1 13 12 CV08-01709-2646751 (Supplemental ...) see Hill's 1 14 12 greivance to SBN 03628

7/29/2019 1 13 12 CV08-01709-2646751 (Supplemental ...) see Hill's 1 14 12 greivance to SBN 03628

1/26

SUPPLEMENTAL TO REPLY TO OPPOSITION TO PLAINTIFF'SEMERGENCY MOTION FOR TRO/INJUNCTION; or PLED IN THE

ALTERNATIVE; MOTION TO SET ASIDE ORDER GRANTING SUMMARYJUDGMENT

PLEASE NOTE THAT THE UNDERSIGNED COUNSEL APOLOGIZES FOR

THE SOMEWHAT SLAPDASH NATURE OF THIS FILING, HOWEVER, IT

MUST BE EXCUSED TO SOME EXTENT CONSIDERING THE

UNDERSIGNED JUST SPENT ! HOURS IN JAIL AFTER THE RENO POLICE

SUPPLEMENTAL REPLY TO OPPOSITION TO PLAINTIFF'SEMERGENCY MOTION FOR TRO/INJUNCTION; or PLED IN THE ALTERNATIVE;

MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT 1

Document Code: 3795Zach Coughlin, Esq.NV Ba No: 9!731!"" E. 9th #t. $"%eno, NV &95'1(ele: 775)""9)*737+a: 9!9)**7)7!'"-o e /ellantZachCoughlin0hotmail.com/ttone 2o oni and ames Caentie

/4E# C/%-EN(E%, E( /6,-lainti22

.

//4E# +8NDN C%- E(/6,De2endant

Case No:CV'&)'17'9Det No: 7

SUPPLEMENTAL REPLY TOOPPOSITION TO PLAINTIFF'SEMERGENCY MOTION FORTRO/INJUNCTION; or PLED IN THEALTERNATIVE; MOTION TO SETASIDE ORDER GRANTINGSUMMARY JUDGMENT

N (;E #ECND 8DC/6 D#(%C( C8%( + (;E#(/(E + NEV/D/ N /ND +%

(;E C8N(< + =/#;E

F I L E DElectronically

01-13-2012:07:36:54 AMJoey Orduna Hastings

Clerk of the Court

Transaction # 2698406


2/26

DEPARTMENT "WITH THE HELP OF OPPOSING COUNSEL IN THE

UNDERSIGNED EVICTION FROM HIS LAW OFFICE CASE, RICHARD G#

HILL, ES$% ARRESTED THE UNDERSIGNED FOR &JAYWALING& OR

&FAILURE TO USE A SIDEWAL WHERE PRESENT& OR SOME OTHER

SUCH CHARGE WHILE THE UNDERSIGNED WAS IN THE COURSE OF

FILMING THE DESTRUCTION OF ITEMS OF PERSONAL PROPERTY "LIE

THE LAST THING THE UNDERSIGNED'S GRANDMOTHER GAVE HIM

BEFORE SHE DIED, LIE THE CARICTURE DRAWING OF THE

UNDERSIGNEDS GIRLFRIEND AND DOMESTIC PARTNER FOR FIVE

YEARS WHOSE !! YEAR OLD COUSIN JUST DIED IN A CAR ACCIDENT

DAYS AGO% PEACEABLY AND ON PUBLIC PROPERTY AND AFTER A

RENO PD OFFICER WHO ACTUALLY HAS SOME CLASS INFORMED

RICHARD HILL THAT THE UNDERSIGNED WAS NOT DOING ANYTHING

ILLEGAL# BUT THEN IN COMES OFFICER DEL VECHIO WHO ACTUALLY

&DREW DOWN& AFTER SCREACHING TO A HALT AND VEERING ACROSS

THE LANE OF ONCOMING TRAFFIC ON THE UNDERSIGNED THIS

SUMMER IN FRONT OF THE SAME LAW OFFICE AT NIGHT DUE TO THE

UNDERSIGNED'S MOUNTAIN BIE, ALLEGEDLY LACING A PROPER

LIGHT, AND NOTHING ELSE# TODAY, WHILE BEING ARRESTED FOR

JAYWALING "DESPITE THE FACT THAT RICHARD HILL'S CREW OF

MOVERS HAD THEIR TRUC PARED IN THE MIDDLE OF THE

SIDEWAL THE UNDERSIGNED WAS ON% RICHARD HILL WENT BAC

TO A PLACE HE REALLY, REALLY LIES, THE RENO JUSTICE COURT,

AND APPARENTLY GOT HIMSELF A PROTECTION ORDER, THEN DROVE

OFF IN ONE OF HIS APPROXIMATELY PORCHES WEARING A SHIRT

WITH FLAMING SULLS ON IT IN A REPEATING ED HARDY INSPIRED

DESIGN# THE UNDERSIGNED WAS DENIED ANY PHONE CALLS AT THE

WASHOE COUNTY JAIL FOR AT LEAST ( HOURS, IMMEDIATELY


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT "


