No. 09-56133

United States Court Of Appeals

For The Ninth Circuit

Richard Shelley,

Plaintiff-Appellant,

v.

Quality Loan Service Corporation,

Litton Loan Servicing, L.P.,

Fremont Investment & Loan,

Defendants-Appellees.

Appellant‘s Reply Brief

On appeal from Motion To Dismiss in Shelley v. Quality Loan Service Corp., et aI,

Case No. SACV09-291 CJC. Cormac J. Carney, United States District Court

Judge.

United State District Court, Central District of California-Southern Division (Santa

Ana) Ronald Regan Federal Building and U.S. Courthouse, 411 West Fourth

Street, Room 1053 Santa Ana, CA 92701

Richard Shelley

Plaintiff-Appellant

Telephone: (714) 901-4136

7051 Natal Dr.,

Westminster, CA 92683

Shelley v. Quality 2 Reply Brief

TABLE OF CONTENTS

Table Of Authorities………………………...……….……………………………. 4

Corporate Disclosure Statement …………………………………….…………. 11

Jurisdictional Statement ………………………………………….……………. 11

Ninth Circuit Local Rule 28-2.6 Statement ……………………………….…… 12

Statement Of Issues Presented For Review …………………………………… 12

Statement Of The Case ………………………………………………………… 13

Statement Of The Facts ………………….………….…………..……….……. 14

Summary Of Argument ………………………….………….………….….……. 18

ARGUMENT

I. Framework Of The US Constitution, Material Provisions Of It Applicable To

This Case, What‘s Expected From Those Whom It Governs And The Extent

Of Its Power For Enforcement And Compliance….……….……….…… 18

II. District Court Erred By Attempting To Use Equity, Inapplicable Precedent And

Rules For Regulating Procedure In Order To Abridge The Rights Of

Appellant And Obtain An Inequitable Result Not Warranted By Law…… 23

III. Contradicting Precedent, Differentiating Circumstances, Established Limit Of

A Court‘s Discretion And Past Case History Regarding The Effects And

Procedures Of Rescission Suggest Appellant Had Effectively And Properly

Rescinded………………………………………….……………………… 32

Shelley v. Quality 3 Reply Brief

IV. The Allegations Of Forfeiture Were Never Disputed And The Property

Tendered Was Never Objected To As Insufficient Nor Was It Claimed Any

Tender Was Ever Owed From Plaintiff…………………………….…….. 46

V. Granting Of Untimely F.R.C.P. 12(b)(6) Motion Was Error, Claims Went

Uncontested And Met The Minimum Pleading Requirements. Any Factual

Concerns Should Have Been Decided By A Jury………………………… 49

VI. Several Deeds And Other Instruments Possibly Relating To Appellant‘s

Property Are Voidable And/Or If Not Void, Which Appellant Has Declared

Them So And Is Seeking That The Court Order That They Be Declared Void

As Such……………………………………………………………………. 50

VII. The Case Is Not Moot, The District Court And The California Superior Court

Acted Maliciously In Error And This Court Has Both The Power And Duty

Under The Articles, Amendments And Laws Made Pursuant To The US

Constitution To Vacate/Reverse And Order Both Of Them Be Corrected,

Restore Appellant To His Status Quo Ante, Award Damages, Penalize

Defendants And Grant Appellant Any Other Relief That The Court Considers

Appropriate………………………………………………………………… 55

Conclusion …………………………………..……………………………….… 59

Certificate of Compliance ……………………………………………………… 60

Shelley v. Quality 4 Reply Brief

TABLE OF AUTHORITIES

Cases

A & A Electric, Inc. v. City of King, 54 Cal. App. 3d 457, at *465-464 (1976) ...... 47

Alderman v. United States, 394 U.S. 165 (1969) ..................................................... 19

Backus v. Sessions, 17 Cal.2d 380, 110 P.2d 51 (1941) .......................................... 57

Baldain v. American Home Mortgage Servicing, Inc., S-09-0931, Dist. Ct (E.D.

Cal. 2010) .............................................................................................................. 40

Bank of America v. LaJolla Group II, 28 Cal.Rptr.3d 825, at *828 (2005) ............ 52

Bank of Healdsburg v. Bailhache, 65 Cal. 327 [4 P. 106] ....................................... 54

Barrett v. JP Morgan Chase Bank, NA, 445 F. 3d 874, at 878 (6th Cir 2006) ....... 44

Beach v. Ocwen Fed. Bank, 523 US 410 (1998) ..................................................... 30

Bell v. Hood, 327 U.S. at 682, 66 S.Ct. at 776 ........................................................ 26

Bledea v. Indymac Federal Bank, S-09-1239 (E.D. Cal. 2010) .............................. 40

Board of Regents of State Colleges v. Roth, 408 US 564 (1972) ............................ 21

Bordenkircher v. Hayes, 434 US 357, at *363 (1978) ............................................. 31

Boys Markets, Inc. v. Retail Clerks, 398 U. S. 235 (1970) ...................................... 20

Bridges v. California, 314 US 252, at *264 (1941) ................................................. 24

Brown v. Western R. Co. of Ala., 338 US 294, at *298 (1949) ............................... 37

Bryce v. O'Brien (1936) 5 Cal.2d 615, 616 ............................................................. 53

Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 13 L.Ed.2d 941

(1965) .................................................................................................................... 29

Cell Associates v. NATIONAL INSTITUTES, ETC., 579 F. 2d 1155, at *1161 (9th

Cir. 1978) .............................................................................................................. 21

Chandler v. Fab Associates, H033123, Cal. App. 6th

Dist. (2009) ......................... 54

Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 US 837, at

*865-866 (1984).................................................................................................... 20

City of Los Angeles v. Morgan, 105 Cal.App.2d 726, at *732 (1951) .................... 58

City of Valdez v. Waterkist Corp. (In re Waterkist Corp.), 775 F.2d 1089, 1091 (9th

Cir.1985) ............................................................................................................... 57

Cleburne v. Cleburne Living Center, Inc., 473 US 432, at *461 (1985) ................. 20

Commodity Credit Corporation v. Rosenberg Bros. & Co., Inc., 243 F.2d 504, at

*514 (9th

Cir 1957) ................................................................................................ 26

Cook v. Wells Fargo Bank, 09cv2757, Dist. Ct (S.D. Cal. 2010) at (A) (2) ........... 40

Shelley v. Quality 5 Reply Brief

Crane v. Buckley, 203 U. S. 441, 27 S. Ct. 56, 51 L. Ed. 260 (1906) ..................... 55

Crawford-El v. Britton, 523 US 574, at *598 fn *10 (1998) ................................... 30

Crocker-Anglo Nat. Bank v. Kuchman, 224 Cal. App.2d 490, 495-497 [36 Cal.

Rptr. 806] .............................................................................................................. 44

Cruz v. Beto, 405 US 319, at *322 (1972) ............................................................... 50

Curtis v. Loether, 415 US 189 (1974) ..................................................................... 24

D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 107 (2nd

Cir. 2006) .................. 47

Davis v. Bryan, 810 F.2d 42, 45 (2d Cir.1987)........................................................ 29

Denton v. Hernandez, 504 US 25, at 32 (1992) ....................................................... 50

Dimock v. Emerald Properties, 97 Cal. Rptr. 2d 255 (2000) 81 Cal.App.4th 868 . 51

Dollar Systems, Inc. v. Avcar Leasing Systems, Inc., 890 F.2d 165, at *173 (9th

Cir.

1989) ..................................................................................................................... 28

Doty v. Superior Court, Cal. App. 2nd

Dist., Div. 8, at *9 (2009) ........................... 42

Eby v. Reb Realty, Inc., 495 F.2d 646 (9th

Cir., 1974) ............................................. 41

Edmonds v. Compagnie Generale Transatlantique, 443 US 256, at *270 (1979) .. 41

English v. General Elec. Co., 496 US 72, at *78-79 (1990) ................................... 23

Erickson v. Bohne, 130 Cal.App.2d 553, at *557 (1955) ........................................ 53

Eriline Co. S.A., 440 F.3d 648, at *657 (4th Cir. 2006) ......................................... 29

Evans v. Spatt, 131 Cal. App.2d 47, 48-49 [279 P.2d 1026] ................................... 44

Firato v. Tuttle (1957) 48 Cal.2d 136, 139 .............................................................. 53

Forte v. Nolfi, supra, 25 Cal. App.3d 656 ............................................................... 54

Franklin v. State of Or., State Welfare Division, 662 F.2d 1337, at *1343 (9th

Cir.

1981) ..................................................................................................................... 26

FTC v. Barry Cooper, CV 99-07782 WDK (C.D. Cal. 1999) ................................. 25

FTC v. Citigroup, Inc., 239 F. Supp. 2d 1302 (N.D. Ga. 2001) .............................. 25

FTC v. First Alliance Mortgage Co., SACV 00-964 DOC (C.D. Cal. 2000) ......... 25

FTC v. Fleet Finance, Inc. and Home Equity U.S.A., Inc., No. 9323074 (1999) .... 25

FTC v. NuWest, Inc., No. 00-1197 (W.D. Wa. 2000) .............................................. 25

Fv-1, Inc. v. Pro Value Properties, Inc., Cal. App, 2nd Dist., Div. 5 (2009)U ....... 51

Gabel v. FIDELITY NATIONAL FORECLOSURE SOLUTIONS, Cal. App. 2nd

Dist., Div. 6 (2007) ............................................................................................... 52

Gardner & North R. & S. Corp. v. Board of Gov's, Fed. Res. Sys., 464 F.2d 838, at

*841-42 (D.C. Cir. 1972) ...................................................................................... 29

Geddes v. United Financial Group, 559 F.2d 557, 560 (9th

Cir.1977).................... 47

Gerasta v. Hibernia Nat'l Bank, 575 F.2d 580 at 586 (5th

Cir.1978) ...................... 48

Shelley v. Quality 6 Reply Brief

Gonzales v. Raich, 545 US 1, at *41 (2005) ............................................................ 22

Gould v. Wise, 97 Cal. 532 [32 Pac. 576, 33 Pac. 323] ........................................... 55

Graham v. Atchison, T. & S.F. Ry., 176 F.2d 819, at *826 (9th

Cir.1949) .............. 47

Green v. MacAdam, 175 Cal.App.2d 481, at *485-486 (1959) ............................... 55

Griffin v. Oceanic Contractors, Inc., 458 US 564, at *570 (1982) ......................... 23

Griswold v. Connecticut, 381 US 479, at *488 (1965) ............................................ 19

Haase v. Lamia, 229 Cal. App. 2d 654, at *658 (1964) .......................................... 58

Hall v. City of Santa Barbara, 833 F. 2d 1270, at *1274 (9th

Cir 1986) ................. 50

Hamel v. Gootkin (1962) 202 Cal. App.2d 27, 29-30 [20 Cal. Rptr. 372] .............. 54

Hanna v. Plumer, 380 US 460 (1965) ..................................................................... 19

Harmon v. Superior Court, 307 F.2d 796, 798 (9th

Cir. 1962) ................................ 26

Harrington v. Home Capital Funding, Inc., No. 08cv1579, 2009 WL 514254, at *3

(S.D. Cal. Mar. 2, 2009) ....................................................................................... 40

Hernandez v. Hilltop Financial Mortgage, Inc., 622 F. Supp. 2d 842, at *848-849

(N.D. Cal. 2007).................................................................................................... 40

Hewitt v. Equitable Life Assur. Soc., 8 F. 2d 706, at *709 (9th

Cir. 1925) .............. 17

Hishon v. King & Spalding, 467 U.S. 69, at *73 (1984) ......................................... 50

Hodel v. Virginia Surface Mining and Reclamation Ass'n, 452 U.S. 264, 101 S.Ct.

2352, 69 L.Ed.2d 1 (1981) .................................................................................... 22

Homestead Savings v. Darmiento, 230 Cal. App. 3d 424, at *436 (1991) 281 Cal.

