms set fonh in the related plnspecnls suppleinent and will no longer be subject to the agreement. Unless otherwise provided in the related prospectus supplement. mmgage assets that have been subject to bankruptcy proceedings. or as to which payment under the leuer of credit has been made for the pirpwe of restoring the related mmgaged property. as described in (Z)(A) above, will continue to be held by the related tn~st.The maximum dollar coverages pmvided under any letter of credit wilf each be reduced to the extent of related unreimbnrsed draws.
respect to

In the event that the entity that has issued a letter of credit ceases to be duly organized or its debt obligations ore rated lower than the highest rating on any class of the securities on the date of issuance by the rating agency or agencies, to the extent described in the prospectus supplement, the senricer or Dustee wiU use its b a t reasonable efforis in obtain or cause to be obtained. as to each letter of credit. a substitute letter of credit issued by an entity that meets these requirements and providing the same coverage; pmvided, however, that. if the fees charged or collateral required by the successor entity shall be mow than the fees charged or collateral required by the predecessor entity, each component of coverage thereunder may be reduced proponionslely to a level , results in the fees end c o l l a e d being a not niore than the fees then charged and collateral then required by the predeu*.qmr entity.

Mortgage Pool Insurance Policy

As to any scries of securities to be covered by a mortgage pool insurwce policy with respect to any rpalized l o s w on liquidated loans to the extent dcsaibed in the prospectus supplement, the servicer wiU exercise its best reasonable efforts to maintain or cause to be lnaintzined the mortgage pool insurance policy in full force and effect. unless coverage under that policy has been exhausted through payment of claims. The p ~ m i a m sfor each mortgage pool iosirmnce policy will be paid as described in the related prospectus supplemenl.
The servicer will present or cause to be presented claims m the insurer under each mortgage pool insurance policy. Mortgage pool insumnce policies, however. are not hlanku policies against loss. since claims may be made only upon satisfaction of certain conditions, as described below and, if applicable. in the related prospectus supplement. Monflage pool insurance policies do not cover losses arising out of the matters excluded from coverage under the primary mortgage insurance policy, or losses due to a failure to pay or denial of a claim under a primary mortgage insurance policy. imespective of the redon therefor. Mongage pool insurance policies in general provide that no claim ay valJly be presented under the policy for a mongage loan unless:

an acceptable primnry mortgnge. insurance policy, if the iniii

80%;

loan-to-value ntio of lhe mnrgagc loan exceeded 80%: has been kept in force until the loan-to-value ratio is reduced to

1
b

premiums on the primary lxm?lrd insurance policy have k e n paid by the insured and real estare tax= and foreclosure, protection and preservation ex nseh have been advanced by or on behalf of the i n d . as appmved by the insurer; if there has been physical loss or damage to the mortgaged mperty, it has been restored to it? physic31 condition at the time the mortgage loan becrune insured under the mortgage pool insurance policy, subject to reasonable wear and tear; and

the insured has acquired good and merchantable title m the rmrtgaged property. Free and clear of all liens and e n c u i n h c e s . except permitted encumbrances. including any right n f redemption by or on behalf of the mortgagor, and if required by fhe insurer, h sold the m pmpetty with the a p p m 1 of the insurer. Assuming the satisfaction of these conditions. the insurer hns the option to either (a) acquire the property securing the defaulted mortgage loan lor a payment equal to the principal balance of the defaulted mmgage loan plus ace~vedand unpaid i n m e d at the interest rate on the inongage loan to the date of acquisition and expenses described above advanced by or on behalf of the insured, on condition that the insurer must be pmvided with good and merchantable title to the mortgaged property. unless the property has been conveyed under the terns of the applicable primary mongage iiisurance policy, or @ p ~ y amount by which the sum of the pl.incipa1 bala~iceof the defaulted mortgage loan and accrued ) the and unpdd interest a t the interest rate to the date of the payment of the daim and the expenses exceed the proceeds riceived from a sale of the mortgaged property which the insurer has appl.oved. Is both (a) and (b), the amount of payment under a mortgage pool insurance policy will be reduced by the anlount o the loss paid under the primary mortgage Insurance poticy. f Unless earlier directed by the ios~lrer,a claim under a mortgage pool insurance policy must be filed (a) in the cnse when s primary mongqe insurance policy is in force. within a specified number of dnys (typically. 60 days) after the claim for loss ha3 been settled or paid, or afrer acquisition by the insured or a sale of the property appmved by the insurer, whichever is later. 01- @@) tl~e in case when a primary mortgage insurance policy is not in force, within a specified number of days itypicdlly, 60 days) after acquisition by the insured or a sale of the pmperty approved by the insurer. A claim must be paid airhin a specified period (typically. 30 days) after the claim is made by the insured.

The amount of coverage u n d a each mortgage pool u~surancepolicy will generally be reduced over the life of UE securities of any series by die aggregate dollar amount of claims paid less the aggregate of the net amount? realized by the insurer upon disposition of all acquired properties. The amotrnt of claims paid i~icludescertain expensew incurred by the serviccr as well as acciued intecat on delinquent mortgage loans to the date of payment of rhe cfaim. Accordingly. if aggregate net claims paid under a mortgage pwl insurance policy reach ihe applicable policy limit, mvemge under the policy will be exhausted and Aspects of Mortgage any funher l 0 s . s will be borne by securityhotders of the rdated series. See I*" Assets-Foreclosure on Moeages."
If an insurer under a mortgage pool insurance policy caws to be a private mortgage guaranty insurance company duly qualified as such imder applicable laws or no longer has a claimspaying ahility acceptable to the nting agency or agencies. to the extent described in the prospectus supplement the .wrvicm will use its best reawnable efforts to obtain or cnuw to be obtained from another qualified insurer a replacement insurance policy comparable to the mortgage pool insurance policy with a total coverage equal m the then outstanding coverage of the mmgage pool insurance policy; provided, however, that if the msl of the replacement policy is grater than the cost of the original mortgage pml insurance policy, the coverage of the replacement policy may be reduced to B e level that its premium rate does nor exceed ilie premium rate on the original mortgage pool insurance policy. However, if the insurer ceases to be a qualified insurer solely because it ceases to be approved as an illsurer by Fteddie Mac or Fannie Mae, the servicer will review. or cause to be reviewed, the Rnancial condition of tlie insurer with a view towards determinins whether recoveries under the monSa9 pool insora~icepolicy are jeopardirsd for reasons related to the financial condition of the insurer. If the wvicer deternlines that recoveries are so jeopardized.to the extent demibed in the prospectus supplement it will exercise its best reasatable efforts to obtnin fmm another qualified insurer a replacement policy, suhject to the same cost limitation.

Because each mortgage pool insurance policy will require h a t the property subject to a defaulled mortgage loan be lpstored to its origiml conclitio~iprior to claiming against the insurer, the policy will not provide coverage against hazyd losses. As set forth in the immediately following paragaph, the primary hazzard insurance policies covering the monsage loans typically exclude from coverage physical damage resulting from a number of causes and, ever1 when the damage is covered, may afford recoveries that are significantly less thun the full replacement cost of the losses. Further, a special bazad insurance policy, or a letter of credit that covers special hazard realized losses. will not cover all risks, and the covenge will

be limited in amount. T h a e hazard risks will, as a resrrlt, be uninsured and will therefore be borne by securityl~olde~'~.

Special Rnzard Insurance Policy

As to Uly series of securities to be covered by a" insurance insuument that does not cover losses that are attributable to physical damage to the mortgaged propeaies of a type that is not covered by standard hazard insurance policies, in other words, special harrnrd realized losses, the related prmppectus supplement may provide that the servicer will exercise its best reasonable efforts to rnaitttain or cause to he maintained a special hazard insurance palicy in full f y c e and effect covering the special hazard m n t . unless coverage under the policy ha%been exhausted through payment of claims: provided, however, that the servicer will be under no obliga~iitionto maintain the policy if any insurance inrtniment covering the series as to any realized losses on liquidated loans is no longer in effect. The premiums on e x h special hazard insi~rancepolicy will be paid as described in the relateti prospecnls supplement.
Each s~ieeialhazard insurance policy will, subject to the limitations described in the next paragraphh, protect holders rrf securities of the related series fro~n: loss by reason of damage to mortgaged p r o p i e s caused by certain h w ! , including &quakes and mudflows, not insured against mder the primary hazard insurance pnlicies or a flood'insurance policy if the p~nperryis in a designated flood area, and loss from partial Jsmage caused by reason of the applicalion of the co-insurance clause contained in the primary hazard insurance p&cies. Special hazard insurance policies usually will not cdver losses occasioned by normal wear and rear, war, civil i ~ ~ ~ r r e ~ t i o n , governmental actions. e m in design, nuclear 01- chemical reaction or contamination, faulty workmanship or materials, Aood, ifithe properly is located in a designated flood area, and other r i s k Subject to the foregoing limitations. each specid ha*ard insurance policy wilt provide that, when there has been damage to propmy securing a defaaulted ' ongage asset acquired by the insured and to the exmlt the damage is not covered by the related primary azard Insurance policy or R o d insurance policy. ! the insurer will pay the lesser of: (I) the cost of repair to the pmperty: and

'i,

(2) up011 mnsfer of the pmperty to the insurer,bthe unpaid principal balance of the mortgage asset at the time of acquisition of tile property by f&eclosule. deed in lieu of foreclosure or repossession, plus accrued interest lo the date of claim settlement and expenses incurred by or on behalf of the semicer with respect lo the property.

The amount of wberage under the special hazard in$urance policy wiU be reduced by the sum of (a) the unpaid principal balance plus accrued interest and certain expense$ paid by the insurer, l e s m y net proceeds realized by the insurer from the sale of theipmpeny, plus (b)any amount paid a7 the cost of repair of the property. I Restoration of the property with the proceeds dexribed under clause (1) of the second preceding will satisfy the condidon under an insurance idstrurnent providing coverage as to credit, or otlier nonha7ad, risks, that the propcny he restored before a claim may be d i d l y presented with respect to the defaulted mortgage aqset secured by the property. The p+menr described under clause (2)of the of a claim in respect of the immediately preceding parngrnph will render unnecessahy mongase loan under an insurance insmment providing c4ucrage a% credit. or other nonhazard, risks, as to to any realized losses on a liquidated loan. Therefore, w'long as the insunnce insuument providing coverage as to credit or other nonhaznrd, risks, remains in effect, the payment hy the insurer of either of the above alternative amounts will not affect the total insprance pruceeds paid to securityholders, but will affect the relative amounts of coverage remaining under b y special hazaid insurance p l i c y and any credit ! insunnce instnunent. me sale of a mortgaged property must he- approved iby the insurer under any specid hazord insurance policy and funds received by the insured in excess of the unpaid principal balance of the exwnses incurrcd by or on behalf of the mortgage asset plus interest thereon t the date of sale n

Fi~wncialGuarantee Insurance

Fina~~cial guarantee insurance, if any, with respect to a series of securities will be provided by one or Inore insurance co~npanies.The financial guarantee insurance will _suamntec, with respect to one or more classes of securities of a series. tinlely distributions of interest only. timely distributions of interest and ultimate distribution of principal or timely distributions of interest and distriburions of principal on the basis of a schedule of principal distributions set forth in or determined in the manner specified in the related prospectus supplement. If .wspecified in thc related prospectus wpplement, the financial gumntee insurance will also guarantee against the allocation of losses to a securilyholder or against any payment rnade to a secur~tyholderthat is subsequently recovered as a voidable preference payment under federal banluuptcy law. A copy of the financial guarantee insurance policy for a series. if any, will be filed with the Commission a an exhibit to a Current Report on Form X-K lo be filed with the Commission within q 15 days of issuance of the securities of the related series. Reserve Fund If so provided in the related pmspectus snpplement, there will be depn~itedin an account, a reserve fund, any combination of cash, one or more irrevocable letters of credit or one o mole pennitted r investments in specified amounts, or any other instrument satisfactory to the rating agency or agencies, which will be applied and maintained in the manner and under the conditions specified in the prospectus supplement In the altunative or in addition to a depsit, the prospectus supplement for a SeniortSubordinate Series may provide that a reserve fund be fmded thmugh application of all w a portion of amounts otherwire paynble on the suhrdinare securities. Amounts in a reserve fund may he distributed to securityholders, or applied to reimburse the servicer for outstanding advances, or may be used for other pmposes, in the manner specified in the related prospectus supplement. Amounts deposited in any reserve fund for a serie.q may he. invested in permitted iflvestments by, or at the direction of. the servicer or any other person named in h e relaid prospectus supplement.

If so specified in the related pmspectlls supplement, interest collections on the mongage assets may exceed interest payments on the securities for the related distribution date. The excess interest may be deposited into a reserve fund or applied as en additional payment of principal on one or nlole classes of the securities of the relaid series. If excess interest is applied as principal payments on the sec~irities,the effect will be m reduce the Wncipal balance of the secvities relative to the outstanding balance of the mortgage lmn$ thereby creating overcollateralization and additional proteerim to the securityholdem. us specified in the related prospectus supplement. If so provided in the related prospectus supplement, overcollateraIization may slro be provided on ihe date of issumce of the sectuiiies by the issuance of securities in an initial aggregate plincipal amount which is lr than the aggregate principal amount of the es mortgage assets held by the relakd t t s t .

Crm-Support Features
If the asses held hy a t u are divided into separate asset groups, the beneficial ownership of which r n is evidenced by a separate elms or classes of a series, credit s u p p r t may be provided by a cross-suppon feature which requires that distribubons be made on senior securities evidencing the beneficial ownership of m e asset gto~tp prior to distributions on subordinate securities midencing the beneficial ownership interest in another asset group. The related prospectus supplement for a series that includes a cross-support feature will describe the manner and conditions for applying that cross-support feafurr. As to any series tbar i~lcludesa cmss-suppon feature, only asset9 of the trust will be used to provide cross-suppn. and cross-support will be provided only to securities issued by that trust. A nust will not provide a crosssupport feature rhat benefits securities issued by any other trust, and a nust will not receive cross-suppwt from any other trust.

DESCRIP~ON PKMARY INSURANCE mLrm OF Each mortgage loan win be required to k covered by a primary hazard insurance policy and. if so specified ill the pIospeCNS supplemelll, a *lay mortgage insumce policy.
Primary

M r g g Insurance Policier otae

Althou$h the tenns and conditions of primary mortgage. insurance policies differ, each primary monsage insurance policy will generally cover losses up to an amount equal to the excess of the unpaid principal amount of a defaulted mortgage loan, plus accrued and unpaid interest thereon and approved expenses. over a specified p m n t a g e of the value of the related mortgaged property. As conditions to rlte filing or palment of a claim under a primmy mortgage insurance policy, the insured will typically be required, in the evenr of WauIt by the bborrwa, to: advance or discharge (I) hazard insurance premiums and (2) as necessary and nppraved in advance by the insurer, real estate taxes. property protection and preservation expenses and foreclosure and related coat-, in the event of any physical loss or damage to the mortgaged property have the mortgaged pmperry restared to at least its condition at the effeetive date of the primary mongaIe
iasurnnw policy, ordinary w and tear excepted, and w

tsnder to the insurer good and merchantable title to, and possession of. the mortgaged ProOPEfiY. The servicer. however. will not be required to advance any of the amounts described above in connection with a claim under a primary mortgage insurance policy if the advance would constitute a N o n m m b l e Advance. If the servicer dm% not make any of these advances. because they Would constitute Nonrecwenble Advances, payments u d r primary mongage insurance policies may be Iowa t h n they denvise would be. NIultiMily loans, commcmial loans and mixed-use loans will riot be covered by primary mortgage insurance policies, regardless of the related loan-to-value ratio.

Primary Hazard Insoranee Policies

Each servicing aKreement will require thc servicer to cause the borrower on each nio*gage loan to mnintain a p r i h ~ 7 d insurance policy providix for coverage of the standard form of fire insurance a policy with extended coverage customnry in the state in which the mongqed property is located. The primav h a w d covenge will be in general in an ampunt equal to tile lesser of the principal balm~ce owing on d ~ e mortgage loan and the amount oecessaty to fi~liy compensate for any damage or loss to thc improvements on the mortgaged properly on a replacement cost basis, hit in either case not less than the amount necessary to avoid the application of any co-insurance clause contained in the haznrd insorance policy. The ability ot the servicer to assure thar hazard insurance proceeds are appmpriately applied may be dependent upon its being named as an add'~tionalinsured under m y priinary hazard insurance policy and under a) flood insurancz policy rererred to in the paragraph below, and upon the homwer furnishing n. information lo the servicer in respect of a claim. All amountF collected hy the servicer under any p r i m q ha7lird insurance plicy, except for amount* to be applied to the x~torationor repair of the n~clrlgagrd ptvperty or released to the borrower in accordance with the servicer's normal servicing procedures, and subject to the tenns and conditions of the related momage and mortgage note. will be deposited in the custodial account. The swvicing agreement will p v i d e tltat the semicer may satisfy its obligation W cause each borrower to maintain a hazard insurance policy by rhe servicer's mainraining a blanket poiicy insuring against hazard losses on the mortgage loans. If the blanket policy contains a deductible clause, the servicer will deposit in the custodiaI account all sums that would have been deposited in the custodial acounr but for that clsuse.

In general. the standard form of fire and extended coverage policy covers physical damage to or destruction of the improvcrnene of the properry by fire,lightning, explosion, smoke, windstorm nnd hail. and riot. strike and civil commotion, subject to the conditia~sand exclu.iions spacified in each policy. Although the policic?~ relating to the mortgage loans wiU be underwritten by diffcrcnt insumrs t~nder

different state laws in accodamc will1 dilTent applicable state forms, and therefore will not contain iden~icalterms and conditions, the basic tenns of these policies are dictared by respective slate laws, aid most hazard insurance policies typically do not cover any physical damnge resulting fmrn the following: war. revolution govemmzntal actions, floods and other water-related causes, earth movement, including emhquakes, landslides and mudflows. nuclear rewions. toxic mold. wet or dry rot, vetmill, mdents, insens O domestic animals, theft and, in some cases, vandalism. This list is merely indicative of the r e kinds of uninsured risks and is not intended to b all-inclusive. When a nloitgaged property is located xi originruivn in a federally designated flood area and flood insurance is available, each agreement will rrguire Ue servicer to cause rhe bormwer to acquie and maintain flood insurance in an alnount equal in l general to the lesser of (I) the nmount oarwary 1 fully compensate for any damage or loss to the 0 improvements which are pan of the mortgaged pmperty on a replacement u s t bmis and (2) the maximum anlouin of insurai~ceavailable under the. federal Rood insurance program, whether or not rhe area is participaung in the program. The Iiamrd i~rsiirancepolicies covcring the nrom~ged properties typically will contain n co-insurance c1au.w that in effect reqaires the insured at all times to c a q insurance of a specified percentage. generally 80% to 9 % of the full replacen~entvalne of the improvements on the property in order to recover the 0. os full amount of any partial l s . If the insured's coverage falls below this specified percentage, the coinsuiance clause generally provides thai the insurer'~IiabiIity in the event of pamnl loss does not exceod the lesser of (1) the replacement cost of the improvemenis less physical deprzciation and (1)the pmporiinn of the loss as the amount OF insurance camed bars to the specified percentage of the full replaccmcnt corn of the improvements. ?he saricer will not require that a hazard or flwd insurance policy be maintained for any coopuative l&?n. Generally. the cooperative is respnnsible for maintenance of hazard insurance for the pmperty owned by the coopewtive. and the tenant-stockholders of that cwperative do not nmintain individuul Ihazmd insurance pulicies. However. if a cooperative and the relafed borrower on a cooperative note do not maintain hazard insurance or do not mainiain adequate coverage or any insurance proceeds are not applied lo the restnrnrim of the damaged property, damage to tbc I-elated horrower~sCOoperati~t apanment or the cooperative's building could significantly reduce the value of the collateral securing the cooperative note. Since the amount of hazard inmrance the servicer win came to be maintained on tbe ilnpmvements wuring the mortgage loans declines a the principal balances owin,o thcrcon decrease. and since n c residential, commercial and mixed-use properties have historically appreciated in value over time, h m r d insurance proceeds collected in connection wt a panial loss lnay be insufficient to resrore fully the ih damaged pwpe~ty.The terms of the mortgsge loans provide that borrowers we requiipll to pm-ent claims hazard insurance policies maintained on h e mortgaged propenies. The servicer, on behalf to insurers ~ l l d e r of the rruaee and securityholders, is obligdad to present or cause to be presented claims under slly blanket insurance policy insuring againit hazard losses on rnortga~dpropenies. However, tile ability of the senicer to present or cause t be pfaented Lhese claims is dependent upon the e x m t to which o information in this regard is furnished to the sewicex by bOm?wws.

F H A Insurance
The Federal Housing Administration (the 'PHA") is responsible for administerin%Various federal progams, including morfgsge insurance. authorized under the National Housing Act of 1931, as amended (the ''Housing Act'.). If so provided in the related prospectus supplement, a number of the mortgage loans vrill be insured by the FHA. Under Section W3m)of the Housing Act, the FHA insures mortgage IOaflS of up to 30 y w s ' duratioii for the purcbase of one- to four-family dwelling naits. There are two primary F H A insurance pmgrams that arc available for ~nulLihrnilyrnurtga e loans. Sections 221(d)(3) and (d)(4) of the Housing Act allow the U.S. Depmment of Housing and U ban Developinent ("HCTD") t r insure mortgage loans c that are secured hy newly ronsfmcted and substankally rehabilitnicd muftifamily rental wjwts. Section 244 of the Housing A& provides for co-ijlslrmnce of such mongage loans made under Sections 221(d)(3) and (d)(4) by HlJD/FH.\ and a HCTD-approved cwins~~rrr. Cjencdly the tenn of

such a mofipage loan may be up to 40 years and dle ratio of the lovn amount to pmperty replamment cost can be up to 90%. Section 2 2 3 0 of the H o u s i n ~ Act allm-s HUD to insure mortgage lonns made for the purchase or refinancing of existing multifamily prajects. Seetioil 249 also provides fol- co-imumnce of mo1Tgage loans made under Section ?23(0.

HUD has the option. in most cases, to pay insurance claims in cash or in debentures issued by HUD. Presently. claims are being paid in cnsh, and claims have not been paid in debenture since 1965. H m debentures issued in satisfaction of FHA inturance claims bear interest at the applicable HUD L
debenture interest mte. Son% of the m o n loans held by a mst may be Title I loans a described below and in the ~ 5 related prospectus supplement. The regulations. mles and procedures promulgated by the FHA under lirlc I contain the q u i r e ~ n e n b under which lenders approved for participation in the T ~ t l e program may I obtain insurance ngainst a ponion of ios%s incurred with tespea to eligible loans tlmt have been originated and serviced in accordance with FHA regulations, subject t the amount of insurance covcrage o available in such Title I lender's FHA m r e 3s described below and in the related prospectus ev . supplement. In general, an insurance claim against dte FHA may be denied or surcharged if the Tttle 1 loan lo which it relates does not smctly satisfy the requirement$ of the National Housing Act and FHA regulations but FHA regulations permit the Secretary of the Department of Housing and Urban DeveIopmeni, subject to stalutory limitations. to waive a Title I lender's noncompliance with FH.4 regulations if enforcement would impose an injustice on rlte lendec Unless otherwise specified in the related pmspectus i;upple~nent,the swvicer will either serve as or contract with the puson specified in the prospectus suppletnent ro serve as the administrator for PHA claims pursuant to an FHA claims adminimation agreement. The FHA claims adminisbator will he responsible fur adminisreling, processing and siibaitting FHA clain~s will1 respect to the Tile I loans. The securityholders will be dependent on the FHA claims administrator to ( I ) make claims on the Tirle I loans in accordance with FHA regulations and (2) remit all R3A iiisurance proceeds received from the FHA in accordance with the related agreement. The sec~uio/hoIders' rights d a t i n g to the receipt of payment from and tlte administration, processing and submis?ion of FHA claims hy any FHA claims adininismtor is limited and governed by the related agrwmenl and the FHA claims administration agreement and these fiinctions are obli@ions nf the FKA claims administrator, but not the FHA. Under Title L the FHA maintai~tsan FHA insurance coverage reserve account for each Title I lender. The amount ui each Title I lender's FHA rceerve is a maximum of 10% of the aniounLs dishlir.4, advanced or expended by a TitJe I lender in originating or purchasing eligible loans registered with the FHA for litle I insurance. with certain adjuvtments permined or required by FHA regulations. T h e balance H4 the of such F . reserve is the maximum amount of insurance clain~s FHA is required to pay to the related Title 1 leader. Mortgage loans to be insured under Title I will he registered for insurance by rhe FHA. Following either tile origination or lransfer of loans eligible under Title 1, the Title I lender will submit such loans for FHA insurance coverage within its FHA reserve by delivering a transfer of note report or by an electronic submission to the FHA in tlte form prescribed under the FHA regulations. The increase in the FHA insurance coverage for ssuch loans in the Title I lender's FHA reserve will occur on the date foUowing the receipt and acknowledgment by the FHA of the transfer of no* report f r such o loni~s.The insurance available to any mst will be subject to the availability, fmm rime 10 time, of ainotints in each litle I lender's FHA resem. which will initially be limited to the amount spcitied in the related proSpeCtuS supplemenL If .w provided i n tlie related prospectus supplement, the trustee o r FHA claims administrator may accept an asignment of [he FHA reserve for the related litle I loans, notify E % of that assignmeut and l request that the ponion of the mortgage loan seller's FHA reserves allocahle to the n t l e I loans be transferred to the trustee or the FRA claims administrator on the Closing Date. Altyativcly, in the absence of such provision. the FHA reserves may be retained by the mortgage loan seller and, upon an insolvency or receivership of the mortgage loan seller, the uustee will notify FHA and requ~e.?tthat the p n i o n of the nlortgage loan seller's FH4 reserve allncable to tile n t l e I loans be transferred to the trustee or the FHA claims adminiclrata. Althor~gheach mrstee will quest such a transfer of reserves, FHA is not obliguted to comply with such a request, and may determine that it is not in FHA's interest

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Wednesday, Feb 22.2012 05:50 PM

NOTE ALLONGE

This Allonge is l be Wched to and matla a part of that certain o Pmmissory Yote made hy David W. Oat- in ihe origiDBl princlpa tmoW1t of $1,142,[email protected],drted Scpfember 20, 2005, and w b l e t W ~ @ Mutual o n Bank, FA, as amendedor mcaed (the "NoDe").
Pay to the ordc~ LPP MOKTGAGE LTD., a Texss Iimited PnItnaship, af Chi-'?, without recorn and withoui repmmpnion or w m ~ whethe q errpress, implied o crtnd by opemion of law. r

DB STRUGTL'REDPRODUCTS, INC.

I.,
Title: Vioe Prcsideot

Page 130

1
+ .
I

UNITE? STATES BANK~UPT'CY C ~ U R T SOUTHERN O F , N E W YORK

'DLSTRICT

:(
3

n p p E & R A N c E %

..
,

LAW OFFICES OF LINDA M.

TIRELLI,

P.C.
--

.
:

Debtor

1.. .

,
,

Chapter 1 No:. 0 8 - 1 4 1 0 6

1
(REG)

~ t t o r r i e vL o r Debtor

6l
9

-. .

10601

O n e North L e x i n g t o n A v e n u e , 11th F l o o r

White Plalne, New York

BX:
6C

LINDA M. T I R E L L I , ESQ.

B r o a d Street

1
,

New Yprk, New York

J a n u a r y 6, 2011 11~13 a.m.

I
I
/
20

U.S.

TRUSTEES OFFICE

33 Whitehall street, 2 l e t P l o o r
New Y o r k , New York

10004
TRUSTEE

BY:

GREG EIPBS,, ESP.,

ASSISTANT U . S .

( C o n t i n u e d l Deposition of -RONALD0 REYES, h e l d a t t h e U.S. T R U S T E ~ S OFFICE, h e f c r e LINDA DEVECKA, a Notary Public of the S t a t e of New TEITEL.BAUM L BASKIN, LLP

attorneys f o r , R o n a l d o R e y e s

Yark.
.

..

3 Barker' A v e n u e ,

T h i r d Floor 10601
,

w h i t e P l a i n s , New S o r k ' BY: JAY TEITELBPUM, ESP.

'II

I
' U

. ,

Page 132

1
2
3 8 0 % A L D 0
,

R B Y E S ',
,

having been previously duly, sworn b j a Notary Public, reeumed rnd t e s t i f i e d f u r t h e r as

.
, ,

..

c h l l e d ae
,

witneos,

I
2
3
(1.

r f you c a n

juat explain t o mc i n your own

1 5
,
.

words %ow M s . Muer's loan is t i e d t o t h e p c o l i n ~ end

servicing zgreement o f the tzusr. t a l k i x g about?

. . .,

4
5

that

w e have bee"

f01lcwsl

r
'

6
7

EXZQ3TNATlON :CONTINUED)
BY

7
'

A,

The NUer loan i s '3+rt of t h e mortgage loan

MS. PIRELLI:
Q.

R
9

Good morning, M r . Reyes.

'

My .name i s Linda
.

s c h e d u l e t h a t i s referenced

i n the mortgage loan

purchase agreement and pooling and servicir,g

Ticell.?.

I represent t t e debtoh-24s. Sylvia Nuec, i n

10

..

agreement.
Further. Deutsche Benk National Trust

l1 12
,

I,

t h i s case. Before we
g e t starred,

I want t o a s k , a r e
. .

you ilnaer t h e influence o f anything &day that would h i n d e r your a b i l i t y t o u n d e r s t a n d my @cations?

closing d a t e af thc poollng and ~ e r v i c i n gagreer.ent,

13

14
15
1'6 .I1

h :

NO.

C. ,k.
Q .

Yoq have been deposed berore, o r cuzrae?

Yes.

15

enticy.
Q.

Aa

a matter

0%

r o u t i n e , if there i s any

you finished?
, ,

17

A.
Q.

Yes; t h a t 1 . s a stullmary.

10

q u e s t i o n t h a t I am asking t h a t y9u Err n s t unnerstaiding., by a l l means ask m t o repeat it o r e

'

I
,

18
19
20

Itha is t h e owner of Ma. Nuer's Loan?

19
,

MR. TEITELBAVM:

Objection.

YOU can

20 21

a r k me t o rephrase it. do that.

I wiLL

je more thar. hcppy t o ,

anewer if you know.