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PLACED IN A SOLITARY CONFINEMENT STYLE ICE LOCER DESPITE

HAVING MADE NO DEMONSTRATION OR RESISTENCE OR

DEMONSTRATING ANY INAPPROPRIATE CONDUCT TO THE JAIL STAFF,

WHEREUPON SEVERAL JAIL NURSE REFUSED TO PROVIDE MEDICAL

CARE "EXCESSIVE FORCE WAS USED DURING THE ARREST, WHICH

APPARENTLY, WAS CONDUCTED BY AN OFFICER LEEDY THAT OFFICER

DEL VECHIO WAS &TRAINING&, THEN MONEY WAS STOLEN FROM THE

UNDERSIGNED BY THE JAIL STAFF, A DEPUTY ADAMS, IN FRONT OF

DEPUTY DOCIO INFORMED THE UNDERSIGNED THAT HE &DIDN'T GIVE

A SHIT IF A DIPSHIT LIE YOU HAS LIFE THREATENING MEDICAL

ISSUES& AND REFUSED TO SUMMON A NURSE# THE WASHOE COUNTY

JAIL FOUND IT APPROPRIATE TO FINALLY RELEASE THE

UNDERSIGNED FROM JAIL AFTER MAING HIM PAY SOME OF THE

LAST MONEY HE HAD FOR &BAIL&, TAING MOST OF THE REST OF THE

MONEY THE UNDERSIGNED HAD AND CLAIMING IT WAS EITHER

&LOST& OR THAT &THEY WERE WRONG EARLIER WHEN THE SWORE

THAT THAT AMOUNT WAS ALL YOU WOULD NEED TO BAIL OUT&

WHEREUPON THE JAIL STAFF DECIDED TO POCET CASH FROM THE

UNDERSIGNED, WITHOUT HIS CONSENT, PRIOR TO RELEASE# THE JAIL

SAW FIT TO RELEASE THE UNDERSIGNED ONLY MINUTES AFTER THE

LAST BUS FOR THE NIGHT LEFT PARR BLVD, AND AT )** AT NIGHT,

WITH THE UNDERSIGNED DRESS ONLY IN A THIN SHIRT AND JEANS,

THE TEMPERATURE A FREEZING !+ DEGREES, AND THE UNDERSIGNED

HAVING ! IN HIS POCET, WHEREUPON THE UNDERSIGNED CALLED

- AND WAS HUNG UP ON BY SUPERVISOR &ARI& WHO INFORMED

THE UNDERSIGNED THAT SHE NEW EVERYTHING THE RENO PD

COULD OR WOULD DO AND THAT THEY WOULDN'T DO ANYTHING

WRONG, AND THEN ARI REFUSED TO DIVULGE THE IDENTITY OF THE




4/26

- OPERATORS WHO INFORMED THE UNDERSIGNED THAT

HYPTHERMIA OR EXPOSURE TO COLD WEATHER DID NOT CONSITUTE

AN EMERGENCY, NEITHER WOULD A SITUATION WHERE POLICE OR

SHERIFF PERSONNEL WERE CONSPIRING TO MURDER SOMEONE RISE

TO THE LEVEL OF EMERGENCY# FINALLY THE UNDERSIGNED GOT TO

HIS VEHICLE, NEAR THE SIENNA HOTEL, ONLY TO PROMPTLY BE

PULLED OVER BY +.( ARMED RENO PD OFFICERS WHOM CITED THE

FACT THAT THE UNDERSIGNED LICENSE PLATE WAS GONE "IT HAD,

APPARENTLY, MYSTERIOUSLY DISAPPEARED WHILE THE

UNDERSIGNED WAS IN JAIL FOR A CUSTODIAL ARREST FOR

&JAYWALING&, SOMETHING RICHARD HILL, ES$# DID IN FRONT OF

THESE VERY SAME OFFICERS SEVERAL TIMES WHILE THE

UNDERSIGNED WAS IN THE PATROL CAR%, INCLUDING ONE WHOM THE

UNDERSIGNED HAS SUBMITTED A COMPLAINT REGARDING TO THE

RENO PD JUST DAYS BEFORE, OFFICER NICHOLAS DURALDE, WHOM

WAS PRESENT WHEN OFFICER RON ROSA ATTEMPTED TO EXTORT A

CONFESSION OR CONSENT TO SEARCH FROM THE UNDERSIGNED

DURING AN INCIDENT IN AUGUST BY, IN ROSA'S WORDS &CALLING THE

STATE BAR& AND DEFAMING THE UNDERSIGNED, WHEREUPON

OFFICER DURALDE COMMITTED EGREGIOUS POLICE MISCONDUCT# IT

IS IMPORTANT TO NOTE THAT RENO PD OFFICER CARTER PREVIOUSLY

INFORMED THE UNDERSIGNED THAT &RICHARD HILL PAYS HIM A LOT

OF MONEY AND THEREFORE HE WILL ARREST WHO RICHARD HILL

SAYS TO AND HE WILL DO WHAT RICHARD HILLS SAYS PREVIOUSLY,

RENO PD SARGENT TARTER HAS TICETED THE UNDERSIGNED FOR

FAILURE TO STOP COMPLETELY BEFORE THE WHITE LINE AT A STOP

SIGN, IN A RETALIATORY FASHION, AFTER THE UNDERSIGNED LEFT

RICHARD HILL, ES$#S OFFICE, WHERE RICHARD HILL HAD BEEN


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT !


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REFUSING TO TURN OVER THE UNDERSIGNED STATE OF NEVADA

DRIVER'S LICENSE FOR OVER ONE WEE# FURTHER, RICHARD HILL'S

LICENSED CONTRACTOR "WHOM HAD PREVIOUSLY SUBMITTED WHAT

APPEARS TO BE A FRAUDULENT BILL FOR *(* TO BOARD UP AND &FIX

A LEA IN THE BASEMENT& "THE LEA, HE INFORMED THE

UNDERSIGNED, HE ACTUALLY JUST FIXED OUT OF THE &GOODNESS OF

HIS HEART&% AS, SOMEHOW, $UALIFYING AS &REASONABLE STORAGE,

MOVING, AND INVENTORYING EXPENSES& LANDLORD LIEN UNDER NRS

A#0-*, DESPITE THE FACT THAT THE CONTRACTOR USED THE

UNDERSIGNED'S OWN WOOD AND PLYWOOD TO BOARD UP THE

PROPERTY DESPITE CHARGING *(* FOR DOING SO AND WHOM

TODAY WAS THROWING AWAY THE CALIFORNIA NUEROSURGEON,

MATTHEW JOEL MERLISS, MD#'S CARPET, WHILE RICHARD HILL WAS

APPARENTLY READYING HIMSELF TO SUE THE UNDERSIGNED BOTH

FOR THE COST OF DISPOSING IT AND FOR COST OF IT AS PROPERTY,

AND BOTH OF THESE DISCOVERIES SEEMED TO VEX THE

CONTRACTOR SO COMPLETELY THAT HE FELT IS NECESSARY TO

CALL UP RICHARD HILL RIGHT AWAY AND HAVE RICHARD DO HIS

THING WITH THE RENO PD "LIE WHEN OFFICER CARTER AND

OFFICER LOPEZ ARRESTED THE UNDERSIGNED FOR TRESPASSING

DESPITE NOT ONCE IDENTYING THEMSELVES PRIOR TO ARREST AS

OFFICER AND NO ONE HAVING ASED THE UNDERSIGNED TO LEAVE

THE PREMISES, AND WHERE THESE OFFICERS, AGAIN, STRANGELY,

FOUND THE UNDERSIGNED NOT &CANDIDATE FOR A CITATION THE

ARREST TODAY WAS PARTICULARLY CONVENIENT FOR RICHARD HILL

CONSIDERING IT PREVENTED ANY FILMING OF THE DESTRUCTION OF

PROPERTY HE WAS ENGAGING IN# RICHARD HILL PREVIOUSLY GAVE

THE UNDERSIGNED A BAG OF TRASH IN RESPONSE TO THE




6/26

UNDERSIGNED'S DEMAND THAT HILL CEASE APPLYING AN UNLAWFUL

RENT DISTRAINT TO THE UNDERSIGNED'S CLIENT'S FILES# FURTHER,

WHEN THE UNDERSIGNED REFERENCE THE DAMAGE RICHARD HILL

WAS DOING TO CLIENT'S INTERESTS IN CASES JUST LIE THE

CARPENTIER'S, RICHARD HILL, IN JUDGE SFERRAZZAS COURT ROOM

WATCHING THE PROCEEDINGS AND PERIODICALLY CROSSING THE

BAR TO PASS POST IT NOTES TO CASEY BAER "DESPITE JUDGE

SFERRAZZA DIRECTING HILL AND OTHER WITNESSES TO LEAVE THE

COURTROOM UNTIL CALLED TO TESTIFY% MADE A MASTURBATORY

JESTURE AND EXTREMELY DISMISSIVE AND CRUDE FACIAL

EXPRESSION AS IF TO SIGNAL HOW LITTLE HE CARED ABOUT THE

FORECLOSURE DEFENSE OF MIDDLE CLASS AMERICANS AND CITIZENS

OF WASHOE COUNTY LIE JOAN AND JIM CARPENTIER#

4uh . #imson Dua>Vent Co., nc., "''9 =6 !5&*'9 ?=.D.6a."''9@

?holding that an emloe su22icientl demonstated good cause to set aside a de2ault

Audgment hee the emloe agued that the emloee did not see the emloe 2o

moe than si months a2te the 2iling o2 the comlaint, seed the ong coman, and

the emloe immediatel attemted to otain an etension. (he emloe also

immediatel 2iled a motion to set aside the ent o2 de2ault hen it leaned that an

etension o2 time as unaailale. +uthe, the emloe esented seeal meitoious

de2enses to the emloeeFs claims@. +ed.%.Ci.-. 55?c@ oides that a cout ma set

aside an ent o2 de2ault 2o good cause, and it ma set aside a de2ault Audgment unde

+ed.%.Ci.-. *'?@. (he undesigned has located thee ?3@ cases in hich the 8.#. +i2th

Cicuit Cout o2 /eals has een con2onted ith a motion to set aside a de2ault

Audgment ased uon a 2ailue to oide notice as equied +ed.%.Ci.-. 55?@?"@. n

the 2ist case, #aoetti . %odigueG>imineG, "5" +."d "9' ?5th Ci.195&@, the +i2th

Cicuit concluded that the distict cout eed in 2ailing to set aside a Audgment de2ault

that had een enteed ithout the notice equied +ed.%.Ci.-. 55?@?"@, and the


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT *


7/26

de2ault Audgment as thee2oe acated and the matte emanded 2o 2uthe oceedings.

n eaching that conclusion, the +i2th Cicuit onl geneall e2eed to +ed.%.Ci.-. *'?@

as its asis and did not indicate hethe it as eling uon a aticula susection o2 that

oision.+N1 +N1. (he cicuits ae slit as to hethe the 2ailue to oide notice as

equied %ule 55?@?"@ endes a de2ault Audgment oid, unde %ule *'?@?!@, o Aust

oidale, unde %ule *'?@?*@. #ee, CitiGens BanH . -anes, "'1' =6 1753"9*, >>>>&>9

?*th Ci."'1'@?citing cases 2om aious cicuits that ae slit on the issue@. =hile the

+i2th CicuitFs decision in #aoetti suggests that the 2ailue to gie notice might ende a

de2ault Audgment oid unde %ule *'?@?!@, the +i2th Cicuit did not seci2icall el uon

%ule *'?@?!@ in endeing its decision in that case, and its susequent decisions,

discussed in2a, indicate instead that the 2ailue to oide notice as equied %ule

55?@?"@ endes a de2ault Audgment oidale unde %ule *'?@?*@ since the +i2th Cicuit

seci2icall elies uon that oision in those cases. I3 #usequentl, the +i2th Cicuit

endeed decisions in Chalton 6. Dais J Co., -.C. . +edde Data Cente, nc., 55* +."d