Rptr. 367 ............................................................................................................... 53

Humphrey's Executor v. United States, 295 US 602, at *624 (1935) ...................... 25

In re Hubbel, 09-3424; In re Perez, 09-3425 (N.D. Cal. 2010) .............................. 41

In re Marriage of Buol, 39 Cal.3d 751 (1985) ......................................................... 20

In re Marriage of Jovel (1996) 49 Cal.App.4th

575, 584-585 ................................. 53

In re Mcgee v. Gregory Funding, LLC, US Dist. Ct, (D. Ore 2010) ....................... 40

In re Worcester, 811 F. 2d 1224 at *1228-1229 (9th

Cir 1987) ............................... 57

Ing Bank v. Ahn, 2009 WL 2083965 at * 2 (N.D.Cal.2009) ................................... 40

James B. Beam Distilling Co. v. Georgia, 501 US 529, at *549 (1991) ................. 22

John Hancock Mut. Life Ins. Co. v. Bartels, 308 US 180 (1939) ............................ 21

Kalb v. Feuerstein, 308 US 433, at *439-440 (1940) ....................................... 12, 59

Kelly v. Bank Of America Nat'l Trust And Sav. Ass'n, 112 Cal.App.2d 388, at 394

(1952) .................................................................................................................... 55

Kessler v. Bridge, 161 Cal. App. Supp. 2d 837 (1958) ........................................... 58

King v. State of Cal., 784 F. 2d 910 (9th

Cir 1986) ........................................... 32, 33

Shelley v. Quality 7 Reply Brief

Kuhl v. United States, 370 F. 2d 20 at *26 (9th

Cir 1966) ....................................... 29

Kurek v. Countrywide Home Loans, Inc., 09-4307 (N.D. Cal. 2010) ..................... 26

Ljepava v. MLSC Properties, Inc., 511 F. 2d 935, at *944 (9th

Cir. 1975) ............. 41

Lowry v. Barnhart, 329 F. 3d 1019, at *1022 (9th

Cir. 2003) .................................. 38

Marbury v. Madison, 5 U.S. 137 (____), 1 Cranch 137, at *163 (1803) ......... 21, 46

Massachusetts v. Environ-Mental Protection Agency, ___ U.S. ___ (2007) .......... 21

McManus v. Patch, 20 Cal. App. 479 (Cal. App. 1912) .......................................... 47

Meyer v. Nebraska, 262 U. S. 390, 399 (1923) ....................................................... 20

Miller v. Stewart, 22 U.S. 680, at *703 (1824) ........................................................ 55

Mincey v. Arizona, 437 U.S. 385 (1978) ................................................................. 19

Monaco v. Bear Stearns Residential Mortgage Corp., 554 F.Supp.2d 1034, 1038-

39 (C.D.Cal. 2008) ................................................................................................ 32

Montgomery v. Bank of America, 85 Cal.App.2d 559 (1948) ................................. 53

Mourning v. Family Publications Service, Inc., 411 US 356 at *377-378 (1973) .. 28

National Bank & Loan Co. v. Petrie, 189 US 423, at *424 (1903) ......................... 48

Nevada Dept. of Human Resources v. Hibbs, 538 US 721, at *741 (2003) ............ 24

Nguyen v. Chase Bank USA, N.A., CV09-04589 (C.D. Cal. 2010) ......................... 48

Northwest Airlines, Inc. v. Transport Workers, 451 US 77, at *95 (1981) ............. 24

O'Malley v. Woodrough, 307 US 277 (1939) .......................................................... 18

Ortega v. US, 861 F. 2d 600, at *603 (9th Cir. 1988) ............................................. 26

Oubre v. Entergy Operations, Inc., 522 US 422, at *426 (1998) ............................ 44

Pacific Shore Funding v. Lozo, 42 Cal.Rptr.3d 283, at *290 (2006) ............... 39, 41

Palmer v. Wilson, 359 F. Supp. 1099, at *1102 (N.D. Cal. 1973) .......................... 25

Palmer v. Wilson, 502 F. 2d 860, at *861 (9th

Cir. 1974) ........................... 27, 36, 40

Paularena v. Superior Court, 231 Cal.App.2d 906, at *913 (1965) ....................... 42

Payton v. New York, 445 U.S. 573 (1980) ............................................................... 20

Pedro v. Pacific Plan, 393 F. Supp. 315 at 324 (N.D. Cal. 1975) .......................... 48

Pelayo v. Home Capital Funding, 08-CV-2030 (S.D. Cal. 2009) ........................... 40

Pence v. Langdon, 99 US 578, at * 580 (1879) ....................................................... 28

Peyton v. Rowe, 391 U.S. 54, 65, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968) ............... 28

Phleger v. Countrywide Home Loans, Inc., Dist. Ct. (N.D.Cal. 2009) ................... 56

Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395, at *406

(1967) .................................................................................................................... 22

Pro Value Properties, Inc. v. Quality Loan Service Corp., 170 Cal.App.4th 579, at

*583 (2009) ........................................................................................................... 51

Shelley v. Quality 8 Reply Brief

Pro Value v. Quality Loan, supra, at *583 .............................................................. 52

Promis v. Duke, 208 Cal. 420 [281 Pac. 613] .......................................................... 55

Purity Extract & Tonic Co. v. Lynch, 226 US 192 (1912) ............................... 20, 27

Ramos v. Citimortgage, Inc., US Dist. Ct. (E.D.Cal. 2009) 08-cv-02250 LEXIS

956 at *6-7 ............................................................................................................ 44

Randall v. Loftsgaarden, 478 US 647, at *658 (1986) ............................................ 44

Reina v. Erassarret, 90 Cal.App.2d 418, at *426-427 (1949) ................................. 54

Riggs v. Government Emp. Financial Corp., 623 F. 2d 68, at *74 (9th Cir. 1980) 42

Roe v. Wade, 410 US 113, at *139 (1973) ............................................................... 24

Rose v. Katsaras, B194202, Cal.App., 2nd

Dist., Div. 4, at ¶C (2007) .................... 45

Runyan v. Pacific Air Industries, Inc., 2 Cal.3d 304 (1970) .................................... 43

Sam v. American Home Mortgage Servicing, S-09-2177 (E.D. Cal. 2010) ............ 36

Sargent v. Shumaker, 193 Cal. 122, 129-30, 223 P.2d 464, 467 (1924) ................. 57

Sargent v. Shumaker, 193 Cal. at 129-30, 223 P. at 467 (1924) ............................. 57

SC Hwy. Dept. v. Barnwell Bros., 303 US 177, at *190-91 (1938) ........................ 22

Schenck v. Pro-Choice Network of Western NY, 519 US 357 (1997) ..................... 19

Scheuer v. Rhodes, 416 US 232, at *236 (1974) ..................................................... 49

Schneider v. California Dept. of Corrections, 151 F. 3d 1194, at *1196 (9th Cir

1998) ..................................................................................................................... 50

Sibbach v. Wilson & Co., 312 U.S. 1 (1941) ........................................................... 19

Simulnet East Assoc. v. Ramada Hotel Operating Co., 37 F. 3d 573, at *575 (9th

Cir. 1994) .............................................................................................................. 35

Sosa v. Fite, 498 F.2d 114, at *119 (5th

Cir. 1974) .................................................. 48

Stock v. Meek, 221 P. 2d 15, at *814 - Cal: S. Ct (1950) ........................................ 56

Sturges v. Crowninshield, 17 U.S. (4 Wheat) 122, 202, 4 L.Ed. 529, at *107 (1819)

............................................................................................................................... 46

Switchmen's Union v. National Mediation Board, 320 U.S. 297, at *301 (1943) .. 21

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 US __ (2007) ..................... 21, 27

Thomas Jefferson: Batture Case, 1812 .................................................................... 56

Thomka v. A.Z. Chevrolet, Inc. (3d Cir. 1980) 619 F.2d 246, 248 .......................... 41

Title Guarantee & Trust Co. v. Monson, 11 Cal.2d 621, at *627 (1938) ................ 52

Trout v. Taylor, 220 Cal. 652, at *655-656 (Cal. 1934) .......................................... 55

Turgeau v. Admin. Review Bd., 446 F.3d 1052, 1058 (10th Cir.2006) ................... 29

United States v. Butler, 297 US 1, at *74 (1936) .................................................... 23

United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 457-58, 85 L.Ed. 609 (1941) 22

Shelley v. Quality 9 Reply Brief

United States v. Mitchell, 518 F.3d 740, at *748 (10th Cir.2008) ........................... 29

United States v. Olano, 507 US 725, at *731 (1993) .............................................. 46

US v. Real Prop. Located At 730 Glen-Mady Way, 590 F. Supp. 2d 1295, at *1300

(E.D. Cal. 2008) .................................................................................................... 47

US v. Weldon, CV F08-1643 (E.D. Cal. 2010) ........................................................ 58

Valle v. Washington Mutual Bank, E045930, Cal. App. 4th

Dist., Div. 2 (2009) .... 53

Van Tran v. Lindsey, 212 F. 3d 1143, at *1155 (9th

Cir. 2000) ............................... 22

Vanderbilt v. Vanderbilt, 354 U.S. 416, at *418 (1957) .......................................... 26

Velazquez v. GMAC Mortg. Corp., 605 F. Supp. 2d 1049 at *1059 (C.D.Cal. 2009)

............................................................................................................................... 32

Victoria v. JPMorgan Chase Bank, S-09-2059, Dist. Ct (E.D. Cal. 2009) ............. 40

Von Hoffman v. City of Quincy, 71 U.S. (4 Wall.) 535, 550, 18 L.Ed. 403 (1866)

............................................................................................................................... 28

Wagner v. Fawcett Publ'ns, 307 F.2d 409, 412 (7th Cir.1962) ............................... 29

Weltman v. Kaye, 334 P. 2d 917. at *614 Cal App, 2nd

Dist., Div. 1 (1959) .......... 44

Whitman v. Transtate Title Co., 165 Cal.App.3d 312, 323, 211 Cal.Rptr. 582, 589

(1985) .................................................................................................................... 57

Wiggins v. Avco Financial Services, supra, 62 F.Supp.2d at p. 94, ........................ 41

Williamson v. Lafferty, 698 F. 2d 767, at *769 (5th

Cir. 1983) ................................ 54

Wood v. Kalbaugh, 39 Cal. App. 3d 926, at *929-930 (1974) ................................ 44

Wutzke v. Bill Reid Painting Service, Inc., 151 Cal.App.3d 36 (1984) 198 Cal.

Rptr. 418 ............................................................................................................... 55

Yakus v. United States, 321 US 414, at *444 (1944) ............................................... 46

Yamamoto v. Bank of New York, 329 F. 3d 1167 (9th

Cir. 2003) ............... 33, 34, 35

Zinermon v. Burch, 494 US 113, at *118 (1990) ..................................................... 50

Zipes v. Trans World Airlines, Inc., 455 U.S. 385 at *389 (1982) .......................... 29

Statutes

15 U.S.C .§ 1692 et seq ............................................................................................ 17

15 U.S.C. § 1601 et seq. .................................................................................... 14, 17

15 U.S.C. § 1610 ................................................................................... 16, 25, 35, 37

15 U.S.C. § 1635 ................................................................................... 13, 16, 25, 28

15 U.S.C. § 1640 ...................................................................................................... 44

15 U.S.C. § 1641 ............................................................................................... 17, 36

15 U.S.C. § 1692f ..................................................................................................... 37

Shelley v. Quality 10 Reply Brief

28 U.S.C. § 453 ........................................................................................................ 31

Cal. Civ. Code, § 1689 ............................................................................................. 44

Cal. Civ. Pro. § 749 .................................................................................................. 17

Cal.Civ.Code §§ 1485-1505 .................................................................................... 17

Cal.Civ.Code §§ 1511-1515 .................................................................................... 17

Cal.Civ.Code §§ 1688-1693 .................................................................................... 17

Cal.Civ.Code §§ 3412-3415 .................................................................................... 17

Other Authorities

1 Freeman on Judgments, 5th ed. ............................................................................. 58

1 Miller & Starr, Cal. Real Estate (3d. ed. 2003) .................................................... 45

114 Cong.Rec. 1611 (1968) (remarks of Congressman Cahill) .............................. 41

114 Cong.Rec. H4118-38 (1968) (statement of Rep. Sullivan (D-MO)) ................ 28

4 Witkin, Cal. Procedure (5th ed. 2008) .................................................................. 42

Black's Law Dictionary 7th

ed. (West Group, 1999) ................................................ 38

Burby, Handbook of the Law of Real Property (3d ed. 1965) ................................ 55

Consumer Credit Regulations (Truth in Lending Regulations), Part 2: Hearings

Before the Subcomm. on Consumer Affairs of the House Comm. on Banking and

Currency, 91st Cong., 1st Sess., at *399 (1969) ................................................... 27

Cribbet, Principles of the Law of Property (2d ed. 1975) ....................................... 55

D. Dobbs, Law of Remedies § 4.8, p. 294 (1973) ................................................... 44

Mourning v. Family Publications Service, Inc., 411 US 356 at *366 (1973) ......... 38

Oxford Latin Dictionary (1968) ............................................................................... 23

Pub. Law No.96-221, 94 Stat. 132, 175 (codified at 15 U.S.C. § 1635(b) (Supp. IV

1980)) .................................................................................................................... 37

Public Law No. 104-29; § 8 P 109 Stat. 275-276 .................................................... 24

Public Law No. 90-321; §125 P 82 Stat. 152-153 ................................................... 23

Restatement of Restitution § 157, Comment b (1937) ............................................ 44

Restatement of Restitution § 65, Comment d (1936) .............................................. 44

S.Rep.No.96-368, 96th Cong., 1st Sess. 29 (1979), reprinted in 1980

U.S.C.C.A.N.236 .................................................................................................. 38

The Federalist No. 78 ............................................................................................... 18

Rules

Fed. R. Civ. Pro. 12(b)(6) ........................................................................... 14, 39, 50

Shelley v. Quality 11 Reply Brief

Regulations

12 C.F.R. § 226.23 ...................................... 13, 17, 23, 25, 26, 27, 28, 33, 34, 38, 44

Constitutional Provisions

US Const. art. Amend. IV ........................................................................................ 20

US Const. art. Amend. IX ........................................................................................ 20

US Const. art. Amend. VII ....................................................................................... 24

US Const. art. Amend. VIII ..................................................................................... 30

US Const. art. Amend. XIV ..................................................................................... 31

US Const. Art. I § 8, cl. 17 ................................................................................ 20, 31

US Const. Art. I § 8, cl. 18 ....................................................................................... 31

US Const. Art. I § 8, cl. 3 ............................................................................ 12, 28, 31

US Const. Art. III .............................................................................................. 20, 31

US Const. Art. III § 2 ............................................................................................... 16

US Const. Art. VI, cl. 2 ......................................................................... 12, 20, 28, 31

CORPORATE DISCLOSURE STATEMENT

This statement is made pursuant to Federal Rule of Appellate Procedure 26.1.