( -

I'm not t r y i n g c o t r i c k you, I just want To

21
22.
23
24

22
23 24

A.
trustee.
Q.
A.
Q.

~eutsche Eank N6tional Trus: cornpani, as

"?*'resuro you underarand a y questions b6fore you

answer them.
Is thaL x n d a r s t o o d ?
A.

As t r u s t e e o f ?

rang Beach Mortgage Zoan T r u s t 2006-2

EaauLly how do you know t h a t 7

Tee:

25

.-.
pa&

1'

..

Reyrr
wntemplacc", in the Mortgage

I
4

. .

. ..

.. .

..

~-

,
Reyes

Page 153

P
3

d e f i n e d term of V l o s i n ~date.''

and I b e l i e v e i n my

i
r

Laan Yurchase Agreemer~i and the Pooling and Servicing

Agreement, t h e legal trsnafer o r sale d F t h e mortcfage
iua:l+ accura effcctlvc "ac-h
closing d a t e of the trust. 7 , $006. t i e effective

testimony &eviously
:

I r e f e r e n c e d s e c t i o n 2 . 0 1 , and,

j
i

5
6

2.0,

refersncks t h a l t h e moxtgage l o a n s are conbeyed

t r a m the d e p o s i t o r , Long Beach s e c u r i t i e s Corp.,

.,

whlch i s the purcha3er undev t h e Mortgage Loan eurchaie Agreement.

'

7
"0

Q.
A.

At'

the closing of rhe s a l e , is that when

7
8

That depositor. entity conveys

t h e Pooling and sbrvjrlne Agreement is siqled?

That's t h e effective date, the closing

a l l o f i t s rlQht., t i t l e and i n t e r e s t i n t h e mortgage loans, including. .t h e Nuer loan! on :hat date.

9
10
11

fiat@.

Q;

when you a r e s a y i n g "the closing

12

t h a t what
.

13
14

where the t r u s t e e a c t u a l l y acquires ownership, a;l

~ 0 would 3

describe a s an actuel ciosing

-.

1
,

rignts and i n t e r e s t to these loans?

A.

y e s , bared o n the

Poalinq axd Servicing

I1.1
15

?.
and t h a t ' s

This i s , I b e l i e v e , the n o t a r i z a t i o n of

the d e p o 7 i t ~ t 1ai,qnat>re, Lcng eea=p iecurLty C D ~ P . , s

tt-

3-

t'w n o t a r i z a t i o n

of thk signstare page

& I

16

Agreement.

16

which i s i c t u a l l y page '0639, James Mark, Authorlze,d

Officer.

17
18

Q :

Ckn you aay for sure t h z t t h i a was

17
18
19 20

HB

also Signs as F i r s t v1Ce-ezesldent o'f

a c q u t r e d by Deutsche Bank, a s t z u e t e e , on Kaich ltb,

two d i f f e r e n t companies.

Is t h a t . c o r r e c t ?
,

A.

. Yes, i t a p p e a r 3

t h a t way.

Q,.
22

What a r e

21
22
23
24

b.
there?

&

at,,

o l a s i m s when Mr. Mark slgns as the

depo5itor, ttre depoeitor being Long Beach S ~ c u r i t Y

23

C01.p.i what is h i s signaturp a c t ? > a l l yrepresenting

I ' .

25

WEYT
218-374-1139

rmoRmaCOMPANY
wwvr*itcrt.unn

..

llZ.279-WZ4

vmlTFxr REPOKlRiG C m N O AY
212.31C1139

vr%?J" d ~ u r m

212-279.9424

Page 154
I

1
,

. .

. .

Reyes

Keyes

1~
3 .'
4 5
6

Q.

If you knou.

\-

L+
'

MR. TIITELBAUM: Q.
A.

1t18a lagal canclusion.

It represents his signature. You can answer i f you knou

I1
I

I
3
4

Vice-Presrdent of Deutschs Bank National Truet Ckpanfi AS' Tiuatee, and also <he signature of Rang LUY, AuLhorized signer of Deutsche Bank NatYnaL

I
1

I don't

know

legally, Frbm my working

. \ Trust Company, A3 Trustee,

,

i s there any date on that

6 I'
8

page to indidate hhen they si&ned fhis?" A.

,

knowledge, signatories of parties to the Pooling and servicing Agreement execute the agreement andthe

Well, "@.top an ttiat page it reads "In

witness hereof, the OepositDr, the Master service1 and the Trustee have caused . their names to be signed . hereto by the respective officers thereunto duly authorized, all a; of the. day and year first above . written. "
Q.
,

10
11

aqreemant becomes effective the defined closing date of that agreement.

Q.

1
.

The defined closing date of this aseeement

12

you are saying is March 7th end not March 6th?

A.
14
131

It's d~finedaa March 7th, the closing

'-.isQYI d

when Was that?

date. Q.
'

R.
So the fact that the depositor signed this

rt's dated

as

of March 1, 2006.

15

16
1 7

on March 6th is of ilo relevance?

MR.

I
16
17

'

Q.
6th, 2006,

But the depositor didn't sign uniil Match is that correct?

MR. TE~TELBAUM: . ..

.
was

TETTELBAL'M:

Objection.

18
19

I ,

i.
Q.

Objection.
..

1don;tknaw. Is there anything in the Pooling and

18

I
--

A. ... .
,

Thatr? when their. signature

notarized.

19
20
- -

'Q.
"

Are you #lying that the signature shDirld

ZQ'
21
22 (

servicing ~greementto show.us'when the trust

2 3
21

actually. accepted the conveyance of these loans?

.

._. .

be n o t a r i z e d on a date thzt they didn't sign it?

-.

..

-.

21

MR. TEITELBAUM: Objection.

A.,
,

A.
Q. .

The Pooling and Servicing Agreement makes

15 .you can go back

it. efiictiie .the closing date. Mar& 7th.

now to page

0640,

where

1
I

22
23 24

Nd.

Q.

You are not drawing a distinction between

and

the date of the notary

the dato that they signed

25

we

have the signature of Valerie Delgado signing as W X T R E P O R T I N O COMPANY

m.vrrit.atwm 212-279-9424

212-374-1 139

. . .

'

1
A.

Reyes We have a vault

It is a two-holrr Fize-rnted
2

electronically by e-mail, is it done by fFlling out yarLicular Corn? How is it done?'

A.

'vau1~.ahd from my working kriaGiledge; it complies with

Freddie M c a

and eonnio

Me.0

guidelinen Eorstoring'
, ,

1i
I

I/
1

Typically in Pooling and Sarvioing

~o=rri.

II
It

ngreements there is a Request FOZ Release

mortgage loan docments.

m y be transmittedby mail or electronically by

out of that vault, what would be the process or procedure internally to.do thee?

I
1
10
11

. .

i01
11

'

MR. TEITELBAUM: Objection. just think 2bou'L

to this

I rent you' t o

-- security issues or ocher issues that

are conttottabie
answering

--

1, at paragraph 10 you testified t h a t a request was

and I don'c %now Zhe answer

'

13

we

may not be able t o dLsclose those procedures.

Answer if you

II
I
1

made in June 2009.

II
I,

IS that accurate?
13 ! 12

A.
Q.

Yes.

C ! .
'16

Fnd that
=s

request was

what you referred to.

1 17 j 18
19
20

'

MR. T&?Eh84UM:

I want you

is
16
. ,

before
A.
Q.
A,

a request for release?

Yes.

to think about

whethar you need to cheak with security people

or an&dy
..

else whetller that'a public

.

l7 I

can ysu .tell me how that was

?

done?
O n

18
20 l9 21
22

I
I

don't lurm.
19

<
L

information or should be public information.

,"

'

'

A.

Under ehe .iooling and Servicing Agreem?.snt,

21
22

s e r v i c e r may make a requeat for r2~eaeeof

mortgage f i l e .

23
24

Q.
A.

How is that requeet made? From,the service^ to the trustee.

,

!
1 .
212-279-9424

I1
1

I ~ n l yknaw that hased

our system of record,

I testified to earlier, our

mortgage loan document system tracks when withdrawals

a r e made. p. When you t e s t i f i e d that " A t the request of SPMozgwi, as eervicer, in June 2009, the custodial

1 i

23
24

25

0.
212-374-1139

Is it dona b y a phone call. 1s it done

W B l T M T RIIPOl<TINGCOMPANY ~~~~.vcrircdwm

loan file Lor the loar. was Chipped by Deutsohe Bankt

a s cuitadizn for the trust, on ac about July 1, 2009

25

r
.,

.
Page 160

I
I

1
!

Washington ~ u t u a '.Bank, FA. l

I
to
,
,

?'
4..

.
FA.
A.

you c o u l d
. ,

just d i r e c t . my. a t t e n t i o n
. . ...

t i i e ' p r a u i s i b n t h d t i n d i c a t e s Whehingtpn Mutual Bank,

.

'5
'6'
7
8
9

Yen.

I n section 3 : 0 2 ~ ,Bates stamped P W e

0 5 3 5 : F i r s t Paregraph, .the ena.-of t h a t +st

paragraph there i s a reference t o t h e sub-serolcing agreement between t h e Mester S e r v i c e r and Washington

,

chase, and w u s u a l l y list a purpose f o r t h e i r e

..

9
10

10
11

rsithdiawal.
Q.
I f yau can t u r n new.

I/
/

...

' ~ u t u a leank..

p l a a s e i on your

11

p.

i am

Ay, a m +;oking
1

I
/
.

a t t h e paraqraph

..

12
13

a f f i d a v i t which a g a i n was marked ms UST/R=ieyes 1, p-ragraph 5 . paragraph;

,

12

3.02 whioh i a e n t t t l e d 'rSub-Servicing Agreemant

I f you could j u s t review t h a t

13 14

Between t h e M a s t e r Service:

and. S u b - S e r v i c e r . "

I4 15 16 17
18

( w i t n e s s reviewed document. 1
A.
Yes.

l5 16

Q.

Where it i n d i c a t e s " W a ~ h i n g t o nMucsal

I
\

.,

IS t h a t t h e p a r a g f a p h ' y o u a r e l o o k i n g rk?
Yes.

A.

Q.

Under A-2, is t h a t what you a r e s a y i n g ?

Is t h a t the l i n e I am looking a t h e r e ?
A,
Yes,

Bank, FA;" Is t h a t something t h z t you were able t o d e t e r m i n e b a s e d a n your e l e c t r o n i c system, t h a t t h a t

you a r e r i g t i t .

I had n o t s a i d A.

19

(-

20 21
22

23

24
'25

19
20
21

muy
Q.
. .
A.

rig~t. ~ t 'A uo~nette. s 2

. w a s t h e name 2;

..

the'entity? T h a t ' s based o n t h e Fooling and =. ,. g n o

can you p l e a s e show m e where

i t says

A.

Mo.
d ;

"Washington Mutual Bank. Ap'? Wb11, it d o e s n ' t s a y "Washington Mutual

I t reads t h a t t h a t c e r t a i n sub-serbicing

S e r v i c i n g ~greemeit. Thbse &tities are i n t h e

22
23

I 1

:: l i n

s=r"ic;;g,'~re:eL.t.

Bank, FA."

Company was t h e d e f i n e d servicer, and i t ' s i n section

3.

There i s a reference t o t h e sub-servicer

.. .

-212-279-9424

$4

25

agreement " b y a n d between t h e Master S e r v i c e r and Waehlngton MutuaL Bank, deted ?ipTil 9, 200i, i s

212R4-1139

..

VSNTEXTREPORTJNO COMPANY
rvvvu~.~&ext.cdm

Page 167
\

Reyes
A.
I d o n ' t know.
.

. . Q.

Is t h e r e anything i n t h a t purchase

:I
4

20

~ e b t s c k eBank?
A.

AsSumPtion Agreement t o i n d i c h t e t h a t t h e servicing e i g h t s t h a t once beionged to Waahington

In, t h e c o u r s e o f b u s i n e s s , t h e f i l e i s not Onca a s e r v i c e r . c o n,p l a t s s i t s

r e q u e s t e d back.

Mutual now beldnged t o JPM~&& Chase or ' ~ ~ ~ o r ~ a n ?

5 / ' . b u s i n e s s with respgct

6

t b Why

it needed t h e mortgage

MR. TEITELBAU#: O h ~ e c C ~ o n .
A.

f i l e , t h e s a r v r c e r r e t u r n s l t a n d w simply n o t e t h a t e
t h e s e r v i c e r has returned i t now.

I d o n ' t know.
f e i t E a l r t o say you r e a l l y d o n ' t have
,

9
10

Q.

..

,,

I I
1

Q.

Would you know p h y s i c a l l y where t h a t f i l e

any p e r s o n a l knowledge as t o what was c o n t a i n e d i n ,

,

waa on t h a t d a t e ?

11

t h a t Purchnae Assumption Agreement o t h e r than what

.. .

10
11

A.
Q.
A.

on July -I am sorry.
Yes.

c b
iJBeing ~ u l y24th, 2004.

12

counsel ha8 t o l d you? A..

Yes, i t was based.an inormetion and

W n o t e t h a t i n our docvinent e

e n t e r i t i n t o t h e system and check ic back i n t o t h e

If you c o u l d just review paragraphnumber

,

..

,.

, . (Witness reviewed document.) 20

21

'I

17

18

A.

Yes.

. .

Q.

Is t h e r e i n s u r a n ~ eon t h e documents when'

t h e y a r e being t r a n s p o r t e d from Peuteohe Bank t o t h e

'

19

servicer?

, .

22

... , t h e end of t h e f a u r t h l i n e .
. .

Q.

I am l o o k i n g a t the eentence which i s a t

It starts

.
MR. TEITELBAUM: Objection.
5 d o n ' t know.

20

23

>illy 24th, 200'9, t h e c u s t o d i a l f i l e a w e r e r e t u r n e d t o Deutsche Bank, as oustodian."

"on o r .bout

21

A.

22

Q.

What i s t h e method usually for

23

t r a n s p o r t i n g something c u t of t h e v a u l t t o t h e

25

who r e q h e s t e d t h a t t h a t f i l e be r e t u r n e d
25 A.

Overnight d e l i v e r y .
I

I
212-314-1139

vWrrEXT REPORTNG COMPANY

'

w~w.~wmt.c@m

212-279-9424

1
2

r--Q.
A.

Page 168

eyes

~ i k e .FedEx or DHL or something like a

that? Yes. There would be receipts for that sort oi

I
1 I I 1

'd

1
2

Rfyes

doesn't referknee Chase, does it?

A:

NO, but Pooling and Servicing Agreements

?hen there is a change in servicer, a

4.

6
7

I1 1

Q.
transfer?

h
5
6

cont&nplate successors and assigns.

Q.
,
,

A.
Q.

successor or assign, i~ that'communiceted to the borrower, if y o u know?

A.

81 10
11

Yes. To

thi best

o f your knouledqe, did Chase

II
I

ever own Ms. Nuer's loan?

A.
. Q.

NO. T O the best df your knowledge. was

11.
1

' 8

I don't know. That's a servicing

.

function.
MS;
MR.

. . .

.,

.. . .

TIRELEI: I have nbthiig furthex., . . TEITELBAUM: .~.. I just have one Can

Ms. Nuer's loan ever transferred out of this trust?

s 4

minute to go over my notes. and mke sure that I . don't have any?

13
14

A.

NO. Does the trust continue to awn Ms.

Nuer's

Q.

14
16
l7

loan today?
A.

i4s. 'TTRELLI: Thank you, Mr. Reyeg.

.,

EXAMINATION BY Yes,
IB it possible that this loan, Ms. 14uer8r
,
,

lB. 19 in

C
..
i-

16 17

4.

M R . ZIPES: ' . ... . . . Q. Gregzipas'fr&theU.S.

Ttustee'soffice. I

loan, wes smehow fransferred to the trust by Chase

.,
,

~ovember2008?'
A..

le

Good afternoon, Mr.' Reyes., Just.a Eey questions fcr

,...
you as fbllowup.

. . .

20
21

NO. Is there a servicing agreement between

.,
,

Q.

22
23
24

JPMorgan Chese and this trust?

'

I
8
'

19 .

20
21

If you turn to,what re previously marked . , . ..

~

2i

A.

Yes, the poiling and servicing'agreement

. .. ,

be USTfRsyes ~xhibit2, this is the CompLete loan

,:.

..

25

iteeif.

. .
But that Piolino and Servicing Agreement
VE&EXT W R T I N G COMPANY
~.vnitSn.~om
,
\d

Cile infom<tion,, is.. that correct? .. ' Today we,made reference t o two further exhibits.
7 is

--

I uiil refer to it as 2 0 0 6 - R . P

Q.

J
212374-1139

212-279-9424
!

m m RBPORTrNOCOMPANY
112-374-1139
wvrar.mkt.com

212-279-9424

r I

Page 177

Q.
A.

Did you have any involvement i n the

II
COUNTY OF NEW

C E R T I F I C A T E

Preparetion of t h i s doc;lment7

STATE OF NEW YORK

NO.

)
)
6.9. i

,MR. ZIPEX:

I have no f u r t h e r questions

YORZ

(Time noted 12:38 p . m . )

II

I,. LINDA DEVECKA, a Notary Public

within and for the s t a t e of New York, du

hereby c e r t i f y :
That R hA D REYES, the witness whose O' L O Subscribed and sworn t o before m t h i s , e

deposition is hereinbefore set forth, was duly

--d
.

y of

_, J e-2 c . 2

sworn by m e and that such d e p o s i t i o n i s a true

record o f t h e testimony piven by such witness.

NOTARY PUBLIC

/I
iI

11

15

.(

I further c e r t i f y t h a t I am not related t o

any of the p a r t i e s to this actlon by blood or

marriaqe; and that 2 am i n no way interested i n

1
I

I I~
is
20

the outcome of t h i s matter.

IN

WITNESS WHEREOF, I have hereunto set my a y of

~ , J J A Q L /

I ,-

hand this B

L i
LINDA DEVECKA

VERI?ZXTRBPORTING COMPANY
212-374-1139 www.vcdtmn.-

,
212-219-9424

PROOF OF SERVICE

I am over 18 and not a party to the action. My address is 950 Roble Lane, Santa Barbara, CA 93 103.
In March 5, 2012 1 served REPLY to OPPOSITION to Application for Preliminary Injunction on the only
efendants who have appeared in the action (MGC Mortgage Inc., LPP Mortgage Inc.,Loan Acquisition Corp.) y transmitting by email a copy to their attorney of record, pursuant to a mutual agreement to serve by email, to: RmcClendonc~Iockelord.com with a copy to nancyduffvsb~yahoo.com ascertain the email was transmitted . to

declare these statements to be true under penalty of perjury and CA law. Executed in Santa Barbara on 3-5-12.
/ I l a n ~ y~ u $ $ y L a u u o n B

Z%%?d!(

REPLY t o Opposition (by

Injunction

Nancy Duffy McCarron, CBN 164780 Law Office of Nancy Duffy Mt Carron 950 Roble Lane Santa Barbara, CA 9'3103 805-450-0450 fax 805-965-3492 [email protected]
4

SUPERIOR COURT o CALIFORNIA f COUNTY of SANTA BARBARA

FILED
MAR 0 5 2012

//

Real Estate Broker Lic. 853086 Notary Public Lie. 1791117 Certfied Arbitrator for BBB 30329
Attorney for Plaintiff SUPERIOR COURT OF THE STA'IE OF CALIFORNIA

1
11

FOR THE COUNTY OF SANTA BARBARA (ANACAPA DIVISION)

DAVJD W. GATES, Trustee for III~DAVID GATES W.

Case No:

1384851

l-rust
l3

l4
l5 l6

l7

dated August 5,1996 Plaintiff, vs. MGC Mortgage, Inc., Texas Colporation ) LPP MortgagelLtd., LP, Texas Co~poration ) Loan Acquisition Corporation, Texas Corporation Cal-Western Reconveyance Corporation, Texas Corporation ) DB Structured Products, inc., Delaware Corporation ) Deutsche Bank National Tmst Colnpany, astrustee ) WashingtonMutual Bank, a national banking association ) Wamu Asset Acceptance Covoration, SPV vehicle bank ) Washington Mutual Mortgage Sectirities Corporation, bank ) ) JF' Morgan Chase Bank., National .Association, a bank DOES 1 through 50, inclusive, Defendants. )

) ) )LlM PAATAFFIDAVIT SIPPORTING ) REPLY to Opposition to Motion for Preliminary

Injunction; filed concurrently with: REPLY and Objections to Defendants Request for Judicial Notice; Objections to Declaration of Bret Maloney ACfidavit of David Gates and Ron Landis filed: 2-1-2012 CMC: 6-4-12 8:30MSC: n/a Trial: n/: DATE: March 12,2012 DEPT: 5 CCP $5 527,187

TIME: 9:30 a.m.

Honorable Colleen K. Steme

AFFIDAVIT of WILLIAM PAATALO

Affidavit Supporting REPLY to Opposition to Motion for Preliminary Injunction Licensed Private Investigator and CFLE Certified Forensic Mortgage Loan Auditor

EXHIBIT LIST
Washington Mutual in. 10K Subsidiary Listings List 1996-2997 Bloomberg Terminal Report showing Gates Loan in the Wamu 05-AR-16 pool Cortera Corporate Search Results Showing MGC Mortgage Inc. did not exist until 2008 Copies of Two Assignments Recorded against 1200 Palomino Rd. by MGM Mortgage, lnc. MGC response to QWR Request -note attached with black marks on top of pages from 2-hole punch Declaration of Bret Maloney with note attached without any black marks, and with ALLONGE Cyber Corporate Seirrch Results showing no LPP in Illinois
W~MU Mortgage Pass-Through Certificates Series 2005 - AR-16 closing November 1,2005

Documents Recordcc! against 1200 Palomino Rd by defendants

1 .............................

Affidavit of William Paatalo f o r Preliminary Supporting REPLY Lo

Injunction

AFFIDAVIT The State of Oregon County o f Clackamas

1
) S.S.

I William J. Paatalo, of Lake Oswego, Oregon, MAKE OATH AND SAY UNDER PENALIY OF , PERlURY THAT:

1 I am an Oregon Bcensed private investigator under ORS 703.430, and have met the . necessaly requirements under ORS 703.415. My Oregon PSI0 number is 49411.
2. 1 have been a licensed Private Investigator since September of 2009 in the States of Montana and Oregon.

I have 17 years combined experience in law enforcement and the mortgage industry. I
have worked exclusively over the last 20-months investigating foreclosure fraud and securitization issues. 1 am a CFLA Certified Forensic Mortgage Loan Auditor, and have spent more than 2,500 hours conducting investigatory research in mortgage securitization.
3. 1 am competent t o testify as a witness in this matter.

4. 1 was retained by my client, Nancy Du@ McCarron, b . review documents pertaining q to to the foreclosure action of the property located at 1200 Palamino Rd., Santa Barbara, CA 93103. 5. Perthe narrative of my report:

1. The subject loan was originated by Washington M t a Bank, F.A. on 09/25/2005. uul There is evidence that thc originating entity "ceased to exist" as of W/04/2005 (See aitached Exhibit "Washington Mutual Bank Status 1997-2007") (Affidavit Exhibit A). ---

Investigator has reviewed internal WaMu, F.A. documents in numerous cases where this entity cslled itself a "PremiereMortgage Broker" between 04/04/2005 09/25/2008.This e t t is believed to have becn acting as a conduit / broker in most niy eases, with the intent to sell the Loans it would originate into the secondary markets for "securitization."

2. Investigator identified the subject loan within the "WashingtonMutual Mortgage Pass-ThroughCertificate Series 2005-AR16 Trust" using the Bloomberg Terminal (See
1Affidavit .

Willlam I. Paatalo

attached Exhibit - Bloomberg Documents Gates) (Affidavit Exhibit B). The Bloonlberg documents are marked as internal "BP Investigative Agency Exhibits A & B."

Bloomerg Exhibit A - Shows the subject loan as loan # 60171 1674 wti the WAMU ihn 05-AN6 Trust. h t the unique loan amount, investigator is confident that the subject o loan in this report was pledged as ~Ilateral this specific Tmt. The "Origination to Dates" in the Bloomberg System typically use the following month after the loan's actual month of origination.
Bloomberg Exhibit B - shows the WaMu 2005-AR16 T s as baving 17 specific Nt "Tranches" or Classes within the Trust. 6 of the 17 TranchdClasses have been "Paid OE"This suggests apossibility that the subject loan could have been paid off if it bd a been pledged to any of thee specific tranches. I

I Investigator has attached the WaMu 2005-AR16 Tnlst's Supplemental Prospectus and most recent Remittance Report as an exhibit; as well as the Trust's "Pooling & Servicing Agreementttl n onthe SF^ website. ik
Investigator was unable to locate the loan level data / history within the Trust, nor was the subject loan appearing within my of the randomly searched Remittance Reports dating back to 2006.

3. The "Closing I Cut-off D t "for the WaMu 2005-AR16 Trust w s 1 1/01/2005. If the ae a sub* lorn was pledged as anassetto the Trust and " s e c ~ wthen the originator , was to have sold the subject loan to the Depositor of the Trust on or before 1 1/01/2005.
4. Per the Trust's Pooling & Servicing Agreement:

Thk Pooling and Servicing Agreement, dated as of November 1,2005 (this "Agreement"), is by and among WaMu Asset Acceptance Corp., as depositor(the "Company"), Washington M t a Bank, as S e ~ c e rDeutsche Bank National Trust uul , Company, as Trustee,and Deutsche Bank Trust Company Delaware. as Delaware
Trustee. Capitalized terms used in this Agreement and not otherwise defined have the

meanings ascribed to such tenns in Article I hereof.

PRELIMINARY STATEMENT
The Company at the Closing Date is the owner of the Mortgage Loans and the other property being conveyed by it to the Trust. On the Closing Date, the Company will sell the Mortgage Loans and certain other assets to the Trus[t].
_I_-____L-________---------------------------------

Mortgage File: The following documents or instrumentswith respect to each Mortgage Loan, with respect to each Mortgage Loan that is not a Cooperative Loan:

(a

2. Affidavit William J.

Paatalo

(i) The original Mortgage Note endorsed (A) in blank, without recourse, (8) the to Trustee, without recourse, or (C) to thc Trust, withoui recourse, and all intervening endorsements evidencing a complete chain of endorsements from the originator to the endorser last endorsing thc M o m Note, or, in the event of any Destroyed Momage -Note, a copy or a duPficate oriaof the hlortgage Note (or portion thereof, as a~plicable), together with an original lost note affida~it m the oriejnator ofthe h G @ a g e h applicable G l e r or the Company stating that the original Mortgage , the Note (or portion thereof, as applicable) was lost, misplaced or destroyed, together with a copy ofthe Mortgage Note (or portion thereof, as applicable); provided, however, that in ihc event tbat either (a) Washington Murual Bank or Washington Mutual Bank fsb is the Seller of the Mortgage Loan or (b) Washiigton M U Mortgage Securities Corp. is the Sellcr of the Mortgage Loan and purchased the Mortgage Loan from Washington Mutual Bank or Washington Mutual Bank fib, then the Mortgage Note need not be endorsed in Hank or to the Trustee or the Trust as provided above, but, if not so endorsed, s l d be made payable to, or properly endorsed to, Washington Mutual Bank or Washington M t a Bank fsb, as applicable; uul
(vi) Copies of the original UCC financing statement, and any continuation statements or amendments thereof, each with evidence of recording thereof, perfecting the security interest granted under the Security Agreement and the Assignment of Proprietaq Lease;
(vii) Copies of the filed UCC assignments or amendments of the UCC financing statements described in clause (vi) above showing an unbroken chain of assi@unents f o the originator to the Tmtee Mthe Trust, each with evidence of rearding thereof; rm

---------------------------------------ARTICLE I1
Creation of the T W Conveyance of the Mortgage Pool Assets and REMIC I Regular Interests; R R MC Election and Designations; Original Issuance of Certificates EE I

rs The assets of the T u t shall remain in the custody of the Trustee or the Custodian, on behalf of the Trust, and shall he owned by the Trust
Section 2.05. Delivery of Mortgage Files.

-------.------------------------------------------On the Closing Date, the Company shaU deliver to and deposit with, or cause to be delivered to and deposited w t , T W or the Initial Custodian the Mortgage Files, i h the which shall at all times be identified in the records nf the Trustee or the Initial Custodian, as applicable, as being held by or on behalf of the Trust.

--------------------------

-----

Acknow1edgment ~Transfer Mortgage Pool Assets. The Trustee of hereby acknowledgesand accepts on behalf of the Trust the transfer and assignment pursuant to Section 2.04 to the Tut of the Mortgage Pool Assets, but without having rs made the review required to be made within 45 days pursuant to Section 2.07, and declares that as of the Closing Date it (or the Custodian on behalf of the Trustee) holds

Section 2.1 1.

3. Affidavit Willlam J. Paatalo

and shall hold any documents constituting a part of the Mortgage Pool Assets, and the Mortgage Pool Assets, as Trustee in trust, upon the trust herein set forth, for the use and Interests and the Class benefit of all present and future Holders of the REMIC I ~ e g u l & R-1 Residual Interest. I

5. The assignment of the subject Deed of Trust that was allegedl executed on 08/30/06 and recorded 06/12/09 appears to be fraudulent for the followin reasons:
a.The document states that it was prepared by "MGC Mortgage, Inc." in Plano, TX. Attached as an exhibit in the "Corporate Search Results" is evidence that this entity didn't exist until 2008 (Amdavit Exhibit C).
Both assignments of the DOT are prepared by "MOC Mangage, Inc." and recorded simultaneously on 06/12/09. The nearly 3-year deIay in recording the 1st assignment,and the fact that MGC didn't exist in 2006, suggests that this document w s faIsified and a back-dated. Both assignments of the DOT were provided by client who states these are "Certified Copies." They are attached as a Misc. Exhibit above, and marked as "Exhibit D " to affidavit. Though investigator is not an expert document examiner, it i s clearly noticeable to a layman's eye that the execution date and signature block of Cynthia A. Riley is a different "font" than is used in the rest of the document. The print in the execution date and signature block also appears "blurry"as if it was "photo-shopped" onlo the document.

b. If the 1st assignment document were somehow Iegitimate, then "Washington Mutual Bank,F.A." would have been selling an asset that it had previously sold to the W&u 2005-AR16Tut back in 2005. If the subject Notc and Deed of T ~ sbelonged to the rs t T u t then WaMu would have had no beneficial /ownership interest to sell; as it would rs, only have had the servicing rights to the loan per the PSA.
6. The "PromissoryNote" was provided to investigator by the client in two forms attached as exhibits. The first form is a response to a "QWR" request (Afidavit Exhibit E). The second is attached as an internal exhibit to the "Declaration of Bret Maloney" f o MGC Mortgage (Affidavit Exhibit F . rm )

These versions of the Promnissory Note differ, in that the QWR version contains two black dots at the top of each page that look to be from a "two-hole punch." The version presented in the Declaration does not have thew markings. Also, the QWR version did not contain the "Allonge" that appears as a separate and detached document in the Declaration exhibit.
The Allonge states, "This Allonge is to be attached to and made a part ofthat certain Promissory Not[e]."