3'& ?5th Ci.1977@ and (une . #alatiea, 5&' +."d -age 3 #li Co, "'11 =6

519'"&" ?4.D.6a.@ ?Cite as: "'11 =6 519'"&" ?4.D.6a.@@ 199 ?5th Ci.197&@, heein

it ased its decisions to acate de2ault Audgments on +ed.%.Ci.-. *'?@?*@. n oth o2

those cases, the +i2th Cicuit concluded that the de2ault Audgments should e acated

ecause o2 the 2ailue to oide notice as equied +ed.%.Ci.-. 55?@?"@ and ecause

the at moing to set aside the de2ault Audgment set 2oth a meitoious de2ense to the

lasuit.+N" +N". #ee also, #een Eles, nc. . EsHenaGi, *35 +."d 39* ?5th Ci.19&1@

?hee the +i2th Cicuit elected not to chaacteiGe a Audgment as a de2ault Audgment o a

Audgment enteed a2te a tial on the meits, noting that %ule *'?@ is alicale to oth

tes o2 Audgments. n eaching its decision that the %ule *'?@ motion to acate should

hae een ganted, the +i2th Cicuit consideed the 2act that ?1@ the moants seeHing to set

aside the Audgment asseted a meitoious de2ense, ?"@ the timel 2iled the motion to set

aside the Audgment ithin a easonale time ecause it as 2iled ithin one ?1@ ea o2

the Audgment eing enteed and ithin tele ?1"@ das o2 the moants otaining




8/26

Hnoledge o2 the AudgmentK and ?3@ ecause a con2luence L M o2 unusual cicumstances

esulted in the moants not eing esent at an eidentia heaing hee Audgment as

enteed against them@. n suot o2 his motion to acate the de2ault Audgmentnce the

Caenties 2ound out that the de +o #umma udgment eisted and undestood its

imact, the immediatel sought to etain counsel, haing to settle moe the loest, most

asest otion anone could imagine, hiing the undesigned a2te eading his incoheent

Caigslist osting. /nd no the sho a meitoious de2ense and then some.

6ea . NatFl De2ault #eicing Co., "55 -.3d 1"75 ?Ne."'11@. n6ea, the Neada #ueme Cout addessed the issue o2 ho hasstanding to 2oeclose on a oet usuant to a deed o2 tust o amotgage note. /t the outset, the Cout disagees ith De2endants that6ea is o2 no ecedential alue in this suit meel ecause it as

imail 2ocused on comliance ith NeadaFs 2oeclosue mediationstatutes. n the conta, the 6ea cout 2ound it necessa todetemine a atFs standing to 2oeclose on the oet at issue in thatcase and to clai2 Neada 2oeclosue la in light o2 the incease inthe nume o2 2oeclosue aeals in this state. "55 -.3d at 1"&1./ccodingl, the Cout ill addess the alication o2 6ea to theinstant case, Heeing in mind that onl clea eo andO o mani2estinAustice Austi2ies ganting -lainti22 elie2 2om ou eious de ?$ "5@usuant to %ule 59?e@. I3 #eci2icall, -lainti22 claims that 6eastands 2o the oosition that a at cannot initiate a non)Audicial2oeclosue until it estalishes ho the tue holde o2 the note is and

the tue holdeFs elationshi ith the entities 2oeclosing on theoet as a matte o2 standing. -lainti22 claims that De2endants in thiscase hae 2ailed to estalish thei standing -age 3 #li Co, "'11 =65"!&171 ?D.Ne.@ ?Cite as: "'11 =6 5"!&171 ?D.Ne.@@ to 2oeclose.-lainti22 2inds suot in the 6ea CoutFs assetion that LtMhe oligoon the note has the ight to Hno the identit o2 the entit that isPentitled to en2oceQ the motgage note unde /ticle 3 Lo2 the 8ni2omCommecial Code ?8.C.C.@ M, see N%# 1'!.33'1, PLoMtheise, theLhomeoneM ma a 2unds to a stange in the case.Q "55 -.3d at1"79>&' ?quoting n e Veal, !5' B.%. &97, 9"' ?B./.-. 9th Ci."'11@@.=hile at 2ist glance this oosition aeas to suot -lainti22Fs claim,

the 6ea Cout as addessing en2ocement o2 a note a at othethan to hom the note is oiginall aale. "55 -.3d at 1"&'. (he6ea Cout ent on to hold that 2o such a note to e en2oceale someone othe than the oiginal at named on the note, it must eassigned eithe negotiation o tans2e in accod ith /ticle 3 o2 the8.C.C., as codi2ied in Neada %eised #tatues ?N%#@ R 1'!.3"'1."55 -.3d at 1"&'>&1. n this case, the Audiciall noticed documents


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT &


9/26

con2im that the oiginal at named on the Note, De2endanteen-oint, is the at seeHing to en2oce the Note. (he Note asoiginall made aale to the ode o2 the 6ende, een-oint4otgage +unding, nc. ?Note at 1 ?$ 9 E. D@.@ (he Deed o2 (ustnames een-oint the 6ende, 4ain the (ustee, 4E%# the ene2iciaand nominee 2o 6ende, and e2es to the Note and oet at issue.?Deed o2 (ust at " ?$ 9 E. E@.@ (he Deed o2 (ust 2uthe oides that

4E%# ?as nominee 2o 6ende and 6endeFs successos and assigns@has the ight: to eecise an o all o2 those inteests, including, ut notlimited to, the ight to 2oeclose and sell the -oetK and to taHe anaction equied o2 6ende ... ?d. at 3.@ -/%SE%, . %EEN-N(4%(/E +8NDN NC.K"'11 =6 5"!&171 ?D.Ne.@@

Doe agued in his %ule 59?e@ motion that the tial cout eed in dening his%ule *'?@ motion ecause #ueio Cout %ules 5 and 77 ee iolated, indeogation o2 his ights to notice and the ootunit to e head. #ue. Ct.Ci. %. 5?a@ states that ee itten motion othe than one hich ma ehead e ate ... shall e seed uon each o2 the aties. #eice unde

%ule 5?a@ ma e accomlished LmMailing a co to the last Hnonaddess o2 the eson seed. #ue. Ct. Ci. %. 5?@. =ithout notice o2 animending gant o2 summa Audgment, a de2endant has no ootunit toe head ... Land so isM denied due ocess o2 la.... Ne


10/26

o2 %ule *'?@, ecusale neglect is undestood to encomass situations inhich the 2ailue to coml ith a 2iling deadline is attiutale to LtheatFsM negligence and that a atFs 2ailue to 2ile on time 2o easonseond his o he contol is not consideed to constitute Pneglect.Q -ioneen. #e. Co. . BunsicH /ssocs. -Fshi, 5'7 8.#. 3&', 39!, 113 #.Ct.1!&9, 1"3 6.Ed."d 7! ?1993@. L13ML1!ML15M ;ee, ecause e do not haee2oe us a co o2 DoeFs %ule *'?@ motion, e cannot con2im diectl

that the I1"19 motion adised the cout that the cout cleH did not mail theode to DoeFs last Hnon addess o that Doe elained to the cout that he2iled his motion immediatel a2te eceiing notice o2 the ode.+N15 But,ecause the #ueio Cout AacHet contains the eneloe maHed etun)to)sende in hich the coutFs summa Audgment ode had een mailed toDoe at his eious addess, the ecod maHes clea that Doe did not eceietimel notice o2 the coutFs uling.+N1* =e also can in2e the content o2DoeFs %ule *'?@ motion 2om the coutFs uling on DoeFs %ule 59?e@ motion,in hich the cout stated that Doe had not aiseLdM an issues that ee notconsideed in the CoutFs anua 1", "''* de Ldening his %ule *'?@motion 2o elie2M. n his ie2 and a22idait in suot o2 his %ule 59?e@motionTand thus, esumal, in his %ule *'? @ motion as ellTDoeelained that it as not until Deceme 1", "''5, a2te eceiing aesonse 2om the cout to his inqui aout the status o2 his litigation, thathe leaned o2 the DistictFs summa Audgment motion and the coutFssumma Audgment uling, and that he 2iled his motion 2o elie2 2omAudgment on the same da. n light o2 the 2oegoing, the cout should nothae egaded DoeFs %ule *'?@ motion as uneasonal delaed. +N15./ellant has the uden o2 demonstating tial cout eo and mustoide the aellate cout ith a ecod su22icient to sho a22imatielthat eo occued. onathan =oodne Co. . /dams, 53! /."d "9", "9!?D.C.19&7@. ;oee, Doe is a o se aellant and is incaceated,cicumstances that aant some lenience. L-Mo se litigants ae not alas

held to the same standads as ae alied to laes. 4ac6eod .eogeton 8ni. 4ed. Ct., 73* /."d 977, 9&' ?D.C.1999@ ?citationomitted@. 4oeoe, leadings eaed isones ho do not haeaccess to counsel Lae toM e lieall constued. d. +N1*. (hus, the coutdid not 2ul2ill its oligation unde %ule 77?d@?1@ to see a notice o2 theent Lo2 summa AudgmentM LmMailing a co to the last Hnonaddess o2 the eson seed. #ue. Ct. Ci. %. 77?d@?1@. +uthe, e canin2e, 2om the tial coutFs ie2 e2eence in its uling on the %ule *'? @motion, that Doe elained in his motion, at the e least, that he had eentans2eed to a -age 1! 9!& /."d 1"1' ?Cite as: 9!& /."d 1"1'@ di22eent2acilit and that he nee eceied the DistictFs motion 2o summa