Plaintiff is not a corporate entity and has no parent corporation, subsidiaries or

affiliates that has issued shares to the public.

JURISDICTIONAL STATEMENT

The Court below had jurisdiction to entertain this matter because all claims

brought herein related to alleged violations of the Constitution for the United

States and laws made in pursuance thereof, including 15 U.S.C. § 1640(e) and 28

U.S.C. §§ 1331, 1337. The Court had authority to issue a declaratory judgment by

virtue of 28 U.S.C. § 2201. The Court also had supplemental jurisdiction over the

Plaintiff's state law claims pursuant to 28 U.S.C. §1367.

The Ninth Circuit Court of Appeals has jurisdiction to entertain this appeal

pursuant to 28 U.S.C. § 1291. Final Judgment dismissing the complaint with

prejudice was rendered on June 17, 2009. Plaintiff filed a Notice of Appeal with

the district clerk on July 16, 2009. Appeal is timely under Fed. R. App. Pro.

4(a)(1)(A).

Shelley v. Quality 12 Reply Brief

The Ninth Circuit Court of Appeals also has jurisdiction to render void or

otherwise overturn the State Court proceedings presented in the request for judicial

notice pursuant to US Const. Art. VI cl. 2 and US Const. art. Amend. XIV. See

Kalb v. Feuerstein, 308 US 433 (1940).

NINTH CIRCUIT LOCAL RULE 28-2.6 STATEMENT

Plaintiff has no knowledge of any pending cases related to the issues herein.

STATEMENT OF ISSUES PRESENTED FOR REVIEW

Is there any provision in the Constitution for the United States of America that

grants any Judge or any Court the power to overrule any Law for which he, she or

they is/are bound pursuant to US Const. Art. VI, cl. 2, not repugnant to the

Constitution made in pursuance to Congress‘ US Const. Art. I § 8, cl. 3 plenary

power for regulating commerce?

How could it be said that Appellant was not deprived of due process and was given

a fair opportunity to have his rights and claims argued and adjudicated by an

impartial judge and jury, when the right to a jury which was demanded was

ignored without any explanation as well as was the rights asserted for which the

claims are dependent on substantively and the judge who is expected to be

impartial advocates for the Defendants who apparently have no meritorious

defense?

More importantly how can it be said that anyone fighting against foreclosure

claims, valid or not, judicial or non-judicial be said to be receiving fair impartial

court treatment and public service when public employee pension funds both state

and federal have undisclosed financial investments in relation to deeds of

trusts/mortgages secured by real properties which only seek to profit by foreclosing

and displacing homeowners whether lawfully or not and turning around and selling

them for more financial gain to the benefit of public servants whom are all

involved in the aforementioned chain of events creating dangerously serious

conflicts of interest?

How could the District Court deny or prevent ownership of the real property in

question from vesting in Appellant without any obligation when the District Judge

declined to exercise supplemental jurisdiction in proceeding to adjudicate all issues

between all the parties named in this case with prejudice?

Is it an abuse of discretion and error of law for a Court of Law to sua sponte

exercise equitable discretion in order to deny Appellant of his legal rights and

contravene the statutory operation from the provisions applied, when the statutes

Shelley v. Quality 13 Reply Brief

that created the rights and claims do not permit for such discretion to be exercised

especially after they have taken effect?

If no counterclaims were made by Defendants, the allegations of forfeiture

accepted as true by Defendants and the only property well worth plenty value

which Appellant pledged and received as a result of the transaction in question was

timely offered to Defendants which they refused to accept, then what further

conditions needed from Appellant could possibly exist as the statutes require

nothing more and nothing more was demanded from Defendants?

How do the erroneous actions of the District Court, procedural default of

Defendants as well as their accepting all allegations of the complaint as true, and

all subsequent state proceedings and matters of public record which are voidable if

not void for various reasons have any negative impact on the merits which were

timely brought and proved to be valid through the development of the case?

Does a void deed recorded following a void writ, void judgment and void

proceedings, issued on a void summons, filed because of void deeds, from void

trustee sales, by parties who were never the trustee, become valid because they are

all matters of public record even when the links in the entire chain connecting them

all are shown to the Court to be void?

STATEMENT OF THE CASE

This case was filed pursuant to a cause of action for the enforcement of compliance

with the provisions of 15 U.S.C. § 1635; 12 C.F.R. § 226.23 of Plaintiff‘s duly

exercised extended right to rescind a consumer credit transaction for material

disclosure violations of the Truth in Lending Act 15 U.S.C. § 1601 et seq. The

transaction was subject to 15 U.S.C. § 1635; 12 C.F.R. § 226.23, which were

violated by various non-disclosures and omissions thereby extending the right to

rescind for up to three years from the closing date of the transaction. Defendants

initiated a non-judicial foreclosure process on Plaintiff‘s primary dwelling thereby

affording Plaintiff additional rescission rights under 15 U.S.C. § 1635(i); 12 C.F.R.

§ 226.23(h). Which were duly exercised with notice in accordance with 15 U.S.C.

§ 1635; 12 C.F.R. § 226 and offered to tender in one of the notices, which

Defendants ignored, took no action on and made no response to within twenty days

of the offer thereby forfeiting any benefits derived from the transaction and vesting

ownership of the property in the Plaintiff without obligation on his part to pay for it

in accordance with 15 U.S.C. § 1635(b). The time had also lapsed on the time

demanded in the summons served on the Defendants and ordered due by the Court

for when Defendant needed to appear and an answer or a responding motion was to

be filed, and the three year limitation of 15 U.S.C. § 1635(f) which lapsed without

Shelley v. Quality 14 Reply Brief

any response from Defendants dispute or otherwise to the claims of Plaintiff, thus

making him indisputably the victor by default. The District judge ignored the

lapsing of those time limits, including his own order and granted Defendants‘

untimely Fed. R. Civ. Pro. 12(b)(6) motion and proposed order to dismiss with

prejudice.

STATEMENT OF THE FACTS

Uncontroverted Material Facts

1. Somewhere in the duration of time between the 15th

and 17th of May, 2006

Appellant entered into a consumer credit extension agreement with

Defendant Fremont Investment & Loan for a possible refinance subject to 15

U.S.C. § 1601 et seq.1, secured by Appellant‘s principal dwelling thereby

subject to an unconditional right to rescind pursuant to 15 U.S.C. § 1635.

2. The right to rescind was not properly disclosed at the time of entering into

the transaction thereby 15 U.S.C. § 1635 was violated and the right to

rescind was extended which does not change the fact that when the right is

exercised simply by notification of intent to exercise the right voids any

security interest automatically.

3. The broker fee of $5,460 was not included in the finance charge in

accordance with the laws and regulations in effect at the time of the

transaction thereby in violation of and subject to 15 U.S.C. § 1635(i)(A).

4. Appellant‘s right to rescind pursuant to 15 U.S.C. § 1635 was duly

exercised, all Defendants were given notice, none of them rebutted any of

the notices nor argued or demanded that any tender was due in order to

effectively complete the rescission process, but still nonetheless such an

express offer was made (see RJN Ex. # 2-RN2), to Litton Loan Servicing LP

as the assignee of Fremont Investment & Loan (see RJN Ex. # 2-MC, at *2),

which was still effective pursuant to 15 U.S.C. § 1641(c).

5. Appellant was not required to take any actions following the exercise of

rescission, and the Defendants‘ inactions and failure to fulfill their required

obligations pursuant to 15 U.S.C. § 1635(b) subjected them to civil liability

under 15 U.S.C. § 1640.

1 Whether or not the credit was actually extended or any lawful consideration

given, lent or extended by any of the Defendants during the course of events which

they held lawfully and possessed ownership of prior to entering the transaction and

the date the transaction was actually consummated has not proven.

Shelley v. Quality 15 Reply Brief

6. Defendants had already forfeited any rights, beneficial interests, rebuttals,

counterclaims and defenses before the action was filed as was alleged in the

complaint. This forfeiture was never argued, disputed, challenged,

controverted or objected to by any of the Defendants, nor even by the

District Court.

7. The Defendants violated Cal. Const., art. XV, § 1 Usury by attempting to

charge a higher interest rate than the maximum allowed and as such operated

as a forfeiture to the right to charge interest, retain any benefit of the interest

already charged, any secured status that loan may or may not have had and

any right as secured creditors that the Defendants may or may not have had.

8. That the expressed tender offer in the notice of rescission received by

Appellee Litton Loan Servicing LP on 4/11/09 (see RJN Ex. # 2-RN2) and

the offer of tender having been acknowledged of having been received in the

District Court and served on all parties or their respective attorneys (see

D.C. Doc. # 21 Attch: # 1) which was not taken possession of replied,

responded nor objected to by Appellee Litton Loan Servicing LP were any

of the Defendants operated as a complete forfeiture of everything beneficial

deriving from the transaction, thereby now liable and owing to Appellant for

any expenses required in recovering Appellant‘s property, the financial

benefits gained by the Defendants from the transaction and anything else the

Defendants received from Appellant beyond that and that nothing further

was nor is required of Appellant to make effective as such.

9. On May 5th

, 2009 at the latest, all equitable and legal title to the following

land parcel of real estate property described below merged to which

complete title ownership without any obligation to pay for it, but subject to

all taxes, conditions, reservations, assessments, restrictions, liens, rights of

way, and easements of record, remained vested and does rightfully remain

vested in the Plaintiff/Appellant in this case RICHARD SHELLEY/ Richard

Shelley for the sole benefit of himself his successors, assigns, beneficiaries

and future heirs to secure the blessings of liberty to the same the residential

real estate property commonly described as: 6721 Tillamook Ave., 92683.

Orange County, A.P.N.203-491-20. Legally described as:

Shelley v. Quality 16 Reply Brief

10. Neither Litton Loan Servicing LP nor Quality Loan Service Corp. held legal

title with the power to sell the above described property, nor was Fremont

Investment & Loan, MERS or any other party or parties named in the

instruments listed as Exhibits A and B attached to the complaint (Doc.#1) B

and portions of A having been recorded as Instrument # 2006000359250, in

the Official Records of Orange County except for RICHARD SHELLEY the

Plaintiff/Appellant in this case. The reasons being, their defective

acknowledgements which are apparent on their face, as well as the

unauthorized material alterations to them and other instruments (see RJN

E.#s 2-DG and 2-DTO) that may have been signed but were apparently

modified without authorization sometime after their purported

acknowledgement thereby constituting forgery (see RJN E.#s 2-DGA and 2-

DTPA altered), as well as none of the pages to the instruments that were

purportedly executed contain any type of acknowledgment pertaining to the

property legally described in ¶ 9 of these enumerated facts.