4. Affidavit William J. Paatalo

RECOMMENDATION: Check the legal status / validity of an Allonge that is presented by itself separate from the original note.

The common fact pattern with most loans sold into the securitization market by WaMu, F.A. fiom 2005-2008 is to see an endorsement "in-blank"on the pmmissory note with an electronic stamped signature of Cynthia k Riley."

7 The Substitution of Trustee document executed by Richard G. Fikc on behalf of LPP . Mortgage, LTD. was notarized in the S a e of Illinois. A search of the Illinois Corporate tt records did not show this entity being registered in nhois (See attachcd Misc. Exhibit) (Aflidavit Exhibit G).
8. The attached exhibit - "Washington Mutual Bank,F.A. Status 1996-2007"should state on (pg. 2) near the date 1213 1!2005: "WASHINGTONMUTUAL BANK Federally Chartered under the laws of the United States DBA: Washington Mutual Bank Washington Mutual Bank,FA Note: Dn 1/1/2005 Washington Mutual Bank, FA acquired Washington M t a Bank. On uul 4/4/2005 Washington Mutual Bank, FA changed its name to Washington Mutual Bank and ceased to exist as a federal savings bank known as Washington Mutual Bank FA."

SUBSCRIBED AND SWORN TO BEFORE ME,on the

291hday of February, 2012

1 1

i
1 1
Commission Expires:
)

5. Affidavit William 1. Paatalo

EXHIBIT A

RESEARCH - Washington Mutual Bank FA: Washington Mutual Inc 10 K Exhibit 2 1 Subsidiary listings 1996 - 2007

1 FISCAL
ENDING

1 SUBSIDlARY of WASHINGTON MUTUAL. INC 7.-

) 12131119%

No subsidiary listed aa Washington Mutllal BankFA

WASHINGTON MUTUAL BANK,F.A.; Federally chartered under the laws of rhe United States (Home office located in Stockton, California
MUTUAL BANK, FA DBA: Washington Mutual Bank, FA Home Savings Bank FSB Federally-chartered under the laws of the United States

12/31/1999

WASHINGTON MUTUAL BANK,FA DBA: Washington Mutual Bank, FA Alta Residential Mortgage, Inc.

Federally-chertered undw the laws ofthe United States

iminooo

WASHINGTON ~ W " I U A L BANK, EA

Washington Mutual Bank, FA Alta Residential Mortgage, Inc. ARMT, Inc. Federally-chartered under the laws of the United States

DBA:

12Mlt2001

NEW AMERICAN CAPITAL, INC., a Delaware corporation

DBA: Washington Mutual Bank, FA The Dime Savings Bank of New York, FSB North American Mortgage Company

H o m e S i Lending
chartered under the laws of the United States CAPlTAL, INC.,a Delaware corporation

DBA: Washington Mutual Bsnk, FA The Dime Savings Bwk of New York, FSB North American M o m g e Company

RESEARCH -Washington Mutual Bank FA: Washington Mutual Inc. 10 K - Exhibit 21 - Subsidiary listings 1996 - 2007
Homeside Lending

Federally chartered under the laws of tbe United States

12/31/2003

1
I

?---.NEW AMERICAN CAPITAL,INC., a Delaw8te corporation

DBA: W p ~ b i ~ ~ gMutual Bank, FA tos

Federally chartered under the laws of the United Stales

1~1~1noo4 WASHINGTON MUTUALBANK, FA

(Federally chartered under the laws of the United States)
I

WASHINGTON MUTUAL BANK

Federally Chartard under the laws of W n i t e d States

DBA: Washington Mutual Bank Washington Mutaai Bank, FA
9 n )n/NDa)5 Woshingion Muurrl Bank FA acqt~ired W'ahiwglon Mutuol Bank On I 4 WWeingIon bfuluol Bank, FA clnrrrgd its name to WashingionM u I d Bank and 0 f fo erkt as ofe&ral savings bank linnvnas Washingion Mutual Bank FA.

I
11/31/2006

I
I

I
12131/2007

WASHINGTON MUTUAL BANK

Federally Chartered under the laws of the United States

DBA: Washington Mutual Bank

Wsshingtoa Mutual Bank, FA Long Beach Mortgage Company or h g Beach Mortgage

WASHINGTON MUTUAL BANK FA is not listed in the many subsidiaries of Washington Mutual, Inc Nor is it listed as a company mnder wbi& Washington Mutual J3ank is LLDBA.nff~te; Mwrgage h m s wen sill being m & with Lender an Deeds o f h f and Notes as "Washington MvtuuI Bank FA
cfk%emIs w bank ogantedmrd&ting m i

mder the laws ofthe United Stales. '"

ington Mutual Bank FA 1 as Receiver and eatwed into a Porebase & Assomptbn Agreement with ( JPMorgpn Chase Bank NA. P&A does NOT list Washington Mutual

RESEARCH -Washington Mutual Bank FA: Washington Mutual Inc. 10 K Exhibit 21 - Subsidiarylistings 1996 - 2007

Bank FA as an asset nor does it list any martgage loans as assets.

_71_

RESEARCH - Washington puma1 Bank FA: Washington Mutual Inc. 10 K - Exhibit 21 -Subsidiary listings 1996 - 2007

Washinpton Mutual inc 10-K - For ~/3$/$@f'-~~$-23,

<.

.-

Filed On 3/10/97

SEC File

- Accwsion Number 891020-97-305

EXHIBIT 21
WASHINGlWN MUTUAL,

IBC.

Incorporated under t h e laws of t h e s t a t e of Washington

w k t ~ ~ ; @ w.*.&% @ ., . .; . n

Federally c h a r t e r e d under the lssrs of t h e United S t a t e s (Home o f f i c e l o c a t e d i n Stockton, C a l i f o r n i a ) ,-?..&.&. ~ .....-:L "~"".,,. .--= :::.. .~ ... :.. &bigaQ .gtLl~. ~ ~ ! ' ~ r u 4 i j ~ : : ~ ; ~ . n n ;:; ' ~ & .. DBA: . .=~..ei!ii) <, ...
:?..;
~

Federally chartered under the laws of t h e United S t a t e s (Home o f f i c e l o c a t e d i n Lake Oswego, Oregon)

DBA:

Washington Yutual Bank fsb

Incorporated under t h e laws of t h e s t a t e of Arizona

DBA:

WM Life Insurance C0mpar.y

~ . .. , . .; : ., ... ,.~.<.~~!,$ q p v ~ 4 E a ~ . . . . ~ i
Incorpocated under t h e laws of t h e s t a t e o f C a l i f o r n i a

DBA: ASB Financial S e r v i c e s , Inc. ASB F i n a n c i a l S e r v i c e s

RESEARCH Washington Mutual Bank FA: Washington Mutual inc 10 K Exhibit 21 -Subsidiary listings 1996 2007

Washinpton Mutual Inc - .f@-~..:.t'~~&jm~&7 .. .. . ... ... ..-,, ...

Filed On

a-

SEC File 33-86840

Accession Number 891020-98448

I n c o r p o r a t e d under t h e laws of t h e s t a t e o f Washington

DM: Washington Mutual Sank Washington Mutual Savings Bank E n t e r p r i s e Rank Western Bank

F e d e r a l l y c h a r t e r e d under t h e laws o f t h e United S t a t e s (Home o f f i c e located i n Lake Oswego, Oregon)

DBA:
FfR8T m
I T

klashir.gton Mutual Bank f s b

Y INWSTRIAL

I n c o r p o r a t e d under t h e Laws of t h e s t a t e o f Colorado

GPEzil'

W s R TERIFP AHD L W Em N
o f Utah

I n c o r p o r a t e d under t h e laws of t h e st&

ARIBTAR INSURANCE CCMPANY

I n c o r p o r a t e d under t h e laws of t h e s t a t e of south Carolina

ARISTAR IT= INBWRWCE CamANY

I n c o r p a r a t e d under t h e laws of t h e s t a t e of Utah

CITY ROUJINGB REINSURANCE LIFE C W A N Y

I n c o r g o r a t e d under t h e laws of t h e s t a t e of Arlzona

RESEARCH -Washington Mutual Bank FA: Washington Mutual Inc. 10 K - Exhibit 21 - Subsidiary listings 1996 - 2007

Filed On 3122199

- SEC File 1-14667 -

Accession Number 891020-99-501

Chartered under the laws of the s t a t e of Washington

DBA: Washington Mutual Bank Business Bank

Western Bank

Filed On 3/14/00
EXHIBIT 21

. SEC Rle 1-14667 . Accession Number 891020-0-493

SUBSZDIARY LIST1246

im.m,
Chartered under the laws of the state o f Washington
DBA: Washington Mutual Bank

WM Business Bank Western Bank

W..i ~ @ ~ 2 L ~ ? ? ', f ~ @ . corporation .... . a oelaware

RESEARCH -Washington Mutual Bank FA: Washington Mutual Inc. 10 K - Exhibit 21 - Subsidiary listings 1996 - 2007

Filed On =4:42pm
500539

ET

. SEC Pfle 1-14667 -

Accession Number lE95811-1-

..

--

SUBSIDIARY LISTING

Chartered under the laws of t h e state cf Washington

Washington Mutual Bank Business Bank Western Bank
W M

Dm:

mi&@a2:apgwp~r@G . . . . . ,<,+, !,

a Delaware corporation

REEEARCH -Washington Mutual Bank FA: Washington Mutual Inc 10 K - Exhibit 21 - Subsidiary listings 1996 - 2007

Filed On 3/19/02
Exhibit 21

SEC File 1-14667

Accesioa Number 912057-2-10535

WASHINGTON MUTUAL, INC.

Chertered under the laws o f the Stateof Washington

DBA:

Washington Mutual Bank WM Business Bank Westem Bank

a Delaware corporation

my

DBA: V ~ ~ ~ ; $ , u i r i a l ~ E l ~ : f : A
The Dime Savings Bank of New Yorb FSB North American Mortgage Company HomeSide Lending
Federally chartered under the laws o f the United States.

Filed On 3114/03 9:47pm ET

Exhibii 21
WASHINGTON MUTUAL, INC.

SEC File 1-14667

. Aeemion Namber 104746P3-8846

SUBSIDIARY LISTING

Chsrtered under the laws o f Ute State of Washington

DBA: Washington Mutual Bank

- @ @ ! . ,
DBA:

a Delaware mrpwation
Compn)

w.#&@&&$@&fA:
Nurth American Mo-e

HomeSide Lending

RESEARCH -Washington Mutual Bank FA: Washington Mutual Inc. 10 K - Exhibit 21 - Subsidiary listings 1996 - 2007
Federalty charmed under the l a m ofthe Un9RcdS a .

Filed On 3/15/04 2:50pm ET

Exhibit 21

SEC File 1-14667

Accession Number 1047469-4-7947

WASHJNCTONMUTUAL, INC.
SUBSIDIARY LISTING

*W&BB#@~@~@~:@MK
ChfuteredUnda i laws of the State ofwashington k

@iB?$$$m, eorponaion a Delaware

Washington Mutual Inc - j i w i i ~ & ; & 2 i ~ ~ ~ : ! ~ j s ~ d : s *....

.,

...

filed On 3/14105 J:58pm ET

Exhibit 21

SEC File 1-14667

Accession Nomber 1047469-5-6351

WASHINGTON MUTUAL, INC.

SUBSIDIARY LISTING

p
.

~
.
, .

(Chartwed under the laws

of
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&

the State of Washington)

w@.:,.:.-. . .. . ..., . ..,.~. ~

,.,*<-

....,a Delaware corporation

Washington Mutual Inc. 10 K - Exhibit 2 1 - Subsidiary listings 1996 - 2007

RESEARCH -Washington Mutual Bank FA:

Filed On 3/15/06 1:54pm ET

Exhibit 21
WASHINGTON MUTUAL. INC. SUBSIDIARY LISINC

SEC File 1-14667

. Aeression Number 1104659-6-16786

Fedmally Chartered unda the laws of the United States

a Delaware corporatian
hem1

Washingtan M u d , i n c is a Washington State capomthn. It owns two federal savings madations 8s well as numerous nonbank subsidiaries. Washington Mutual, Inc. is a savings and loan holding company. As a savings and loan holding company. Washington Mulual, Inc. is subject t regulation by the Ofice of Thrifl Supervision {the o
"OTS").

The federal savings aswciations are subiect m extensive regulation and examination by the OTS, their primary

~~%

~onsequmtii,ihe company no hngerowns a slate savings bank that is subject to regulation and s u m i s i o n by h e Director of Fimancial Imlitutions of the State of Washinaton. Its nonbank financial subeldiaries are also subject to various federal and sete laws knd regulafians. Both of the Company's banLing subsidiaries are undw the common c o m l of Washinglon Mutual, Inc. and are insured hv the FDIC. If an i d institution fails. claims for dninistrative cxoenses of the receiver and for . , deposits in U.S. bnmches (including claims of the FDIC as s u b r o w of the failed in&itution) have priority over the claims of general unsecured creditors. In additiin, ihe FDIC has
~ ~~ ~~ ~~~

Washington Mutual Inc. 10 K -Exhibit 21 -Subsidiary listings 1996 - 2007

_s_

RESEARCH - Washington Mutual Bank FA:

Washington Mutumnc
Filed On S/1N17 4:50pm ET

,."- . . :..... ..~....~ $$.~~.~<3$$$!.2+3~#)6 .~~~ ..~. . -.. . . ... . ...

>.

11

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. SEC File 1-14667

Accession Number 1104659-7-15590

Exhibit 21

WASHINGTON MUTUAL, INC SUBSIDIARY LISTING

~ ~ ..,.,@ Q p & g j ~ p & : ~ & ~ ..~.. .

a,

Federally Chartered under the laws of the United States

w&&~Maaak;~A

Washingion Mutual Bunk

iong ~ e a f h ~or!g&% Company or Long Beach Mortgage

@ - ~ ~ ~ > ~ ~ ~ " " " " " " " " " ' " " " " " " " " " "

, ,'

,...

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k~

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Federally Chattered under the laws of the United States

..a Delaware carporation

WashinPfonMutual/Inc ; ; ;:.: ~ ; ! ..~..m #&. $. ..@ . (Note: last $ annual report listed on SEC website)
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.,

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2~ .. :.

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Filed On 2/29/08 4:30pm ET

EXHIBIT 21
PARTIAL LIST OF

. SEC File 1-14667

Accession Number 1047469-8-2083

WASHlNGTON MUTUAL, I N C DIRECT AND I N D W C- 9 T

NOTE: "WASHJNGTON MUTUAL BANK FA" IS NOT LISTED ON EXHIBIT 21 NOR

REFERENCED IN THE ICK AT ALL
.m3:*$ee-&
WaMu Capital Corp.

WaMu 103 1 Excha!Ige

. .". . ,

...

RESEARCH - Washington Mutual Bank FA: Washington Mutual Inc. 10 K - Exhibit 2 1 - Subsidiary listings 1996 - 2007
* ~ a ~ ~ = ~ - Q : ~ : ~ O e ~ ~ i T i "%!:-? <::.,**,;+~7.,. c ~ ~ .. .. <, .",! - , ..&. -. .. . ..-.-:;i., . .e ~, , . ,... -. =. ;@ $ .: E*-Z: WaMu Investments, Inc.

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RESEARCH - Washington Mutual Bank FA: Washingcon Mutual Inc. 10 K- Exhibit 21 - Subsidiarylistings 11996 - 2007

EXHIBIT I3

<HELP> for explanation.

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Zip Code

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61 9777 0.Q

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. . 69 9201 1210 Wo.0 low 8 5 1 2977 6000 .:: . . .. Coevrlqht 1012 B l m r Flnonre L.P. ~ WIT-Sr DO 6S.1-1SSS-0 ?.S-F~-ZOLI 12.17,YW

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1q 20 > a 75b0 . r. )0 oU.S. I 211 310 ZOOD 5. ,230- L l X

Japh 8, 3 3201 0900

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~EOlAWUSTABLf RAT NOTE

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1200

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b=b*tomYLt.~h~tOrmDnyonda.t t m e b n u n d m t ~ ~ r n w t r ~ ~ . NOa 7 h e h d a o r ~ ~ r * h o t . L a c r h l . N o t a b y n * a h r 8 l d ~ & u m l l s Q t o ~ e " p.ymncg unda hlr Nata la mlfm 'Nos Hgenf:
k e w WM ba chrssd on unpaid M i p a l unul rho MI amount of Ptindpsl hu bwn Wld. I t r ~ r ~ r ratD of s .FOB %. 'RIB hmtnsi ram I wRI pay m w Ohbnee (I I v I mmwilhSd~40fdTk#Ma ~b~1~rme~hythi.3laion2mdSsction4dthh,Notsb~rtne~uull)gsy~ befar(~.ndrharmyddndtd~hSealcn?Bd~~~~,~

1. IWRROWW-~ PROMBE PAY h rWdtfn for a l o a t h m I hmvoroceived, I promise to pay US. 8 1.L42.302.00 ma mMlnt i m c*ld 'Rhcipd), p*r Werat, ia h order of tlm tsrda. Tim Lends fa r Ws a O ~ B D ~ PA U . Inrlllndwd-undatkis.'

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Trsasurq aee~ritiaa Mus4ad t 6 emstant RIBhlljtY Of o 1 y a s r . a s m s d e a v ~ b ~ t h . ~ r l ~ o ~ o r d . Ihsnwptraanb*h*[email protected] of the dam 46 dpy. b8fbte wnh Chmga D m b dbl me -Qurm a: Mx Wthslndsxisno~.YIP.M~thMmWdu~choowtanaviMIsxvhiehisbad~ Eomparsbl*Infonnsllan T h . N o m H d d e r l v i n g h r e m n m i ~ o f ~ ~ IC, w w otmmsm Bsf~p BaOh Olnngo there, the Note HoMer vdl a a k l s o mv new inwe& rsle bv &Inn llro L ~ ~ Y - P ~ W - - & ~BICWKMOPpoints {2;.15o%i t the Current m d u . The Nats Hddar vilt than rwnr, t rssllt. of chin addition m md ~ u a t o - ~.~~ .. ~. b . -. . .. o n e a k r m h ~ ~ p ~ r ~ a n a a a p o l m ~ - 1S u b i~ ,~ l m d n i * n i n o w s d i ~ ~ n 4 t C 8 b d o r ~ ~ ~ ~ 26% r mhmurcl~~trvRlbemyr#wimrsrt~untldha~~n~Deta . , ~ ~ ~ ~ u f l l ~ ~ c l a a n a a n o f t h e r n o n t h l y p P y r n a r t l u r w w l d I .
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~ c l a t ~ r r p y ~ ~ ~ M s i l m s x ~ ~ c ~ a ~ t . ~ w o * r h s U i * l O o ~ h . W I a t h s of thb rn hnean trte in submmielh~equal pavrmmb. me D at @ EQlWllPHOn Will be tho nsw mnwnt of my monthly m m t . ( W ~ a , k r a r r t R m ~ a Rul+t r a u ! ~ a m ~ e d m ~ . t m s ~ ~ h - D ~ h thm ' b a ~ w ~ m XO.SO~' 96 o b than 2 . 7 ~ 0 r r % mamenez, my irdm m e will llsver be . rt r ~ o t d e a s a a e d ~ ~ n y . i n g l e ~ ~ b y m a e t t r a n t n n , ~ t a ~ e p o ; . I D t .2 . 0 '% I ffmthehsofh9r~1havsbsenpeyfnp(arth#~
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s l m a s r s s n n m h d d ~ ~ o l d a ~ f a . n v d ~ t o m p & ~ f s ~ t h ~ ~ tio~der~e feilure m tha adimmmt mc~ l thrr ~ b m ro a HOICICU, PI. r(. bDtlOR. BPPW any e x c m
monks which I may b e p a 6 pangl pr.goyraemot vnpdd Rindpal. 6. IORRQWRP6 RfullTTD m A Y I have the to mJu p m ot wlncipd st my bd~a PrrndpslcnlyhlmMnasaW~~ wr due. A pqont of

wiUteUtdlWHdW

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P-rate

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thtmNat.. ~ . t h a & 8 t o H o k k r m s y g p ) y m y ~ c . ~ h . ~ c n d u n p a k ~ h a s a t

~ * ~ ~ ~ t ~ ~ ~ n l ~ a ~ r n y ~ ~ m t t Note. If I m l r m ' a lWrmmau, meire will tw no cnwgaa In ih. ( 1 datm Of my monthly 1) pmsrtl unlm the Note lid& 4 8 in wiling t thors dPnga% My psrtle4 P m r n t msy o

if s I-. wMah appllm to t b bm a d which am meximum -1 h b M t ~Is finely intapBlad , mat thE henWest Or toan chsrpw eollmmd or t be collensd In wnnectron wltn thin loo e m a d the p u m W A , m fa any uch l o cnrga shall be reduced by me amovm on W3CB3Sq to reduos the h e 0 W the permbd nmh; and tbl *ry wms d d y wlbrrtrrl h m ~ I m m ~ p a n J t 6 s d f i m l m m b n f u n d P l t n m s .m ~ ~ ( o ~ ~ i r h t r n ~ y c k ~ ~ ~ t o m r b t h l i ' .

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r ~ ~ * ~ ~ * ~ y ~ ~ p q ( n r a r t l ~ m e f l n r ~ ~ & e W o w l n e m y ~ l f+w.vlnsn, + I. aw nducVm duo m mv pwtid R.psymmt msy be aRssc by an hnran

r s h n d W r s d u d n e ~ ~ l ~ W * h t . ( ( o t e o r b y m a k l n g a d i r a r X p s y n r s n t bf~ . I * nhuvlmduccloRhrdpll.th.md~wiUb e ~ r a ~ s l P r ~ nrroallnacutundatsrdthatbn,NmnDWBTWi~~o~umItUll~h( tho .ucm a P(MMM~ h I # ~ make in c m ~ c twtth r~ p m i at rnls am b mn hmond by tho ' i ~ e ... flflWn9M MdcuUOn an which k ia drewn. 7he a r m fee $ ~ 5 . 0 0 Ladw C e s M e a *he ' rigM to chags tho hrs from tbne r tlme without rmslce srrcep~ my be raquird by kw. a en 7. ~ S f ~ P T a P & ~ h S ~

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9. ~ M M I O F P U S W R I U ~ ~ ! R M I S W O T O If more tha om Person dons rh)r NOW, aseh pmon la TUN W r d v &figat& to kaw aY md ot the plomiso, made h m* Not* nduana tho w m h m MV the tun mount owed. Anv o m ~ u . v.hokaav,sun(y,orPndu.rdthl;~ct.~sh,~mdotheat&~ & P n who Pkrn owu hsrs au@m& k # M x* tne M i d a guamla, urny, or a d a a r c f ( M . N o a . b ~ ~ t o l P l p d l & r h . p m m b r c n w d e l n ~ t s N a RnHots r. Wdar m y mforae tta rlpM. under this Nola o@mt enah parson brdlvtdually o d m dl of ua r W~gahr. Thsll~thatnyanarrflpm.yhrapulredcap~d~ihemcurmwrad~a(h0. , , . -

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,

l n B o ~ i s ~ c n u ~ ~ a n d B m o- ~ h s fwbr omsslt,La*lamay. at it. eptin. require InrmdRa pa*nent I full ot all sums secured -by Ws Sanulry !nammant. Hawqvrr, U~hroptbn s h 5 noi b e ..' . n oxercirad by Lsnda if ewrdsa ts pohibiOBd by AppliDsMa *w. If Landa .y(yoi$w tHs option, Landr ehaii gbe Bormwa nolice of swalmrah. The. m o k s e h . l t p o v l & a ~ d o t n o t i w t k * l 3 0 d y s ~ m m d . n t h s n ~ * e i ~ ~ i W I .,:. d in,
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- - -- R--. a d d w ~ e r r a w u f i e L l h a n r r h rAsuMdhthhBMion 18. .d ~~

" ~ i n t h . ~ ~ m y W o ~ ~ a l ~ i n t h . P ~ . h. d . u .d h g , ~ nut lindtad lo, thw bursfbkl imamta 8in a band tar dmd. canulm fa dsal, .

[email protected]~actaagmcmm, h i n t a n d w M *heaoulirof@Uaby m m n n r a a f ~ ~ d e t e m ~ p ~ . It Ul 01 m y pcn of Vla Rcpeny or 8ny M s in II h sold or mndwnd Iar I 8 bmefldel W r w 1 IntaOn. In B o n ~ w r r wtd or u~~ la md Banowof i8 not a mWsl wMout bnda's W wdtten conmt.LmcIu w.a ito optlm, naquk13InwwdIam ~ m m t of In dIrunarauadbyrM.SMlairvh(nment. H o ~ ~ ~ ~ ~ I k i a r n i o n d u l l M t b s ~.l o e d W LsndrIf-kispehwmdby nppll~~avr~of~ddnsoftMISaMkyhamonr.' k n d a a & , s h d l n O r ~ w t M e ~ p t l p n i(~Bamwusa~umbe.uknlllsdlolnder . f: . ' ., * I raauhad by Lender m evdumr the irnandd lransforae UJ If a rn ma& to the transfaw and Ib) Lander rea0onobJy detarmiw that l.endsr'a will not.. .; ., . be lmpalred by ttw b.n luwmprion end mar tktt rlak of a breach at ~ l ncovenat W l agmWt8nt In Pb SIoUriry lnsrtument it eca~teble lender. h to Tothewxwntprnrlf~db~ p p r ~ ~ m r . ~ a n d e r n r r y o h a r g s a ~ f ( * ~ ~ A :

., ,.:,: .

m & ~ t h . ~ - s n d ~ m ~ & h & ~ ~ ~ d ~ 1 t h h S ; o Y r h r. u m . ~

B a n o w will conshetu beobiinmod m i d a h hs ~ o t . r d s GsauhylrmRnnm UnlfSi
Lender rebaw~ a r o w h wrhtng. B If bndw 0 opUon to require i m w * peymsn in fuR. Lenda shdl @ a 30 day. ' Borraww ~ d a of madmadon. The moth shal nrnvids a oorW of not lPss 9

~~

'.'

b w o n o ih* &ad, Lancdt my *rr&a any reme&s pamktod by m a SMny ; t hmwnent *out fvrher m o t h a dsnad m Borrowr.

.'

12.WSwPRWrnIOIIW k the 4vmt nt tbta HoIdu la any dma dbcowrs thar thb Mom n the &c& h u v u m ~ iw t any OW documant rdated t this ban. d a d o a l ~ i v e l y T.om 0 0 0 ~ r m f i t 8 ~ ~ o ths COM* wn)rh w a cavrpd bv a c&&d or mklin(lrlsl rnlmke. c d d a b n error, c o w * STUWS enrr w dmlkr mrar ~Coaeolrvely .Ermrr'). i egrea, upon natiw from the NW floldsr, rewecum

'
'
'

m y ~ o a n ~ u I M a r ~ ~ t a o a ~ ~ p ~ ~ 1 h l 0 n a n d ,1 r U o ~ e e ~ I
h d d r h s ~ ~ r ~ a i b l s ~ a n r d ~ m m e v r h i h m a yw.uehhm. f o s u h ~ I m y d tha Loan Qowmm we lost, rtolan. mutlf m dema'yed ad tha hbm Hdder dekeur m nu m indunnUlatlonin my tnor, .igrsd by ths mote HMw, mm I will &n anddoLvtu to the Note Holdar a Law, O a m a n t ~daxtkal form end contaw whlch wYI h u e Ula affect af the h oridnsl for all purpog~.

.. ......_

. .,..-

EXHIBIT F

Rqina J. McClendon (SBN: 184669)

-nr
Daniel A. Solim, ISBN:243908) mlo- s d LOCKE LORD LLP 300 Soullj Grand Avenue, Suite 2600 Los Ai~geles, Cdlifomia 90071 Telephone: 2 13.485.1500 Facsimile: 2 13.485.1200
Atforarys for Dcfendan~s

MGC MORTGAGE, INC.; LPP MORTGAGE LTD. ~nd LOAN ACQUISITION CORPORATION
SUPERIOR COURT OF THE STATE OF CALIBORNIA

FOR TRE COUNTY OF SANTA BARBARA

ANACAPA DIVISION
>AVID W. GATES. T ~ s t eb r the DAVID W. e ?ATES Trust dated August 5 . 1996.
Plain~ifb
vs.

1 CASE NO. 1384851

1

Honorable Colleen K. Sterne

)

1
j
)

dGC Mortgage, Inc.. Texas Corporation PP Mortgage Lfd., LP, Texas Corporudon
Ban Acquisition Corporation,Texas Corporation 31-WesLem Reconveyance Corprution. Texas :orporation DB Struca~red Products. Inc.. Debware :orporation Deuisclie Bank Narionnl Trust :on~ydny.as tlustee Washington Mutird Bank, a acional banking association Waniu Assct iccepruncr Corporation. SPV vehicle bank Vashington Mutual Mortgage Securities :orporntion. bank JP Mol.gaa Chase Bank, National tssocintion, a bank DOES I through 50. inclusive.

>)

DECLARATION OF BRET MALONEY

1
)

Date: Ti"1c:

March 12,2012

9:30 a.m.
Dept. 5

I
) )

1
)
)

Cornplaint

F e b r u ~ 201

DECLARATIONOF BRET MALONEY 1. Cave No. 13fflXS I Dtfr,oidW. C~fss. 71r~rlrc I,.

1. BREiT MALONEY,dcclare as follows:

1.
1 am over tllc agc of eighteen years w d not a pany to this action. The facts set forth

b< elow are known lo me pelxonnlly and I bave finl-hand knowledge of Illem. Tf called as a witness. I
C(3Uld

and would lestify mmperenliy, under oath to such facts.

7.

I am employed as a Senior Vice Prcsidenl, Default Manazement by MGC Mortgagc,

TIC.~ M G C " )which is rhe auulhorized loan se~vicer LPP Mortgage Ltd. ("LPP"), and 1 an? r , for fa~miliiu. with tllc sub.iect Deed of Tmst. loan and foreclosure of the real propeny located at 1200

P nlon~ino Drive. Santa Barbara, California 93 105 (the "Suhjtct Property").