Audgment. =ith the elanation that he oided, his change)o2)addessnotice that as docHeted e2oe the DistictFs summa Audgment motionas 2iled, and his io athe than cuent addess shon on the ceti2icateo2 seice attached to the DistictFs motion, the cout had e2oe it eidencethat at the e least called into question hethe Doe had ee eceied aco o2 the DistictFs motion. n light o2 all these cicumstances, e must


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT 1'


11/26

conclude that the cout eed in dening DoeFs equest 2o elie2 unde %ule*'? @?!@ ithout at least a heaing to inquie into mattes such as hethethe Distict 2ailed to mail its summa Audgment motion to DoeFs lastaddess o2 hich the Distict had een aised and hethe the motionaes ee etuned as undelieale. +N17 /nd, as discussed in2a, such aheaing ould not e 2utile. +N17. =e cannot tell 2om the ecod hethethe Distict Hne o should hae Hnon that Doe had een tans2eed to the

+C in (ennessee hen it mailed its motion 2o summa Audgment to the+C in =est Viginia. DoeFs aecie shos a mailing date o2 ul "3, "''!,and the #ueio Cout date stam and docHet sheet sho that the couteceied the aecie on /ugust "3, "''!. t might e esumed that theDistict eceied the change)o2)addess aecie on o aout the same date.But it is also ossile that the aecie and the DistictFs /ugust "7, "''!motion cossed in the mail, and that the Distict as not on notice o2 DoeFsne addess hen it attemted to see him mail ith its motion 2osumma Audgment. C2. Sidd ntFl ;ome Cae, nc. . -ince, 917 /."d1'&3, 1'&* ?D.C."''7@ ? the alleged 2ailue o2 an indiidual to eceie mailsent to the coect addess unde these cicumstances does not constitute adeiation o2 due ocess@ ?intenal unctuation and citation [email protected] in that case, hoee, notice to Doe ma not hae eenconstitutionall adequate. C2. ones . ieg, &"9 /."d 195, 199 ?D.C."''3@?holding, in a ta sale case, that hile notice mail to the ecod onegeneall satis2ies due ocess commands, i2 the notice is etunedunclaimed, the Distict is then equied to taHe some additional ste tonoti2 the ecod one@ ?intenal quotation maHs and citations omitted@K4alone . %oinson, *1! /."d 33, 3& n. 9 ?D.C.199"@ ?;ad the notice o2eiing edemtion eiod not een etuned, the DistictFs mailing o2 thatnotice ould hae ... een constitutionall adequate, since seice mail iseasonal calculated to gie notice in most cicumstances@. Een in theasence o2 a 2inding o2 deiation o2 due ocess, i2 the cout detemines

that Doe did not timel eceie actual notice o2 the DistictFs motion, itcould in its discetion gant him %ule *'? @ elie2 2om the summaAudgment ode. ohn DE, /ellant, . D#(%C( + C684B/4E(%-6(/N -6CE DE-/%(4EN(, 9!& /."d 1"1' ?"''&@

(he Caenties claims also 2all unde the 2edeal +ai Det Collection -actice /ct,

though unde the P=ell -leaded ComlaintQ ule,the claim 2o elie2 sounded as a

edicate 2o the Neada un2ai and Decetie (ade -actice statute.

Uualit goes to geat length in its litigating to demonstate that it is not 2actuall, no

legall a det collecto no collection agenc, desite all the language to the conta that

is set 2oth in its Notice o2 De2ault, and Notice o2 (usteeQs #ale. Neetheless, on

ctoe 1!, "'1', the #tate o2 Neada,Deatment o2 Business and ndust, +inancial

nstitutions Diision L+DM issued anK %DE% ( CE/#E /ND DE##(




12/26

8N6CENCED /C(V(E# /ND N(CE + %;( ( /--E/6, to Uualit 6oan

#eice, Co., in connection ith anothe 2oeclosue.

(hee the +D detemined that Uualit as engaging in unla2ul collection actiit

2oeclosing in the #tate o2 Neada, ithout 2ist otainingthe oe license.(his is

signi2icant ecause in this case the +edeal Cout has een called uon to anse

aquestion o2 state la, hen the Neada #ueme Cout has not eiousl addessed it.

=hile the +Dis not the Neada #ueme Cout, it is a legitimate souce o2 guidance

aout ho this Neada #tatute,N%# *!9.171 is to e alied. t is anticiated that Uualit

ill eecise its aeal ights ith esect to this ode, and ma een 2ile a -etition 2o

%eie in state cout, i2 it is unha ith the esult it ultimatel otains. Neetheless, i2

this Cease and Desist de is coect, and it cetainl is entitled to a esumtion o2

coectness until such time as it is acated o eesed, then it is a edicate 2o one o2

-lainti22sQ claims 2o elie2. t is entitled to some de2eence this Cout, as the onl

souce o2 authoiton the aticula oint o2 la in question. (he -lainti22s hae alleged

that Uualit does not hae theoe license, and as such it has committed an 8n2ai and

Decetie (ade -actice L8D/-M unde N%#59&.'9"3?1@KDecetie tade actice

de2ined. / eson engages in a decetie tade acticehen in the couse o2 his o he

usiness o occuation he o she Hnoingl: 1.Conducts the usiness o occuation

ithout all equied state, count o cit licenses./ iolation o2 a state o 2edeal statute

o egulation is also such a iolation unde N%# 59&.'9"3?3@./s alleged in the comlaint,

the lainti22s ae entitled to actual damages, costs and attone 2ees ecausethe then

ecome Pictims o2 2audQ unde N%# !1.*''?3@. ndeed, no that this case is in 2edeal

coutthe intend to usue thei +ai Det Collection -actice /ct diectl, and not Aust as

a edicate to a state8D/- claim. (his ould entitle each o2 them to statuto damages

as ell. (his Cout ill also e called uon to detemine i2 the actions taHen Uualit,

ae oid, oidale o meel see as a edicate 2o the 8D/- claim ecause o2 this

iolation.n the motion undue eliance is lace uon ecedent cited counsel that is not

contolling. (he ;ulse, case, in2a, is siml not a Ninth Cicuit case, it is 2om the


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT 1"


13/26

+edeal Distict Cout in egon. +o easons that ill e made clea, is no ad la and

should not e 2olloed this cout. (he de2endant Uualit has ointed to 2edeal cases

hich state that othe 2oeclosue tustees, unde othe 2actual cicumstances hae een

held not to e Pdet collectosQ in +DC-/ cases. (hose cases ma cetainl e esuasie

authoit, ut the ae not contolling authoit hich this Cout is oligated to 2ollo.

nl the Neada #ueme Cout and the Ninth Cicuit Cout o2 /eals could e taHen

as setting inding ecedent, and that is not the case hee. (he Ninth Cicuit as siml not

uled squael on the issue o2 a 2oeclosue comanies eing ithin the +DC-/, o not.

(he case cited Uualit 2o the oosition that 2oeclosue tustee ae not det

collectos is that o2K ;ulse . cen +ed. BanH, 195 +.#u."d 11&& ?D.. "''"@. n

;ulse the Cout detemined that 2oeclosue as not a det collection actiit as

de2ined the +ai DetCollection -actices /ct and the coolla egon statute. (he

state cout and state agenc hee hae held the oosite. (his is not a inding decision

that 2edeal couts in Neada ould e oliged to2ollo, ut meel a esuasie one.