11. Neither of the Appellees would have been able to exercise a power of sale

on Appellant‘s property, because neither of them were the expressly named

Trustee in the instruments allegedly executed, Appellee Quality Loan

Service Corp. does not hold a valid license in the State of California,

Appellee Litton Loan Servicing L.P. is a foreign entity subject to the

jurisdiction of US Const. Art. III § 2 and none of the Defendants nor their

agents could have exercised the non-judicial foreclosure process of the State

of California lawfully or legitimately in this case as it was preempted

pursuant to express § 1635 rescission preemption provision of 15 U.S.C. §

1610.

The foregoing or facts are ones which remain uncontroverted and all other facts of

this case have yet to be tried and determined by the proper trier of fact which is the

Shelley v. Quality 17 Reply Brief

Jury not judges,2 which was demanded when the complaint was filed and was not

challenged by any of the Defendants whom all had notice of the attempted motion

for dismissing with prejudice intended by Litton thereby forfeiting the ability to

have any facts weighed in their favor, could not be tried by the Court in the

absence of the Jury and would have been necessarily brought before both by the

Defendants in order to form any factual basis for any claims, defenses, equities

etc… even if the case were to be tried by a court of equity. See Hewitt v. Equitable

Life Assur. Soc., 8 F. 2d 706, at *709 (9th

Cir. 1925) ―Even if the remarks of the

trial court on instructing the jury … are to be deemed an expression of the court's

conclusion … there is no warrant for regarding them as findings of fact in an

equity suit and decisive of the issues involved.‖ Id.

Admissions of Appellee Litton Loan Servicing L.P.:

1. ―Litton no longer has any interest in the Property‖. Response To Emergency

Motion To Stay, Under 9th Cir. R.27-3, Of Defendant-Appellant Litton Loan Servicing, L.P., 09-56133, at *2 (9

th Cir. filed October 13, 2009)

2. If ―[the property] w[ould‘ve] [been] sold at a trustee's sale on September 23,

2009 to a third party purchaser [they] w[ould‘ve] paid $365,800‖. Id.

The foregoing two statements made by Appellee Litton Loan Servicing L.P. are

considered admissions of the following:

1st Statement

1. Appellee Litton Loan Servicing L.P. was an assignee as described in 15

U.S.C. § 1641(c) for purposes including but not limited to being subject to

15 U.S.C. § 1635 rescission and liable under the provisions of sections

within of: 15 U.S.C. § 1601 et seq.; 15 U.S.C .§ 1692 et seq.; 12 C.F.R. §

226.23; Cal.Civ.Code §§ 1485-1505; Cal.Civ.Code §§ 1511-1515;

Cal.Civ.Code §§ 1688-1693; Cal.Civ.Code §§ 3412-3415; Cal. Civ. Pro. §

749(a).

2. That all of the interests beneficial or otherwise obtainable and retainable

deriving from the credit transaction, the residential real estate property

owned by and rightfully belonging to Appellant, the Deed of Trust and any

such Note (whether or not forged or obtained through deceptive practices) to

it that it held or at some time may have held or owned or at some time may

2 Ad quaestionem facti non respondent judices

Shelley v. Quality 18 Reply Brief

have owned were effectively forfeited and Appellee Litton Loan Servicing

L.P. admits that the forfeiture alleged in the complaint which was never

denied nor disputed as being true as well as any other resulting forfeiture

that occurred during the course of the proceeding in the District Court.

2nd

Statement

1. That even if it were true that Appellant owed to the Defendants for the

amount which Litton Loan Servicing L.P. and Quality Loan Servicing Corp.

purports to indirectly imply with no factual support, the tender offered to the

rescission was valid thereby validating forfeiture because it could have sold

for an amount greater than the purported indebtedness had the sale been

regularly conducted by a substituted Trustee with record authority and duly

appointed with all the formalities required by the Deed of Trust.

SUMMARY OF ARGUMENT

All of Appellant‘s rights and claims alleged were/are valid and accepted as true.

Appellees asserted no counterclaims or defenses in the affirmative, but instead

admitted as true Appellant‘s allegations and make no representations as to the

validity of the matters of public record and State Court proceedings involving

Appellant subsequent to the filing of the instant action, all of which Appellant has

asserted are null and has declared void.

ARGUMENT

I. FRAMEWORK OF THE US CONSTITUTION, MATERIAL PROVISIONS

OF IT APPLICABLE TO THIS CASE, WHAT‘S EXPECTED FROM THOSE

WHOM IT GOVERNS AND THE EXTENT OF ITS POWER FOR

ENFORCEMENT AND COMPLIANCE.

―The legislature not only commands the purse, but prescribes the rules by which

the duties and rights of every citizen are to be regulated. The judiciary, on the

contrary, has no influence over either the sword or the purse; no direction either of

the strength or of the wealth of the society; and can take no active resolution

whatever. It may truly be said to have neither force nor will, but merely judgment‖

O'Malley v. Woodrough, 307 US 277, at *285 (1939)(quoting Alexander Hamilton,

The Federalist, No. 78.); (―[T]he Judicial Branch has hitherto been thought

powerless to act except as invited by someone other than itself. That is one of the

reasons it was thought to be "the least dangerous to the political rights of the

[C]onstitution"…. The Federalist No. 78, p. 396 (M. Beloff ed. 1987).‖) Schenck v.

Shelley v. Quality 19 Reply Brief

Pro-Choice Network of Western NY, 519 US 357, at *393-394 (1997); (―Congress

has undoubted power to regulate the practice and procedure of federal courts, ...

make rules not inconsistent with the statutes or constitution of the United States;

but it has never essayed to declare the substantive state law, or to abolish or nullify

a right recognized by the substantive law of the state where the cause of action

arose, save where a right or duty is imposed in a field committed to Congress by

the Constitution.... Hence we conclude that the Act of June 19, 1934, was

purposely restricted in its operation to matters of pleading and court practice and

procedure. Its two provisos or caveats emphasize this restriction. The first is that

the court shall not "abridge, enlarge, nor modify substantive rights," in the guise of

regulating procedure. The second is that if the rules are to prescribe a single form

of action for cases at law and suits in equity, the constitutional right to jury trial

inherent in the former must be preserved.‖) Sibbach v. Wilson & Co., 312 U.S. 1,

at *10, *14(1941)(footnotes omitted); (―[P]rocedure, —the judicial process for

enforcing rights and duties recognized by substantive law and for justly

administering remedy and redress for disregard or infraction of them.‖) Hanna v.

Plumer, 380 US 460, at *464 (1965)

―The language and history of the Ninth Amendment reveal that the Framers of the

Constitution believed that there are additional fundamental rights, protected from []

infringement, which exist alongside those fundamental rights specifically

mentioned in the first eight constitutional amendments.‖ Griswold v. Connecticut,

381 US 479, at *488 (1965) (―[T]he subsequently enacted Fourteenth Amendment

prohibits the States as well from abridging fundamental personal liberties. And, the

Ninth Amendment, in indicating that not all such liberties are specifically

mentioned in the first eight amendments, is surely relevant in showing the

existence of other fundamental personal rights, now protected from state, as well as

federal, infringement. In sum, the Ninth Amendment simply lends strong support

to the view that the "liberty" protected by the Fifth and Fourteenth Amendments

from infringement by the Federal Government or the States is not restricted to

rights specifically mentioned in the first eight amendments.‖ Id. at *493.

―Certainly the safeguarding of the home does not follow merely from the sanctity

of property rights. The home derives its pre-eminence as the seat of family life.

And the integrity of that life is something so fundamental that it has been found to

draw to its protection the principles of more than one explicitly granted

Constitutional right.‖) Id. at *495. And it is already well established by the US

Supreme Court that ownership of the home is essential for Fourth Amendment (US

Const. art. Amend. IV) coverage in protection and security because the right to

exclude others associated with it depends on ownership. See Alderman v. United

States, 394 U.S. 165 (1969); Mincey v. Arizona, 437 U.S. 385 (1978); Payton v.

Shelley v. Quality 20 Reply Brief

New York, 445 U.S. 573 (1980). Therefore a Constitutional right to and immunity

from unlawful seizure, unreasonable deprivation and displacement of a citizen‘s

real property that qualifies for protection under US Const. art. Amend. IX, because

to strip away his right of domicile and place of dwelling established on land which

he owns without any financial obligations save property taxes and insurance, also

infringes on and deprives him of his US Const. art. Amend. IV and fundamental

rights to due process under Amendments V and XIV. ―The right to "establish a

home" has long been cherished as one of the fundamental liberties embraced by the

Due Process Clause. See Meyer v. Nebraska, 262 U. S. 390, 399 (1923).‖ Cleburne

v. Cleburne Living Center, Inc., 473 US 432, at *461 (1985)

The power to make laws and exercise legislation is exclusively vested in the

Congress (US Const. Art. I § 8, cl. 17) and the whole body of the Judicial branch

consisting of every Judge sitting in each and every one of the several states of the

union therein, are bound thereby, must adhere to and is equally binding on both

powers for all cases arising in law and equity under US Const. Art. III3. See US

Const. Art. VI cl. 2 ―This Constitution, and the Laws of the United States which

shall be made in Pursuance thereof; and all Treaties made, or which shall be made,

under the Authority of the United States, shall be the supreme Law of the Land;

and the Judges in every State shall be bound thereby, any Thing in the

Constitution or Laws of any State to the Contrary notwithstanding.‖ Id.

(emphasis added) See also Purity Extract & Tonic Co. v. Lynch, 226 US 192, at

*202 (1912) (―[T]o substitute judicial opinion of expediency for the will of the

legislature, [is] a notion foreign to our constitutional system.‖) Id.; (―Altering the

important provisions of a statute is a legislative function.‖) Boys Markets, Inc. v.

Retail Clerks, 398 U. S. 235, at *258 (1970); (―Alteration of a substantial right is

not merely procedural, even if the statute takes a seemingly procedural form.

Destroying enforcement of a vested right is tantamount to destroying the right

itself.‖) In re Marriage of Buol, 39 Cal.3d 751, at *758 (1985)(internal quotation

marks and citations omitted); (―Judges are not experts in the field, and are not part

of either political branch of the Government. Courts must, in some cases, reconcile

competing political interests, but not on the basis of the judges' personal policy

preferences.‖) Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467

US 837, at *865-866 (1984); (―The scheme of the statute is designed to provide an

orderly procedure so as to give whatever relief may properly be afforded to the

distressed [consu]mer-debtor…. We are not here concerned with questions which

may arise in the course of the administration under the statute, but merely with the

duty to follow the procedure which the statute defines and the District Court failed

3 Aequitas legem sequitur

Shelley v. Quality 21 Reply Brief

to observe.‖) John Hancock Mut. Life Ins. Co. v. Bartels, 308 US 180, at *187

(1939); (―Congress for reasons of its own decided upon the method for the

protection of the "right" which it created. It selected the precise machinery and

fashioned the tool which it deemed suited to that end. … [I]t is for Congress to

determine how the rights which it creates shall be enforced. Switchmen's Union v.

National Mediation Board, 320 U.S. 297, at *301 (1943)(citations omitted). See

also Cell Associates v. NATIONAL INSTITUTES, ETC., 579 F. 2d 1155, at *1161

(9th

Cir. 1978)(same); (―[A] litigant to whom Congress has accorded a procedural

right to protect his concrete interests, can assert that right without meeting all the

normal standards for redressability and immediacy. When a litigant is vested with a

procedural right, that litigant has standing if there is some possibility that the

requested relief will prompt the injury-causing party to reconsider the decision that

allegedly harmed the litigant. A litigant who alleges a deprivation of a procedural

protection to which he is entitled never has to prove that if he had received the

procedure the substantive result would have been altered. All that is necessary is to

show that the procedural step was connected to the substantive result.‖)

Massachusetts v. Environ-Mental Protection Agency, ___ U.S. ___ (2007) (internal

quotations and citations omitted and original brackets removed); (―Congress, as

creator of federal statutory claims, has power to prescribe what must be pleaded to

state the claim, just as it has power to determine what must be proved to prevail on

the merits. It is the federal lawmaker's prerogative, therefore, to allow, disallow, or

shape the contours of—including the pleading and proof requirements for—

§1[635] private actions.‖) Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 US __

(2007); (―The Court has [] made clear that the property interests protected by

procedural due process extend well beyond actual ownership of real estate…. By

the same token, the Court has required due process protection for deprivations of

liberty beyond the sort of formal constraints imposed by the criminal process.‖)

Board of Regents of State Colleges v. Roth, 408 US 564, at *571-572 (1972); (―The

very essence of civil liberty certainly consists in the right of every individual to

claim the protection of the laws, whenever he receives an injury. … The

government of the United States has been emphatically termed a government of

laws, and not of men. It will certainly cease to deserve this high appellation, if the

laws furnish no remedy for the violation of a vested legal right.‖ Marbury v.