3.
1 am familix with the manner and procedu~t which the ~ e c o ~ rorsMGC are by l

01,mined, prepared. and n~aintained.Those records are obtained, prepi~red, m&unrai~ied ruid by

ernployws or agents st MGC in the performance of their rcgulx business duties at or near the time.
1lC:I. conditions.

orevcnls recorded thereon. The records are made either by lxrsorls with knowledge

ol'the mutters they record or from information obtuined by persons wilh such knowledge. It is

MIGC'a business pmaclicc to maintain these records in the 1.egular course of business.
4.

MGC services [he loan under the terms of a servicing a g ~ ~ c m ewith LPP and has nt

bt!en respnnsihle for the 11andling of all matters relating to the underlying loan, including but not
liinired to processing of all paynlents received. crediting of received paymenls, adding all p1.0pncl.lnrges lo the Joan, conlirming the rnniniena~iceul'lrazard insurance md propeny taxes.
CC~mniunictting wilh and

responding to the borrower on all nmtters retative to tlie loan, and the

ccrniniencen~e-nt non-judicial foreclosure proceedings. All lrctivilies on the loan advance[l by of

MG C were ndvawd in accordance with tlle ternls of the note. Deed of Tmsr and servicing
azIreentent.

5.

Plaintilr David W. Gates ("PlaiiltiTF') entered into a promissory note on or about

Sc~ t c m b c 20,2005 in theori$naJ principal amount of$1.142>302.00with lender Washinglon r

Property. A M utual Bank. FA to reiinancc ihc Subjec~

true and

correct copy of the proniissory nolr

is t~ttachedlhereto as Exhibil I .

6.

LPP is in possession of the origjnal promissory nole executed by Plaintiff. 1

pe:rsonally inspected the original promissory note, which 1 obtained from CLMG Corp.'s Note Vault
I)ovir/

DECLARATION OF RRET MALONEY )k (;[email protected], Tr,a,vtrri.ls rWCC' A~loqol(r. I., /I;<:, rial., C~ea No. 138485 I

on February 2I,MJ2. I have the ability to access cenain documents concuitied in CLMG Corp.'s Note Vault in the o r d i n q course of my employment at MGC. CLMG Corp. is a cocnpany aftiliatec
with LPP and MCC which is responsible T r 1PPs document ninnagemenr functions. o

7.
1. 2009.

The servicing of the loan made to Plaintiff w s t r a n s f e d to MGC on or about July a

8 .

Plaintiff went into default on his loan in October 2010. Therefore. MGC,at the

direction of LPP. imtructed Foreclosure company &I-Weslern Reconveyance Corporation to record n Notice of Defatllt and Election to Sell Undcr Deed of Tut relating to the subject prOpelTy on rs October 13, '101 I . 9. Plaintiff b;ls not made any payments 011 his loan since December 28.2010. The

monthly payments owed under !he promissory note am currently $7,746.37. The past due amount 0 the loan is curreiitly $121.977.56. 10. Plaintiff has never made a tcnder of the Full proceeds owed under rhe pronlissory

nore. nor hiis Plaintiff eves oRe~ec\ tender ofthe px4 due amount.

I declare under penalty of perjury under the laws of the State of California and the laws of th

United Stares of America thnt the faregoing i s true and correct.

Executed this 2 Is1 day of: kbruary 1012 in Plano. Texas.

BRET MALONEY

DECLARATION OF BRET MALONEY Di~virl Gater. TnaIw Ir b f G C i W r ~ r l . ~ r ~ ~ ~a/.. CiUe NO.13X185t W. kc.,el .

EXHIBIT 1

FIXEDIAWUSTABLE RATE NOTE

1 Year Treasury Index Rate Caps) 1

THIS NOTE PROVIDES FOR A CHANGE IN MV RXED T I RATE TO AN ADJUSTABLE INTEREST RATE. fW NOTE UMTS THE AMOUHT MY ADJUSTABLE INTEREST R&TE CAN MANGE AT ANY ONE TIME AND W E MAXIMUM RATE I MUST PAY.

1 BORROWER'S PROMISE TO PAY . In return for a ioan thm Ihave recclved. I promlse ta pay U.S. $ 1.142.302.00

(this

'

called "Principal'), p b intmest, to the order of the Lender. The ~ m d wis W a e . b h q t c m Mutual sank, PA I will meke dl psyments under t i hs No% In the f a m at ca&, d m k or money order. Iunderstand that tke Londer may transfer this Note. ?lie Lender or anyone who takes *Is N& by anefer and who is entttled to receive payments under thia Note is celled the "Note Holder." 2 INTERLST . Interest will be chargad on unpaid Principal untll the full amount of Principal hars been paid. I will pay imrest st a yearly rare of s.500 96. The Interest rats I will pay may change in accordance whh Section 4 of thls Note. The imerast rate required by m Section 2 and Section 4 of thls Note is the rate Iwill pay both a before and after any default described h Seaion 7(81of thls Note. amount
IS

9. PAYMENTS (A) Tlm* and Plwa of Paymanm I will pay Rinoipal and interest by making payments every month. 1 will make my monthly payments on m e fhst day of each month beginning on Navcmbar let. 2005 Iwill make thew pfiymems every momh until Ihave paid all of the Prlndpal and inwest w d any crthsr charges described below thal Imay owe under this Note. Each monthly payment wlll be applied as of its scheduled due date and w l be appfted to interest before Principal. If, on October 1st. 2036 , 1 stin owe amounts under *is Wofe, IwUt pay those mounts In full on that date, w h ' i is called the "Maturiw Date".

WAN SE.VI(a, 9451 CORaIPl A m , Iwlll make my monthly paymsnts at RORT~CUD~E, CA 91324 or at a dlffarent place if required by me Note Holder. 18) Amount of My In'mel Monthly P8pnmta Each of my initial monMy payments wffl be in the amount of U.S. 8 7,014-73

Thls

amount may chsnge.

IC1 MonlhIY Payma)t QMpg Changen In mv monthly payment will rafleot changes in fhe unpaid Prlnclpal of my loan and in a the interest rate * t I muat pay. The Nore Holder will determino my new interest rate and the changed amount of my monthly payment in amordance wlth Section 4 of this Note.

4. INTEREST RATE AND M W L Y PAYMENT CUANGES (A1 Change The interest rare I will psy may change on the first day of -ooct&er, 2010 and on mat d w every 12th momh themefter. Each date an which my adjustable interest rat; wuld d mb c l a 'Change Dare." r , aM 16) The lndsx Beglnnlng wllh the first Change Date, my interest rate will be based on an Index. The "Index" Is the weekly werage yield on Unitad States Treasury securities adjusted to a constant msturlty of 1 yaar, m made available by the Fadtxal Resawe Board. The most recent Index figure avsilable m of the date 45 days before each Change Date is called the "Current Index." Ifthe index is no long= available, the Note Holder wH1 chose a new Index w ~ c is based w o n h comparable informaion. The Note Holder w i H aim me notlce of thb choke. I )c.dwJmion ot f3mmu C Before each Change deter the Note Holder wlll celoubte my new Interest rate by adding Two & Seventy-rive-bdredthe percentage points I a 750 %) to the Current Index. The Note Holder wlll then round the result of this addkion to the nearesr O r r p a i Q h t h Of one percentage point (0.126%). Subjem to the limiEs stated In Section 4(D) below, this rounded mwnt will be my new k m s rate until the next C h a w CWU. r et The Note Holder will then determine me amount of the monthly p e p a n t that would be sufficient t0 repay rho unpaid Principd that Iam expected to owe at the Change Date in full on the Maturity Date ar my new inreresf ram i n substantidly equal payments. The result of this celculation will be the new amount of my monthly payment. ID) Unrltm on lnhvsrt R m Chngas The interest rate I am required to pay at the first Change Date will not be greater than 10.500 % or less then 2.750%. Thereher, my harest rate w l i never be irmeased w decreased on any single Chsnqi bate by more than two percanmge polnts (2.0%) t o m the rate of lntsreat I haw been paying for the preceding 12 months. My i m e m ram w l never be greater then lo. so0 %. (El Effeabm Date of Changes My new Interest rate win become effective on each Change Date. I will pay the ernount of my new monthly payment beginning on the first rnomhiy paymart date after the Chenge Dam umil the amount of my monthly pqment changes again. tl Notb6 of c h a g a F The Note Holder will deliver or m% to me a notice of any changes in my interest rate and the m o u n t of my monthly paymem before the affective date of any change. The notice will inelude the amount of my mmtMy payment. any information required by law to be given me and also the title and telephone numbw of a person who will anewer any questton 1 mw have regarding the notlce. ( IFalluIb t Make AdJUStnWnF6 G 0 It far any reason Nabe Holder fails to make an adJustment to the interest rnta o payment r amount as described in this Nota, regardless of any notice requirement, I a r e a that Not Holder may, upon discovery of such tailure, then make tha a d j m e m as if fhay had been made on time. I aim qree not to hold Nore Holder respansibk for m damages to ms which may result from Note y Holder's fallure t o make the aquarment and to let the Note Holder, a its option. apply any excess t monies which I may have paid t partial prspaymnt of unpaid Principal. o 5 BORROWER'S RIGHT TO PREPAY . I have the right to make payments of Prlnoipal at any time before they are due. A payment of Rincipal only is known a8 a "Repayment." when I make a RBpayman, I will tall the Note Holder

in w r i r f n that f am dobg so. Imay not designate a paymm s a Repayment if Ihave not made all ~ me m o m v PsymeMI due under the Note. Imay make a full Prepayment or partial Prepnymermr without paying any Prepayment charge. The N m Holder will use all of my fre(reymant8 t reduce the amount of Wncipal that 1 owe undec u t i M e . Howwa. the Note Holder msy apply my Prepaymenf to the accnred and unpaid interest hs on the Repavmem amount, before applying my Prepayment to reduce the Rincipal amount of h e Note. I I make a partial Prepayment, thare will be no changes in the due dates of my monthly f payments ~nless Note Holder agrees In writing to those changes. My partial Prepayment msy the reduce the a m o m of my monthly payment8 a f m the fm Change Date following my partial i hwwmant. However, any reduction due to my partial Repayment may be oifset by e interest n rate increese. 6. LOAN CHARGES If law, which a p p h to this loan and which set6 maximum loan charges. is finally interpremd a so that the interest or other loan charges collected or to be collected in connection wlch thk loan exceed the pamltted limits, then: tal any such loan charge ahall be reduced by the amount nffiessafy to reduce the charge to the permitted limit; and ib) any s m s already collectad from ma ts that exceeded permitted h l t s wlll be refunded m me. me Nota Holder may &wee to make t d refund by reducing the himid I owe under this Note or by making a direct payment to me. If a refund reduces Rincipsl. the redunion will be treated ae a p& Prepayment. ~ h b u Ikg: Iunderstand thar t a Nota Holder will ako charge a return itern charge in s h the event e Payment that 1 make h connection wlth repayment of this loan is not honored by the Lander reserves the financial institution on which it is drawn. The current fee is $ 15.oo rlght to change the fee from tlme to time without noflce except as may be required by law. 7. BORROWER'S FAILURE TO PAY AS RNUHAED

[email protected]~Pylnsnb If the Note Holder has not rcvd eee i the full mount of my montw payment by the end of Bift=sn calendar day. aftar the date it is dun, I WIN pay a late charge to the Nota Holder. The mount af the charge will be 5.000 % of my overdue puvment of Rlncfpaland Interest. Iwill pey

this lets charge promptly, but only once on each late payment. (B)Dafsult If I do not pay the full amunt of awh monthly payment on the date It is due, 1 wlil be in defmlt. (Ct NO* of Osfmlt If Iam in default, the Note Haldar may send me e wriaen notice telling me that R Ido not p w the overdue amount by a certain date, The Note Holder may requlra me to pay immediately the full amounl of F'rincipad that has not k e n paid and all the interest thar 1 owe on that amount. That date must be at least 30 day8 after the date on whlch the natice is mailed to me or delivered bv other means. ID) NO Wahwr ~y ~ o t m o l d w ~ Even If, at e time when I am In default, the Nota Holder does not require me to pay immedlatelv in full as dercribed above, the Note Holder wlll still have the i i to do so if 1 a in default at a m later time. (RPsvmmtofNoosHoid.r's~mdEnpenrer If the Nme Holda has required me to pay immediately in fuH as descnBed above, the Note Holder will have the right to be pald back by me for all of its aosrs and expcnses in entorcing thls Note to the extenf not prohibited by Applicabie Law. Those expensas include, for eXRrnpie. reasonsble mwneys' faas.

8. GMNG w O I E # TC 8 Unless applicable law raqulres a different method, any notice that must be glven to me under this Note will be given by delivering it or by mailing it by first class mail t o me at the Propem . . Address above or at 8 different address if 1 the Mote ~ o l d s r notice of my different address. a Any notica that must be given to the Note Holder under this Note will be given by deliverlnm It or by mellimg i bv first clsss mail to tha Nota Holder at the address stated in Section 3fAl above or t at a different sddress 8 Iam given a notlce of tha d w m t addre=. a. OBUGATIONS OF PEASONS UI(DER THIS NOTE If more than one pefaon s i m thii WII. each person is My and w o n a l l y obllgasd to keep ell l Of the promlsea made In this Note, including the promiee to pay the full amount owed. Any person who is a guarantor. surety. or endorser of this Nota is also obligated to do these things. Any Person who takes over thase obligations, including the obligations of a guarantor, surety, or endorser of thls Note, ie also obligated to keep 9 of the promlses rneds in this Note. The Note Holdm may enforce its rlghtp under this Note against eaoh person ind'widudlv or ageinst all of us Together. Thla means that any one of ua may be required to pay all of the amounts owed under this Note.

ahre

10. WAIVERS I and m y other person who has obligations under ? i Note walve me rights of presentment and h s notice of dishonor. "hsemment" means the ilgM t o requlre the Note Hold- to demand payment

of amounts due. "Notice of Dishonor" means the rinht m require the Note Holder to give notice to other msom that amounts due have not b n pdd.

1 . UNIFORM SECURED NOTE 1 Thls Note is a uniform hmwnent wlth limited vaiations in some jurlsdlctions. In addltion t o the protections given to the Note Holder under this Nota, a ~Vlortgage,Deed of Trust or Securtlv Deed (the "9%oudtv lnstrument*l, deted the Bame date as thb Note, protects the Nota Holder from posslble loosea that mieh tesuh ifI do not keep the promises whbh I make in this Note. That Security l m m e n t descriies how and under what conditions I may be requlrad to make immediate paymeolt in full of all amounts Iowe under t i Note. Some of tho- condltlons are dsserlbsd ti3 hs follows: (AI UNnL MY INITIAL FIXED INTEREST RATE CHANGES TO AN ADJUSTABLE INTEREST RATE UNDER THE TERM STATED IN SECTION 4 ABOVE, UNMRM COVEMANT 18 LN THE SECURITY INSTRUMMT S H A U -0 AS FOLLOWS: Tmmfw at W Rcpcrm o a BoneRci Interest h Borrowr. As used in thls Section 18, r "herest h the Property' means any Isgal or bensfidel hterm in the Property, induding. but not llmlted to, those beneficial interests transferred I a bard for deed, Contract *r daed, n installment sde. nontrac~r escmw agreamwt, the intent of whlch la the transfur of titla by o Borrower at a future date to a purchaser. Ifall a any part of the Propetty or any Interest in the Property is sold or transferred (or if a benafklal interest in Borrower is sold or transferred and Borrower Is not a neanat person) without Lender's prior written wnsent, lander may, a R s optlon, require immedlete payment in full of all w m s secured by thii Security Inswurnent. However, *Is option shall not be sxercised by Lend- if exercise is prohibited by Applicebk law. If Lender exerdse. this aption, Lendar shdl give florrower notioe of acoelefation. The notice shall provide a period o nm less than 30 days from the date the notice b givan In f

accordanoe wim Section 15 wlthin whlch Borrower must pay all sums secured by thls secur* Instrument. It Borrower fails to pay thew sum prior to the expirnkm of this period, L d e may invoke any remedies pwmitleel by this Security lnsrrumeot w m u t fUIMw noUce or demand on Borrower. flBI WFW MY I W M L FIXED INTERBST AATE CHANGES TO A N ADJUSTABLE INTEREST RATE UNDER THE TERMS STATED I SECTlON 4 A m . UNIFORM C O V E M 18 OF THE N SECURITY INSTRUMENT AS DFSCRlBED IN SECTlON 11IA) ABOVE SHAU THEN CEASE TO BE IN ff%CT, AND UHkORM COVEWANT 'I8 OF THE SECUrrrrY INSTRUMENT SHALL INSTEAD READ AS FOLLOWS: Trmrfir o the Ropwtty a 4 BwwRcbl Mema in Bonowm. As used in t i Section 18, i h s "Interest in the PropWty- means any legal or beneficial internst in the Property, including. but not limitwl to, thwe bmeflcisl Interests trmsterrad in a bond for deed, contract for dead. installment Salk8 camact or escrow agrranent, the Intent of which is the transfer of rifle by Barrower st a future date to a purchaser. If all or any part of the ProPerry or any interest In k Is sold or transferred (or If a beneflolal interest In Borrower ia sdd or t r m s k r e d and Bcnower la not a nahnd person) without Lender's prior written wnsent, Lender may, st its option, require lmmadiate payment in full of all suns secured by this Sacurlty Insuunent. However, thls option *dl TWt be exerciBBd by Lender if exeraisa is prohibited by A~plicabka Law as of the dam of this Searrlty Instrument. Lendw &so shall nm exercise this option i f : la) Borrowar causes m be submittd to Lender information requlred by Lender t evaluate the intended transfaree 8s if a new loan were belng o made to tho transferae; and ib) Lender reasonebly datennlnas that Lender's w u r i r y wlll not be Impaired by ?he loan asanpzion and that the rlsk of a breach of any covenant or agreemmt in this Security Instrument is acceptable to Lender. . To the extent ~ermittedby -ticable Law, Lender may charge a reasonable fee as a mndltlon to Lender's conrent to the loan awnnpnon. Lander may also rwuke the rrsMfsr8e m sian an assumption m m e n t that is saarptable to Lender and that obligatar the UanSfWW, m keep d ths prmlses and agreements made in the Note and I tMs Sccwlw Instrumem. n Borrower will oontlrms to be o M l g ~ W under the Note and thls Securlw lnsrmment unless Lender releases Borrower in wrlng. If Lender exercises the option m require Immediate payment In fun. Lander shall give Borrower notice of accelermiorr. fhe notice shall provide a per'bd of not iess than 30 days from me date the notiae is given in awordance with Section 15 within which Borrower must pay all sums secured by MS I Security hrtrument. IfBorrower faus t o pay t t ~ sums prim e the exphatlon of this period, Lender mey invoke m y remedies permitted by this Sffiumy Instrumem without furthar mtice or demlnd on Borrower. 12, MISCELLANEOUS PROVISIONS In the went the Nom Holder at any time dhicovera that thl6 Note or the Security lnstruinent O r any other document related to this loan, called wllectlnely the U r n Docrrmsnts," contains an error whld, was camad by a olerlcal or ministerial mistake. cslcufstion error, computer error, prinMng error or similar enor (collectively 'Errors"), 1 agree, upon notlce from the Note Holdw, to f f i e x e ~ t e any Loan Oooummts t h a ere nscemary to conem any such 6mrs and I also agree that Iwill not hold the Note Holder r e s p d b k for any damage to me which may result from my such Errors. If any of the Lorn Documents are last, stolen, mutilated or destroyed end the Note Holder dellvers to me an indemnification in my fevor, signed by the Note Hdder, then Iwill sign and dellvar t o tha Nute Holder a Laen Document i d e n l i d in form and content which will hwe the effect of tha original for all purposes.

WITNESS THE HnND(S1 AND S W S )OF THE UNDERSIGNED.

pay to IAederof WlC-trnt ReoOursa

DBSWTUAm -9,

MR.

WASHlNGT@lrlUTUIIL BANK. FA

ADDENDUM TO FIXEDIADJUSTABLE RATE NOTE

03-0643-070494803-3

This Addendum to FixedlAdjustable Rate Note is made this day of 0 -5 and 1 incorporated Into and shall be deemed to amend and supplement the FixedlAdjustable Rate s Note (the "Note'l of the same date given by the undersigned [the "8orrower"l end msde payable to ton MuLu~L~ank.. FA ('Lender"). the order of

Paregraph 3 of the Note is henby mimed in its entiren, a~ lskiws:

3. PAWAEIWS
(A) Thne and Ptecs of Pprnsnts

I wlll make my monthly payments on the first dey of each month beginning on Proveuber, 2005 . Until the fimt day of mover, 2 E I will pay only the Interert on the unpdd principal bareme of this No-. Tharesfrar, I wlll pay principn! and i m r a by making paymenur every momh as pmvlded below. I will make these payments every momh until Ihave pald all of the Principal and intwaat arid m y other charges dasaibed bebw that I may owe under this Note. Each monthly peyment wllf be applied as of its scheduled due date and will be applied to i n r ~ e s t before PrinoiPel. If, O n October I. ao3s I still owe m n o u r ~ under this Nete. I will pay t - amounts in full on h

that date, which is called the "Maturiw Date'. I wilt make my monthly psymems at
U 91324

of MYInitial ~niihly . * n m P Ewh of my I M rnonthhr Intern-only 1) 5.335.59 This amount may change. (Cl M d l v P.ymsnr Chsnga Changes in my montMy paymment wi the intarest rate thai I muat pay. The changed amount of my monthly p I4otwimsranding any other pmv based upon h e unpaid Principal balance a?te#any ra

(Bl A m

w i be In the amounZ of US ..

WlTNESS THE HAND(SI AND SEALCSI OF THE UNOERSlG E

"f

"I-

BC:658006
MGC Loan #: I 71 14050

NOTE ALLONGE

This Allonge is to be aUached to and made a part of that certain homissory Note made by David W. Gates, in the o i i a principal amount of rgnl $1,142,302.00, dated Sqembn 20, 2005, and paydbe to Washington Mutual Bank, FA, as amended or modijied (the 'Wote").

Pay to the mder ofLPP MORTGAGE LTD., a Texas Limited Partnmhip, ("Assignee'?, without recourse and without representation or w m t y whether express, implied o cceated by ripemlion of law. r
DB STRUCTURED PRoIIUCTS, INC.

BY

~ a d e Sadly &rob :

u
.%

Titlc V c President ie

STATE OF CALIFORMA

)
SS.

COUNTY OF LOS ANGELES

1 am employed in the Comty of Los Angela, State of California 1 am over the age of 18 and not a party to the within action. My business addresa is: 300 South G m d Avenue, Suite 2600, Los Angeles. CA 90071. On February 21,2012.1 served the foregoing document descnied as:

DECLARATION OF BRET MALONEY

on the parties or attorneys for parties in this action who are identified on the attached scwicr lit, using the following means of szrvice. (If rnae then m e r n m of service is checWd, the means of scrvicc uscd for each party h indicated on the anached service list). BY PERSONAL SERVICE. I placed the original or a m e copy ofthe foregoing document in sealed envelopes individually addressed to each of Be parties on me anached semice list, and caused such envelope to be delivered by hand mthe offiices of cach addrussee. Ij BY FACSIMILE TRANSMISSION. I caused -the original or -a m e wpy of the foregoing document m be lransmitkd to clch dh pwias on dw attached service list at the facsimile machine tc telephone number as last given bythat person on any doaunenr which he o she hc tiled in this action v and served upon this ofice. BY MAIL. 1placed the original or a rme copy of the foregoing document in a sealed enveloped individually addrwsed to each of the parlies on the attached service list, and caused each such envelope to be deposited in Ihe mail at 300 South Grand Avenue, Suite 2600. Los Angeh. CA 90071. Each envelope miled wifh pmmge thereon filly prepaid. I am readily fsmiliar with this f u m ' s practice of cclledm and pmcfssmg of cmrqmdence for mailing. Under that praaice, mail is deposited witb the United States Posral Swvice the snme day that it is coilected in the ordinary course of business. BY E-MAIL. 1caused the foregoing dment(s) to be transmitted by e-mail electronic trammission to (he e-mail address on the attached service list as last given by bat person on any document which he or she has filed in this action and served upon this office. BY EXPRESS MAIL 1 placed the original or -a true copy of tho foregoing documenl in a sealed enwfopad individually addressed to each of the partiu on the attached sewkc list, a n d d cach such o envelopet be dapositd in lbe mail at 300 South Grand Avenue, Suite 2600, Los Angeles, CA 90071. Each mvelop was mailed with Express Meil m e thereon hlly prepaid. I am readily familiar with this firm's pm&w ofmktioa snd pmo=singofeonespondence for mailing. UndR that practice, mail is deposited with the United StntesPostal Service the wmc day that it is collected in the ordinary course ofbusiness. BY FEDERAL EXPRESS. 1 placed -ths original or -a true copy of the faregoing document in a sealed envelaped or pwkage designated by Federal Express with d e l i v q fees p i d or provided for. individually ddmssed to -11 of lhc paaies on the attached service list, and caused such envelope or package to be delivered ai 300 South Grand Avenue, Suite2600, Los Angeles, CA 90071, to a n anhorizcd courier or drivsr euthorizcd by Fedoral Express to recciva documents. (State) 1declare undw penalty of penury under ihc laws of the Scare of California that the foregoing is hnc and oorrcot. (Federal) I declare &st I am employed b the office of a member of the bar of this court, at whose 0 direction the % m i c e s s made. w Exec& on Febnuvy 21,2012,0tlcwAngelq California.

ax,-mr
Antoinette Y. Taylor

EXHIBIT G

CORPQRATIONlLLC SEARCH RESULTS

Search Criteria: LPP

LLC

MST 61301926

LPP I.NVESTWIEf4TSLLC

COFP WST 65684063

CORPMST 67878094.

LPPCINC.#FP LPPSS IMC.

l&&mltothe*chSEreen

EXHIBIT H

& P

SEEtWXNG A R E E G EMW

$%24285,185.8T

WaMrt Mmtpge PassTBmugh C d f b t e s Series2W-ARf6 TnzsI

A s Auxpcau52 chpba
WahRu Mortgage Pass-ThroughCdScates
&xies 2m-ARlQ

Cat-OffDate: Navtmber I. X@5

EXHIBIT I

rnDDNmotPlopredB~~
:-

MCC MORTGAGE MC. ~ t mAnisan hfmia, i.tus&r :

Dosvincru~l

P.O. Box 15161 Pltam. T c m 75025-9933

.
ASSIGNMENT OF DEED OF TRUST

Grnnfor:

DB S T R U a m PRODUCTS,INC. 60Wall St15th Floor, New YOrk. NY 10005

Property Addreas:

lZOO fALOMllYO DR. SANTA W A R A , CA 93105

+w ,J

ASSIGNMENT OP DEED OFTRU!$T

OF DEED OF musr (this u.+mipnatm*) is made rr os PRODUCTS, FIC. w h a d d m is 60 MU Street. 15th Emor. New York, ' a to and i favor of LPP MORTGAGE LTD, A TEXAS LIMITED n s d d m i 6000 Legacy Drive, Phno, TX 75024 ("Assignee'% s pum/ml to the terms of that d n Mrstcr Laan 5.k *ad interim Servicing Agreement, (thc "Pun41855 Agmm&"), cffsccivc Anmn l2, 20IKi. 8 DB B U m D , l'RObiJcr~,INC. and LOAN ACQUISITION CORPOIUTION.
M S ASSIGNMENT WITNESSES THAT,in mllsiderationof Ten Dolllm ($10.00)and otharlgwd and valuable mideralion paid by &sign% Assipor h b y nssignp, ~ ~ ~ f e n i , sets over bind mveys to AsSigna iu succeacrs d & s without murut: and without p, rrpr$entatim or w ~ t y whnher CX~WSS,implied or m t c d by opendion o law. e x q t ns . f cxPrr$slyset forth in the PlllJlaseAgree~~a~t, the 6oflowii
1.

that certain Deed of Trust from David W.Gates, T m s b of LC David W. Gate Tmsi Dated AugaJ( 5, 1996, dated September 20,2005, and r c d d Scptcmber 29, 2005, in Book Ida, nt Page nln, a InsInnncnt No. 2005-0094620,in Lhe s Clerk's M a of the County of Sanla Barinua, State of California, (~JE "Deed of T n s i ~ ,w W Dd af T M a r tM m a i n Pmlnismy Note dated a , S q d b u 20,2005, in the original principal amount of P . 4 . 0 . . executed 11232W by Dvd W Gn!a ad payable t the order of WashingLon Muhrsl Bank. FA. us ai . o modif ed or amended (the "Note'');
&h other documena, agreements, inshwnents and other 0oIlatemI thnt evidence. ~ U T or othcnvisc relate to Assignor's right. title or inteest in and to Ihc C Moapas and/or the Note and/or the Ion evidenced by the Nole, including withaul limitation ihe title ilwu~mcepolicies and h d ih.rorance policies dating thado that arc in cf fm

2.

I I

delivmd by it8 A

W WrmcEss WHEREOF, AJsienor ha. m Representative as of the

T &s Asdgmnant to beA,2009. a d r tbi *of Wav

xcouted

STATE O NEW YORK F

5 5
6

COUNTYOFQUEENS

Before me, the undmimetl, r Notmy Public, on this day pasonally appeared Richard Ddla Pietra, Asat. Wm President, and Sheily Arroyo, Vice President, of DB STRUCTURED PRODUCTS, (NC. and I pnsrm who CXccutod the fbregoing itwfrument by virtue of the & authority vested in himlher, ud hdshe ackmwledged to mt rhal hdshc c mc t e smc for x td h the purposes and eonsidcntim therein ~ ~ ( p m sand i the capacities therein mted. sd n

MMEL Y&l
NOTIW PUBLIC-STATE Ot NEW YOSK

NO. 01106115411 Ou~YrIed QUWM Counh M l?CMrmllclon eplrec immbv 14. M l t ;

Recording Requatcd By Whn Recorded MdI To

CaI-Wcrtaa Rccanyrm Cap P.O. liox ZM6( St5 Eist Main Stnct EIcsjm CA 9mmw
County of Sant8 Barbaza Josaph B. Hollrad Comaty C l e r k -ordart

I 1 1

Trodccsak Na 133mSQ

's ~AbwcThuLmeForRscorda Use

Rtf: GATFS, DAVID W Prapcrty A d d m 1200 PALOMINO DI;UVlP,SILNTA BARBARA C A 93105

IF YOUR PROPERTY IS IN MIRECLOSURE BECAUSE YOU ARIE: BEHIND I N

NOTICE O F DEFAULT XMPORTANT NOTICE

~ ~ l h ~ t k a ~ ( k a d ( b c ~ p c * i o d d ~ d d a h L b r ~ ~ ~ o f c i i ~ -tion bn firedosed spoa or a separ8b written agmeaent bcfwten yam .ad our d m r i s lnmgtr -rta% w o have only tht legal r-t t stop the s r k of yaur prapcrty - paylae: the entire o - - --

(I) and (2).

nGn% &miSiieii by your creditor. Tn . -- nut the mount YOU mUrt pry, or to 8rrsalLe for payacat to stag, the fortdorure, or If your - .. .. flnd . . . p r o m is in forecbsuk foi any oaei r h ,c0~tact:---

- 'b,

L?P MORTGAGE LTD.

cm CALWIWI'ERN RtCONVEYANCE COIUORATION

525 EAST MAIN STmET P.O. BOX 22004 EL CAJON 9004 CA 920224004 (619)590-9280
If p r have m y qamlb.r, p. sb.ld contact a lawyLlr or tbe gwenmental agemy nblch may have lnrurd yoar Ion.