Because its easoning is 2laed, it should not e 2olloed thiscout. t cited to onl one

case, ;einemann . im =alte ;omes, nc., !7 +.#u."d 71* ?D.=.Va.199&@, a22QQd

173 +.3d &5' ?!th Ci. 1999@, hich contained no analsis o2 2oeclosue la ut

neetheless held that the +DC-/ did not al. ;oee, the ;einemann decision

sua, has een oeuled =ilson . Dae J oldeg, !!3 +.3d 373 ?!th Ci. "''*@.

n =ilson, sua, the !th Cicuit eessl eAected the 2oeclosue laeQs assetion that

the ee not collecting a det asde2ined the +DC-/ ecause the action as in em

and noted, as is the case hee, that the laesadised that einstatement could occu i2

monies ee aidK d. at 37*. (hus, the =ilson Cout eessleAects the summa

decision endeed in ;einemann , hich is the case that suoted the CoutQQsholding in

;ulse . /n identical issue has een ending in the (enth Cicuit Cout o2 aeals 2o

moethan a ea no, and it ill e ought to this CoutQs attention hen it is uled

uon, eithe a.(he =ilson decision sua , as endeed at aoimatel the same

time asK Saltenach .%ichads , !*! +.3d 5"! ?5 th Ci. "''*@. (he Cout in Saltenach




14/26

did not el uon the =ilson decision,ut still eached the same conclusion >> that the

+DC-/ did al to attones andOo tustees ho eeattemting to collect a det

2oeclosing. (he 3 d Cicuit in -ie . -otno22 6a /ssocs . , 39* +.3d""7, "3! ?3 d

Ci. "''5@ eached the same conclusion and emhasiGed the imotance o2 the 2act that

the2oeclosing la 2im as asHing 2o mone to einstate the loan. d. n ;ulse , sua ,

thee is no indication that the Cout een consideed that hen 2oeclosing, atustee and

ene2icia ae concuentl maHing demands 2o mone to sto the sale, hich is o2

couse,haening in the case at a. t is clea that the 3 d , ! th and 5 th Cicuit Couts in

=ilson, Saltenach and -ie 2ound that the demand 2o ament as det collection

actiit in lieu o2 seiGing the eal oet.(he Ninth Cicuit ma come don conta,

ut it ould oen the matte 2o a etition 2o cetioai,hich is something it has een

loath to do o2 late, and case in the (enth Cicuit ma ell gie muchneeded guidance in

this egad. -ehas the touchstone is hethe the 2oeclosue tustee also is collecting

mone in the ocess o2 2oeclosue, o meel getting the collateal acH 2om the

homeones in em . 2 memo sees this e issue as touched uon in this e

Cout duing the oal agument on the motion.

$123456 7o5 o736 8ro9:: :75, 45 9o33:95 >o7:6 o7 ?:@23< o8ro8:r For:93o1r: U7=:r NRS S:954o7 *#**

-lainti22 seeHs a declaation that the ND is null and oid. (he most common

statuto de2ect in 2oeclosue in Neada occus hen a 2oeclosing entit 2ails to adhee


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT 1!


15/26

to N%# section 1'7.'&', ecoding a ND e2oe it has een named as the tustee ?as

hee@, and ithout an eidence o2 agenc on ehal2 o2 the tustee o ene2icia o2 the

undeling det at the time o2 ecodation ?as hee@. #ee Ne. %e. #tat. R 1'7.'&'?"@?c@.

-lainti22 alleges a iolation o2 this statute, and alleges that the ND 2ailed to include

cetain notices as equied unde the D(, U6# as aaentl neithe the tustee no the

ene2icia hen it ecoded the ND. ;oee, it claimed on the ND to hae een

/EN( +% BENE+C/%


16/26

and hae 2ound that, at est, 4E%# onl holds a co o2 the lanH note ith the tue

ene2icia holding the oiginal note. 4E%# hoee commences the 2oeclosue ocess

suosedl assigning the secuit instuments to a (ustee. /t est, the (ustee is in

ossession o2 lanH secuit instuments at the time the Notice 2 De2ault is ecoded

hile the still unidenti2ied holde o2 the eal Note emains oscued.

n a 2oeclosue situation hee 4E%# is the claimed ene2icia and the tue

ene2icia otains the (usteeQs Deed a22ecting a cedit sale acH to the lende, 4E%#

schemes to aoid the tans2e ta o2 the tansaction. +uthemoe, in non)Audicial states,

4E%# admits to meel holding title as nominee 2o the tue ene2icia. ;ee is an eet

2om thei on e site. Nomall, hee the name o2 the gantee unde the (usteeQs

Deed 8on #ale is di22eent than the name o2 the 2oeclosing entit, the (usteeQs Deed

8on #ale states that the antee as not the 2oeclosing ene2icia. (his designation

tigges the imosition o2 tans2e taes on the sale. t is imotant to note that in a 4E%#

2oeclosue sale, een hee the oet eets, the name o2 the gantee ill e di22eent

than the name o2 the entit 2oeclosing. Nonetheless, the (usteeQs Deed 8on #ale

should state that (he antee as the 2oeclosing ene2icia. (his is ecause 4E%#

meel holds title as nominee 2o the tue ene2iciaK it is the tue ene2icia that has

actuall 2oeclosed and acquied title. B this admission, 4E%# has stated that the ae

not, and as not, the tue ene2icia thee nulli2ing the nomination usuant to the

Deed 2 (ust. -usuant to the 2oegoing, as Neada is a non)Audicial 2oeclosue cases,

the Caenties demand that the 2oeclosing institutions oide ima 2ascia eidence

that the ae indeed the legal ene2icia, and legitimate one o2 the Note ith oe o2

sale.

4acHlin also agues that the tusteeFs sale is oid ecause DeutscheBanH, "''*>" (ust, and the tustees, =indso 4anagement and Uualit6oan #eicing, ee acting outside o2 thei authoit hen the2oeclosed ecause the ee not in hsical ossession o2 the Note. /sDeutsche BanH oints out, Cali2onia la has no such equiement./laa . /uoa 6oan #eices, No. C>'9>151" #C, "''9 =61*&9*!', at I * ?N.D.Cal. une 1*, "''9@ ?L8Mnde Cali2onia la,


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT 1*


17/26

tustee need not ossess a Note in ode to initiate 2oeclosue unde aDeed o2 (ust.@K +ane . Countide ;ome 6oans, nc., No. '&>CV"193, "''& =6 1&9'"5, at I " ?#.D.Cal. an. "9, "''9@ ?L(Mhee doesnot aea to e an equiement unde Cali2onia la that the oiginalNote e oduced in ode to ende the 2oeclosue oceedings alid.@KUuintos . Decision ne 4otgage Co., 66C, No. '&>CV>1757 4?-%@, "''& =65!11*3*, at I 3 ?#.D.Cal. Dec. "9, "''&@ ? Cal.

Ci.Code R "9"! outlines the equiements 2o non)Audicial 2oeclosuesin Cali2onia, and does not include oiding the oiginal Note io tothe sale@. L17ML1&M /lmost lost in the clutte o2 misstatements aout thendentue, allegations ithout an suot in la o 2act, and theselectie eading o2 documents, 4acHlin does aise an issue conceningho Deutsche BanH conducted the noticing o2 the 2oeclosue sale. (hecout stats ith the asic emise that 2o Deutsche BanH to oceedith a 2oeclosue it had to e entitled to ament on the Note. Cal.Ci.Code RR "93".5, "93*K Cal. Comm.Code R 33'1. Deutsche BanHesents the Note ith an allonge to document the tans2e o2 the Note.;oee, the allonge is undated. (he /ssignment o2 the Deed o2 (ust,hich as ecoded on Noeme 3', "''9, has an illegile date as tohen it as eecuted. -esumal, it as eecuted on o aoutNoeme 17, "''9, shotl e2oe it as ecoded. +uthe, one couldesume that a Noeme 17, "''9 date 2o the /ssignment o2 the Deedo2 (ust ould coesond ith the allonge to tans2e the Note toDeutsche BanH. But the #ustitution o2 (ustee Deutsche BanHecoded on Noeme "9, "''9, uoting to sustitute Uualit 6oan#eice Co. 2o =indso 4anagement Co. as tustee unde the Deed o2(ust, states that it as signed Deutsche BanH on /ugust "1, "''9.(his ould e ell in adance o2 the Noeme 17, "''9 assignment o2the Deed o2 (ust. No elanation has een oided 2o these aaentlinconsistent dates. (he cout ill not meel assume that Deutsche BanH