Madison, 5 U.S. 137 (____), 1 Cranch 137, at *163 (1803) ―The province of the

court is, solely, to decide on the rights of individuals‖. Id. at *170. ―It is

emphatically the province and duty of the judicial department to say what the law

is. Those who apply the rule to particular cases, must of necessity expound and

interpret that rule.‖) at *177.; (―[T]he power to say what the law is, not the power

Shelley v. Quality 22 Reply Brief

to change it.‖) Justice Scalia, concurring, James B. Beam Distilling Co. v. Georgia,

501 US 529, at *549 (1991)(internal quotations and citation omitted)4; (―[F]ederal

courts should first say what the law is, even when that inquiry alone does not

determine whether relief should be granted in a particular case.‖) Van Tran v.

Lindsey, 212 F. 3d 1143, at *1155 (9th

Cir. 2000)

(―The motive and purpose of a regulation of interstate commerce are matters for

the legislative judgment upon the exercise of which the Constitution places no

restriction and over which the courts are given no control.‖) United States v.

Darby, 312 U.S. 100, at *115, 61 S.Ct. 451, 457-58, 85 L.Ed. 609 (1941);

(―Federal courts are bound to apply rules enacted by Congress with respect to

matters—here, a contract involving commerce—over which it has legislative

power.‖) Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395,

at *406 (1967); (―When the action of a legislature is within the scope of its power,

fairly debatable questions as to its reasonableness, wisdom and propriety are not

for the determination of courts, but for the legislative body, on which rests the duty

and responsibility of decision.‖) SC Hwy. Dept. v. Barnwell Bros., 303 US 177, at

*190-91 (1938); (―The Court has repeatedly recognized that, if authorized by the

commerce power, Congress may regulate private endeavors even when that

regulation may pre-empt express state-law determinations contrary to the result

which has commended itself to the collective wisdom of Congress.‖) Gonzales v.

Raich, 545 US 1, at *41 (2005)(Justice Scalia, concurring)(internal quotations

omitted and brackets removed); (―A wealth of precedent attests to congressional

authority to displace or pre-empt state laws regulating private activity affecting

interstate commerce when these laws conflict with federal law. Moreover, it is

clear that the Commerce Clause empowers Congress to prohibit all—and not just

inconsistent—state regulation of such activities. Although such congressional

enactments obviously curtail or prohibit the States' prerogatives to make legislative

choices respecting subjects the States may consider important, the Supremacy

Clause permits no other result. As the Court long ago stated: It is elementary and

well settled that there can be no divided authority over interstate commerce, and

that the acts of Congress on that subject are supreme and exclusive. [Citation.].)‖

Hodel v. Virginia Surface Mining and Reclamation Ass'n, 452 U.S. 264, at *290,

101 S.Ct. 2352, 69 L.Ed.2d 1 (1981)(internal quotations and citations omitted);

(―[I]f the federal power … reaches the subject matter of the contract … its exertion

cannot be displaced by state action. To say otherwise is to deny the supremacy of

the laws of the United States; to make them subordinate to those of a State. This

would reverse the cardinal principle embodied in the Constitution and substitute

4 Jus dicere, non jus dare

Shelley v. Quality 23 Reply Brief

one which declares that Congress may only effectively legislate as to matters

within federal competence when the States do not dissent.‖) United States v.

Butler, 297 US 1, at *74 (1936); (―[S]tate law is pre-empted under the Supremacy

Clause, U. S. Const., Art. VI, cl. 2, in three circumstances. First, Congress can

define explicitly the extent to which its enactments pre-empt state law. Preemption

fundamentally is a question of congressional intent, and when Congress has made

its intent known through explicit statutory language, the courts' task is an easy one.

Second, in the absence of explicit statutory language, state law is pre-empted

where it regulates conduct in a field that … includes areas that have been

traditionally occupied by the States, [but] congressional intent to supersede state

laws must be `clear and manifest.' Finally, state law is pre-empted to the extent that

it actually conflicts with federal law. Thus, the Court has found pre-emption where

it is impossible for a private party to comply with both state and federal

requirements, or where state law stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress.‖) English v. General

Elec. Co., 496 US 72, at *78-79 (1990) (internal quotations and citations omitted);

(―Our task is to give effect to the will of Congress, and where its will has been

expressed in reasonably plain terms, that language must ordinarily be regarded as

conclusive.‖) Griffin v. Oceanic Contractors, Inc., 458 US 564, at *570

(1982)(quotations omitted)

II. DISTRICT COURT ERRED BY ATTEMPTING TO USE EQUITY,

INAPPLICABLE PRECEDENT AND RULES FOR REGULATING

PROCEDURE IN ORDER TO ABRIDGE THE RIGHTS OF APPELLANT AND

OBTAIN AN INEQUITABLE RESULT NOT WARRANTED BY LAW.

To begin with the act of rescinding when there is a right to do so and that right is

duly exercised the rescission is self-enforcing, annuls all obligations arising from

the transaction and needs no court approval unless the one rescinded against first

comes into court contesting the right which is not the case as it never did.5 See

Oxford Latin Dictionary (1968) ―rescissiō ~ōnis, f. [RESCINDO+-TIO] The action

of making null and void, cancellation, annulment.‖ Id. at 1627. The District Court

erred in holding that the cause of action for violations of and non-compliance with

15 U.S.C. § 1635 and Regulation Z § 226.23 (12 C.F.R. § 226.23) and claims

including but not limited the enforcing compliance following the exercise of duly

vested unconditional rescission rights with the provisions of § 1635 (Public Law

No. 90-321; §125 P 82 Stat. 152-153), and § 1635(i) Rescission Rights in

5 Qui prior est tempore potior est jure

Shelley v. Quality 24 Reply Brief

Foreclosure (Public Law No. 104-29; § 8 P 109 Stat. 275-276) are equitable

doctrines governed by the old common law standard that ‗he who asks for equity

must do equity‘ for numerous reasons.6 ―As long as it clearly expresses its intent,

Congress may abrogate that common-law defense pursuant to its power to regulate

commerce‖ Nevada Dept. of Human Resources v. Hibbs, 538 US 721, at *741

(2003) (Justice Stevens, concurring); (―However, we consistently have emphasized

that the federal lawmaking power is vested in the legislative, not the judicial,

branch of government; therefore, federal common law is subject to the paramount

authority of Congress. Thus, once Congress addresses a subject, even a subject

previously governed by federal common law, the justification for lawmaking by

the federal courts is greatly diminished. Thereafter, the task of the federal courts is

to interpret and apply statutory law, not to create common law.‖) Northwest

Airlines, Inc. v. Transport Workers, 451 US 77, at *95 (1981)(quotations, citations

omitted and footnote appended); (―The judicial task is at an end once the court

determines that Congress acted rationally in adopting a particular regulatory

scheme. Judicial review in this area is influenced above all by the fact that the

Commerce Clause is a grant of plenary authority to Congress. This power is

complete in itself, may be exercised to its utmost extent, and acknowledges no

limitations, other than are prescribed in the constitution.‖) Hodel v. Virginia

Surface Mining, supra, at *276 (internal quotations and citations omitted);

(―[A]fter the War Between the States [] legislation began generally to replace the

common law.‖) Roe v. Wade, 410 US 113, at *139 (1973); (―[T]o assume that

English common law … became ours is to deny the generally accepted historical

belief that one of the objects of the Revolution was to get rid of the English

common law‖.) Bridges v. California, 314 US 252, at *264 (1941)(quotation

omitted). In any event, the amount in controversy of tender that may or may not

have been or become due from Plaintiff as a consequence following the rescission

couldn‘t have been more than $20, this much is guaranteed by US Const. art.

Amend. VII as a jury was demanded by Plaintiff but no jury was had and the only

reasonably constitutional explanation would be that this amount is not exceeded, as

it has been established by the Supreme Court that the Seventh Amendment extends

to the statutes of the law where they create enforceable statutory rights and

remedies, as well as the common-law. See Curtis v. Loether, 415 US 189 (1974)

―The Seventh Amendment does apply to actions enforcing statutory rights, and

requires a jury trial upon demand, if the statute creates legal rights and remedies,

enforceable in an action for damages in the ordinary courts of law.‖ Id. at *194.

―[W]hen Congress provides for enforcement of statutory rights in an ordinary civil

action in the district courts, where there is obviously no functional justification for

6 Aequitas nunquam contravenit legem

Shelley v. Quality 25 Reply Brief

denying the jury trial right, a jury trial must be available if the action involves

rights and remedies of the sort typically enforced in an action at law.‖ Id. at *195.

With maybe the exception of the forfeiture provision, the governing rescission

rights are not implied, they are expressed in Federal, State, and contract Law. The

overruling effect the TILA statute has to common law rescission rule by the

statutory cannon Lex specialis derogat legi generali, see Palmer v. Wilson, 359 F.

Supp. 1099, at *1102 (N.D. Cal. 1973) (―Although this pattern is inconsistent with

the traditional common law requirements of rescission, Congress, of course, has

the power to alter the common law.‖) Id. Which Congress‘ amended subsection 15

U.S.C. § 1635(i) right of rescission expressly preempts state non-judicial

foreclosure. See 15 U.S.C. § 1610(d) ―Contract or other obligations under State or

Federal law - Except as specified in sections 1635, 1640, and 1666e of this title,

this subchapter and the regulations issued thereunder do not affect the validity or

enforceability of any contract or obligation under State or Federal law.‖ Id. An

agency authorized by Congress to administer laws for regulating commerce the

Federal Trade Commission (FTC) has filed and successfully enforced several

actions for various material violations under TILA enabling the remedy of

rescission,7 which creditor/defendants were forced to honor and comply with and

without the Court attempting to impose any condition or prerequisite on the

remedy. Where similarly to the case at bar no objections or defenses were

promptly raised deeming the creditor/defendants to be in acquiescence with the

liability charged from the allegations in the complaint without admitting anything.8

Thus if rescission 15 U.S.C. § 1635; 12 C.F.R. § 226.23 or any other section under

TILA that extends a consumer‘s right to rescind when violated were in fact

equitable then the FTC would have be powerless to enforce it. See Humphrey's

Executor v. United States, 295 US 602, at *624 (1935) ―The [FTC] is to be non-

partisan; and it must, from the very nature of its duties, act with entire impartiality.

It is charged with the enforcement of no policy except the policy of the law.‖ Id.

The Court never had personam jurisdiction over any of the Defendants because

none ever appeared before it and asserted any rights claims defenses, motions or

arguments nor applied for an equitable modification thereby no equities ever arose

which prevented the post-rescission process from moving forward, or warranted a

7 FTC v. Citigroup, Inc., 239 F. Supp. 2d 1302 (N.D. Ga. 2001); FTC v. First

Alliance Mortgage Co., SACV 00-964 DOC (C.D. Cal. 2000); FTC v. NuWest,

Inc., No. 00-1197 (W.D. Wa. 2000); FTC v. Fleet Finance, Inc. and Home Equity

U.S.A., Inc., No. 9323074 (1999); FTC v. Barry Cooper, CV 99-07782 WDK

(C.D. Cal. 1999) 8 Qui tacet consentire videtur

Shelley v. Quality 26 Reply Brief

dismissal9. See Vanderbilt v. Vanderbilt, 354 U.S. 416, at *418 (1957) (―It has long

been the constitutional rule that a court cannot adjudicate a personal claim or

obligation unless it has jurisdiction over the person of the defendant.‖); See also

Franklin v. State of Or., State Welfare Division, 662 F.2d 1337, at *1343 (9th

Cir.

1981)(―A dismissal for failure to state a claim requires a judgment on the merits

and cannot be decided before the court has assumed jurisdiction. See Bell v. Hood,

327 U.S. at 682, 66 S.Ct. at 776; Harmon v. Superior Court, 307 F.2d 796, 798 (9th

Cir. 1962).‖). Nor did the Court have equitable jurisdiction over the claims stated

because Appellant had not been a bankruptcy petitioner and also because it refused

to grant the application for a preliminary injunction, thereby none of the time

limitation provisions of subsections b and f of 15 U.S.C. § 1635 were prevented

from running and the forfeiture did occur because the status quo was not preserved

and the District Court had no power equitable or otherwise to disregard these time

limitations within which it may exercise appropriate discretion during the post-

rescission process, hear and consider any arguments or defenses and similarly

Litton‘s motion to dismiss which it erroneously granted. See Ortega v. US, 861 F.