--

k%%~ LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT ACTION.

mHdd l gait! is a m t ~ wp*. to *C eonchsig. ~b the fa-e. r i
~rmc*,

N o M r h s t the fact thnt par p o e b im'foredouure, you m y offer yaar ~ r pm

for #ale,

NOTlCE OF DEFAULT AND ELECTlON TO SELL UNDER DEED O F TRUST

NOTlCE I HEREBY GMEN: S
CALWESTERN RECONVEYANCE ~ R P o R k T I O N Litkr the wigbul trrutce,the d.ly rppohtcd b robrtltotcd tmrtec,or acting rr agent for the trrut# or b&dary andm 8 detd of trust dated
September 2 4 2805 e x &

by

DAVlD W. GATES, TRUSTEE OF THE DAVID W- GATES TRUST DATED AUGUST 5,1996 r trtlstor. to seeore certalm obHmtlonc la favor of WASHINGTON MUTUAL BANK FA. A FEDERAL AS~O~IATION bendMs6, ncaFdcd as &xumeut 2005-0094620 on September29,2005 i b h r n & p8ge M official monlr in the m c e ofCounty Recorder of SANTA BARBARA County, CaWomh, demrfhln~ land *erein a: s

COMPLETELY DEsCRIBED IN SAID DEED OFTRUST,

sald obllgatlws Includhg r promboy note for the prfadpol m m [email protected].

That 8 breach of, m d default in,the oMigr1onr for nhfcb such Deed of Trnst b rtxurlty bas wcurrd i n that payment has not been nude of:
F~~IUIT to pay the mmWy plyrrmtd m December I, 2OiO oiprheCpsl,htemt rad inapounda and with all m-mt mm n d v u c d by robscqeent in~t.llmamte t l w r e a f b ~ due phs late chrrm; &a&&q purseant t the terms a d eondi(ion8 e mid deed o bpat o f f

Thnt by W M a thereoftbe prtscat beaefkhry under such Dccd of Trurt has deporitd wftb i.ld trustee seth Deed of Tmlt and all doealacatr ddeaCb~g 0blig8tWa recllred thereby and h n declnred u d dar hereby dsclsre nII m secured tLcrcby immediately due and p y a b k Sad b.s eleeted and doe# hemby u m elcef t marc the trust property bk #oIdto r 8 W the oMlgtht6 acmmd tbcrrby. o

T h e ~ , ~ w m b M ~ f - ~ ~ w r b a d r k r y g u r r r r n t b Ctlff.rala Clvll Cade g 29235@) deelrrcr that the I I I O ~ Q W ~ , benetlelrry or the mortgagte's or heneffdary'r ratbarbad agemt h 8 either cantacted tbt borrower or MtdwHb due ditfgemce a to armtea tbe borrower . mqalred by California Civil Cade 2923.5. s

CIIGWESTERN RECONVEYANCE CORPORATION

By LSI We Company. As Agent

!lr;ln,+~ - ick'.liser -Al>lq

M c r : Oil00000 T i l k 011iccr: 00 Cummmt:

-=wmm a -om= :

R ! -

lBceardisgR e q d By ma R ~ o r d o ~ a iTOi d CaCWesttm Remawyance Corp P.0. Box 22804 5% Earl M d n S W El Cajnn CA 9E01>*4
Tmmw 5.k Na. t33&$%02 A : DU-29Ml-w m Rrl: GATES, DAYID W ProprrQ Andre%: 1200 PALOMINOD

2011-0058657
Im

-odd 0Ltici-l il-zda

F E E

a4

CDrmtY of I smta emhrr I 3aaeeh E. Xollmd I county Clerk illcordsr( t Il a 08:OOM 13-0.1-2011 1 Pagc 1 of 3

ve This Linc For Rcoordor.h u e s

m ,SANTA BARBARA CA 93105

NOTICE OF DEFAULT IMPORTANTNOTICE FF YOUR PROPERTY I IN FORECLOSURE BECAUSE YOU ARE BEHmD IN S YOUR PAYMENTS, ITMAY BE SOLD WITHOUT ANY COURT ACTION,and you may
pcnnlttcd ca3h and crpmwa witpin the time pwmittnl!y"u*
hlve kgal right lo bring your account in good s t a m l i
is norm~lly live business dWS p n o r to the dale set for the xnlc of your property. No s ~ date may be s t . 1 until npprmlmrtety 90 drya from the d d e fhir notice of default may k mrdd (which dale of rrcordafion appears on th* notkc). Thb amount i 591,154.18 as of Cklirber 12.20i1, and will increase r n n t l yonr nccounl b e c o m ~ ~ ~ r m I . Wblle p u r pn~perly in foreclmu~e, you still must m other Ct n y ohligations (suck i iu*armna and t u ) rcqurrcd b y r note sad dsed oftrust o r m o r ~ ge. tail m make falhre paymmls na the lorn, ply tarel on c roperty, pmvidc hrumnce on prop*, or pay ether o b l i i o w u reqin #henote m deed o f w n t o r mortga d she bcnsfitialy or nofi gee may inrirl that p a do an ia order to Tcfnrtnle ronr arconnt in p o d Inaddition, the hmectf"hn

pn 'ng 111 of your past doe pmynenta las g r reinrtstcmeat or your recmunt, w&tb

tK

entire nmonnt yw m m t pa You nu not have to p r y the tntin u n p a ~ d partion af pour nccnunt, even thongh f t p a y m a t n r Jmanded, d m yon mart pay a l l arnonnta in defn"M nt tbt t i m pnyntrnt ip l a riting prhr to the ti^ made. Hnwfvnr, yon sad your b e n e f t r y a t martgape may mutually a the nntice or sale h posted (which m r y ant be cartier than Unre. m o n l ~ f t c h h i snotice of dcfnult 1s remrdd) to, ammtg other hi. ,( ) provldc additionel time i n which to cure the default by transfer or 1 the property o r otherwise; or &msblfsh a scherlule ofpaymtnlr in order to cllre your delnolt; o r both (1) and (2): Fo)\mvmq the ea@rti~n t h t lime period rercrred to in the 6& pangraphjol this notice. unless the d obNwtisn bcln lonelased upon o r a sqmrnte wnncn agreement between you and ymur credttor permits right to slnp the sale of your proper@ by paying the entire u have an the l e ~ ; 1 1 n longer amount d c n n a d t f i J yOilrcm%tar. To find out the amount you most pny. or b anmmge for p n y m n t m strip the forecImurr, or K your properly is in l o r e t h r c for .yo t W r r n r o q mnhct: l

ce mry n p u i r e u a fonditiw to telnstatcrncnl that yon provide rdiablc written widen= fhnt vnn ni n l.miorllcna, property trxes, md harnrd insurnnee prcm~ums. Or &nn your w i t n reqncst, the bcnefielnry or mortwgce will give p u a Written iteminrtinn of the rte

m"*tf

i&ot

pries,

I.PP MORTGAGE LTD.

C/O CAL-WESTERN RECONVEYANCP, CORl'ORATTON 525 EAST M A I N .STREET P.O. BOX 22004 Ill, CAJON 9004 CA *LUZ2-9U(U
(619)599-9200

lr

hare awe

s p u sLo.ld m n t a d

lawyer or the gw--tal

a E e W which may h ~ v e

l n i i .war I . m

% uMLrY-1% 8crly A LOSE LKGAL RIGHTSIFYOU DO NOT TAKE PROMPTACTION.

Nofwithdnndi tbr fad that yomrpmpmiy u in f 0 & 0 ~ y s a m y offer your r rovided lhe rrlc is eenchided prior to the conchrinn of the fnreckure. Rome-bcr,

NOTICKOF DEFAULT AND ELECTION TO SEW. UNDER DEED OF TRUST

N C m C E I RERCBV GIVEN: S CAL-WIWERN RECOPlVeYANCE CORPORATION is &her the ariginnl Oustee, the duly appointed ruhslitulcd trustee, a r acting rr agent fer the trustee or benefitioy under n deed altrurt dated Repternher 24 2003 executed by

DAVID W. CATES.TRUSlEE OFTHEDAVIn W. GATES TRUST DATED AUGUST 5.1996 i r tmfnr, t snmc ol'taln obligatlona in favor of WASWNCI'ON MUTUAL BANK. PA. A FEDERAL n ASROClATlON u b m c f ~ ~ rrecorded as da.recnt 2MHWW628 on Saptember 29, ZOOS in bonk XX y, ~ a e XX official r e n d s in #kceMce ofCol.mly Rmordcr nrSANTA BARRARA Cnsniy. Cmlifonin. e hc&biw im~d &errin " :
COMPLETELY DESCRIBED IN
DM o b l i ~ l i o n including 1promimory n e b for the principal sum of S1.142J02.00. s Thais breach o. rnd d h m l t k. (LcObllKatirm b which mch DePd ofTrnst in secorlht has o e e s n d h f r (hat prgrncnt h& n d hen m n d e d

Failure to m the m o m t h b p J w n t dae December 1,2011 ofprincipnl, intercnt and impounds nnd y n r h q n e n i listallmenIsdue thereafter; plw late c h n g ~ to&lhcr with d sobseqncnt &nu rdvnnced by : l hcncficiary porrumt to the terns and condition* nfsaid deed of !mi.
Thst by -son thereofthe prexenl beneficiary under mch D e orTrurt her depnrited wlth rnfd trnatrr ed roch R t d of T n a t and all d m m c n l s ffldenclngobligntioa s m r l thereby m d has dednred and d o e h r b y drclarc nO sums s a d tbmby fmmcdlntcly dae and payable pad h u eltctcd rnd d ~ t hereby a co be alcl m satisfy tbc ehllmliom secured thmby. c k f to a u s e tbe trust m e mortgagee, b e n q f ~ i s or mothorired agent lor tbe martgagcc nr bcndrjrr). pursuant t 8 y Cditnmla Civ11 Code Ji2923.5@)d r I n m that the mw'tp.pe, henmcinry or the mortgagee's nr bcneficiary'r aothm&ed rgcnt hss either contacted the borrower or tried wilh dnc diligence to ronlett the borrower as required hy Cellfomia Civil Cnde 2923.5.
'T.S. 133684562

[hlcn:

OEtobrr 12.2011

CAL-WETlXRN RECONVEYANCE CORPORATION

--elma

Page 2 of 3

Order: OW0000 Title Officer 00 Commnt:

Station ld :NZLI

ALTP. Lorn hllw l C 7 9 l r a I Cw. ll.lvHn

CREW NO. ZZO8rr mllc* Na 2'FM%92 3460356

EXHIWT "ONE"
That omion of Pwml 1 of Mi* Rnchos. in thm Coltnw 01 %nun Babsr.. S o b of Csl~orn*. accocdi b mop maso( filed Oclobar 11, 1965 h lbok 37. F-qa 5 of Rocom of Suruey, I" the Ornw of me coumv n a d of sW Cwnty. dmerlbed v mmaws: uru
Saglmim s the ~ e q h w Ecrasr of !no bact o t lend dwclibsd hl the oeed to h e o h A. ~ r m . t e~ r & w d ~9.1958 is l ~ m m t n o 16583 In Book 1306. F w n 23 of Ofliclsf~ecords. ~ t . r&;di o l said County, bshp p o h on W s t a t t line of Elid Prcel 1. I n m whbh e 2 inch br#s -ped s u m m o n u ~ s a m t h e N o n h r r o a c a ~so id P u t c ! 1 h a m Wonh 011'20" E.st377.58 fsn: & ~. t m alons t Norltmlv inoft.idB i mnof W, Uls fdlowlng wurs@a distancas: Noah h & b m and 73 '47' Em, 101.W f.M:Smuh 83'6a'M" E4t 5Q.09 fmC North 58'13' East 197.01 fee^ w t rh 6025'20' W t lS8.Sl lsEC M S& +S0W'10' ESl49.18fcst w s 3Yinch plocon the c m r l h of PUDmhW Rodand aPaht on the Ea#teriv lblo of anid P a d 1 al the bsginnlng of a "on-tsngant NW, m g v s t tho WWt, h W h r a d h Df 100.23 tsCttsCt o I I Of 130'28'30" and h a s , s m centor from said p a i n l k m Nwth49'WlO' Wmt: t h a n e aton0 the EastmIy. Nonherh. and Weataly !haor & Pscst I , the W&D coumes n d --a: I No.thr(y and Nolthw-uwrv alonp m sre a 01 taldcwe. 2 2 8 . 2 5 3 5 h a t U I ~ M M 1 h ~ s ~ l ; 2 5 . 2 0 ~ E ~ m 3 0 . W ~ : t19~34'408 ~~h ~rm west, 410.4%~WI: and Smlh 0'14'20' W M 377.56 Wt to lhe paint of bsMing.
~

The land W n dsrmbed t3 show WkfI ahu popartv on a mw of UMY Wed In Boat 38. Psge 56 of Record of suvcyr, in ihe o ( l b of the Coumy Rsmrder of said County.

II
4 5

Nancy Duffy McCarron, CBN 164780 Law Office of Nancy Duffy McCarron 950 Roble Lane Santa Barbara, CA 93 103 805-450-0450 fax 805-965-3492 [email protected] Real Estate Broker Lie. 853086 Notary Public Lie. 1791117 Certified Arbitrator for BBB 30329
Attorney for Plaintiff

MAR 0 5 2012
B

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA (ANACAPA DWISION)

DAVID W. GATES, Trustee for the DAVID W. GATES Plaintiff, Trust dated August 5, 1996

1
)

Case NO:

1384851

) V. S 1 MGC Mortgage, Inc., Texas Corporation ) LPP Mortgage Ltd., LP, Texas Corporation ) Loan Acquisition Corporation, Texas Corporation ) Cal-Western Reconveyance Corporation, Texas Corporation ) DB Stmctured Products, Inc., Delaware Corporation ) Deutsche Bank National Trust Company, as trustee ) Washington Mutual Bank, a national banking association ) Wamu Asset Acceptance Corporation. SPV vehicle bank ) Washington Mutual Mortgage Securities Corporation, bank ) JP Morgan Chase Bank., National Association, a bank ) DOES 1 through 50, inclusive, Defendants. ) )
)

RON LANDIS AFFIDAVIT SUPPORTTNG

REPLY to Opposition to Motion for Preliminary Injunction; filed concurrently with: REPLY and Objections to Defendants Request for Judicial Notice; Objections to Declaration of Bret Maloney Affidavits of William Paatalo, David Gates, Nancy McCarron; Notice of Lodging (Criminal Affirmance alld Foreclosure in Californiacrisis ill compliance) filed: 2-1-2012 CMC: 6-4-12 8:30 MSC: nia Trial: d a DATE: March 12,2012 DEPT: 5 CCP 5s 527. 187 TIME: 9:30 a.m.

Honorable Colleen K. Steme

RON LANDlS AFFIDAVIT Supporting REPLY to Opposition to Motion for Preliminary Injunction I, RON LANDIS, make the following statements based on personal knowledge and can testify to them
1 . I read the verified complaint, application for injunction, and REPLY to Opposition to injunction. Although I

do not understand the complexities of securitization and legalese 1understand the facts. A few months ago I helped David Gates prepare a Qualified Written Request (QWR) to obtain loan files from MGC. In late January

11 2012, before this case was filed, David and I opened MGC's response to QWR containing his mortgage loan file.

II

Ron Landis Affidavit Supporting REPLY to Opposition to Motion for Preliminary Injunction

13.

It included a 6-page note (attached a s Exhibit A herein). The note contained two black hole marks on the top o each page, where a two-hole punch was used to secure it in MGC's file. THERE WAS NO ALLONGE attached to the 6- page note MGC had produced in what MGC had certified as Gates' mortgage loan file on Jan. 12,2012. 2. 1 reviewed the affidavit of Bret Maloney (attached a s Exhibit B herein) in which he attached as Exhibit 1

a document which he identified as David Gates' note including an unattached seventh page entitled ALLONGE.

I had never seen this allonge before and it definitely was not included in the note MGC produced in response to a
QWR which David Gates and I received in late January 2012. Maloney's Exhibit 1 differed significantly from the copy we received from MGC in its response to David Gates' QWR request. Bret Maloney's copy did not contain the same BLACK MARKS at the top of all 6 note pages like the note MGC had produced in response to Gates QWR request. Apparently, Maloney's copy was not the same one in MGC's file, even though Maloney testified in his affidavit that he was VP at MGC. My internet research shows he works for Saxon Mortgage. The only reasonable conclusion is that the note Maloney saw came from some other source, other than MGC
3.

I reviewed the deposition testimony of Roilaldo Reyes, VP of Deutsche National Bank Trustee, who is

trustee for WaMu 2005 Series AR-16 in which Gates' loan was pledged 11/1/05. (attac'hed a s Exh. C herein) Reyes testified that any loan servicer may ask trustee to send an original mortgage file which Reyes described as
"the original note, original trust deed, and original Title Insurance Policy" if there is a foreclosure or litigation.

Reyes testified that the trustee, upon a loan servicer's request, sends the orig~nal rnortgage,file by overnight delivery to the loan se~vicer'soffice to be used during litigation or forecloshre. Accordingly, I believe that MGC. as Gates' loan sel-vicer asked the trustee to deliver Gat:s' and that Mr. Reyes sent the file to MGC in Texas by note" Maloney claims to have viewed does not have back it1 January 2012 in response to Gates' QWR mortgage file, after being served in this case, This would explain why the "original on the copy we received from MGC the original from the trustee. otherwise, if it existed prior to the filing of to a QWR request back in January 2012. right after Gates filed this lawsuit. Fidelity who handled his escrow.

I believe the allonge was a document recently created

this lawsuit MGC would have included it in its
3.

Fidelity Title delivered its response to a

Fidelity's package included a copy of Gates'

Edelitv's

COW

of Gates' note did not contain a robo-stam~ed endorsement bv Cvnthia Rilev,VP of WaMu to DB

Structured Products, Inc. David told me that when he signed the note on 9/23/05 at Fidelity the escrow officer iid not give him a copy of signed note, but he remembered that it had nothing below his signature on the note. 3avid said the note he signed did not have any robo-stamp on the bottom. It ended with his signature on page 6.
1 1 have seen 3 different versions of the Gates' note.: i.e. the one Fidelity Title produced which is the note as it .

:xisted when David signed it on 9/23/05. (David attached it as Exh. A to his affidavit supporting this REPLY). The one MGC produced, with the two black holes and a robo-stamped endorsement (attached herein as Exh. A ioes not matcli the note Fidelity just produced in response to the deposition subpoena1 sewed last month. n ~ note Maloney attached to his affidavit, with an allonge and no black hole marks (attached herein as Exb. B) e s a TWIRD version I had never seen previously. I believe the allonge was fabricated and forged. The alloage is mdated, and not notarized as is required to convey an interest effecting real property in the state of California declare these statements to be true under penalty of perjury and CA Ron Landis
-

EXEJBIT LIST
A. Note received by MGC in response to QWR cocrraining black holes 011 top oreaclt page without allonge B. Affidavit of Bret Maloney submitted in Opposition with NO BLACK HOLES and a floating ALLONGE
C. Deposition of Ronaldo Reyes, VP of Deutsche National Bank Trustee, trustee for Wamu AR-16 trust

PROOF OF SERVICE

I am over 18 and not a party to the action. My address is 950 Roble Lane, SantaBarbara, CA 93 103.
In March 5, 2012 I served Affidavit of R.oli Landis with plaintiffs REPLY to OPPOSITION to Application for 'reliminary h,junction on the only defendants who have appeared in the action (MGC Mortgage Inc., LPP dortgage inc.,loa~iAcquisition Cory.) by transmitting by email a copy to their attorney of record, pursuant to a nutual agleement to serve by email, to: R~ncClendoni~Sockelord.com a copy to oa~~c~d~~ffvsb@yaI~oo.com with to ascertain the email was transmitted. declare these statements to be true under penalty of perjury and CA law. Executed in SantaBarbara 0113-5-12.

aaav fis--ig#J
- 3 pan Lendis Affidavit s u p p o r t i n g REPLY 1 o .

oppcsititri

'la.sq

t o Mori.on t o r Preliminary Tnjunction

Mortgage Servicing 1 coprate Drivg Soik 360 Lake Znrich 1L 6LlO47-8945 wmv.mpcmongsge.com Ctrstomcr Sewice 1-877471-7888

January 12,2012

David W. Gates 1200 Palomino Rd. Santa Barbara, CA 93105

RE:

Loan No.:

1423941895

Dear Mr. Gates, This letter is in response to your inquiries dated October 17,2021, November 14,2011, November 15.201 1. November 29.2011. December 20.2011. December 29.201 1 regarding the above mentioned loan, wh~bh letter purpork to contain a "quiifiedwrken request" under the Real Estate Settlement Procedures A c t It is unclear from your letter f what, i any, servicing errors you believe may have occurred. If there are partkular payments that you believe were misapplied o specific fees charged during our servicing r ih of the loan that am being contested or any other specific claim w t regard to the servicing of the loan, please provide us with details regarding such servicing issues so that we may respondfurther. Our records retlect that this loan has been referred to our local trustee on August 5, 2011, in order to initiate foreclosure proceedings. Please contact the following office for further information regarding your loan: Cal-Western Reconveyance Corp. 525 East Main Street El Cajon, California 92020 (619) 590-9200 Please be advised that we did not originate the loan and would have no knowledge of any possible wrongdoings that may have occurred at origination and wlll not be able to address any issues you feel may have occurred at origination. Pursuant to your request for information, we are provUmg you withathe following documentation in connection with our servicing of the above-referenced loan: (a) (b) (c) (d)
A copy o the Nofe, Deed of TnrSCand Rider. f Copies of the Assignment of Deed of Trust. A copy of the service transfer letter to MGC dated June 16, 2009 directing you to contadGMAC for any sewicing questions prior to July 1, 2009. . A copy of the Acknowledgement lettdr dated December 15, 2011

v y o a are in bankruptq or iurve been discharged br ba~zkruptry, on& and is not intended as an onemptto coUecl a debi or IIS an portion of the dbmoprno yau er yueofm j t o st r

i sfor informaationalpurpos~~ msess, or recover all or any

, i j .-

(e)

Account history from October 8,2008 through January 12, 2012.

(9
(g)

The accounting includes, but is not limited to, the amounts submitted by you and the portions of those payments that were applied to principal and interest. A copy of the Annual Escrow Account Disclosure Statement reflecting a payment change for December 1, 2010. A copy of the Annual Escrow Account Disclosure Statement reflecting a payment change for January 1,2011.

To view original documents, please cantact Cal-Western Reconveyance Corp.

If you need anything further, please contact our Customer Service Department at 1-800-889-0340.

Sincerely,

Th
Enclosures

Denita Rjcci Default Litigation Specialist

only and $ not intended m on &mgU w &cl

Ifyou are % bmh~ptey have been dischargedin bankn~ptcy, b letter 13 infonMlrnMlronalpurposer i or P for rr debt a as an uct ro collect, assess, or recover all or any .'I$?!, portron of the debipom youpersoilai&. !,V ,

1 531 2

FfXEDlAbJUSTABLE RATE NOTE I1 Year Tressury Index Rate Caps)

''

ntls NOTE pRoQloE6 FOR A cHAN&

PAY.

I1I aev RY F I D RATE TO Am OE ADJUSTABLE MEREST R A E . THIS NOTE WT THE AMOUNT MY ADJUSTABLE IS MEREST RATE CAN CHANQh A t ANY ONE TIME AND THE MAXIMUM RATE I MUST

1. BORROWER'S PROMISE ?O PAY h rewn for a loan thm 1 hwa received. I promitie to pay u S 8 1.Lrz. 302-00 .. Wi ,s amount b called 'Prfncioal"t ntus interat. t the order of the tsnder. The Lender is o . -. . I wiU make d p r l U ~ n d e fmi? W a s m a n xlrtaal t i 6 . 1 ,. 3 Note in the form of cash, h k or money order. t undemand that thn Lender may wan& *is Nots. The Lender or enyone who takes thin Note by transfer and who is en1iW to M d v e paymenta under thls Note is called the 'Nota Holds;: 2 INrEREST . Merest will ba charged on unpaid Prlnciptll unttl the full mwnr of Principal h4lr been paid. I will pay interat a yearly ram of %. The inrema ram l will pay may change In 5.580 -dance with Sscljon 4 of *a Nora l The Interest m e required by IMa Section 2 and Section 4 of thta h t e k the #etaI WIfl pay b 0 h M o r e and aft^ any default described in S m b n 718) of thin Nom.
~

3 PAYIWUTS .
W Thna ant1#sea of PPymsna U I will pav Principd m d interest by making payments every month. I wit1 make m monthly paymemu on me first day of each month beglrmlng on November 1st. y 2006 I will make them peymenrs every month until I have paid all of the Principal end irtterest and ray other chargem dacrlbad below that I may ows undar I % Note. Each monthly pawant will be appllwl es of irs soheduled due date and wlll be epplbd to infBIBst batore Rhrdpef. sf, m Octsber 1c. 2036 1 sM1 owe emwm under this Note, I wlll pay those emowns h fUn on that t date, whkh la c8lled the "Mahrrity Date".

...

~QW 8EIWLCE. 9151 CO%BM I win make my monthly pavmems et . . .. . i ~ ? O E ~ ~ L D CCA, 9 R ~ 4 or d~ a different placo F rnquired by the Note Holder. (6) Amount of M y bitlnl Month4 Pevments Thilr, : Each d my hitlal monthly payments will be in the amount of US. $ 7 , 0 1 4 . 7 3 mount m w change. (c) lonthtv ~ a w Chmaa Changas in my monthly payment will reflect chsnges in me unpaid hlnelpd of my loan and in the interest rate thm 1 must pay. The Note Holder will determlw my new l~t81eSr lam .UIa the changed amount of my monthly payment in accordance with Section 4 of this NOW.

.;.

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RATE AND 1UWUTM.Y PA W N A fA1 Change D* The inrerest ram I will pay may chango on the first day of October, 2010 '.. and rhet day every ? a h monm tharesfrer. Eech dwe on which my a#wmble interest rets could ch-9. Is called 0 'Change Oats." (E) m e lndex Beglnniw wilh the fie Chenge D m . my interest rat6 will h e based on an Index. The "Index' is me weekly areraga yWd on United Srsrns Treasury securities adjusted to e constant maturity of 1 yeer. 6s made available by thu Feded Reserve Bowd. The most nrcent Index figure avsllebla as of tlw date 46 days befare each C h Date I called rhe "Current Index.' . #fthe Index is no longsr mallable, the Note Wdar will ehaosa a new index which is b d upon complaabla lnformsllon. The Note Holder wiR give ma natrecr ot M s choice. fC) Catcul~tlon Changm of &fore each Change Date. the Note h l d e r will celculare my new interest raze by adding Two 6 SewmW-Hvm-Ifuadredthe p f B W 8 Points {a% OC n @ to the Currant hdex. The Nan, Hoidm will than mund tha result of this addition t dm neerest u one-elghth of one percentage point 10.125%). Subject to the lknita mated i n W o n 401 below; '. . thla rounded amount will be my new inrate until the next Change Date. The Note Holder win then determine th. amwunt of the monthly peyrnam thet w w l d be . sufficlmt t o rspay the unpaid Principal thaz Iam expacrsd ro owe a the Chanps Oare in MI on the Mattlfity Date et my new interest rate in subsramialiy eguel pevments. The result of this ealculatlon will be the new amount of my momhly pavmant. {Dt U m b on Intoma Rare m e r The imBIBdt rm I am required to p8y at the first Change Dare will not be great- thw 10.~00' % or less them 2.7~0 %. Thweafter, my imeresl rate will mr be a increased M d m a s e d on any single Change Date by more than two parcentqe poima (2.0%) . . .. ' ham the fete of interest I have bean paying for the preceding 12 months. M y Interest rate will never be greeter than io.500 %. (1 Eflsctlve Date of Changes My new intarest rets wllb bapme etfecdve on each Chenge Data Iwill pay the amourn of & new monthly payment begirming on the flret monthly paymsnt date after the Change Date until the mount ot my monthly payment changm again. (F) Notlccu of Changes The Note Holder will deliver or mall ro me s notice of any changes in my interest rate and the amount of my munthly payment before the e f f d e date of tiny a h m e . The notice wlll indude the amount o my monthly payment, any intorrnaiion raqulred by law W ba f given me end alsa the rltle and telephone number of s person who will enswsr wy quastion 1 mal , . - -: ' .. . hove rngardlng the notlce. (GIFaRm to M& Ml m B jn m . . ... . If for any reason Not. Holder feas to meke an adjumem u the interest rexi w payment ' , mount as described in this Note, regardless of m y notice requhmmt 1 agree that Not9 Holder may, upon dtecovwy of such failure, then make the adjugtmant ao ff they had barn made on time. I also a g m not to hold Note Holder responsible for any damages to me w h i h may ream horn Note Holder's failure to m e h the adjusunenr end to lar the Nore Holder. at Its ot m p i apply al=e%r rnonioa W c Imay have peid m pmid prepayment of unpakl Principal. ~h 6- BORROWER'S RIOHT TO PREPAY I have the figtil to mbku ppaymants ufPrkipaI at any tims hafare they are due. A PWmOnt of .: Prindpal only B known as a *Repayment." When f make a Prepevment, Iwill tdl the Note Holder .
4. lNTEREST

in writing that t 8m b l n g so. Imey not designere a payment as a Repaymwt if IM e not made Bll the momhly pwmenes due under the Note. I may make a full R e p s y m or penial Prepayments without paying m y Rapaymm charge. The Note Wder will we a l of my Repannents ta reduce dm emwn? ofPrindpal that I own under this Note. Howova, the Net6 Holder may apply my Repayment to ths a m & and unpaid intnrast an the Rspeyrnent m w n b before applying my Repayment to reduce the Prhdpal mount of the Note. If I m a e a wmal Prepavmenl, thera will be no changes k the due dates of my monthlv , payments unless the Nota Hotder aoreer h writing t thaw chen@ec. My psrtid Prepayment may o reduce the amount of my m m h l y p a y n m ~ atter the first Wange O m foknvfng my p d l Prapaynrem. However, any reduction dw m my pnttial Prepaymant may be offaet by an interest rars increase. 8. LOAN CHARGES If a 19% which applies to this loan m which sets maximum loan charges, b finalfy i n t e r p r d d Bo that the interest or other loen ehergas dlected ar to be ~ollected wnnectlon with this b a n In amount momd the psrrniRad nmits, then; (a) any arch loan charge sh&l be reduced by neosssary to reducn the charga a the permimed Umn; and (b) m y sums already collscted from "8. , mar a x d e d permitted limits will be refunded to me. The Note Holder may chwre to ma(r. this refund by radueing the Rinclppal Iowe under thi Nota a by meking n dlfect payment m me. Ifa W n d reduces Rlmipnl, the reduajon will be neQIBd as n partial Prepeymenr. Wcallaneaua Fern: I understand that the Note Holder will also charge a m m item charge in the event a p a W h a t 1 make in connection wlth repayment ofthis loan Is not honored by thb fi?ancW inmitmion on whkh it is drawn. The currsnt fae is $ i s . 00 Lender reserves the rioht to change the fee from t h e t dm8 without nntlce e o x aa may be requlred by law. '1. BWIRdHlOl'S FAUUREto PAY AS RKUI~ED i A l Lots Dhergt* for avwdw Rymants If tha Note Holder ha, no1 r-ved ths full amount ot my monthly payment by lbe end of F i f t e e n oalendar d w s after the date it Is due, 1 will nay a late chargo t the Noh, Holdsr. I h e o amount of the charge w3ll be 5 - 0 0 0 % of my wardue payment of Rincipel end Interest. Iwlll pay thie late Bharge promptly. but only once on aaoh late payment. 10) Dotauk If 1 do not pay the fun a m m of each nnmhIv payment on !he date it is due, I wl11 b in default. fC1 N o h of lwcdllt If I am in default, the Nota Holder may send me a wrlnen norica taning me mat It \ do nor WV the overdue amount by a certain date, the Mom Holder may require me to pay immedidy the fu\!,) amount of Rlneipsl that has not been psid and dl the i ~ e r s sthat i owe on that amount. Thst d m t must be at learit 30 days afnr the dm4 on which the notice is meilad ta me w deliwed by othk means. ... {DI N o ~ B y ~ H o l d e r Evan i , a time whan 1 am in default, UM Nofs Holder does not rsquke ma to pW L m m d e V fat in fu\l as dasulb8d above, me Note W w mill sill hava thn rl&t to do m if I sm i default at 6 n latar time. 151 P a y m ot Mota Holdor's Corn urd EP I If the Note Woldw has required me to pay hmadietsly In full as described a v 8 , the Note., Holder will have the rI@m to h p b t l b a k by me tor dl of l cosls and eu x in anfordw this Note to the a a m not prohiblred by Applicable Law. Those expenses indude, far example,. maaoneble mtomsys' fees.