acquied the Note much ealie ut did not ecod the Notice o2/ssignment o2 Deed o2 (ust until a late date. %ecent cases haediscussed hethe a Deed o2 (ust is suAect to aious oisions o2 theCiil Code hich e2eence motgages, motgagees, o otheencumances. #eeal tial couts hae concluded that Ciil Code R"93".5 does not al hen the encumance is en2ocing ightsusuant to a Deed o2 (ust. (hough o2 esuasie alue, these tial coutcases ae not inding ecedent 2o this cout. I11 L19M n consideinghat is mean motgagee o othe encumance holding a oe o2sale, the cout 2ist consides the distinction eteen a motgage and aDeed o2 (ust. +o a Deed o2 (ust, title is ested in the tustee, ho

has a oe to sell the oet uon the eent o2 seci2ied contactualde2aults. (his allos 2o the sale o2 the collateal ithout Audicialinteention. But this is a limited title in the tustee. /s addessed the Cali2onia #ueme Cout in BanH o2 tal Nat. (ust J #a. /ssn. .Bentle, "17 Cal. *!!, *5*, "' -."d 9!' ?1933@, the legal title held thetustee is to the etent necessa 2o eecu)tion o2 the tust, ut does not




18/26

ca ith it the incidents o2 oneshi. n actical e22ect, a Deed o2(ust is a motgage ith a oe to cone, ith the incidents o2oneshi etained the tusto. (he Deed o2 (ust is teated as anencumance on the eal oet, and gien otection as a lien athethan an inteest in the land suAect to a mateialmanFs lien. ;ollood6ume Co. . 6oe, 155 Cal. "7', 1'' -. *9& ?19'9@.+N1" L"'M ethe eas, couts and the 6egislatue hae continued to diminish the

distinction eteen a Deed o2 (ust and motgage, othe than the2undamental di22eence that the oe o2 sale unde the Deed o2 (ust iseecised nonAudiciall, hile the motgage still equies Audicialinteention.+N13 (he 6egislatue has made oth deeds o2 tust andmotgages suAect to time limitations on en2ocement, Ciil Code RR&&'.'">&&7.'9 ?4aHetale %ecod (itle /ct@ and ceated a ight o2edemtion 2olloing a Audicial sale unde eithe a motgage o Deed o2(ust, Cal.Ci.-oc.Code R 7"9 .'1'. n stating its intent ehind the4aHetale %ecod (itle /ct, the 6egislatue con2imed that ealoet is a asic esouce o2 the eole and title tansactions shouldoceed ith econom and eedienc. +o this to e achieed, ealoet ecods must cleal and accuatel document title to theoet. Cal. Ci.Code R &&'.'"'. Because thee is no Audgment oode suoting a nonAudicial 2oeclosue sale, documentation o2comliance ith Cali2onia la 2o a nonAudicial 2oeclosue sale isessential. nl the o22icial ecod contains the documentation o2 hoas entitled to en2oce the ights unde the Deed o2 (ust. n eiousoccasions, the Cali2onia #ueme Cout has alied a statute e2eencinga motgage to deeds o2 tust hen it imacts the ights o2 the ooe.n #ecuit -aci2ic National BanH . =oGa, 51 Cal.3d 991, 99&, "75Cal.%t. "'1, &'' -."d 557, the cout alied the one)action ule, Codeo2 Ciil -ocedue 7"*?a@, to oligations secued a Deed o2 (ust asell as othe esonal oet. #ee also =alHe . Communit BanH, 1'

Cal.3d 7"9, 73" n. 1, 111 Cal.%t. &97, 51& -."d 3"9 ?197!@. CiilCode R "93".5 oides that, hee a oe o2 sale 2o eal oet isgien to a motgagee o othe encumance to secue an oligation, suchoe o2 sale ma e eecised the assignee ho is entitled to eceieament o2 the oligation i2 the assignment is dul acHnoledged andecoded. 2 the assignment has not een ecoded, then the oecannot e eecised. (he alication o2 Ciil Code R "93".5 to allencumances, including deeds o2 tust, oHs to otect the ooe?tusto@, lende ?ene2icia@, tustee, uchase at a 2oeclosue sale, andsusequent ones o2 the oet. Be2oe esons uot to taHe actionand eecise ights unde a Deed o2 (ust, the assignment documenting

the acquisition o2 those ights is ecoded ith the count ecode. (hisesults in the eal oet ecods cleal and unamiguousl statingho held the ights and ho asseted the ights. (his minimiGes titledisutes eas late as to hethe a notice o2 de2ault o notice o2 sale asgien a oel authoiGed at and hethe the uoted saleunde the Deed o2 (ust is oid. (his imoses the minimalist o2 udens


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT 1&


19/26

on the ene2icia acquiing a Note secued a Deed o2 (ustTecoding the notice o2 assignment e2oe uoting to change thetustee o authoiGe a 2oeclosue. I1" n the esent case, 4acHlin andDeutsche BanH hae demonstated that the ecoding o2 the assignmento2 the Deed o2 (ust ost)dated Deutsche BanH ecoding documentsu)oting to change the tustee to =indso 4anagement and then=indso 4anagement uoting to gie a notice o2 sale. (hough thee

ae onl das hich Deutsche BanH, "''*>" 2ailed to ecod theassignment o2 the tust deed, a ecod has een ceated that someone noto2 ecod title uoted to taHe action on a Deed o2 (ust io tocomliance ith Ciil Code R "93".5. ssues o2 title and the ecod uonhich 2utue geneations o2 ones ill el cannot e suAect to aould)ou)eliee))missed)it))that)much imlied aie o2 thisstatuto equiement. 4acHlin has shon a liHelihood o2 eailing onthe issue o2 the uoted 2oeclosue sale not haing een oelconducted, thee esulting in a oid deed. (he cout issues theelimina inAunction on this gound. n %e 4acHlin, "'11 =6"'155"' ?BHtc.E.D.Cal.@@.

/nd the Caenties seeH to amend thei Comlaint as thei case issustantiall simila to the 2olloing: ". De2endant Uualit 6oan#eice Co. ?Uualit@ ecoded a Notice o2 W Beach and De2ault ando2 Election to Cause #ale o2 eal -oet 8nde Deed o2 (ust ?ND@on 4a, !, "'1'. Uualit descies itsel2 on the ND as ... eithe theoiginal tustee, the dul aointed sustituted tustee, o acting as agent2o the ene2icia unde a Deed o2 (us6. Uualit is not egisteedith the Neada #eceta o2 #tate no does Uualit osses a +oeignDet CollectoFs 6icence Xith the Neada Det. o2 Business andndust as equied N%# *!9. 171, though it is a Fdet collectoFithin the meaning o2 15 8.#.C. R 1*9"?a@?*@, as incooated into

Neada la N%# *!9.37'. t is elieed to e one o2 the neceations o2 the +oeclosue ndust. 3. De2endant ;#BC B/NS,8#/, N/, as (ustee 2o 4eill 6nch /ltenatie Note /sset (ust,#eies "''7)/3, ?;#BC@ is descied as the Note ;olde o2 -lainti22Fsmotgage note De2endant /meicaFs #eice Coman. t is unHnoni2 ;#BC claims to e the ene2icia on a Deed o2 (ust, esumalecoded on Noeme 17,"''*, hich descies the lende as 8niesal/meican 4otgage Coman o2 Cali2onia. ;#BC BanH is notegisteed ith the Neada #eceta o2 #tate. n esonse to a Uuali2ied=itten %equest usuant to 1" 8.#.C. R "*'5?e@ and 15 8.#.C. R 1*!1?2@?"@ !. De2endant /meicaFs #eice Coman ?/#C@ is a

collection coman attemting to collect mone 2om -lainti22 aseduon he motgage. /#C is not egisteed ith the Neada #eceta o2#tate no does it hae a +oeign Det CollectoFs 6icence ith theNeada Det. o2 Business and ndust as equied N%# *!9. 171,though it is a Fdet ..ollectoF ithin the meaning o2 15 8.#.c. R 1*9"?a@?*@, as incooated into Neada la F22i.# *!9.37' 5. (he tue names