2d 600, at *603 (9th Cir. 1988) ―[T]he district court had no authority to overlook

the expiration date [in] the Act and grant [Defendant]'s [mo]tion [to dismiss]

pursuant to its powers of equity.‖ Id. There would be no reason to bring an action

to force Defendants to cease desist comply and acknowledge the disaffirmation of

the contract if material facts warranting unilateral rescission had been noticed,

ignored and thereafter any tender or offer thereof thereby reaffirming the

obligation when it has been avoided and nullified. See Commodity Credit

Corporation v. Rosenberg Bros. & Co., Inc., 243 F.2d 504, at *514 (9th

Cir 1957)

(Denman, Chief Judge, concurring); See also Kurek v. Countrywide Home Loans,

Inc., 09-4307 (N.D. Cal. 2010) ―[I]f the action attacks the validity of the

underlying debt, a tender is not required since it would constitute an affirmative of

the debt.‖ Id. Furthermore pursuant to 12 U.S.C. §§ 3401-3422 Appellant has the

right under Federal Law to financial privacy and is not required to show that he

can or has the ability, neither of which such a prerequisite or a permissible

imposition of such found in § 1635 nor in 12 C.F.R. § 226.23 (§ 226.23) when the

elector exercising rescission has proper standing and such rescission is valid and

not challenged. And any burden of proof within the limited time frame is on the

creditor. The following is from a Congressional hearing between Vice Chair.

Robertson F.R.B. and Rep. Wylie discussing rescission under the Truth in Lending

Act:

9 Causa proxima, non remota spectatur

Shelley v. Quality 27 Reply Brief

Mr. ROBERTSON. There is going to be a problem of enforcement. We have

tried to make that as clear as we could by requiring the creditor to retain

evidence of his compliance, either a copy of the statement or a notation

signed by the customer that he tins received the notice. Under the regulation

he can protect himself, and it is up to him to do it.

Mr. WYLIE. That is right. Let's assume that he goes back to the office and he

fills out a copy of the 3-day right to rescission. The c[reditor] types a clause in

it stating the form was left.

Mr. ROBERTSON. He had better get the signature of the customer at the time

in order to protect himself.

Mr. WYLIE. He has to get the signature of the customer on the rescission

form? Is that what is provided for here?

Mr. ROBERTSON. The regulation provides that he should retain evidence,

whatever is satisfactory to protect himself, of the fact that he has complied

with the requirements of the regulation, that he has given the notice to the

homeowner of the right of rescission.

Mr. WYLIE. I see. In other words, he is under the burden–

Mr. ROBERTSON. The burden is on him.

Mr. WYLIE. The c[reditor] is under the burden of showing that he did give

the notice of the right to rescind ?

Mr. ROBERTSON. That is right.

Consumer Credit Regulations (Truth in Lending Regulations), Part 2: Hearings

Before the Subcomm. on Consumer Affairs of the House Comm. on Banking and

Currency, 91st Cong., 1st Sess., at *399 (1969). Nowhere in the US Constitution

nor the statute conferring the Court‘s jurisdiction does it authorize any judge or any

Court to set and/or implement sua sponte its own heightened pleading standard

requisites and pre-requisites deriving solely from precedent inapplicable to the case

at bar, in place of Congress‘ prescribed mode and method for regulating

commerce, and is unwarranted (see Purity Extract v. Lynch, supra, at *202 see also

Tellabs, Inc. v. Makor, supra,).§ 1635(a) and § 226.23(a)(2) prescribe ways a

consumer may notify a creditor and make it clear notification is all that is

necessary to effectively rescind. See Palmer v. Wilson, 502 F. 2d 860, at *861 (9th

Cir. 1974)(―Section 1635(a) provides that an obligor exercises his right of

rescission solely by notifying the creditor within prescribed time limits of his

intention to rescind.‖) Id.; (―[T]hat voids the mortgage absolutely and

unconditionally, regardless of whether either the debtor or the creditor does any of

the things that section 125 requires be done subsequent to the giving of notice of

intention to rescind. This would be true even where the original creditor had

meanwhile negotiated the paper to some third party. In this connection, I might

Shelley v. Quality 28 Reply Brief

point out that a lender who disburses funds, or a contractor who performs under his

contract, would ordinarily be taking a risk if he did so before the contract and all

the required information had been in the hands of the debtor for three full business

days.‖) 114 Cong.Rec. H4118-38 (1968) (statement of Rep. Sullivan (D-MO));

(―The objection that the notice of rescission was [ineffective when exercised] is

without force. … The result claimed could be produced only by a statutory

provision to that effect.‖ Pence v. Langdon, 99 US 578, at * 580 (1879) ―[T]he

wrong-doer cannot make extreme vigilance and promptitude conditions of

rescission. It does not lie in his mouth to complain of delay unaccompanied by acts

of ownership, and by which he has not been affected. The election to rescind or not

to rescind, once made, is final and conclusive.‖) Id. at *581-582.; (―In the instant

case, A[ppellant]'s alleged []failure to perform … is unrelated to the issue of

whether A[ppellant] is entitled to rescind the [] agreement. … A[ppellant] had the

right to rescind the [] agreement immediately upon its execution. Therefore, any

subsequent nonperformance … did not affect A[ppellant]'s right to rescission.

Accordingly, A[ppellant]'s rescission claim is not barred‖.) Dollar Systems, Inc. v.

Avcar Leasing Systems, Inc., 890 F.2d 165, at *173 (9th

Cir. 1989). The closest

thing to any such predetermined standard protocol found in § 226.23 permitting

courts or a court to modify the procedures is found in Paragraph 23(d)(4) which is

irrelevant because the ―consumer [wasn‘t] in bankruptcy proceedings‖ and never

was ―the consumer's right to rescind [] contested by the creditor‖ Id.(emphasis

added). Anything outside of that limited scope was and is beyond the District

Court‗s jurisdiction, in direct contravention with the TILA § 1635 and subsections,

clearly erroneous, an abuse of discretion, in violation of the Supremacy Clause (US

Const. Art. VI cl. 2) of the Constitution for the United States of America and an

usurpation on Congress‘ plenary power to regulate Commerce (US Const. Art. I §

8, cl. 3). ―The statutory scheme is within the power granted to Congress under the

Commerce Clause. It is not a function of the courts to speculate as to whether the

statute is unwise or whether the evils sought to be remedied could better have been

regulated in some other manner.‖ Mourning v. Family Publications Service, Inc.,

411 US 356 at *377-378 (1973); (―The specific purpose of section 125(a), 15

U.S.C. § 1635(a), was to protect homeowners from the unscrupulous business

tactics…. Being remedial legislation to protect the homeowner, the Act must be

broadly construed to effectuate its purpose. Peyton v. Rowe, 391 U.S. 54, 65, 88

S.Ct. 1549, 20 L.Ed.2d 426 (1968). … [T]he statutory provision … must be taken

as a part of the contract. This conclusion is fortified by the settled rule that "the

laws which subsist at the time and place of the making of a contract * * * enter into

and form a part of it, as if they were expressly referred to or incorporated in its

terms." Von Hoffman v. City of Quincy, 71 U.S. (4 Wall.) 535, 550, 18 L.Ed. 403

(1866). We think it a reasonable construction of the statute that Congress intended

Shelley v. Quality 29 Reply Brief

to require disclosure of all the consequences flowing from the signing of a home []

contract, including not only the consequences spelled out in the contract, but also

those necessarily inherent therein. Any other construction would expose the

homeowner to hidden and perhaps fatal traps; it would lead to precisely the kind of

imposition that Congress intended to prevent.‖) Gardner & North R. & S. Corp. v.

Board of Gov's, Fed. Res. Sys., 464 F.2d 838, at *841-42 (D.C. Cir. 1972). Nobody

even appeared and answered the summonses for any of the Defendants nor any

motion, defense or rebuttal argument made before the Court while it had

jurisdiction over the subject and it is improper for the District Judge to raise such

defenses and legal arguments sua sponte issues which the judge has no knowledge

as to whether they‘re valid or not. Such arguments are not the Court‘s place to

press unless it is properly asked of it and raised by the Defendants whom were

perfectly able, and they did not so even if available such arguments were forfeited

and/or waived for not raising them.10

See Kuhl v. United States, 370 F. 2d 20 at

*26 (9th Cir 1966) (―It is counsel's job, not the court's job, to raise the question. He

did not do so. He intentionally, whether for a good reason or a poor one, by-passed

the orderly procedure established in the federal courts. He thereby waived the

point. And no hearing is required to enable the trial court to decide the question.‖)

Id.; See also United States v. Mitchell, 518 F.3d 740, at *748 (10th Cir.2008) ("In

general, a statute of limitations may not be raised sua sponte and all circuits to

consider this issue have held so explicitly...Statutes of limitations have traditionally

been construed as benefitting the litigants, not the court. For example, "`[s]tatutes

of limitations are primarily designed to assure fairness to defendants.'" Turgeau v.

Admin. Review Bd., 446 F.3d 1052, 1058 (10th Cir.2006) (quoting Burnett v. N.Y.

Cent. R.R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965)).See

also.Eriline Co. S.A., 440 F.3d 648, at *657 (4th

Cir. 2006) ("a defendant must

either timely raise a statute of limitations defense or waive its benefits...and the

district court should have refrained from raising and considering the statute of

limitations defense sua sponte. Its failure to do so constitutes an error of law.");

Haskell v. Wash. Twp., 864 F.2d 1266, 1273 (6th Cir. 1988) ("Since it is a

waivable defense, it ordinarily is error for a district court to raise the [statute of

limitations] sua sponte."); Davis v. Bryan, 810 F.2d 42, 45 (2d Cir.1987)

(concluding that sua sponte consideration of statute of limitations was "error of

law"); Wagner v. Fawcett Publ'ns, 307 F.2d 409, 412 (7th Cir.1962) (observing

that statute of limitations is "a personal privilege of the defendant," and that district

court erred in raising it sua sponte). See also Zipes v. Trans World Airlines, Inc.,

455 U.S. 385 at *389 (1982) (―[D]elay in pleading the defense … may well

ultimately constitute a waiver of the defense.‖) Id. There isn‘t even a requirement

10

Vigilantibus non dormientibus jura subveniunt

Shelley v. Quality 30 Reply Brief

in § 1635 that an action be brought or suit filed and claims pleaded to effectuate a

valid rescission let alone any of the allegations which the trial judge purports are

standard requirements. ―The subsection says nothing in terms of bringing an action

but instead provides that the right of rescission under the Act shall expire at the end

of the time period. It talks not of a suit's commencement but of a right's duration,

which it addresses in terms so straightforward as to render any limitation on the

time for seeking a remedy superfluous.‖ Beach v. Ocwen Fed. Bank, 523 US 410,

at *417 (1998)(internal quotations and brackets removed). In Beach the Supreme

Court understandably never discussed tender as a conditional issue as the

Congressional history behind the amended provision added to the end of § 1635(b)

rendered it inapplicable to the case in Beach because the consumers in that case

hadn‘t filed for bankruptcy and weren‘t in wage earner proceedings. However the

Supreme Court did point out that ―Congress amended the Act in 1995 to soften

certain restrictions on rescission as a defense in § 8, 109 Stat. 275-276, 15 U. S. C.

§§ 1635(i)(1) and (2) (1994 ed., Supp. I), it took care to provide that any such

liberality was "subject to the [three year] time period provided in subsection (f),"

ibid.‖ Beach, supra, at *418 but hadn‘t said it was subject to anything else, not

tender nor court approval as long as the right was exercised within the three year

limitation. And a judge attempting to impose such extreme conditions when the

circumstances that could warrant them are not present and no tender at all is even

owed, in response to Appellant exercising his federal right afforded him under

Congress‘ power for regulating commerce violates his constitutional liberty for

exercising his rights, this retaliatory, an unequal application of the law and

deprivation of due process in violation of US Const. art. Amend. XIV, and because

any amounts owed had already been paid the District Court‘s sua sponte

imposition of an unconstitutional condition prejudicially presumed applicably

available, completely unfounded, unjustified and devoid of facts to support it

amounts to an excessive fine in retaliation for lawfully exercising duly entitled

rights and cruel and unusual punishment for an abridgment of those rights, by

allowing Defendants and in fact privately ordering them and Appellant‘s former

attorney to deprive Appellant of his due process and Constitutional rights,

privileges, immunities and guarantees for not paying that fine in violation of US

Const. art. Amend. VIII. ―There as on why such retaliation offends the

Constitution is that it threatens to inhibit exercise of the protected right. Retaliation

is thus akin to an "unconstitutional condition" demanded for the receipt of a

government-provided benefit.‖ Crawford-El v. Britton, 523 US 574, at *598 fn *10

(1998)(citations omitted); (―To punish a person because he has done what the law

plainly allows him to do is a due process violation of the most basic sort, and … to

pursue a course of action whose objective is to penalize a person's reliance on his

legal rights is "patently unconstitutional."‖) Bordenkircher v. Hayes, 434 US 357,

Shelley v. Quality 31 Reply Brief

at *363 (1978). Furthermore Cormac J. Carney has not stated validly effective

orders, all US judges are required to be bound not only by US Const. Art. VI, cl. 2

but also by 28 U. S. C. § 453 Each justice or judge of the United States shall take

the following oath or affirmation before performing the duties of his office: ―I,

XXX XXX, do solemnly swear (or affirm) that I will administer justice without

respect to persons, and do equal right to the poor and to the rich, and that I will

faithfully and impartially discharge and perform all the duties incumbent upon me

as XXX under the Constitution and laws of the United States. So help me God.‖ Id.