0. OWING OF NQnCES
UnIe86 appliceble law rewires a dHf6rent method, mv notica that must be g h to me under this Note will be g ~ a n ddlvwing i o by mailing it by firot dsrrr rnaii t me n ma Property by t r o Addteris abov. or at a dierent eddmo. If Iglve the Nate Holdar a notim of my Merent addram. notice that must bs @en to ihe Nme Holder under thb Note wM be given by ddiverlng It or bv mailhg tt by flra daaa mall to the Note Holder at the address stated in &maon %A) above or at a different .address if Iem given u notice of t e W a n t address. h! 9. OBUOfiTlONS OF PER80N8 UM)ER THIS N W O Ifmore than one psrwrn dgns thb Nm, w h p m o n Is fully a d paraonally obligated to keep all of me prmhes madb in this Note. iocludin~ p r o m k to pay the full amount owed. h v wm Ute who is a guarantor, surety, or mdorser of this Nom la ebo obligated to do m e things. Any penon W h o Wkes avsr thasv aMigatlons, ;ndudinp the obGgaions of a guarantor. mfetv, or endorser Of thls Note. is elso obllgatad to keep d of the promhea made In this Note. The Note 1 Holder may enforce it8 rlghm under thii Nots ewlnat eech p a w n indivlduslly of egelnst dl of us toaethsr. This f e s that any one of us may be requlred to pay all of the amounts owed under thla . . . . . nm l . . . . . Note. 1 . WAIVERS 0 I and any other p e r m who hes o b r i o n s under thb Now walve the r t g b of presentment and . "- j -, ., ; 1. : notice of diatmnor. 'Rcasontmant" meens the rriQMto rsqulra the Note Holder to demand payment of amounts due. 'Notlce of Dishonor' means the dght to requlre the Note Holder to give notice to other persons that amount3 due have not been pafd. .

% .

.~. 11. UNIFORM SECURED MOTE . . . This Note is s uniform fnstrument with llrnited veriatbna in some furWctlons. h addidon to thu .w,. .. : ,.. :. . protections given t the Note Holdec under this Note. a ~orfgage.Oeed of Rust o Security Deed ? .. ' , o r (the 'Security insvument'l, datad the same date a9 thls Note, protects the Note Hold* from . , poaslblebaeee that might result if I do not keep rhs promises which I make in tMs Note. Th*'.? $':. SeUlrity Inatrumant deacribea how and under what m d i t l o n . Imay be required t t o k e immedid o paymam in fuR of all amaunm I owe under this Nofa. Same of those eonditlons are descricribed sp ... fallows: {A) U n MY INITIAL FIXED -EST M. RATE CHANGES TO I\N dDJUSTABLE INTEREST WE UNDER Tne TERM STATED IN SECTlOM 4 ABWE. UNIMRM COVENANT 19 OF THE . , SECURTP( INSTRUM.mT SHAU READ AS FOLLOWS: T n n r A of the Pmperty a a BIDeffclaltnrsrsst In Borrower. As used in this Ssctlon la., . . . . . t ... 'Interest in the Property" means any legal or beneficial Interest in the Property, includln0, bu!.. ...,... ........ not ilmitsd m, thofie beneficial Interem traderred in a bond far deed. EontrUCt far dmdi-' '-a'':' i n s t d h t ealw m a n o exrow ~ r a e m a nthe intent of w h i i b the nwsfer of title by. r t . . . .. .. . . Borrower at a h m date to a purchaser. h ....... :. . if If all or enypan of the Property or any intersst in the Pmperty is sold o transferred r s benefidel interest in Borrower is so!d or transfarred and Borrower is not 0 naturd ~erSOnl without Lender's prior wrconsent, Lender mey, at its option, require immedlata payment tn full of all sums secured by thls Security Instrument. Hawever, fils oprlon s U not b 6 . b ewsrclsed by Lender if exerclse is prohibiked by ApplicaMe law. I Lendex axerd~ea f tMs opdon, Lmdm shall give Borrower notice of ~~ialara(ttm. The no& h e l l provide a period o not less than 30 days from the dsle the n d c s i given in . . . . . i s .

..

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accordanfa wfth Section f 6 wlthln which Borrower must pay an sums amred by thts Security Instrument. if Borrower fails to pay these sums prior ta the axplrstion of *Is Lander may Invoke any ramsdim permitted by (hi Sawriiy Instrument without f d m nottea or demand on Borrotunr. (Bl WHEN MY INITIAL FIXED I m S T RATE CHANGES TO AN ARlUSThBLE ItflERfST RATE UNDER THE TERMS STATED I N SECTION 4 ABOVE, UNIWRM COVENAHT I 8 OF THE SECURITY INSTRUMENT AS DESCRIBED M SEfXIOM 11IA) ABOVE SHALL THEN.CEASET0 BE IN EFFECT. AND UNIFOM COVENANT 18 OF THE SECURITY T Y W E N T SHAU lNSTUD READ AS FCUlOWS: Trmder of tha Rapmy or a W I*-t i Bomww. As used In thii Saction 18, n "Inmest in rJm Pmpary' maaos any legal or beneficial interest in tha Property, indoding,'but . . not limltsd to, those beneRdd transferfad in a bond for deed, contr80t for deed, . installment vales contract or -w sgrenmmt, the intent ot which is the wanefa of tltle by Borrower at a future date to a purchaser. If81 or any paR of the Property or any interan In it Is sold or uarmlerrad (or If a baneficlal 1 interest i Borrower is aold o tranatared and Borrower is nos a natural psean) without n r Landar's prla wrlften conmnt, Lander may. m its option. r q l m lmmedlate m a r t in MI of all sums mured by thii Sacurity Instrumant. However, thii option 1 not be ewerciaed by. ' Lender if axarciss is pmhiblted by AppllcaMe larr as o the date of this Securky hwument. f Lender also shsn not exercise this option if: {a) Borrower causes m be rubmined to Lender . informatlon required by Lendar ro evaluate the intended transferee as if a new loan were b e l y . . ' made to me transferen: and fb) Lander reabanabfy determinss that Lender's securlty will not .. , . .,' be impaired by the loan asaumpclon and that the rlsk of a breach of any mvenant O r " - . .. . qresmant In this Security I n s u u m t Is accapteble w Lender. To the extent permind by Applbeble Lew. Lender may d-maa a reasonable fee as 8 i -. c no o dn t i to Lender's w m n t to me loan assumprlon. lender may elm ieguire the transferee . , to sign an aswmption agreement that is acceptable to Lender and that obligmea tha tr*nBferm '. to keep all the promises and agreements made in me Note an in chis Security Instrument. B O ~ ~ O W Wcontinue to be obligated under the Note and tf~ Sscurfty InsWnanT unlm3 will I3 Lendsr relsases Borrower in wrltlng. if Lender emrelseo thll optlon to require inmedinto payment in ful, Lender shall Bhrq , Borrower n o t i e of acodwarion. The mtlw shaU pravida a period of not less than 30 daya . :.',',. . , from the date the notice is given k accordance with Section 15 within which Borrower mu% , . ,. pay all swns sacurad by thii Sscurlty Instrument. IfM o w e r fdb to pay them sums prlor t o ' ' "'the expiration of this perlcd, Lander may Invoke any rmmdles p e n n b d by & SeC~rity a l lnst~rnent without funher notice or demand on hrrower. . . .. . . 12. MISCEUWEWS PRQVlSlONS In Me avenl lhe Note Hot& ~ tany dme diamvers that mis Note o the Sscurity h m m ~ Oft . t r any OW document related t o VIls loan, called collectively the 'Loan Documents." canulins an error ' whlch was caused by e chid or rnlniawrlal miamke, calculstbn ermr, w w t e r &oT, pmtlng error or aimiler error icoileclively 'Errors'). I agree, upon notice imm the Nots HoMar, to retixBcufa .m y Loan Documents that are necessary to correct any such Errors and 1 nlw agree that I will tlOt hold the Note Holder responsible for m y damage to me which may result from any such Errors. If any of the Loan bocumentsi are lost, stolen, mufllated or destroyed and the #ore Holder delivers to me en indemnlf1caion in my favor, signed ~y the Note Holder, then 1 will a n and.deliver--:', .. - :.., . . to Ihe Nota Holdar a Loan Oocurnent Identical in form and content whleh will hava the effect of the original for ell purpogee . ,..'

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WIlXTNESS W E NANDlS) AND SMUSl

OF M

E UMDERSIGNED.

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p, to the orrler d-b~ S WAS HI NO^ WW 8 % . ~ FA

WlthwtReGo"f=

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Regina J. McClendon (SBN: 184669) [email protected] Daniel A. Solitro (SEN: 243908) [email protected] LOCKE LORD LLP 300 South Grand Avenue, Suite 2600 Los Angeles, Califon~ia90071 2 13.485.1500 Telephone: 213.485.17-00 Facsimile:

Attorneys Ibr Defendants MGC MORTGAGE, INC.; LPP MORTGAGE LTD. and LOAN ACQUISITION CORPORATION

SUPERIOR COURT OF THE STATE

d~CALIFORNIA /I

DAVID W. GATES. Tn~stee the DAVLD W. for GATES T ~ u sdated August 5 , 1996. t

C A S ~ N O 138485 1 .

1
)

~onorhble Colleen K. Ste~ne

)
)

DEC1,ARATION OF BRET NIALONEY

Mwcli 17,2012 9:30 a.m. Dept. 5

MGC Mortgage, Inc., Texas Corporation LPP Mortgage Ltd., LP, Texas Corporation Loan Acquisition corporation, Texas Corporation Cal-Wesle~n Reconveyance Corporation, Texas Corporation DB Stmcr~lred Products. Inc., Delaware Corporation Deutsche Bank National Trust Combany, as trustee Washington Mutual Rank, a national bunkinn, associi~lion Warnu Asset Acceptance Col-poration, SPV vehicle bank Washington Mutual Mortgage Securities corporation, hunk JP Mol.gan Chase Bank. National Association, a bank DOES 1 through 50, inclusive, Defendants.

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) Date: ) Ti'ne: 'lac":

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Complaint Filed: Febl-ua1.y

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DECLARATION O F BRET MALONEY

Dai~M Gur,..~, W. 7i.rrsrpc 1 . MGC'Mor-Ixnge.I~tc. a/.. Case No. 1384851 cf

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1 BRET MALONEY, declrux as follows: .

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- I am over the age ooicighieen years and not a party to (his action. The facts set forth

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helow are known to me personally and I have first-hand knowledge of them. If called as a witness, I could and would testify competently, under oath to such facts.
2.

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I am en~ployed a Senior Vice President, Default Management by MGC Mortgage, as

Tnc. ("MGC"). which is the authorized loan se~vicer LPP Mortg;~g for Ltd. (,"LPP), and 1 am f:unuliar with the subject Deed of Tmst, loan and Coreclosure of the real pl-operty located at 1200 Palomino Drive, Santa B u b t u q California 93105 (the "Subject Property").
3.

I am fnniiliru-with the manner and procedure by which [he records or MGC are

obtained, prepared, and maintained. Those records are obtained, prepal-ed, and maintilined by employees or agents at MGC in the performance oflheir rcplar business duties at or near the time.

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act. conditions, or events recorded thereon. The records are made either by persons with knowledge of the matters they record or from information obtained by persons with such knowledye. It is MGC's business practice to niaintain these records in the regular course of business.
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MGC services the loan undel- the terms of a servicing agreement with LPP and has

d2z 3 ~ 16 been responsible for the handling of all matters relating to the underlying loan, including but not 1 go.
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limited to processing of all payments received, crediting of received payments, adding 311 proper

18 charges l o the loan, confirming ihe maintenance of hazard insurance and property taxes.
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corn~~iunicatinp and responding to the horrowcr on all nintters relative to the loan, and the with commencement of non-judicial ioreclosure PI-oceedings. All activities on the loan aclvanced by MGC weir advanced in accol-dance with the terms of the note, Deed of T ~ sand servicing t agreement.
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PlaintifTDavid W. Gates ("Plaintiff') entered into a promissory note on or about

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Septeilihcr 20,2005 in the original principal amount of $1,142,302.00 with lendel- Wnshington Mutual Bank. FA to refinance the Subject Propel-ty. A true and correct copy of the proniissory note is attached hei-eto 2 Exhibit I. s 6. LPP is in possession of the original promissory note executed by Plaintiff. I

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personally iilspected the original promissory note, which I obtained from CLMG Coip.'s Note Vault,
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DECLARATION OF BRET MALONEY Dol.irl IV. Grrrr..~, 7'8-~,sn)r MC;C A~lc,rr,~rr,qr. cl 01.. C:lsa No. 1384x5 I \I,ri:,

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tn Februa~y 21.2017. 1have the ability to access cernain documents contailled in CLMG C o r p . ' ~ gote Vault in the ordinary course of niy e~nployment MGC. CLMG Corp. is a compiny affiliated at
vitli LPP and MGC which is responsible for LPP's document management functions.

7. ,2009.

The servicing of the loan made to Plaintiff was transferred to MGC on or about July

S.

Plaintiff went into default on his loan in October 2010. Therefore, MGC. at the

lirection of LPP, instructed foceclosure company Col-Western Reconveyance Colyol-ation to record Notice of Default and Election to Sell Under Deed of T ~ u srelatiug to the subject property on t Ictober 13,201 1.
9.

Plaintiff has not made any payinents on his lomi since Deceinher 28. 2010. The

no~ithly payments owed under ihe pro~nissory note are c u ~ ~ e n t$7,746.37. The past due arnount oi ly ne loall is currently $121,977.56.

10.

PlaintilT has never made a tender of the full proceeds owed under the p~.o~iiissory

ote, nor has PlaintitTever offered tender of the past due amount.

I declare under penalty of perjury under ihe laws of the State of California and the laws of thc
Jnited States of America that the. foregoing is tme aid correct. Exccured this 21st day of February 2012 in Plano, Texas.

BRET MALONEY

Dirt,id

DECLARATION OF BRET MALONEY Gofer. Tv!r.~fee lWGC Morf,er,,ee. /,LC. 01.. Casc NO. 138485 I v. ef

EXHIBIT 1

FIXEDIADJUSTABLE RATE NOTE

(1 Year Treasury Index Rate Caps)
03-0643-070494803-3

THlS NOTE PROVIDES FOR A CHANGE I N MY FIXED INTEREST RATE TO AN ADJUSTABLE INTEREST RATE. THlS NOTE UMlTS THE AMOUNT MY ADJUSTABLE INTEREST RATE CAN CHANGE AT ANY ONE TIME AND THE MAXIMUM RATE I MUST PAY.

1200 PALOMINO DRIVE, SANTA BARBARA, CA 93105 ~ R o p Address1 e ~

1 BORROWER'S PROMISE TO PAY . 1,142,302.00 (this In return for a loan that I have received. I promise to pay U.S. e Lender. The Lender is amount is called "Princi~al"). olus interest. t o the order of . . . all payments under this Washinqton Mutual Bank, FA Lender may transfer thls Note in the form of cash, check or money order. I Note. The Lender or anyone who takes thls Note by transfer and who is entitled to receive payments under this Note is called the "Note Holder." 2 INTEREST . Principal has been paid. I Interest will be charged on unpaid Principal until the full will pay interest at a yearly rate of 5.500 %. The I will pay may change in accordence with Section 4 of thls Note. is the rate I will pay both The interest rate required by this Section 2 and Section before and after any default described in Section 7 ( 8 )of this Note. I

3 PAVMENTS .
(A) Time and Place of Payments
I will pay Principal and interest by making payments every month.

I will make my monthly payments on the first day of 2005 , I will make these payments every month until I and any other charges described below that I may owe wlll be applied as of its scheduled due date and will be applied October 1st. 2035 , I still owe amounts under this Note, I will date, which is called the "Maturity Date".

I will make my monthly payments at NORTHRIDGE, CA 91324 or at a different (6) Amount of Mv Initial Monthhr Pavments . . Each of my initial monthly payments will be in the amount of U S. S 7,014.73 amount may change. IC) Monthly Payment Chan(les

This

+e?o103.011

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4. INTEREST RATE AND MONTHLY PAYMENT CHANGES (A) Change Dates The interest rate I will pay may change on the first day of October, 2010 and on that day every 12th month thereafter. Each date on which my adjustable interest rate could change, is called a "Change Date." (6)The lndex Beginning with the first Change Date, my interest rate will be based on an lndex. The "index" is the weekly aversge yield on United States Treasury securities adjusted to a constant maturity of 1 year, as made available b y the Federal Reserve Board. The most recent index figure available as of the date 45 days before each Change Date is called the "Current lndex." If the lndex is no longer available, the Note Holder will choose a new index which is based upon comparable information. The Note Holder will give me notice of t i choice. h s (C) Calculation of Changes Before each Chanae Date. the Note Holder will calculate mv new interest rate bv adding TWO & s e v e n t y - ~ i v e - n u o d r e d t h s percentage points ( 2.750 %I to the Current Index. The Note Holder will then round the result of this addition to the nearest one-eighth of one percentage point (0.125%). Subject to the limits stated in Section 4(D) below, this rounded amount will be my new interest rate until the next Change Date. The Note Holder will then determine the amount of the monthly payment that would be sufficient to repay the unpaid Principal that I am expected t o owe at the Change Date in full on the Maturity Date at my new interest rate in substantially equal payments. The result of this caiculatlon will be the new amount of my monthly payment. (0)Limits on Interest Rats Changes The interest rate I am required to pay at the first Change Date will not be greater than 10.500 % or less than 2.750 %. Thereafter, my interest rate will never be increased or decreased on any single Change Date by more than two percentage points (2.0%) from the rate of interest I have been paying for the preceding 12 months. My interest rate will never be greater than 10.500 96. (El Effective Date of Changes M y new interest rate will become effective on each Change Date. 1 will pay the amount of my new monthly payment beginning on the first monthly payment date after the Change Date until the amount of my monthly payment changes again. (Fl Notices of Changes The Note Holder will deliver or mail t o me a notice of any changes in my interest rate and the amount of my monthly payment before the effective date of any change. The notice will include the amount of my monthly payment, any information required by law to be given me and also the title and telephone number of a person who will answer any question I may have regarding the notice. (GIFailure to Make Adjustments If for any reason Note Holder fails t o make an adjustment t o the interest rate or payment amount as described In this Note, regardless of any notice requirement, I agree that Note Holder may. upon discoverv of such failure. then make the adjustment as if they had been made on time. I also agree not t o hold Note Holder responsible for any damages to me whlch may result from Note Holder's failure to make the adjustment and to let the Note Holder, at its option, apply any excess monies which I may have paid to partial prepayment of unpaid Principal. 5. BORROWER'S RIGHT TO PREPAY I have the right to make payments of Principal at any time before they are due. A payment of Principal only is known as a "Prepayment." When I make a Prepayment, I will tell the Note Holder

in writing that I am doing so. I may not designate a payment as a Prepayment if I have not made all the mol~thly payments due under the Note. I may make a full Prepayment or partial Prepayments without paying any Prepayment charge. The Note Holder will use all of my Prepayments t o reduce the amount of Principal that I owe under this Note. However, the Note Holder may apply my Prepayment to the accrued and unpaid interest on the Prepayment amount, before ap lying my Repayment to reduce the Principal amount of the Note. If I make a partial Prepayment there will be no changes in the due dates of my monthly payments unless the Note Holder agr in writing to those changes. My partial Prepayment may reduce the amount of my monthly ayments after the first Change Date following my partial Prepayment. However, any reduction due to my partial Prepayment may be offset by an interest rate increase. 6 LOAN CHARGES . If a law, which applies t which sets maximum loan charges, is finally interpreted

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Miscellaneous Few:

right to change the fee from rime to 7. BORROWER'S FAILURE TO PAY

If the Note Hold F i f t e e n calendar days a amount of the charge will be this late charge prom

mount of any monthly payment by the end of

default. (C) Notice of Default

means. ID) No Walver By Note Holder Even if, at a time does not require me to pay immediately in full as described above, the lder will still have the right to do so it I am in default at a later time. (E)Payment of Note If the Note Holder has required mk to pay immediately in full as described above, the Note Holder will have the right to be paid bdck by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by Applicable Law. Those expenses include, for example, reasonable attorneys' fees.

*el0 IOJ-011

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8, GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given to me under this Note will be given b y delivering it or b y mailing it by first class mail to me at the Property Address above or at a different address if I ghre the Note Holder a notice of my different address. Any notice that must be given t o the Note Holder under this Note will be given by delivering it or by mailing it by first class mail to the Note Holder at the address stated in Section 3fA) above or at a different address if 1 am given a notice of that different address. 9. OBLIGATIONS OF PERSONS UNDER THIS NOTE If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in this Note, including the promise to pay the full amount owed. Any person who Is a guarantor, surety, o endorser of thii Note is also obligated t o do these things. Any r person Who takes over these obligations. including the obligations of a guarantor, surety, or endorser of this Note, is also obligated to keep all of the promises made in this Note. The Note Holder may enforce its rights under this Note against each person individually or against all of us together. This means that any one of us may be required to pay all of the amounts owed under this Note. 10. WAIVERS I and any other person who has obligations under this Note waive the rights of presentment and notice of dishonor. "Presentment" means the right to require the Note Holder to demand payment of amounts due. "Notice of Dishonor" means the right to require the Note Holder to give notice t o other persons that amounts due have not been paid.

11. UNIFORM SECURED NOTE This Note is a uniform inwument with limited variations in some jurisdictions. in addition to the protections given t o the Note Holder under this Note, a Mortgage, Deed of Trust or Security Deed (the "Security Instrumentm), dated the same date as this Note. protects the Note Holder from possible losses that might result if I do not keep the promises which I make in this Note. That Security Instrument describes how and under what conditions I may be required to make immediate payment in full of ail amounts I owe under this Note. Some of those conditions are described as follows: (At UNTIL MY INITIAL FIXED INTEREST RATE CHANGES TO AN ADJUSTABLE INTEREST RATE UNDER THE TERM STATED IN SECTION 4 ABOVE. UNIFORM COVENANT 18 OF THE SECURITY INSTRUMENT SHALL READ AS FOLLOWS: Transfer of the Property or a Beneficial lnterest in Borrower. As used in this Section 18, "Interest in the Property" means any legal or beneficial lnterest in the Property, including, but not limited to, those beneficial interests transferred in a bond for deed, contract for deed, installment sales contract or escrow agreement, the intent of which Is the transfer of title by Borrower at a future date to a purchaser. Ifall or any part of the Property or any lnterest in the Property is sold or transferred (or if a beneficial interest in Borrower is sold or transferred and Borrower is not a natural person) without Lender's prior written consent, Lender may, at its option, require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if exercise is prohibited b y Applicable law. If Lender exercises this option, Lender shall glve Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is given in

4810 03-011

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accordance with Section 15 within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails t o pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this Security lnstrument without further notice or demand on Borrower. (B) WHEN MY INmAL RXEO INTEREST RATE CHANGES TO AN ADJUSTABLE INTEREST RATE UNDER THE TERMS STATED IN SECTION 4 ABOVE, UNIFORM COVENANT 18 OF THE SECURITY INSTRUMENT AS DESCRIBED I N SECTION 11(A) ABOVE SHAU THEN CEASE TO BE IN EFFECT. AND UNIFORM COVENANT 18 OF THE SECURITY INSTRUMENT SHALL INSTEAD READ AS FOUOWS: Transfer of the Proparry or a Bsneficial Interest in Bonower. As used in this Section 18, "Interest in the Property" means any legal or beneficial interest in the Property, including, but not limited to. those beneficial interests transferred in a bond for deed, contract for deed, installment sales contract or escrow agreement, the intent of which is the transfer of title by Borrower at a future date to a purchaser. If all or any pan of the Property or any interest in it is sold or transferred (or if a beneficial interest in Borrower is sold or transferred and Borrower is not a natural person) without Lender's prior written consent, Lender may, at its option, require immediate payment i n full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if exercise is prohibited by Applicable Law as of the date of this Security Instrument. Lender also shall not exercise this option it: (a) Borrower causes t o be submitted t o Lender information required by Lender t o evaluate the intended transferee as if a new loan were being made t o the transferee; and (b) Lender reasonably determines that Lender's security will not be impaired by the loan assumption and that the risk of a breach of any covenant or agreement in this Security lnstrument is acceptable to Lender. To the extent permitted by Applicable Law, Lender may charge a reasonable fee as a condition t o Lender's consent to the loan assumption. Lender may also require the transferee t o sign an assumption agreement that is acceptable to Lender and that obligates the transferee to keep all the promises and agreements made in the Note and in this Security Instrument. Borrower will continue to be obligated under the Note and this Securlty Instrument unless Lender releases Borrower in writing. If Lender exercises the option t o require immediate payment In full, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is given in accordance with Section 15 within which Borrower must pay all sums secured by this Securiry Instrument. If Borrower fails to pay these sums prior to the expiration of this period. Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. 12. MISCELLANEOUS PROVISIONS In the event the Note Holder at any time discovers that this Note or the Security Instrument or any other document related t o this loan, called collectively the "Loan Documents," contains an error which was caused by a clerical or ministerial mistake, calculation error, computer error, printing error or similar error (collectively "Errors"), I agree, upon notice from the Note Holder, to reexecute any Loan Documents that are necessary t o correct any such Errors and i also agree that I will not hold the Note Hoider responsible for any damage to me which may result from any such Errors. If any of the Loan Documents are lost, stolen, mutilated or destroyed and the Note Holder delivers to me an indemnification in my favor, signed by the Note Holder, then I will sign and deliver to the Note Hoider a Loan Document identical in form and content which will have the effect of the original for all purposes.

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WITNESS THE BANDIS) AND SE4LtS) OF THE UNDERSIGNED.

[ .r ~ ~ LI~J,-&& . . c $/1 4
DAXID W. GATES

m i me order oF yn

SWCNRR)PRODUCTS, W(7.

ADDENDUM TO FIXEDIADJUSTABLE RATE NOTE

This Addendum to FixedIAdjustable Rate Note is made this day of m a r . 2 0 0 s and is incorporated into and shall be deem& to amend and supplement the FixedIAdjustabie Rate Note (the "Note") of the same date given by the undersigned (the "Borrower") and made payable to the order of wasbinston Mutual Bank. FA ("Lender"). Paragraph 3 of the Note is hereby restated in its entirety as follows:
3. PAYMENTS (A) Time and Place of Payments I will make my monthly payments on the first day of each month beginning on November, 2 0 0 5 Until the first day of Nwember, 2010 1 will pay only the interest on the unpaid principal balance of this Note. Thereafter, I will pay principal and interest by making payments every month as provided below. 1 will make these payments every month until I have paid ail of the Principal and interest and any other charges described below that I may owe under this Note. 6ach monthly payment will be applied as of its scheduled due date and will be applied to interest before Principal. If, on October 1, 2035 I still owe amounts under this Note, I will pay those amounts in full on that date, which is called the "Maturity Date". I will make my monthly payments at 9451 CORBIN ~ T H R I D G E . or at a different place if required by the Note Holder. cA 91324 (81 Amount of M y Initial Monthly Paymenfs Each of my initial monthly interest-only payments will be in the amount of U.S. $ . 3 . 5 amount may change. 5 2 5 5 This . (C1 Monthly Payment Changes Changes in my monthly payment will reflect changes in the unpaid Principal of my loan and in the interest rate that I must pay. The Nofe Holder will dexermine my new interest rate and the changed amount of my monthly payment i n accordance with Section 4 of this Note. Notwithstanding any other provision herein, the interest-only payment identified above shall be based upon the unpaid Principal balance after any partial prepayment is made.