20/26

and caacities, hethe indiidual, cooate, associate, atneshi ootheise o2 the de2endants heein designated as Does 1 though 1'',inclusie, ae unHnon to lainti22, ho thee2oe sues said de2endants such 2ictitious names. *. -lainti22 alleges that each named de2endantand each de2endant heein designated as a Doe de2endant is negligentl,ill2ull, maliciousl, contactuall o otheise legall esonsile 2othe eents and haenings heein e2eed to and oimatel caused

inAu and damages to -lainti22, as heein alleged. -lainti22 ill seeHleae o2 this Cout to inset the tue names and caacities o2 suchde2endants hen the same hae een ascetained and ill 2uthe asHleae to Aoin said de2endants in these oceedings usuant to N%C- 1'.7. Based uon in2oYation and elie2 lainti22 alleges that at all timesmentioned heein, the de2endants, and each o2 them, ee the agents,seants, emloees andOo Aoint entues o2 thei co)de2endants, andeach ee as such, acting ithin the couse, scoe, and authoit o2 suchagenc, emloment andOo entue, and that each and ee de2endant,as a2oesaid, hen acting as a incial, as negligent in the selection,hiing, taining and aointment o2 each and ee othe de2endant as anagent, emloee andOo Aoint entue. +/C(8/6 /66E/(N# &.-lainti22 alleges, ealleges and incooates e2eence each and eeallegation contained in the eceding aagahs. 9. n ode 2o-lainti22, a ulic school music teache, to get out o2 the ental maHethee she as nee going to uild a 2utue, -lainti22 uchased amodist home in %eno eing talHed into an adAustale ate motgage.-lainti22, liHe eeone else at the time, as told ods to the e22ect:DonFt o, a2te ou hae estalished a good ament ecod, e ille2i and get ou into a loe ate, maHe it into a 3' ea 2ull amotiGedloan ... and ou can uild equit . . . -lainti22 as nee equied tooide an documentation as to he 2inancial ailit to a theaments that the inceases in inteest ates equied. /nd, -lainti22 as

eeatedl told that she could e2inance he loan?s@ so that she ould note equied to a the huge inceases in inteest that ould maHe itimossile to sta in he home. 1'. /2te -lainti22 estalished heecellent ament ecod, the housing maHet cashed, and -lainti222ound hesel2 not onl uside don, ut ith a aidl adancingincease in he /%4, hich she could neithe e2inance no a22od toa. Due to the economic deession, engineeed and ought on entities such as the de2endants heein, -lainti22Fs home, liHe millions o2othe /meicans, lost at least . one hal2 o2 its alue. . n in2omationand elie2, -lainti22 alleges that he motgages ee almost immediateltans2eed, ithout he Hnoledge o notice, in iolation o2 in iolation

o2 # 8.#.C. R 1*!1?2@?"@ hich equies notice to the ooe a2teassignment o2 the motgage documents, to some othe entit o entities.1". 8ntil such time as -lainti22 etained counsel to send a Uuali2ied=itten %equest usuant to 1" 8.#.C. R "*'5?e@ and 15 8.#.C. R1*!1?2@?"@ lette to /#C, -lainti22 as NEVE% in2omed ho he Noteand Deed o2 (ust ee tans2eed to. No tans2es o2 the note no deed


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT "'


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o2 tust ee ecoded at the =ashoe Count %ecode. (hus, -lainti22,and quite ossil, none o2 the De2endants, hae an oo2 hatsoeeo2 the eistence o2 an eson o entit that is the cuent one o2 anat o2 he motgages. 13. n lace o2 an adequate esonse to -lainti22FsUuali2ied =itten %equest lette 2o in2omation, on aout 4a !, "' ',Uualit ecoded a Notice o2 De2ault and Election to #ell unde Deed o(ust ?FND@. (his ND as and is 2atall de2ectie 2o the 2olloing

easons: /. -aagah "" o2 the Deed o2 (ust and N%# 1'7.'&'?"@equie the 6ende to gie notice o2 an de2ault io to acceleating thenote. B. -aagah "" o2 the Deed o2 (ust equies an notice o2 de2aultto seci2: ?a@ the de2aultK ?@ the action equied to cue the de2aultK ? c@a date, not less than 3' das 2om the date the notice is gien toBooe, hich the de2ault must e cuedK and ?d@ that 2ailue tocue the de2ault on o e2oe the date seci2ied in the notice ma< esultin acceleation o2 the sums secued this #ecuit nstument and saleo2 the suAect oet. C. -aagah 19 o2 the Deed o2 (ust gies theooes the ight, i2 the meet cetain conditions, to hae en2ocemento2 the secuit inteest discontinued at an time io to the ealiest o2?1@ +ie das e2oe the sale, ?"@ #uch eiod as alicale la mightseci2 2o the temination o2 ooeFs ight to einstate o ?3@ ent o2a Audgment en2ocing the secuit inteest. D. Uualit and /#C do nothae, and did not hae at the times mentioned heein, a 2oeigncollectos license as equied N%# *!9.171, and ae not domesticcollection agences. E. (his ND 2ailed to coml ith aagah "" o2the note in the 2olloing asects: 1. ". 3. !. (he ND 2ailed to seci2the amount o2 the de2ault. (he ND 2ailed to seci2 the action equiedto cue the de2ault. (he ND 2ailed to seci2 the date hich thede2ault ma e cued. .J K.OO5O6 (he ND 2ailed to adise the Booeo2 ight to hae en2ocement o2 the secuit inteest discontinued i2the meet cetain conditions. 5. (he ND stated that the ene2icia

unde the deed o2 tust had alead declaed all sums secuedimmediatel due. *. (he ND 2ailed to unequiocall state that i2 thede2aults ee not cued, the amount due unde the note ould eacceleated and that the ene2icia ould conduct a 2oeclosue sale. 7.(he ND as an attemt to collect a det. +%#( C6/4 +%%E6E+ DEC6/%/(%< %E6E+ 1!. -lainti22 ealleges the a2oesaidaagahs as though set 2oth in 2ull heein. 15. N%# 3'.'!' allos aneson hose ights, status o othe legal elations ae a22ected a deedto hae the Distict Cout detemine an questions o2 constuction oalidit aising unde the instument and to otain a declaation o2ights, status o othe legal elations theeunde. 1*. (he Notice o2

De2ault and Election to #ell 2ailed to seci2 the amount o2 the de2ault.17. (he ND 2ailed to itemiGe the amount necessa to cue and a datecetain ithin hich to cue. 1&. (he ND and election to sell 2ailed tostate the Booes hae the ight to hae en2ocement o2 the secuitinteest discontinued i2 the meet cetain conditions. 19. (he ND andelection to sell stated that the ene2icia unde the deed o2 tust had


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT "1


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alead declaed all sums secued immediatel due. "'. (he ND andelection to sell 2ailed to unequiocall state that i2 the de2aults ee notcued, the amount due unde the note ould e acceleated and that the(ustee ould conduct a 2oeclosue sale. "1. (he 2ailue to adhee tothe notice oisions contained in the deed o2 tust, the statement in theNotice o2 De2ault and Election to #ell declaing that the ene2icia hadalead declaed a de2ault and acceleated the oligation and the 2ailue

to gie unequiocal notice o2 acceleation and sale ae sustantialiegulaities hich ae gounds to acate the ND. "". (he -lainti22 isentitled to a declaato Audgement that the a2oesaid ND is null andoid. #ECND C6/4 +% %E6E+ DEB( C66EC(NV6/(N# "3. -lainti22 eallege# the 2oegoing aagahs asthough set 2oth in 2ull heein. "!. (his is a action 2o damages ought a indiidual consume 2o iolations o2 :he Neada +ai DetCollection la 2ound in (itle *!9 o2 the Neada %eised #tatutes. nlaticula, N%# *!9.37' oides that an iolation o2 the +edeal +aiDet Collection @actice /ct, is a iolation o2 Neada la as anindeendent state cause o2 action. (he ooing allegations ecite the2edeal laK +ai Det Collection -actices /ct, 15 8.#.C. K 1*9", et seq.?heeina2te +DC-/@, hich ae incooated into the las o2 the#tate o2 Neada, as noted aoe. (heselas ohiit det collectos 2om engaging in ausie, decetie, andun2ai actices. "5. Uualit and %(C ae det collectos as de2ined 15 8.#.C. R 1 *9"?a@?*@ and N%# *!9.'"'. "*. (he a2oesaid Notice o2De2ault and Election to #ell ecoded in the =ashoe Countt%ecodeFs 22ice ?heeina2te ND@ is a communication as de2ined R1*9"?a@?"@. ?5@. "7. (he ND 2ailed to contain the language mandated 15 8.#.C. R1*9"e?11@. "&. (he ND 2ailed to contain the languagemandated 15 8.#.c. R1*9"g?a@?1@) "9. (he ND is a 2alse anddecetie means o2 collecting a det in that it eesented the note

secued the deed o2 tust had een acceleated hen in 2act the notecannot e legall acceleated ithout 2ist sending a notice to the-lainti22 o2 a ight to cue the alleged de2ault. 3'. (he ND is a 2alseand decetie means o2 collecting a det in that it 2ailed to oide thenotices equied the undeling deed o2 tust. 31. (he da2ting,tendeing, ecodation and mailing o2 a notice o2 de2ault hich containsthe in2omation equied aagah "" o2 the Deed o2 (ust is acondition ecedent to initiate 2oeclosue oceedings and acquie theight o2 ossession o2 the oet. 3". -lainti22 is entitled to statutodamages usuant to 15 8.#.c. R1*9"H?a@ in the amount o2,.each. 33. -lainti22 is entitled to actual damages usuant to 15 8.#.C.