And Cormac J. Carney has not stated nor provided any evidence as proof that he

has taken such an oath or affirmation or has the desire, means or intension to take,

uphold and honor such an oath or affirmation (do unto others). And even if he did

or has, the actions he has taken clearly evidence that he has willfully violated that

oath by usurping both US Const. Art. I § 8, cl. 3 plenary powers of Congress for

regulating commerce and US Const. Art. I § 8, cl. 17 Legislative power which can

only be exercised by Congress exclusively, violating US Const. Art. I § 8, cl. 18 by

obstructing justice in preventing the Laws from being carried into execution which

are necessary and proper for Congress to effectuate its intent in providing for the

general Welfare and fulfilling the will of the People for securing the Blessings and

Liberty of life to them as individuals, by extending the US Const. Art. III power

beyond its limits before actual controversy between the parties had arisen and

Defendants were deemed to have acquiesced in all allegations including forfeiture

and willingly consented to a default judgment by intentionally not replying to the

complaint timely, by refusing to uphold the laws by which he is bound (US Const.

Art. VI, cl. 2 and 28 U.S.C. § 453) not case precedent which deprives Appellant of

his fair and equal opportunity to have his case tried accordingly because of the

circumstances in past cases which contravenes US Const. art. Amend. XIV. ―[A]

judicial precedent is not law per se, but evidence of it only. The real law is

custom.‖ Bouvier's Law Dictionary and Concise Encyclopedia, vol. 3,

PRECEDENTS at *2660 (1914), quoting Law - Its Origin, Growth, and Function,

James Coolidge Carter, at *84 (1907); (―Mere precedent is a dangerous source of

authority, and should not be regarded as deciding questions of constitutional power

except where the acquiescence of the people and the States can be considered as

well settled.‖) Andrew Jackson, Veto Message, Richardson 2:581—91 (July 10,

1832). Courts‘ overreliance and abuse of precedent as a means to deprive

individuals of their legal rights when it is the Judges‘ duty to interpret the law and

not past cases seriously undermines Congress‘ Legislative power especially when a

case falls within a narrow exception of the law that allows the Court to raise the

standards for obtaining relief under a certain set of circumstances and that case is

thereafter used to impose not just those standards but ones even higher to all cases

regardless of the circumstances seriously contravening the law from which it came.

Shelley v. Quality 32 Reply Brief

Which actually gives anyone whom any law may apply to or effect, that may have

enough financial incentive to find and exploit that narrow exception of the law by

fabricating fictitious parties, facts and circumstances to create a fictitious case and

controversy but leading to a published opinion having the appearance of real

results used as precedent to create fictitious law. Putting any party who files an

action or suit after such a case seeking the protection and relief accorded under the

real law in a Res Judicata like position as to bar them from having their case tried

fairly even though the parties, facts and circumstances could all be different, which

in most cases they usually are. As for opposing counsel for Appellee Litton

claiming that these indisputably true allegations of judicial misconduct are mere

bald assertions of bias and partiality, really all one has to do is simply look at the

inescapably obvious fact of how they both attempt to defend and cover for one

another in each other‘s absence, the judge‘s complete disregard of more applicable

precedent even on an impartial balance analysis and sua sponte citing precedent

where no relief was afforded to the consumer party on grounds that have no

relevance in the case at bar and the granting of the untimely motion to dismiss to

the Defendants in default who had disregarded an order of the Court and

intentionally waited to file the motion after the time of the deadline had passed.

III. CONTRADICTING PRECEDENT, DIFFERENTIATING

CIRCUMSTANCES, ESTABLISHED LIMIT OF A COURT‘S DISCRETION

AND PAST CASE HISTORY REGARDING THE EFFECTS AND

PROCEDURES OF RESCISSION SUGGEST APPELLANT HAD

EFFECTIVELY AND PROPERLY RESCINDED.

Pleading in the Complaint that the in the principal secured by the Deed of Trust has

already been paid in full, could have ran a higher risk of having the case and claims

dismissed under King v. State of Cal., 784 F. 2d 910 (9th

Cir 1986), See Velazquez

v. GMAC Mortg. Corp., 605 F. Supp. 2d 1049 at *1059 (C.D.Cal. 2009) US Court

for the Central District of California held: (―[A] borrower did not have a rescission

claim under TILA where the loan at issue had been re[pay]ed and the…underlying

[obligation] had been s[atisfied]. King, 784 F.2d at 913 ("The loan ... cannot be

rescinded, because there is nothing to rescind."). Because the Court is bound by

decisions of the Ninth Circuit, the Court holds Plaintiffs cannot state a TILA claim

for rescission. Accord Monaco v. Bear Stearns Residential Mortgage Corp., 554

F.Supp.2d 1034, 1038-39 (C.D.Cal. 2008).‖) Which calls attention to a growing

problem in the US District Courts in California, they are denying the same

rescissory relief based on two 9th

Circuit precedents that contradict each other and

which the circumstances in either aren‘t factors which are present in the cases that

courts are applying them to. In King, supra, at *912 ―King filed a Chapter 7

bankruptcy petition and on July 7, 1983, obtained a discharge of her debts in

Shelley v. Quality 33 Reply Brief

bankruptcy. Title to King's home remain[ed] vested in the bankruptcy trustee.‖

Which operated as ―the right to rescind automatically laps[ing]‖ for the purposes of

§ 226.23(a)(3).3. by ―Transfer of all the consumer's interest in the property.‖ Id.

Only then after those events had occurred did King elect to exercise her right to

rescind. In any event the 2 refinances in King’s case were exempted from

rescission by § 1635(e) because she used the same arranger of credit for all 3

transactions and the first transaction was barred by the 3 year statute of limitations

in § 1635(f). The other case which is cited more frequently than but very similar to

King is Yamamoto v. Bank of New York, 329 F. 3d 1167 (9th

Cir. 2003), which is

also distinguishable from the case now on appeal. In Yamamoto it was the same

general scenario, the Yamamotos obtained a loan from BNC (the original lender)

which was subsequently assigned to BNY (Bank of New York), defaulted on the

loan then filed for Chapter 7 bankruptcy relief. BNY obtained relief from stay and

instituted foreclosure proceedings. Then just like in King, supra, at *912 following

receiving a discharge in bankruptcy the Yamamotos attempted to rescind by

notifying BNC that they were exercising their right to rescind. In addition in

Yamamoto, supra, at *1169 BNC rebutted that at the time of the transaction proper

disclosure of the ―Notice of Right to Cancel had been provided‖. Id. So after a

similar notice was sent to BNY and they discontinued foreclosure, when the

Yamamotos filed their complaint the district court ―found a triable issue of fact as

to whether Yamamotos/Tampon received the proper disclosures. The court also

held that the bankruptcy trustee was the proper plaintiff to pursue recission rather

than the Yamamotos, and that the Yamamotos and Tampon, who had indicated that

they were unable to tender the proceeds, could have sixty days to try to do so.‖ Id.

Thus not only was the Yamamoto Court‘s decision sound with § 226.23 it also

followed § 1635(b) to the letter when only after it determined the circumstances to

be otherwise due to there being dispute on the rescission‘s validity, which if valid

was held by the trustee and after hearing the testimony given which gave even

more doubt to the circumstances collectively did it order the Yamamoto plaintiffs

to come up with the ability to tender within sixty days after and when they failed to

comply granted the Yamamoto defendants motions for summary judgment. On

review in the U.S. Court of Appeals for the Ninth Circuit, the Court in explaining

the propriety of rescission in Yamamoto, supra, at *1172, the Court correctly

observed, that as to when rescission actually validly takes effect there is a

distinction between situations when ―the lender contests the ground upon which the

borrower rescinds‖ as in Yamamoto and when, as in this case, the creditor ―ha[s]

acquiesced in [the] notice of rescission, then the transaction [is] … rescinded

automatically, thereby causing the security interest to become void and triggering

the sequence of events laid out in [the rescission] subsections‖. Id. Which

indisputably goes without saying that if the creditor pleads contest to the validity of

Shelley v. Quality 34 Reply Brief

the right exercised and the Court determines that the borrower lacked standing to

rescind and the actual right is in controversy following a hearing on the arguments

of the issue from all parties rescission is not automatic, whereas if the validity of

the exercised right is not contested and the borrower was never without standing

then the opposite is true, ―[a]ny security interest … becomes void when the

consumer exercises the right of rescission. The security interest is automatically

negated regardless of its status and whether or not it was recorded or perfected.

Under § 226.23(d)(2), however, the creditor must take any action necessary to

reflect the fact that the security interest no longer exists.‖

§ 226.23(d)(1)1.(emphasis added). A fact which remains uncontroverted as the

cause of action was for the District Court to force the Defendants to comply with

the duly exercised right not to seek the Court‘s opinion of whether or not Plaintiff

could claim a right to rescind which was never an issue, nor was the creditor

forfeiture which was alleged in the complaint and never contested, thereby there

was no recognized procedure due any of them that could have been conditioned

even if it were a justiciable issue. However, since neither of these allegations were

controverted the principle question is answered in the affirmative that ―[w]hen a

consumer rescinds a transaction, the security interest giving rise to the right of

rescission becomes void and the consumer shall not be liable for any amount,

including any finance charge.‖ Yamamoto, supra, at *1171. Because of

Defendants‘ failure to comply with § 226.23(d)(2)3. and § 1635(b) they forfeited

any opportunity to have the Court consider whether they may or may not have

been entitled to any post-rescission tender, as the discretion to modify any

procedures only arises after rescission occurs and is only available upon

application from consumer or creditor ―after the creditor has performed his

obligations as required by the act.‖ Yamamoto, supra, at *1173.11

Two principles in

Yamamoto the trial Court in this case erred in overlooking in addition to the

contradistinctions cited above with this case was in the Yamamoto court‘s opening

statement of ―whether a court may order borrowers who seek recission of a

mortgage under the Truth in Lending Act (TILA), 15 U.S.C. § 1635, to show that

proceeds can be tendered if they prevail. [Wh]ere, the borrowers testified that they

could not fulfill TILA's tender requirement, and the district court[‗s] [order] gave

them sixty days before dismissing their recission claim to attempt to do so. When

they were unable to [comply with] that [order] … the court granted summary

judgment in favor of the lender‖ which the Court of Appeals for the Ninth Circuit

―h[e]ld that a district court has discretion to modify the sequence of rescission

events [under] th[o]se circumstances‖. Yamamoto, supra, at *1168. But in its

conclusion cautioned ―[w]hether the call is correct must be determined on a case-

11

Merito beneficium legis amittit, qui legem ipsam subvertere intendit

Shelley v. Quality 35 Reply Brief

by-case basis, in light of the record adduced.‖ The Ninth Circuit ―simply decide[d]

that [under] the circumstances of th[at] case, the court did not lack discretion to

modify the sequence of rescission events‖ when it determined that the right was

not present. Yamamoto, supra, at *1173(emphasis added). The circumstances in

this case and of those in Yamamoto however contrast in comparison which make

its application inappropriate.

See Simulnet East Assoc. v. Ramada Hotel Operating Co., 37 F. 3d 573, at *575

(9th Cir. 1994) ―There are numerous significant differences between that case and

this one that make that precedent inapplicable to this case.‖ Id. Several

distinguishable facts exist such as in Yamamoto the plaintiffs defaulted then filed

for bankruptcy, they gave notice of rescission after the loan had been assigned

which was rebutted by the lender that it had complied with § 1635 and provided

the notice of rescission at the time of the transaction, no demand for a jury trial was

made, the attempt to rescind and the filing of the suit occurred subsequent to the

Yamamoto plaintiffs receiving a discharge from the bankruptcy court in the District

of Hawaii where the Yamamoto plaintiffs had twice filed for bankruptcy, so if any

such extended right to rescind existed it remained vested in the bankruptcy trustee

and the Yamamoto plaintiffs therefore lacked standing to bring such claims. Also

third, fourth party complaints and contending claims were filed by the Yamamoto

defendants followed by motions and cross-motions for summary judgment by all

the parties where the court found an actual controversy and triable issues on

whether a violation had occurred that extended the right to rescind and ordered the

Yamamoto plaintiffs who had testified inability to return the money provided to

them to obtain financing within sixty days to do so or face dismissal and when they

did not comply the court granted summary judgment to the Yamamoto defendants.