WITNESS THE HAND(S) AND SEALIS) OF M E UNDERSIGNED.

/rkd>dlh&:fb
DAWS

DAVID W .

BC:658006
MGC Loan #: 17114050
NOTE ALLONGE

This AUonge is to be attached to and made a part of hat certain Promissory Note made by David W. Gates, in the oripjnal principal amount of $1,142,302.00, dated September 2 , 2005, and payable to Washington Mutual 0 Bank, FA, as amended or modified (the "Note"). Pay to the order of LPP MORTGAQE LTD., a Texas Limited P-ership, YAssignec"), without recourse and without representation or warranty whether express, implied or created by operation of law.
DB STRUCTURED PWDUCTS, INC.

Title: Vice President

STATE O P CALIFORNIA COUNTY OF LOS ANGELES

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PROOF OF SERVICE
ss.

I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is: 300 South Grand Avenue, Suite 2600, Los Angeles, CA 90071. On February 21,2012, I served the foregoing document described as:

DECLARATION OF BRET M a O N E Y
on the parties or attorneys for parties in this action who are identified on the attached senice list, using the following means of sewice. (If more than one means of service is checked, the means of service used for each party is indicated on the attached service list). BY PERSONAL SERVICE. I placed -the original or -a true copy of the foregoing document in sealed envelopes individually addressed to each of the parties on the anached service list, and caused such envelope to be delivered by hand to the offices of each addressee. BY FACSIMILE TRANSMISSION. I caused -the original or -a true copy of the foregoing document to be transmitted to each ofthe patties on the attached service list at the facsimile machine telephone number as last given by that person on any document which he or she has filed in this action and sewed upon this office. BY MAIL. I placed -the original or -atrue copy of the foregoing document in a sealed enveloped individually addressed to each of the parties on the attached service list, and caused each such envelope to be deposited in the mail at 300 South Grand Avenue, Suite 2600, Los Angeles, CA 90071. Each envelope was mailed with postage thereon fully prepaid. I am readily familiar with this firm's practice of collection and pmcessing of correspondence for mailing. Under that practice, mail is deposited with the United States Postal Service the same day that it is collected in the ordinary course of business. BY E-MAIL. I caused the foregoing document(s) to be transmitted by e-mail electronic transmission to the e-mail address on the attached service list as last given by that person on any document which he or she has filed in this action and served upon this office. BY EXPRESS MAIL. I placed -the original or -a hue copy of the foregoing document in a sealed enveloped individually addressed to each ofthe parties on the attached service list, and caused each such envelope to be deposited in the mail at 300 South Grand Avenue, Suite 2600, Los Angeles, CA 90071. Each envelope was mailed with Express Mail postage thereon fully prepaid. I am readily familiar with this f m ' s practice of collection and processing of correspondence for mailing. Under that practice, mail is deposited with the United States Postal Service the same day that it is collected in the ordinary course of business. BY FEDERAL EXPRESS. I placed -the original or -a hue copy of the foregoing document in a sealed enveloped or package designated by Federal Express with delivery fees paid or provided for, individually addressed t each of the parties on the attached service list, and caused such envelope or n package to be delivered at 300 South Grand Avenue, Suite 2600, Los Angeles, CA 90071, to an authorized courier or driver authorized by Federal Express to receive documents. (State) 1 declare under penalty of perjury under the laws ofthe State of Califomia that the foregoing is true and correct. (Federal) I declare that 1am employed in the office of a member of the bar of this court, at whose direction the service was made. Executed on February 21,2012, at Los Angeles, California

Antoinette Y. Taylor

SERVICE LIST Dmid Gates, Trusteefor the David W.Gates Trust dated August 5, 1996
V

MGC Mortgage, Inc., et al..

Santa Barbara Superior Court Case No. 1384851

Nancy Duffy McCarron, Esq. LAW OFFICE OF NANCY DUFFY McCARRON 950 Roble Lane Santa Barbara, Caliiornia 93103 Telephone: 805.965.3492 Facsimile: 760.345.0019 Email: [email protected]

Attorney for Plaintiff: DAVID W. GATES, TRUSTEE FOR THE DAVID W. GATES TRUST DATED AUGUST 5,1996

Page 131

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ONITEQ: STRTRS ~ N K R O P T E Y R T C~U BOUTHERM 'DISTRICT or. N E Y~~ R K

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A P P E A R A N C E S :
L A W OFFLCES OF LINDA M. TLRELLL, . P.C.

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I w i l l be more

char: happy t o ,
bgfore !n o

xrrn ;at t w i n 9 to b r i c k you, I just want t o

you undsrstand ny questions

nmkc .urn

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20

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A.

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21
22,

~euts~be nk ~ d Natianal TEUS: C W ~ Y , . a.

23

answer thu*.

24 25

.
A.

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25

IQ ChnL lade+ataod?
Yes.

trxstee.
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as

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t r v s t e c OI?

rnng Beach Martgap bhan Trust 2006-2,

ExecLLy now do you HnoW that7

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Vmmn WORTTNG W M P M
~I$?Y&I'ISU
Y .-* .

121-27944l4

Yancy Duffy McCarron, CBN 164780 >aw Office of Nancy Duffy McCarron )50 Roble Lane Santa ~ a r b a r CA 93 103 a $05-450-0450 fax 805-965-3492 iancvduffis~,~ahoo.com ~ e a~l Z i t Broker Lic. 853086 e Notary Public Lic. 1791117 Certifiekl Arbitrator for BBB 30329 ittomey for Plaintiff

GARY 4.

MAR 0 5 2012

SlJPERlOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA (ANACAPA DIVISION)

)AVID W. GATES, Trustee for the DAVID W. GATES 'rust dated Augllst 5, 1996 Plaintiff,
VS.

)
)

Case No:

1384851

j DAVID GATES AFFIDAVIT SUPPORTING

REPLY to Opposition to Motion for Preliminary Injunction; filed concurrently with: REPLY and Objections to Defendants Request for Judicial Notice; Objections to Declaration of Bret Maloney filed: 2-1-2012 CMC: 6-4-12 8:30 MSC: n/aTrial: n/ DATE: March 12,2012 DEPT: 5 CCP $5 527,187 TIME: 9:30 a.m.

) AGC Mortgage, Inc., Texas Corporation ) .PP Mortgage Utd., LP, Texas Corporation ) .oan Acquisition Corporation, Texas Corporation :al-Western Reconvevance Comoration. Texas Comoration ) ) )B Structured Ptoducts, Inc., Delaware Corporation )eutsche Bank National Trust Company, as trustee ) Nashington Mutual Bank, a national banking association ) Namu Asset Acceptance Corporation, SPV vehicle bank ) Nashington Mutual Mortgage Securities Corporation, bank ) P Morgan Chask Bank., National Association, a bank ) )OES 1 throuih 50, inclusive, Defendants.

Honorable Colleen K. Stelme

DAVID W. GATES AFFIDAVIT SUPPORTING REPLY TO OPPOSITION TO APPLICATION FOR PRELIMINARY INJUCTION

, DAVID GATES, trustee make the following statements based on personal knowledge and can testify to them
1. I read the verified co~nplaint, application for injunction, and REPLY to Opposition to be filed herein.

2. Although I do not understand the complexities of securitization and legalese I understand the facts. 3. I authehticate attached documents presented in REPLY as I have previously either sent or received them. iefore this lawsuit was tiled I submitted a statutory QWR request to MGC demanding a copy of my loan file. luring the last week of Janusuy I received a response from MGC containing copies of my mortgage loan file.

Davld Gate$ Affidavit Supporting REPLY to Opposition t o Motion for Preliminary Injunction

/3# scr

It included a 6-page note with my signahm on page 6. The note contained two black hole marks on the top of each of the 6 pages of the note, where a two-hole punch had been used, and the markings appeared on the pages.

THERE WAS NO ALLONGE attached to the 6- page note MGC produced as my "complete mortgage file."
William Paatalo's affidavit contains the note produced in response to my QWR (with black hole marks and no allonge -his Exh. E) and the note produced in Maloney's &davit (without black holes plus an allonge - Exh. F) 3. We were servkd with Opposition to my application for Preliminary =junction, including the affidavit of attached as Exhibit 1, a document which he identified as my note and ALLONGE. from the copy I received previously from previously. It differed signif~cantly

MGC in its respons

6 pages like the

my QWR request. Bret Maloney's copy did not contain any black marks at the top of the had produced previously. It contained the floating allonge I had never seen before. its response to our deposition subpoena served right after fding this lawsuit. Fidelity's

I package included a dopy of the original note I had signed on 9/23/05 at Fidelity.
not contain a robo-s

Fidelity's c o w of the note did

1 ,

When I signed the n te on 9/23/05 no one gave me a copy of the note. The note I signed did not have any stamp on the bottom. It enhed with my signature on page 6. If1 ever had acopy I lost it when lny home b m e d in 200 There are 3 versions (see attached Exh. A my note. The one Fidelity produced is the note as it appeared when I signed it on 9/23/05. The one MGC produced with the two black holes and a mbo-stamped endorsement is not

oed endorsement bv Cvnthia Rilev.VP of WaMu to DB Structured Products. Inc.

the note I signed at idelity nor does it look like the one Fidelity just produced. The note Bret Maloney submitted with an ALLONGE, and NO BLACK HOLE lMARKS on the top of the 6 pages, is a THIRD version I had never seen previously. I b lieve it was fabricated and forged. The allonge is undated, and not notarized as is required when conveying any interest effecting real properly in California.

5.

Fidelity also

advance until Octob shows an

odnced a Hud-1 closing statement included as Exh. B herein It shows that I paid interest in 1,2005 at closing. Exh. C1 is my loan as shown in the WAMU 05-AR 16 trnst, which

date of 1012005, and the exact amount of my loan $1,142,303 in my zip code 93 105 -the

erty at 1200 Palomino Road in Santa Barbara.

David Gates A f f l i d a v i t S u p p o r t i n g REPLY t o O p p o s i t i o n t o Motion f o r P r e l i m i n a r y I n j u n c t i o n

6.

Exh. C2 shows the various trances in w-hich my loan was included as collateral in what I understand were

CDO offerings to investors from WAMU 05-AR-16 trust. It shows that 6 out of 17 have already been p i d .
Exh. CI and C2 are also authenticated by expert William Baatalo who printed them from the Rloomberg site. (see affidavit of William Baatalo submitted with this REPLY)

7.

Before this lawsuit was filed I delivered a form I received in early 201 1 to my attorney (see Exhibit W)

It was entitled "cancellation of debt." The form recites that i t had been filed with the IRS and is identified as being from Dovenmuehle Mottgage. h c . which I had never heard of before receiving i t
it is unusual

in that it

recited that my debt at 1200 Palomino had been cancelled but the "fair mar& valuen box was entirely empty.
[ welit to the IRS offtce with

Exh. D to see what they had. IRS staff said they did not have the matching original

IRS gave me a computer report (Exh. E) showing all forms that had submitted to IRS under my social security

number for the tax -year 2010. IRS said it was unusual that I received tbis form hut TRS had not received one,

md it should have included a number in the "fair market value" box.

3.
I believe MGC submitted some type of insurance clam and received a payoff for i l ~ amount of my loan e

h r t h e fire because lenders only create such forms when they have cancelled (charged off) a loan. This certain1

:rested reasonable doubt in my mind as to whether MGC, through a related Beal entity Dovenmuehle submitted
tn insurance claim which fully paid off my loan, which is why my attorney included an accounting cause of iction in my complaint I also believe my loan was paid off in the various tranches appearing at Bloomberg site.
[ believe fraud has been

committed in various ways by the entities related to Andrew Beal in Texas. I want to pa!

ny obligations hut I want to pay only the investors who funded my loan, and only if they have not yet been paid.
I do not want to pay anyone in Texas who is not cntitlod to be paid. A full accounting is necessary so that we can

soertain what amounts have bedpaid on my loan. by whom and to whom I may owe money who were not paid

Ideclare these sZatmenls to be true under penalty of pejury and CA law. Executed in Santa Barbara on 3-5-12.

/Q&,,&#Lu.

w, t&

DAVID GATES, as tnrstee for the David W. Gates Trust dated August 5, 1996

--

David G a t e s A f f l d a o l t

p o r t i n g RZPLY t o O?position t o M ~ t i u r . <or Preliminary Injunction

13, Jb3

EXHIBIT LIST

A.
B.
C.

oe Fidelity Affidavit fmm Custodian of Records with a copy of the N t I signed on 9/23/05.
Hud-1 estimate of Closing Costs at settlement showing 1paid inreFest on my loan until l0/1/05
My loancontained in the WaMu Mortgage Psss Through Certificates 2005-AR-16

+ tranches paid

D.
E.

"Cancellation of Debt Fonn I received in early 201 1 frorn Deuvemuehle Mortgage affiliated with MGC
IRS print out showing all ofthe forms which were sent ta IRS under my social security no in 201

PROOF OP SERWCE
T am over 18 and not a party to the action. My address is 950 Roble Lane, Santa Barbara, CA 93 1 03.

On March 5,2012 1 sewed REPLY to OPPOSITION to Application for Preliminary Injunction on the only defendants who have appeared in the action (MGC Mortgage hc., LPP Mortgage Inc.,Loan Acquisition Corp.)
by transmitting by ernail a copy to their attorney of record, pursuant to a mutual agreement to serve by email, to:

RmcCIe~~don~locke~ord.com a copy t [email protected] to ascertain the email was transmitted. with o

1 ( I declace

these statements to betrue under m a l t y of pejury and CA law. Execukd in Santa Barbara on 3-5-12.

- 4 __-~~_-__-_-______-----------------------------------------------------2-----..----------David Gates A f f i d a v i t Supporting REPIX to Opposition to Motion for Preliminary I n j u n c t i o n

FIDELITY NATIONAL TITLE.INSURANCE COMPANY

DECLARATIONOF CUSTM)l&NOF RECORDS

Gates v MGc Mortgage, Inc.

Ale No: fig680

1 . f am the Custodian o f Records for Fidelity Natlonal T i e Insurance Company ('Fidelity9) for the records produced herewith.
I am making this declaration in response t o a Chril Subpoena for Personal Appearance at Trial or Hearlng, Subpoena Duces Tecum, Deposlrion Subpoena for Personal Appearance and Production of Documents and Thing, Deposition Subpoena for Prodoctlon of Business Records, Search Warrant, IRS Summons and/or signed Authorization t o Release Records (collectively the nSubpoena"). The production consists of true copies of the origlnal records dexribed In the Subpoena and constitm, insofar as Fidelb has such records, fiIe(s1 regarding flle number 22064i (the "Documentsn).
2.

3. The Documents are all true copies of remrds prepared or compiled by employees of Fidelity and were made in the ordinary course o business at or near the time of f the act, mnditi~n, event in which they relate to. or

I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Exehed on March 2,2012, in Los Angeles, Callfornia.
7

FlDELrrY NATIONAL LAW GROUP A Divtsion of Fidellty National Title Group, Inc.

~ d Whelihan, Legal Assistant l l

AXEDIARIUSTABLE RATE NOTE (1 Year Tresrury hdex Rat. Capst

..
'

A CHAN6E BY MY FM8) URBEBT RATE TO AN RATE. THIS NOTE UITS TM A M O M MY A W M T A B E INTEREST RblZ CL\W CHANGE hT Am ONE l W E AND TI M A X M U M RATE I MUST

THIS NOTE PROVIDE5

~~
PAY.

&

.. . .

1. l3omwEwS-mPAY In retim for a lorn thm I have rswived. I promise to pay u.S. 9 i,142,302.00 (*is amaunt la oalld "Ridpol"). p b interern, to' the order of the Lendm. The Lader is . . on Mutual Bralr. PA I will make N psymsma undw this ' - : . Noto in t b E t a h t a h or money order. l undamtand that the Lender m ~ -fur rheck y lhii .. .% . Nota % tw&f ff who takes thh Nola by trslsfer and his cntitM M raDdve ';' paymanrrunder this Not4 h cailed h "NoteHolder: e . . 2. -T . . lmae+t win be c h a w on u n W Rlncipd urrm me full m r n of Pflntipat has bsen psld. I wlll pay intaesr at a Wmly rrtc of 5 . 6 0 0 %. The knermt rme I wlll pay may &ngs In' awrdanam with Ssctlon 4 of thii h . 'Ihe iMM rate required by this S a i o n 2 md Sactlon 4 of mis Nom io me race I will pay bom bsfore md &or m y d e W denuitmd In !&xian7@l of rhls hlota

..

PAYMENTS iAl T h e and Plma ot Pynr.ntc I will pay P r k W and inwest by mMna psynwnts avwq m m h . I wllt make my momhlr -no on the first day of d momh beginning on NoMmbr $st, 2006.1 d mate thssr peymso~l l every m ~ t rntn I have pm'd 1 of the ~ h c and ht8rest h i ~ ard en9 qthm E h a s . d-ibad below that 1 may owe undn thio Note. Ezsh mmthIY payment wal be @led M of rrs s c h s d ~ ~ s d daa md wm be gpiw m imerrn I I U ~ ~lln~lpal. on d~ E if, Ocrobw l'+. 2036 I still owe moumc ud.r m* N, I will pay those mount6 in MI on tha dam, whkh is c ~ l tha m a M ~ dDate". d cy

a.

. . ..

; ;

> ) .

my m o n ~ psymem ac y . rnS ~ C B 9451 COXWU A=, . ... , . N a ar 0 n t m r or a a d z , l N.CB If requird by the Note Hold-. (BlAn#urtdWHMMarlhllPamrrtc T b .. h 5 d 14f tnv inltbl mMthly paymrnts wit be h the m u n t of U S $7,OX4-?3 .. wwrmt m:y change. C ) Haahlv P m w Dhngr C Chmgaain mymrrmhtypeyneemwill d k t c t &-in thsunpaldl'rhipd of m y b n and in rhe inta* rate that I must pq. The Note Holder will determine my new Interest reto md'the changed +unt of my monthly paymsnt in ecordsnce with Secdon 4 of thip Note.

.I w~

.. ,

.. .,. .
v

. .. .

. ... . . ..: . ..,. . .. -. . . i

FNTC 0210

Pp

4. INTEREST RLITE AND MONlMY PAwmC H A W

(nl Chaes D m s

. .

.m Ths I n k 1 Be@ming &h the first Change Date, my intasst rste w be besod on an lndex. Ile 'Index" l W 8 the weekly avcnga viehi on United Statra Tressuv secuitiea a d i u d to -ant s matudtv of 1 yeu. BO mnde am&We by the F Raserve G d . The m & e m r r c hdex Rgure wallable t& 'Cunsnt lndsl" win chDornr a new index whlch is baaed won mmpasbla infarmath. ma naice of lhia choia.

The intaan rsle 1 4 1 pay may chunge on the first day of 0ctobe.r. 2010 and m t a day every 1 h month memfmr. Eaoh d m on which my ac+mMe could c h a m is called a Xhmge Dste:

inaPln

I&

'

..~,
~

ondahth of arm pemubtaga patm (0.12696). Subiaa to the l i i stet&

in S d a n 40 belaw; . . 4

ah l l ~ n d amount wH be my new *r9lsn rats uwi the nen mange ~ s e . d

DMO WUI mr be arer*w thsn '.. ~ h iptsnrt nts I s l0.sO0.~ %'or h~ h 2-75 % Thwndbt. m y n . iram will nevg LM. two wcentmg. polnta (2.0%) ' .- . .l n c r r d . a deawased on m y sfnnle C h Date by more (ram the+ o ~nmeat tme been baying f o ~ w f I the g 12 m * r . MV inrerest rate WUI nzwrbe@omrth!m lo.sO0 % . . :. .: . .

each Changa Pam. I will pay tho amount of r V n My MW i m r e n rwe will bemme payment date afW he Chrngs Date until the neb rn payment beginning on mount af mv mrmthly paymenr ahan& wain. N*QfCh.nga m Nme Hotda will d e b e s ndlce of m y Ehangas in my knsmtr d , ; t h e mnornt of my rno M r =the effective data of my -00.. a$ . T h . ~ r v a l l n d u d e h . ~ o u n t I n d e x . ~ y m o ~ l v p a y m s l t . a r r y - ~ r m e t i o n r e q u i r a d b y i w m b e'~ ~ ~ given me'wd eleD tho title and nlephohe nunber of a ##erean wha wlt m w a r ary, puedtion I m . .'.... w . . . ham rs&lm tha nmlcs. --(Ql I*m Maks Aau".nnomI usanent w 6m interest rate o p w e M r

IQEmcp\nDd.afQla(lu

In

aim agree not to hDLI W d d %wlure to nnks the

nt of rmoald RimIwI.
a t m rims M e r e they are due. A Payment of y I make a R8paymmt. I wil tell th Nnlat. Holder

FNTC 0219

'

reto inorrase. ' 6. W A N W1I\RGES ' n a Ian. whioh applier to this l ~ a n w ~ s eha d~ IOM ehngo* is W b irrarpreaed and no that the Interan or urher lorn chwges COIIIICW 0 1 to be cafleetsd in cannecflm with ttds lorn exceed the psrmlned llmhs, than; (6 m y meh.loen charge shall be radvoed by t m o u n t b neeesgary to rsducs the h g e m the pormhtsd limit: and (b)any sums dremdy callaftad fmm ma . that exceed& penrrirted limits mil be refunded ta m e The Note Holdk maq choasa ta maLr mli relund bV-raduc3Wthe R M p e l I owe d e r ?Ida MOO or by makfne B direct p e y m a ~ me. If a to refund redueas Prlnolpd, ths raducdm wlll be mated rrs a p d a l R e p a ~ e n t . UTldknolu k.c. IundacRld t n the Note Holder win also c h a w a rstum kern charge In h .' . ~o event: r paymem t h s ~ rnaka in cannection wlth repayment of th$ b n is not honored by the I a flnancid i-tihmon on which it it drawn. Iha cunent fan is 8 1S.oQ tender raseNeE the . '' . '. right to chanpa the fee from tiw to tima without nolio. axcept as may be required by law. 7. BORROWER'S FAiLUW 70 PAY AS REQUIED

In wridng that Iam doing w. Irnw not designate a p*nnem as m Prepayment if Ihave not mods all t momW p w r n m n due unda ma Note. k I m b M* 8 full Prepgvlnnn or p d a l Repaymnfl w i M M pmmng Prepayment Eharge. . an, The lid* will nf my P n p ~ m l n a r reduce the amount d Rhdpd that Iowe undw to *his N m - Howew. h k k ~ may ap~ly y Repsrrmsm to the acorue r m unInterest on RBpaymm w w . hfom applying my RslpnFent to rsduoe th. Principd srnount of he Non. If f make a partial Prspaymam. there will be no changes in the due dm- of my monMy paymen? unless the Note Holder Emes in writing to those changea. My Psnial P- n re t may ~ e d the mount of my monIhly peyrnwm &rrhe iht Chaw Dam following my p a l a l u ~ intam . Pmp0ynre.m. However. 8ty reduction due to my parial Rsp-t may be o t h g by

'

IA! WWusoatarovrduPamm& If the Note Holder ham net mebed the full a n d of any rnwnhly paymant bv tha end of c k m d e daya a h ma d m it is due. Iwill pay a lam d r a m m t?m Note HoIda. Tho
amount 6th. cher~e be * will % of my O V I pavnnnt of Rindpol m d intraat 'Iwill pay ~ m i IACchsrge prompuy. Buf only once on ewh late psrmsnr

'

IB106hdt H I cb not pay the full amount of each monthly pt dafauk.

ICl p k 4 a of D.(Puh 1 1 I m indslruk t h e N o t e U ~ l d e r ~ s e n d m e a u r i n e n t i c e ~ m e t h a t i fdonotpay no l um h . u e mmt by a ceRatn date. the Mote Holder mew rfmife me m psy immdimlv full smoumofPIinclpdth.rheana~paidanddl~intsnn~+tomon~+snwnt. Thndnt6.mun be at lssst 30 d-8 &ix the dm on whldc the nmtieo in rn.ilad m me n dslivmad by other . . mm. : o s ID) No W.lva By Ploa M u . Even 8,at a time w M Ipm in defuk. the Note Holdey daeo not rquire ma ta pay i m n m d b l y In full as d&bd h v m , the Note Holder will still have the right to do Mt if Iam in dstsult at a

on the date It ia due,

IwH1 ba in . . .

lawr thne.~ nPspumt0111o).Hddu'i~md~ .. . # miNme HOW- has require~ t o M y i m m m a in ~ as -rKmd ms ~ tull rbove. h a Note. .. : 'Holder w e hme the right to be pdd back by ma for all d its costa and s p rh e n M g this not prohibiid by ApplicaMs law. Those q e n a a i.dud4. far uumplq,. ,, . . Note to .. .. rassonabh attomws' tees.

*OiOrmQD

r.pad.3

Nancy Duffy McCarron, CBN 164780 Law Office ofNancy Du@ McCarron 950 Roble Lane Santa Barbara, CA 93 103 805-450-0450 fax 805-965-3492 [email protected] Real Estate Broker Lic. 853086 Notary Public Lie. 1791117 Certified Arbitrator for BBB 30329

sucgcgfi",pgA"N'-g; !&"4:pA
MAR 0 5 2012

FILED

Attorney for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA (ANACAPA DIVISION)
DAVID W. GATES, Trustee for the DAVID W. GATES Trust dated August 5. 1996 Plaintiff.

vs. ) MGC Mort~ane. Inc., Texas Cornoration LPP ~ o r t g a gLtd., LP, Texas corporation e ) Loan Acquisition Corporation, Texas Corporation ) Cal-Westem Reconveyance Corporation, Texas Corporation ) DB Structured Products, Inc., Delaware Corporation ) ) Deutsche Bank National Trust Company, as trustee Washington Mutual Bank, a national banking association ) Wamu Asset Acceptance Corporation, SPV vehicle bank ) Washington Mutual Mortgagk Securities Corporation, bank ) JP Morgan Chase Bank., National Association, a bank ) DOES 1 through 50, inclusive, Defendants.

CaseNo:

1384851

filed:2-1-12 CMC: 6/4/12 8:30 MSC:n/a Trial :n/a

OBJECTIONS to Request for Judicial Notice in Opposition Preliminary lnjunction filed together with: Reply to Opposition; affidavit of William Paatalo; affidavits:David Gates,Nancy McCarron,Ron Landis; Notice of Lodging: (Criminal Affimlance-Elite and (Foreclosure in California-A Crisir of Compliance)
DATE: March 12,2012 TIME: 9:30 a.m.

DEPT:

Honorable Colleen K. Steme

Evidence 55 451 - 453 Evidence 55200,210,400,412,413,702,1401

IIGeneral Rules on Judicial Notice

A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute "Taking

'' 1I

judicial notice of a document is not the same as accepting the trnth of its contents or accepting a particular interpretation of its meaning." .Jos/in r H A S . i n s B ~ o k e ~ o g e (1986) 184 CaI.App3d 369,374. While courts take

1' (1 II

judicial notice of public records, they do not take notice of the truth of matters stated therein Lore v. Woy(1964) 226 C.A.2d 378,403. "When judicial notice is taken of a document . . .the truthfulness and proper interpretation of the document are disputable.'' S'torMedio, ine v. Superior Cow1 (1999) 20 Cal4th 449,457, h.9. Defendants in this case ask the court t "take judicial notice of the following evidence'' (Def. Req. Jud. Not. Page 2) o All the court can take notice of is that the documents were recorded by looking at the County Recorder stamps.

)I

'' '
I
)

II

Evidentiary Objections to MGC-LPP-LAC Request

to Preliminary Injunction

The court can not take judicial notice of defendants' recorded docu~nelits "cvidence." They have zero as :videntiary value. First, defendants did not file certified copies. Accordingly, the documents a e not selfluthenticating as they would be if certified copies had been filed; i.e. the county recorder would authenticate t l ~ e t ~ rhus, no foundation has been laid to admit the hearsay documents under any exception to the hearsay rule. jecondly, even if certified copies were filed (they were not) the court still could not consider them as evidence, )ecause the contents are disputed by plaintiff. Third, defendants counsel can neither authenticate nor offer them as evidence. Counsel's argument is not :vidence. CACl 106. Counsel has no personal knowledge concerning either the creation or recording of theln. Iccordingly she is i~lcornpetent testify to the contents. Evid. $702 to Counsel is not the custodian of records for MGC, LPP or LAC; accordingly she can not authenticate the ecords as being copies of records maintained during the ordinary course of business, for admissions under that :xception to the hearsay rule. The attachments are irrelevant, unauthenticated, inadmissible hearsay. Evid

$5

!00,210,400 702, 1401. Even if the documents were admitted under the business exception to the hearsay rule he attacliments are untrustworthy. Evid. Code $ 1271 (d). The Court judges the credibility of affidavits and esolves conflicting documents. Voeltz v. Bakery &Confection Workers Inbl. Uiiion (1953) 40 Cal.2d 382, 386

2eneral Evidentiary Rules:

A party canliot offer speculation aid conjecture on a motion based up011 evidence presented. Pena v. MH.
>ourhitiSteel & Supply Co. (1986) 179 C.A.3d 924, 931; Ckern'1 Bank o f d m e ~ i c a (1976) 15 C.3d 866, 873.

I party must produce admissible evidence raising triable issues of material fact. Craig Corp. v. County o LA f
1975) 51 C.A.3d 909,915. Hearsay evidence is not sufficient to raise an issue of fact when the party relying
In it fails to lay a proper foundation. Rochlis v. Walt Disney (1993) 19 C.A 4th 20. No foundation was layed. A supporting or opposirlg affidavit must be based on personal knowledge. Regents o Univ. o CA v. Supr Ci f f 1996) 41 CA.4th 1040,1044; Maltby v. Shook(1955) 131 CA.2d 349, 352-354 [personal knowledge requirement ~pplies even when affiant is a party's attorney]. Defendants' attorney has no personal knowledge about contents o my of the exhibits offered for Judicial Notice. jbjeetions: Hearsay-$1200 Authenticity-$1401 Foundation-$400 Competency-$702,801 Relevancy $211

Evidentiary Objections to MGC-LP?-LAC Request f o r

to Prelirnilary Injunstlon

3bjections under Evidence Code 5412,413.