R1*9"H?a@ in an mount accoding to oo2 at the time o2tial. 3!.-lainti22 is entitled to easonale attone 2ees and costs o2 the actionusuant .' 15 8.#.C.R1*9"H?a@. (;%D C6/4 +% %E6E+8N+/% /ND DECE-(VE (%/DE -%/C(CE# 35. -lainti22ealleges the 2oegoing aagahs as though set 2oth in 2ull heein 3*.(he Neada 8n2ai and Decetie (ade -actice /ct, N%# 59&.'9"3


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT ""


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de2ines a Fdecetie tade acticeF as conducting a usiness ooccuation ithout all equied state, , count o cit licensesK N%#59&.'9"3?1@, and as iolating a state o 2edeal statute o egulationelating to the sale o lease o2 goods o seicesK N%# 59&.'9"3?3@. 37.(hat a iolation o2 N%# 59&.'9"3 is a decetie tade actice and sending the lainti22 the a2oementioned notice, /uoa has iolatedoth susections ?1@ and ?3@ o2 that la, maHing the lainti22s FVictims

o2 +audF as de2med N%#!1.*''?"@?d@. 3&. (hat Uualit did not haethe equied 2oeign collectoFs license hen it sent the a2oementionednotice to the lainti22 and iolated the N%# *!9.37' incooating the+DC- /, in sending the notice that it did. 39. /s ictims o2 2aud thelainti22s ae entitled to damages, costs and attone 2ees unde N%#!1.*''?3@. +8%(; C6/4 +% %E6E+ D/4/E# +%V6/(N + N%# 59&D.'' !'. -lainti22 alleges, eallege andincooates e2eence each and ee allegation contained in theeceding aagahs. !1. -lainti22 is a ooeK one o moe o2De2endantsF o thei edecessos o successos in inteest, i2 an suchinteest eists, is a lendeK hich, one o moe o2 the lendes made theloan?s@ in question on -lainti22Fs home. !". #aid home loan?s@ eemade to -lainti22 ithout detemining that -lainti22 had :he ailit toea the loan?s@ in iolation o2 N%# 59&D. n 2act, -lainti22 asinduced to ..nte into an adAustale ate motgage ased uon omisesthat she could e2inance e2oe he inteest ate incease ould hae to eaid, thus thee as no need 2o he to hae to @oe o sho an ailitto a the ucoming inceases in motgage aments .. ++(; C6/4+% %E6E+ ?Uuiet (itle, N%# !'.'1'@ !3. -lainti22 alleges, eallegesand incooates e2eence each and ee allegation contained in theeceding aagahs. !!. n in2omation and elie2 lainti22 allegesthat no eisting de2endant ons o he omisso note o he deed o2tustK that no de2endant has standing to e a lainti22 o can 2oeclose

uon he oetK that all ights, title and inteest in he oet eesulimated into a non)2unctional secuit instument that gies no oneentit ights in indiidual notes and deeds o2 tust. !5. n in2omationand elie2 lainti22 alleges that 4E%# has intenall tans2eed anights o titles o title o loan instuments, e2uting and 2launting the%ecoding las o2 this #tate, de2auding =ashoe Count o2 %ecoding2ees and maHing it imossile to ascetain, o 2o an de2endant tooe, it has otained all the ights necessa to otain an inteest inlainti22Fs oet, thus no entit has such inteest. !*. De2endants haelaced a cloud uon lainti22Fs title. !7. -lainti22 seeHs to quiet titleagainst all de2endants and each o2 them as o2 the date o2 this comlaint.

=;E%E+%E, -lainti22 as 2o the 2olloing elie2: 1. +o adeclaato Audgment that the a2oesaid ND as imoel noticedand is null and oid a initio. ". +o a declaation that the actions taHen a 2oeign cooations, in attemting to collect a det ithout a2oeign collectoF s license ae oid a initio, and that the sameconstituted Decetie (ade -actices ithin the meaning o2N%#




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59&.'9"3. 3. +o statuto damages usuant to 15 8.#.C. R1*9"H?a@, asincooated N%# *!9.37', in the amount o2 1,'''.'' 2o eachlainti22 against +ist 6oan #eicing. !. +o actual damages usuant to15 8.#.C. R1*9"H?a@ as incooated N%# *!9.37', in an amountaccoding to oo2 at the time o2 tial against an and all aties causingdiect and oimate ham to the lainti22. 5. +o geneal damagesagainst de2endants in ecess o21','''.''. *. +o udgment quieting

title in lainti22sF 2ao as one in 2ee simle o2 the -oet desciedheein. (hat de2endant?s@ aud each o2 them hae no ight, title, estate,lien o inteest in the -oet adese to lainti22 sK 7. +o such otheand 2uthe damages o2 an Hind against all aties ... ma .. aea Austand oe at tial. &. +o easonale attone 2ees and costs o2 theaction....

/nd the Caenties hae a meitoious case.

AFFIRMATION P1r1275 5o NRS !-B#**

D/(ED this anua 13, "'1":

OsO Zach Coughlin

Zach Coughlin, Esq.

/ttone 2o -lainti22s oan E. and ames Caentie


MOTION TO SET ASIDE ORDER GRANTING SUMMARY JUDGMENT "!


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DECLARATION OF JAMES S CARPENTIER AND JOAN E# CARPENTIER

27= ZACH COUGHLIN, ES$# IN SUPPORT OF SUPPLEMNT TO MOTION

TO SET ASIDE ORDER 27= REPLY TO OPPOSITION TO MOTION TO SET

ASIDE ORDER

1. (his Declaation is made usuant to the oisions o2 N%# 53.'!5, e ae esentl

in the #tate o2 Neada and declae unde enalt o2 eAu that the 2oegoing is tue

and coect.

". Declaants ae the -lainti22s in CV'&)'17'9 o attone o2 ecod.

3. Declaants ae that the 2actual statements set 2o aoe in this %el to osition

to -lainti22Fs 4otion to #et /side and in the ealie 2iled -lainti22Fs 4otion to #et /side

ae ae accuate.

!. , /4E# # C/%-EN(E% and , /N E. C/%-EN(E%, and Z/C; C8;6N

ae aailale to testi2, i2 necessa, as to these mattes. declae unde enalt o2

eAu that the 2oegoing is tue and coect.

Eecuted on anua 13, "'11

Os[ im Caentie/4E# # C/%-EN(E%-6/N(++

oen E. Caentie/N E C/%-EN(E%-6/N(++

OsO Zach CoughlinZach Coughlin, Esq.attone 2o the Caenties




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PROOF OF SERVICE

, Zach Coughlin, declae, that on anua 13, "'1", caused the 2oegoing to

e delie to all named De2endantFs in this action, electonic 2iling to:

Sistin /. #chule);intG, Esq.Chistoe ;unte, Esq.4cCath J ;olthus, 66-951' =. #ahaa /e., #uite 11'6as Vegas , NV &9117-hone: 7'")*&5)'3"9+a: &**)339)5*91HhintG0mccathholthus.com/tt 2o DE+(F# %E#DEN(/6 C%ED( #68(N# NC, /ND U8/6(

Documents

1 13 12 CV08-01709-2646751 (Supplemental ...) see Hill's 1 14 12 greivance to SBN 03628