If weaker and less satisfactory exridence is offered when it was within tlie power of the party to produce
:tronger and more satisfactory evidence, tlie evidence offercd should be viewed with distrust. Evid Code $412.
n deter~iiining what inferences to draw from the evidence or facts in the case against a party, the trier of fact ma)

:onsider, among other things. the p a ~ v ' s failure to emlain or to deny by his testimony such evidence or facts in he case against him, or his willful suppressioti of evidence relating t h e m , if such be the case. Evid Code $413. In this case defendants could have obtained the declarations of persons who had personal knowledge abou he contents of the attachments, or could have obtained the affidavit of the custodian of records to authenticate. )efendants woefully fail evidentiary tests. Under Evidence Code $412 the court should distrust the purported .evidencex counsel tried to offer which is unadulterated hearsay. Defendaiits did not file an answer denying jates allegations made in his verified co~nplaint in affidavits for this injunction request. Under Evidence and :ode $41 3 the court should draw the inference that defendants' failure to explain or deny can only mean they .now the allonge was manufactured for this litigation and never actually existed prior to this litigation. (see ffidavit of Ron Landis) Defendants also know the two assign~nents recorded were fabricated forgcries. do defendant was willing to risk perjury by filing affidavits they knew would be perjury to try to authenticate the abricated, forged assignments. I!nder UCC $3-308(a) the party asserting the validity oTa negotiable instrument has the burden to prove it )efendaiits failed to offer even a scintilla of admissible c~idcnce disprovc any allegations in Gates' affidavits. to 'ersonal knowledge is esse~ltially clcclncnt of the affiant's competency to testify. Evidence Code $702. all .he affiant must statc facts showing how she came to know the facts proffered. Snider 11. Snider (1962) 200 C.A d 741, 753. Defendants did not offer it because the custodia~i records at MGC hiows tlie note and allonge, a: of vell as recorded assignments are fabricated, forged instruments. Plaintiff asks the court to deny defendants request to take judicial notice of purported "evidence." :espectfully submitted: 3-5-20 I2
flancv 7)n& /tlcCarron

Evidentlary Objections to MGC-LPP-LAC Request f o r J u d i c i a l N o t i c e - O p p o s i t i o n

flf

t o Preliminary Injunction

PROOF OF SERVICE
1am over 18 and not a party to the action. My address is 950 Roble Lane, Santa Barbara, CA 93 103.

In March 5,2012 1 served Obiections to Defendants Request Judicial N * ,

with Reply to Opposition to

ipplication for Preliminary Injunction on the only defendants who have appeared in the action (MGC Mortgage nc., LPP Mortgage Inc.,Loan Acquisition Corp.) by transmitting by enlail a copy to their attonley of record, ~ursuant a mutual agreement to serve by email, to: to
RmcClendon@,lockelosd,con~with a copy to nancyduffjsh@yah-

to ascertain the email was transmitted

declare these statements to be true under penalty of perjury and CA law. Executed in Santa Barbara on 3-5-12.
/ V a n q 3u$$v /ticcawon

____-_____-__________------------

Evidentiary m j e c t i o n s to MGC-LPP-LAC Request

to Preliminary I n i u l c t l o n

Nancy Duffy McCarron, CBN 164780 Law Office of Nancy D n f i McCarron 950 Roble Lane Santa Barbara, CA 93 103 805-450-0450 fax 805-965-3492 [email protected] Real Estate Broker Lie. 853086 Notary Public Lic. 1791117 Certified Arbitrator for EBB 30329 for Plaintiff

SUPERIOR C RT of A IFORNIA COUNTY ~?#ANTC\

FILED
MAR 0 5 2012

~~~A~BARA

"ttorney
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SUPERTOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA (ANACAPA DIVISION)
DAVID W. GATES, Tmstee for the DAVID W. GATES ) Trust dated August 5, 1996 Plaintiff, ) vs. I 1 MGC Mortgage, Inc., Texas Corporation ) LPP Mortgage Ltd., LP, Texas Corporation ) Loan Acquisition Corporation. Texas Corporation ) Cal-Western Reconveyance Corporation, Texas Corporation ) DB Structured Products, Inc., Delaware Corporation ) Deutsche Bank National Trust Company, as trustee ) Washington Mutual Bank, a national banking association ) Wamu Asset Acceptance Co~oration, SPV vehicle bank ) Washington Mutual Mortgage Securities Corporation. bank ) JP Morgan Chase Bank., National Association, a bank DOES 1 through 50, inclusive, Defendants. ) )

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Case No: 1384851 filed:2-1-12 CMC: 6/4/12 8:30 MSC:n/a Trial :n/a

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EVIDENTIARY OBJECTIONS to Bret Maloney's Affidavit in Opposition (MGC-LPP-LAC) to Gates' Motion for Preliminary Injunction filed together with: Reply to Opposition; affidavit of William Paatalo; affidavits:David Gates,Nancy McCarron,Ron Landis; ti^^ of ~ ~ d _ ~ . i ~ ~ f i ~ ~~:l ~ criIns) ~ - ~ ( ~ ~ i ~ ~ and (Foreclosure in ~alifomia-A Crisis of Compliance) DATE: M a r c h 12,2012 5 TIME: 9:30 a.m.

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! DEPT:

Honorable Colleen K. Sterne

Evidence 55210,400,412,413,702,S01, 200,1401

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/1

1 General Evidentiary Rules:

A party cannot offer speculation and conjecture on a motion based upon evidence presented. Pena v. W.H.

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Douthitt Steel & Supply Co. (1986) 179 C.A.3d 924,93 1; Chern v. Bank ofAmerica (1976) 15 C.3d 866,873.
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A party must produce adnzissible evidence raising triable issues of material fact. Craig Corp. 11. County of LA
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II

(1975) 51 C.A.3d 909,915. Hearsay evidence is not sufficient to raise an issue of fact when the party relying on it fails to lay a proper foundation. Rochlis v. Walt Disney (1993) 19 C.A 4th 20. No foundation was layed. A supponing or opposing affidavit must be based on personal knowledge. Regents o Univ ofCA r Supr Ci.1 f (1996) 41 CA.4th 1040,1044: Maltby v. Shook (1955) 131 CA.2d 349: 352-354 [personal knowledge requirement applies even when affiant is a party's attorney]. Defendants' attorney has no personal knowledge about recordings Maloney lacks personal knowledge about creation of an allonge as he was not a party to it. Seeing it is not enough
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Evidentiary Ob3ections t o Affidavit of Bret Malonev supporting Opposition to Preliminary Injunction

1 flip 5

If weaker and less satisfactory evidence is offered when it was within the power ofthe party to produce itronger and more satisfactory evidence. the evidence offered should be-wed with distrust. Evid Code $412.

n determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may

:onsider, among other things, the parhi's failure to explain or to denv by his testimony such evidence or facts in he case against him, &willful suppression of evidence r e l a t i n g e t o , if such be the case. Evid Code $413.

In this case defendants could have obtained the declaration of Sheiley Arroyo, the person who purportedly ransferred the note from DP Structured Products, Inc. Instead defendants use Maloney try to authenticate it. 'his woefully fails the evidenliary test. Under Evidence Code $412 the court should distrust the testimony of daloney where defendnnts could have obtained a declaration from Sheiley Arroyo, notwithstanding Maloney's ack of personal knowledge. Evid. Code $702. Defendants did no1 lile an answer denying Gates allegations nade in his verified complaint and in affidavits for this injunction request. Under Evidence Code 3413 the court hould draw the inference that defendants' failure to explain or deny can only mean thcy know the allonge was nanufactured for this litigation and never actually existed prior to this litigation. (see affidavit of Ron Landis) If one sees a dollar bill laying on the ground its validity is not determined by observation of the dollar lying on the ground. The dollar bill could be counterfeit. Forensic examination would be required to ascertain if he dollar is genuine and not counterfeit. Observing the dollar is insufficient and proves nothing except that the vitness observed the dollar. The same rule applies here. The fact that Molooey saw a note and allonge in a vault
1 1

Texas does nor prove the validity of the negotiable instrument, especially where it is undated and not notarized.

only proves that Maloney saw the note and allonge in the vault in Texas. Under UCC $3-308(a) the party asserting the validity of a negotiable instrument has the burden to prove it

;ates does not have to prove it is invalid. MGC and LPP must prove the instrument (note plus allonge) is valid. daloney has no personal knowledge about the purported allonge because the only persons who could authenticatc

t, or has any personal knowledge about it, would be the parties purportedly involved at some unidentified date
"hen the purported negotiation occurred. Ms. Sheiley Arroyo, as VP of DP Structured Products, Inc. is listed as he purported assignor. MGC could have obtained Sheiley Arroyo's affidavit to authenticate the allonge. Jnder Evidence Codes 5412 and $413 the court should distrust the evidence presented by Maloney.

Evidentiary Objections to Afficavit of Bret Maloney supporting P~posit;on t o Preliminary Injunction

1 t 5x7 s

Personal knowledge is essentially an element of the affiant's competency to testify. Evidence Code 5702. The affiant must state facts showing how she came to know the facts proffered. Snider v. Snide? (1962) 200 C.A 2d 541, 553. Maloney has no personal knowledge about the allonge or note. He was not a party to either one. Maloney does not even assert that he is the custodian of records for MGC so no foundation has been laid. Even ifthe court admit the allonge based on the business records exception to the hearsay rule, the custodian of records would have to file an affidavit to authenticate the business record which is a prerequisite to admission. Defendants did not offer it because the custodian of records at MGC knows the note and allonge that Maloney observed is not a record which was kept in the ordinary course of business at MGC. Thc custodian knows the noti Maloney observed in the Texas vault was delivered by Deutsche National Bank Trustee's oflice in Santa Ana, the trustee for the WaMu Series 2005- AR-16 trust becausc MGC requesbd it. The real custodian of records also knows the allonge was newly created for this litigation and was not a document which had been kept in the ~rdinary course of business at MGC in Texas. He or she did not want to commit perjury by testifying to that fact knowing it is not true. This is why Beal borrowed Maloney from Sax011Mortgage to drive over to the vault, and by testify that he SUM, the note and allonge. Maloney avoided p e r j u ~ testifying only that he saw the document. Maloney knows he is not the custodian of records for MGC which is why he did not testify that he was custodian. Accordingly, Maloney is incompetent to authenticate the note or allonge. The real facts are that MGC, as loan servicer, sent a request to the Deutsche bank trustee (Ronaldo Reyes) to deliver the mortgage file to Texas For the litigation andlor foreclosure. (see affidavit of Ron Landis filed with these evidentiary objections.) Affidavits may not state ultimate facts or conclusions. Krantz v. BT Vi.sualImages (200 1 ) 89 CA4th 164,173
Hqman lz Block (1986) 176 CA3d 629,638; Rodes v. Slzannon (1961) 194 C.A.2d 743,748. They're insufficien

when unsupported by evidentiary facts based on personal knowledge. Colby v. Schwartz (1978)78 CA3d 885,885 An ineffective denial based on infnrmationlbelief can not be used to counter a veriiied allegation.
9liver v. Swiss Club Tell (1963) 222 C.A. 2d 528, 539. An ineffective denial is a judicial admission and

:onclusively establishes the truth of a matter.

Urntr 1,. Abex Corpornfion (1990) 21 7 C.A.3d 1425, 1433

lfno affidavits are filed in opposing a inotion the court may accept as true facts alleged in the movant's affidavits. 3rovidcd they are witl~intheir personal knowledge and are facts to which he or she could competently testify.
Ljuns
I,.

Secwit); Pacific Nut. Bunk (1995) 40 C.A. 4th 1001: 1014. CCP 52015.5 Maloney never testifies LPP

is lender-just that MGC "services" the loan for LPP. LPP is the loan sewicer; MGC is merely its sub-sewicer.

Evidentiary Objections to Affidavit of Bret Maloney supporting Opposition to PreLimlnary Injunctron

/5-,5TV

General Evidentiary Objections: Evidence Code 5412,413 First, the court must note that NO DEFENDANT HAS FILED A RESPONSIVE PLEADING (answer or demurrer) to the verified complaint. Accordingly, the court must accept all uncontroverted allegations as true. The hearing on this matter is evidentiary under CCP $527 requiring review of afjdmits and admissible evidence. CWRC defendants could have filed an ANSWER denying allegations or could have filed controverting affidavits Bret Maloney's affidavit was a transparent nttcmpt to mislead the court. Maloney lacks personal knowledg on whether LPP is a lender orjust servicer as he was not a party to the purported "negotiation" of the note. He ha no personal knowledge of any facts concerning Gates' obligations or whether LPP or MGC is entitled to be paid. Objections: Hearsay-51200 Authenticity-51401 Foundation-$400 Competency-702,801 Relevancy 5211 Plaintiff asks the court to strike the aftidavit of Bret Maloney as it has zero evidentiary value, is inadmissible hearsay, was not properly authenticated: is without fotwdation, is proffered by a witness who is incompetent to testify on matters to which he had no personal knowledge and who is not qualified to testify as an expert. Accordingly, the affidavit is irrelevant to this motion. In the alternative, if the court decides to admit the evidenc~ then Gates asks the court to apply Evidence Code $412;413 and view Maloney's affidavit with distrust. The Court judges the credibility of affidavits and resolves conflicting documents. Voeltz v. Bakery &

Confection Wo~kers1 h ,Unio11(1953) 40 C.al.2d 382, 386 I21

Respectfully submitted: 3-5-2012 PROOF O F SERVICE
I am over 18 and not a party to the action. My address is 950 Roble Lane, Santa Barbara, CA 93103.
0 1 1 March

/Vanq

Du$$r /IZLCIIYPO~

5. 2012 I served Evidentiaw Obiections to Declaratio~l Bret Maloney. with Reply to Opposition to of

Application for Preliminary injunction on the only defendants who have appeared in the action (MGC Mortgage Inc., LPP Mortgage 11ic.,Loan Acquisition Corp.) by transmitting by elnail a copy to their attorney of record, pursuant to a mutual agreement to serve by email, to:

R~ncClendonia)lockelord.com . with a copy to nancvduffvsb@,yahoo.comto ascertain the email was transmitted

I declare these statements to be true under penalty of perjury and CA law. Executed in Santa Barbara on 3-5- 12.

Ev~dentiary Objsctions to Affidavit of Bret Maloney

1 g, a 7

u p p c r t i n g Opposition to Preliminary Injunction

Nancy D u e McCarron, CBN 164780 Law Office of Nancy Duffy McCarron 950 Roble Lane Santa Barbara, CA 93103 805-450-0450 f 805-965-3492 a [email protected] Notary Public L c 1791117 i Certifed Arbitrator for BBB 30329

MAR 1 2 2012

RealEstate Broker Lic. 853086

Attorney for Plaintiff

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SANTA BARBARA (ANACAPA DMSION)
I

DAVID W.GATES,Tmtee for the DAVXD W.GATES Tmst dated August 5,1996 Plaintiff,
vs.
I

MGC Mo~tgaze, Inc., Texas Co15)oration

) Case No: 1384851 ) ) SUPPLMENTAL AFFIDAW OF DAVID GATES ) SUPPORTING REPLY to Opposition to Motion for

u p

LPP ~ o f l g & e t t dLP, Texas dorpmtion , ) j filed: 2-1-2012 CMC: 6-4-12 8 3 0 MSC: nfa'Lkial: n Loan Acquisition Corporation, Texas Co~pomtion Cal-Western Reconveyance Corporation, Texas Corporation ) ) DATE: March 12,2012 TIIME: 9:30 a.m. DB StructuredProducts,Inc., Delaware Corporation Deutsche Bank National Trust Comanv. as mstee Washington Mutual Bank, a nationai ba&inI association j DEPT: 5 Honorable Colleen K. Steme Wmu Asset Acceptance Corporation, SPV vehicle bank ) CCP $5 527,187 Washington Mutual Mortgage Securi'nes Corporation,bank ) J Morgan Chase Bank., Nahonal Association, a banlt P ) DOES 1h * t, r inclusive, ~efcndants._) SWPLEMENAL. AFFIDAVlT OF DAVID GATES

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SUE'PORTING REPLY TO OPPOSITION TO APPLICATION FOR PRELIMINARY INSUNCTION

I, DAVID GATES, trustee lar.thefollowing siateme~~ts on personal knowledge and can testi& to them. based
1.

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1)

1read the court's tentative ruling and make these statements to clarify mistaken conclusions. First, the

I
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11

court stated that my principal argument is MGC cannot fmeclosure bemuse they do not possess the original note.
lXs is not true. My principal argument in all papers waslis that MGC could not have created the assignment on in his aEdavit and exhibits.

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1) 8-26-06because MGC did not exist until 2008 as expert William Paatalo &ved
112.

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The court assumed 1can not make rnyrnonthIy payments This it n ~ true. My last notice of 11ew payment i

from MGC w 8-26-11 showing P+I of $1,139.38. 1 can make that p a d n t . I do not want t pay MCiC as they o was proven to be a fraud.

never lent me any money, I do not owe them money, and the recorded assi
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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - ~ - ~ - . - - . -

.............................
to M ~ t i a n for

Supplemental Affidavit of

David Gates Supporting

urn1 iminaru

REPLY

Tr,innrtion

I.

The court mistakenly concluded 1200 Palomino was my secondary residence. It was never my secondary

esidence. Since the [ate nineties it has been my principal residence. I have owned the property next door at 186 Palomino since 1976. In the summer of 2005 we had to dig up floors at 1186 to make major repairs under he house to the septic system. Because the floors and plumbing were tom up it was not rentable to tenants, so ny wife and I moved over from 1200 to 1186 and rented out thc space we nonnally occupied at 1200 Palomino.

'his was only temporarily, for about 3 or 4 months. When repairs were finished we moved back over to 1200.
200 Palomino has always been my primaw residence. I signed the secondaryhome rider because on the day that signed the loan papers we were living at 1186 Palomino, but it was only temporaty.
I The court mistakenly concluded that I am unable to tender back payments. This is not true. I have funds tc .

mder back payments once the accounting has been completed and the cowect amount of arearages is computed. Vhen my attorney negotiated a release of funds from MGC in May o f 2010 I brougbt my home loan up to date. be statements Mr. Maloney made were not accurate. I had not mailed in a payment .stub but brought it current. be statements on the NOD are also inaccurate. 'key were not created by any of the trustee's employees or a y n mployees at MGC or LPP. They were signed by employees of other companies (LSI and S e ~ c Link)wllo had c o personal knowledge about the payments I had made or that my attorney had brought the loan up to date and urrent in the end of 2010.

In early 201 1 1received a cancellation of debt fonn sent from Dovermeuhle Mortgage, b c . for MGC.

cle them and MGC ald

to find out why I had received the form and why there was no:market value listed.

'hey never returned my calls or explained why I received the form. A full accounting is necessary so that we cal scertain what amounts have been paid on my loan, by whom, and to whom I may owe money who were not paid declare these statements to be true under penalty of perjury and CA law. Executed in Santa Barbara on 3-1 1-12

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ .._ ___ -_ --- - - - -- .- - . - . - - - - - - - _ _. _____L_ .__. -----..- --- - --- -----

Supplemental Affidavit of David G a t e s Supporting REPLY to Preliminary Injunction

PROOF OF SERVICE:
David W. Gstes v. MGC. et a1 SBSC No. 1384851

4
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STATE OF CALIFORMA, COUNTY OF SANTA BARBARA

I am employed in the County of Santa Barbara, State of California. I am over 18 and not a paay to the action. My address is 950Roble Lane, SantaBarbara, CA 93103.805-450-0450 fax 805-965-349

9
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1 (BYPERSONAL DEWERY) to the attorney ofrecord forplaintiffas f o 0 0 u :

]

(BY FACSIMILE) Thc facsimile machine Insed comphed with Rule 2003(3) and no m r was reported by machine. .0 Pursuant to Rule CRC,2 0 8 [c](4). I caused the machine to maintain a record of same.
By EMAIL at the foUowing email addresses, with copy to nancvduft%sb~vahoo.com agreomut to defendants: per ***This list covers all 10 defendants who were named in the complaint; all 10were served by March 6,2011:

12

[x ]
13
14
15

16

17
la
19

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MGC, LLP, LAC (3 Beal defendants) Reeina McClendun. Locke Lord LLP ~&l~n~@~ockcloid.~m 300 So &and Are. Sllte 2600 Los Angeles, CA 90071 213-485-1500 fax213-485-1200

CaI-Western Reconveyance Corp., Trustee Stcve Bennett. Wright Finlav & Zak. LLP sbmneUG~nrliht~eei~.& (courtesy ropy) 4665 \lac Anhur Court, Suite 2Rll Newport Beach, CA 92660 949-477-5050 fax949-477-9200

JP Morgan Chase (4 Chase defendants) Laurie Selkowitz. Wmo & French ~Iko~vim(~ulwariofrcn~h COP 1688 Century Park hsl, Sultc I520 Los Angel& CA 90067 310-853-6300 fax 310-853-6333

20

~eutsche~ank~ational t Co. ks Rahul Rao, Deutsche Rank Nat'l &[email protected]~n(courtesy wpy) 60Wall S t r a t NewYork,NY 10005 212-250-4945 fax 212-797-3589
[ ] [ ]

Note: Deutchse Bank & DB Smctured were given DB Structured Products, Inc. courtesy extension to 3-22-12 to answer Erica Yen,Reed Smith LLP evml3rwdsmith.com (courtesy copy) ***CWRC must respond by 30 days after the 355 So. (3rwd Ave., Suite 2900 service of objections to decl-n~n_monetar)r~status Los Angles, CA 90071 (Gates served objections by mail on 2-29-2012) 213-457-8113 fax213-457-8080

21 22

(BY MAlL, $1013a, 52015.5 CCP) I am readily Edlniliar withpractices for mail collection in Santa Barbara.

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1deposited the envelape in the mail at Santa Barbara, CA. The envelope was mailed with prepaid pnstage. cancellation date or postage IS [ 1 I am aware that on a motion of the parry served, servi~r presumed mvalid if mcter date 19 more than one day afrcrdare of drpos~t matlmg on an affidavit. for [ X] (STATE) I I l a r e under p d t y of perjury under the laws of the State of California that the above is m e and correct.

II

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7d7 192
D t d March 12,2012 ae:
flancy

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'Dq$$y

/tt&ruan

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____________.______-----..-----..--.-------------------.----.-...

Supplemental Affidavit of David Gates Supporting REPLY t o C p p o s i t i a n t o Motlcn f o r Preliminary 1n:unction

Nancy Duffy McCarron, CBN 164780 Law Office of Nancy Duffy McCarron
950 Roble Lane Santa Barbara, CA 93 103 805-450-0450 fax 805-965-3492 [email protected]
4 5

SUPER'OR COURT of CALIFORNIA COUNTY Of SANTA BARBARA

FILED
MAR 1 2 2012

1I

Real Estate Broker Lic. 853086 Notary Public Lie. 1791117 Certified Arbitrator for BBB 30329
Attorney for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA (ANACAPA DIVISION)

I
Case No:

) DAVID W. GATES, Trustee for the DAVID W. GATES ) Trust dated August 5, 1996 Plamhff, ) vs . ) MGC Mortgage, Inc., Texas Corporation ) LPP Mortgage Ltd., LP, Texas Carporahon Loan Acquisition Corpbration, ~ e G Corpo~ation s j Cal-Western ~ e c o n v e ~ k Corporation, Texas Corporation ) ce DB Structured Product$,Inc., Delaware Corporation 1 ) Deutsche Bank ~ationil Trust Company, as trustee Washington Mutual Bank, a national banking association ) Wamu Asset Acceptance Corporation, SPV vehicle bank ) Washington Mutual Mdrtgage Securities Corporation, bank ) JP Morgan Chase Bank;, National Association, a hank ) )

1384851

OBJECTIONS TO DENIAL OF PRELIMINARY WJUNCTION AND STATEMENT OF DECISION UNDER CCP $632 filed: 2-1-2012 CMC: 6-4-12 8:30 MSC: nla Trial: m DATE: March 12,2012 DEPT: 5 CCP 9 632 TIME: 9:30 a.m.

Honorable Colleen K. Steme

Defendants MGC, LPP & LAC did not answer the complaint or provide any party affidavits opposing the motion. Defendants failed to authenticate any documents offered in opposition by any persons with personal knowledge. Defendants failed to cite any evidence code or exception to the hearsay rule which could make them admissible.

I 1I 1

Instead of sustaining bbjections to inadmissible hearsay evidence the court erroneously overruled the objections. Judicially advocatingfor defendants,the court attempted to cure their deficiencies by citing Evidence Code 8 1451 as a purported basis for afinding that fraudulently fabricated assignments werepresumed valid Evidence Code $1451 only applles to mstruments acknowledged before m-state court officers----not out-of-state robo-simers.
r/

It

The proof ob acknowledgment of an instrument may be made at any place withie this state before a justice, retired justice, or clerk of thk Supreme Court, a justice, retired justice, or clerk of any court oE appeal or judge or retired judge of a superior court, or the SecretaFy of the Senate or Chief Clerk of the Assembly."~ivil 51180

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. . . . . _ _ _ . . . . . . . ......................................................................

Objections to De?ial of Preliminary Injunction

&

Request

of Decision CCP 5632

Evidence Code 5 1451 simply authorizes officers of the %to

ac!mAwledge instruments where no notaty

mblic is available, pursuant to Civil Code $11 8 b a n adjunct to Evidence Code $1451. Even if it applied, and il loes not, the presumption is rebuttable---not conclusive. Validity of th , questioned instrument is a question of act for a jury---not for the court to decide at the threshold. This was a h'ghly prejudicial, clear error of law. The court completely disregarded the testimony of expert witness ~ i l l i a m Paatalo constituting clear error. B e court was required to accept his opinion since there was not contrad~ctory expert opinion. The court failed t c ecognize that Gates' loan was securitized in a Remic trust on Wall Stre on November 1,2005 as he testified. iccordingly, it could not have been "assigned" to anyone on August 26,12006. Finally MGC could not have
:rested or prepared the document in 2006 because MGC did not exist until January 2008 when it was first create1

1
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1

'he court improperly deprived David Gates of his constitutional right to jury trial on issues of fact. The court's decision recites that Gates did not apply any persuasive evid ce that MGC was not acting properly i reeping his insurance proceeds. Plaintiff briefed this issue, citing the case and legislative comments which
:edified the case holding that where the insurer issues benefit payments s reimbursement for repairs after a fire

he plaintiff is entitled to the proceeds and that the servicerowes a duty t make sure proceeds are spent on repaii While the court labeled plaintiffs REPLY as "voluminous" which ap arently was not even read, the court pent countless hours gleaninw throughdefendants' unnumbered exhibits trying to locate any pittance of 'evidence" which could possibly "support" the desired "validity" of the i admissible hearsay documents. ;uch judicial advocacy for a favoredparty not only violates a judicial of cer's oath but flies in the face ofjustice t is offensive.

"

lated: March 12,2012

PROOB OF SERVICE
David W. Gates v. MGC. et al SBSC No. 1384851

1II1
n e

STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA

I am employed in the County of Santa Barbara, State of California. I am over 18 and not a p to the action. m ((Myaddress is 950Roble Lane, Santa Barbara, CA 93103.805-450-0450 fax 805-965-3492 email: ~ancvdu~sb~d~ahoo.con
On March 12,2012 I served on the interestedpmties the foUawing document described as: ;

. - ColCollecn K. Sterne a n 4 l e s d i n g Ver.Comp1n E W i s P e n d ; TRO Appl+&d: Prel.InjAppl+Opp+Reply; D e c l - N o n - M o n e ~ b j e c t i o wDemm ,

(BY PERSONAL DELIVEKY) to the attorney ofrecord for plaintiff as follows:
(BY FACSIMTLE) Thc facsimile machine I used compl~ed wth Rule 2003(3) and 30 error war. reported by machine. Pursua~l Rule CRC,2008 [c](4). I caused the maclune to mantam a record of same. to

Objcc6li~< 844 L'h

(1

[ ] ]

I I

[x1

By EMAIL at the faUowing email addresses, with copy to [email protected]~n agreement to defendants: per

***Thislist covers all 10 defendants who were named in the complaint; all 10 were served by March 6,2011:
MGC, LLP,LAC (3 BeaI defendants) Cal-Western Reconveyance Cop.. Trustee Regina MeClendon, Locke Lord LLP Steve Bennett, Wr~ght, Finlay & Zak, LLP

~mlendon@lockelor~co~ 300 Fn Grand Ave, S~irc 2600 las Anr.clcs. CA 90071 213-485-1560 Fax 213-485-1200 Ue~dscbe Bark Nanonal bust Co Rahol Rao. Deursche Rank Nat'l ~&[email protected] (courtesy copy) 60 Wall S e w NewYork, NY 1000s 212-250-4945 fax 212-797-3583

sbg11~4~1ehtleeal.ncI (courtesy copy)

4665 M a c Anhur Cour, Strirc 2Rn

NCPOT. Beach. CA 92660 949477-5050 'fax 949-477-9200

JP Morgan Chav O n s e dcfcndantsi Laurie Selkowlk, Wargo & French I-@~areofrcnch.corp 1888 Century Park East, Sulk 152) L r hngcles, CA 90067 o 310-85~6300far 3 10-8534333
neutchre Bank & r)B Smctured were siw

eourtesv extension to 3-22-12 tu answer ~aree&mith.com (courtesy copy) ***CW'RC must rwpond by 30 days after the 355 So.Omnd Avc., Suite 2900 service of objections to decI-non-m~neta~~status Los Angles, CA 9007 1 (Gates sewed objectionsby mail on 2-29-2012) 213451-81 13 fax 213-457-8080
Elicr Yen. Heed Smrh L1.P

UB 9mchlreJ Produn\, Inc

Note:

11 [ (1 [

(BY MAIL,51013a, $2015.5 CCP) I amreadily familiar withpractices for mail collection i Santa Barbara o ] I deposited tbe envelope in the mail at Santa Barbara, CA. l%e eenclope was mailed with prepaid postage. e [ ] I am aware that on a motion of the party sewed, s e ~ c is presumed invalid if postal cancellation date or postage
]

mcter date is more than one day after date of deposit for mailing on an affidavit.

[x ]

(STATE) declare under penalty of perjury under the laws of the State of Califomia that the above is I

___________..._._^_.----..----------.-----...-----.-----------...*----------.---~------

Supplemental Affidavit of David Gates Supporting REPLY t o CppositiDn&O Motlon f o r Preliminary 1n:unction

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