Whereas in this case no facts were alleged as well as no supporting proof provided

that an actual cash loan was ever delivered to and received by Appellant and the

disclosure statement provided to the Court may not be received as evidence as

such. See 15 U.S.C. § 1610(c) ―Disclosure as evidence - In any action or

proceeding in any court involving a consumer credit sale, the disclosure of the

annual percentage rate as required under this subchapter in connection with that

sale may not be received as evidence that the sale was a loan or any type of

transaction other than a credit sale.‖ Id. There was no proof that any default was

actually suffered, declared or occurred on the part of Plaintiff, or that Plaintiff‘s

obligations (if any existed) had not been fulfilled, notice of rescission was given

before assignment (see RJN Ex. # 1-RN),12

as well as two following assignment to

12

―[N]either TILA and Regulation Z, which implements TILA, set forth any

technical requirements that govern the language a consumer must use when

Shelley v. Quality 36 Reply Brief

Litton (see RJN Ex. # 2-MC, at *2) one by attempting to tender (see RJN Ex. # 2-

RN2),13

which is still effective see 15 U.S.C. § 1641(c) ―[a]ny consumer who has

the right to rescind a transaction under section 1635 of this title may rescind the

transaction as against any assignee‖, there was never any rebuttal nor any

counterclaim or condition demanded from any of the Defendants in response to

any of Plaintiff‘s rescission notices duly exercising rescission rights that were

never transferred to a bankruptcy trustee. When the action was brought before the

Court to enforce compliance with the duly exercised right to rescind and the

effective rights associated with the rescission they went uncontroverted by the

Defendants who never appeared to answer the summons and complaint so the

Court had no power constitutionally, jurisdictionally or discretionary to alter the

substantive provisional restoration of the status quo ante after tender had been

offered and the 20 day period to accept it had lapsed which the law declares that

―ownership of the property vests in the obligor without obligation on his part to

pay for it.‖ § 1635(b). The District Court also failed to recognize the Defendants‘

careless disregard for a principle requisite that the Yamamoto defendants had

satisfied which is that any amount of tender due must be counterclaimed as

established by 9th

Circuit precedent. See Palmer v. Wilson, supra, 502 F.2d at *863

Bruce R. Thompson, District Judge, concurring: ―[D]efendants did not

counterclaim for [anything]. Under Rule 13(a) of the Federal Rules of Civil

Procedure, this is a compulsory counterclaim and the cause of action is lost if not

asserted. Whatever tactical considerations may have influenced defendants'

pleading, the net result … [is] that plaintiff[] … [was] free from any obligation.‖

Id. Which no facts were ever pleaded nor controverted by any of the Defendants

which even if any had been the decision would be necessarily adjudicated by the

Jury not the District Judge especially in light of his inconsistent degree of

uncertainty of knowledge as to the facts,14

applicable material statutory law,15

and

[exercising] a rescission.‖ Sam v. American Home Mortgage Servicing, S-09-2177

(E.D. Cal. 2010) 13

The amount of legal tender due after crediting all amounts received (which

would amount to nothing due) was demanded but there was no response. Neither

TILA nor Regulation Z has a specific definition for ―property‖, but the Deed of

Trust Appellee was attempting to enforce does and while the absence of a legal

description leaves uncertainty that‘s how it appears in the Deed of Trust. 14

See Shelley EOR ―Defendants loaned Mr. Shelley $440,000‖, Id. at *17 and

―Defendants loaned Mr. Shelley more than $264,000, performing their part of the

lending agreement.‖ Id. at *21. However no money was ever in fact lent and no

representations or declarations were made to the Court by any of the parties to

support such a presumption.

Shelley v. Quality 37 Reply Brief

ability in maintaining the authority and dignity of the Court.16

Appellant should not

be deprived of the full, fair and equal opportunity to have his case tried on the

merits due to past precedent with contrasting circumstances. Judges are bound by

law not by precedent. US Const. Art. VI, cl. 2. ―[R]ules of pleading cannot be used

to impose unnecessary burdens upon rights of recovery authorized by federal

laws.‖ Brown v. Western R. Co. of Ala., 338 US 294, at *298 (1949).

In both King and Yamamoto the law was correctly applied as was intended by the

1980 amendments, while King could have used a little more clarification,

nonetheless both opinions are completely sound, but they do not grant the District

Court jurisdiction nor discretion to apply them to cases outside of bankruptcy or as

precedent to cases distinguishable from them, nor does the 1980 amendment to §

1635(b) permit any modification outside of the duration of the rescission process

which is at maximum forty days especially when the creditor has not performed its

obligations within the first 20 days as required. The 1980 amendments to the

Truth-in-Lending Act changed the two ―ten days‖ periods referred to in § 1635(b)

to ―20 days‖, and the following provision was appended to the end of the

subsection: ―The procedures prescribed by this subsection shall apply except when

otherwise ordered by a court.‖ Pub. Law No.96-221, 94 Stat. 132, 175 (codified at

15 U.S.C. § 1635(b) (Supp. IV 1980)). In explaining the extent of applicability

intended by the amended provision, the Senate Report stated:

―Upon application by the consumer or the creditor, a court is

authorized to modify this section's procedures where appropriate. For

example, a court might use this discretion in a situation where a

consumer in bankruptcy or wage earner proceedings is prohibited from

returning the property. The committee expects that [in such situations]

the courts, at any time during the rescission process, may impose

equitable conditions to insure that the consumer meets his obligations

after the creditor has performed his obligations as required under the

act.‖

15

15 U.S.C.: § 1610(c), § 1635(b), § 1635(i), § 1640(a), § 1692f and 12 U.S.C. §§

3401-3422 16

See Shelley EOR, at *23-26 (failed to ensure compliance), Id. at *35 (ordering the

filed documents of Id. at *27-34 and the motion from them to be rejected, but then

relying on and referring to them in Id. at *39-41 then granting the motion and

proposed order from Id. at *32-34 and signing it Id. at *42-44, and not giving

Appellant any notice of any notice of any case activity from 05/19/2009 or of the

motion to dismiss until 06/16/2009 a day after granted.

Shelley v. Quality 38 Reply Brief

S.Rep.No.96-368, 96th Cong., 1st Sess. 29 (1979), reprinted in 1980

U.S.C.C.A.N.236, 264-65(emphasis added). And the regulation that passed the

year following Yamamoto in 2004 is harmonious with both opinions and the

limited extent of a Court‘s discretion as was intended by Congress. Published in

the Federal Register Vol. 69, No. 62, at *16774 the following relevant revision was

made to the Rules and Regulations for 12 C.F.R. § 226.23, Paragraph 23(d)(4). 1.

Modifications. ―The procedures outlined in § 226.23(d)(2) and (3) may be

modified by a court. For example, when a consumer is in bankruptcy proceedings

and prohibited from returning anything to the creditor.... The sequence of

procedures under § 226.23(d)(2) and (3), or a court's modification of those

procedures under § 226.23(d)(4), does not affect a consumer's substantive right to

rescind.... Where the consumer's right to rescind is contested by the creditor, a

court would normally determine whether the consumer has a right to rescind and

determine the amounts owed before establishing the procedures for the parties to

tender any money or property.‖ Id. (emphasis added).17

However it does seem to

define the limited extent in which a Court may exercise its equitable discretion to

modify the procedures of rescission which is during or following a consumer‘s

bankruptcy and depart from the method prescribed by Congress. See Mourning v.

Family Publications Service, Inc., 411 US 356 at *366 (1973) ―The Board was

thereby empowered to define such classifications as were reasonably necessary to

insure that the objectives of the Act were fulfilled, no matter what adroit or

unscrupulous practices were employed by those extending credit to consumers.‖

Id. The facts in this case however do not fall within that limited definition of

exceptional jurisdiction, so as a threshold policy matter the trial court was

prohibited from fashioning such a decree by the legislative rule which defines

when a court may exercise such broad discretion. See Black's Law Dictionary 7th

ed. (West Group, 1999) ―legislative rule. An administrative rule created by an

agency's exercise of delegated quasi-legislative authority .• A legislative rule has

the force of law. - Also termed substantive rule.‖ Id. at *911.; (―SUBSTANTIVE.

Dependent upon itself. State v. Ricker, 29 Me. 89. The positive law of duties and

rights is commonly called Substantive Law; procedure, considered in its relation to

substantive law, is called Adjective Law. Pollock, First Book of Jurispr. 79. The

distinction between Substantive Law & Practice is modem; id. 250.‖) Bouvier’s

Law, supra, at *3173.; ―[C]ourts have no discretion to alter TILA's substantive

provisions.‖ Yamamoto, supra, at *1171. See Lowry v. Barnhart, 329 F. 3d 1019,

at *1022 (9th

Cir. 2003)(―An agency's regulations may create judicially enforceable

17

By attempting to go straight to the question of tender without it ever being raised

when there was no dispute as to the affective validity of the rescission, the District

Court only reaffirmed its validity.

Shelley v. Quality 39 Reply Brief

duties. To be judicially enforceable, a pronouncement must prescribe substantive

rules — not interpretive rules, general statements of policy or rules of … procedure

or practice," and must have been promulgated pursuant to a specific statutory grant

of authority and in conformance with the procedural requirements imposed by

Congress.‖) Id. (internal quotation marks omitted). Under 11 U.S.C. § 541(a) a

debtor‘s claims under TILA become property of the bankruptcy estate, including

pending actions. Thereafter, the debtor lacks standing and only the bankruptcy

trustee may assert the claims, which is precisely what the Court in Yamamoto held

before it conditioned rescission. See also Pacific Shore Funding v. Lozo, 42

Cal.Rptr.3d 283, at *290 (2006) (―King is really distinguishable. Title to the

borrower's residence in King remained vested in the bankruptcy trustee (King,

supra, 784 F.2d at p. 912)‖). The District Court never came to such a conclusion

that Appellant hadn‘t the right to rescind when rescission occurred, but instead

erroneously implied that ―rescission requires a plaintiff to allege that the plaintiff

can or will tender‖ Shelley EOR, at *15.18

However, after exhaustively searching

through TILA, Regulation Z, the legislative history and the Congressional Records

of reports and debates on the subject, no such pre or post condition to rescission

permissibly applicable to the circumstances to this case was found, presumptively

because it doesn‘t exist. The 9th

Circuit did not even imply that such conditions

were pre or post requisites which barred relief if not proved, the Court ―held that

rescission should be conditioned on repayment of the amounts advanced by the

lender‖,19

but ―explained, whether a decree of rescission should be conditional

depends upon the equities present in a particular case, as well as consideration of

the legislative policy of full disclosure that underlies the Truth in Lending Act and

the remedial-penal nature of the private enforcement provisions of the Act.‖

Yamamoto, supra, at *1171(internal quotations and citations omitted).

Several federal courts in the District of California and others within the 9th

Circuit

have also correctly observed that the Yamamoto ruling was on a grant of summary

judgment disputing the right to rescind (thus not extinguishing the security

automatically) followed by a dismissal, not a Rule 12(b)(6) motion to dismiss and

does not require tender or allegations of tender or ability to thereof at the pleading

18

The District Court further said that Appellant ―ha[d] not alleged that he ha[d]

made such an offer or contemplate[d] making such an offer.‖ Shelley EOR, at *16,

however assuming for argument‘s sake anything was owed this clearly is

contradicted by Appellant‘s prayer for relief from the Court in the complaint to

―determine the amount of the tender [owed] in light of all of Plaintiff‘s claims‖

Shelley EOR, at *5, ¶ 9 19

Simplex commendatio non obligat

Shelley v. Quality 40 Reply Brief

stage. ―Yamamoto did not concern a motion to dismiss, and did not discuss

whether ability to tender must be alleged in a claim for rescission under TILA.‖

Bledea v. Indymac Federal Bank, S-09-1239 (E.D. Cal. 2010); (―[T]he Ninth

Circuit held that a court may alter these procedures, Yamamoto, 329 F.3d at 1171,

but did not hold that a rescission claim does not survive a motion to dismiss‖.)

Pelayo v. Home Capital Funding, 08-CV-2030 (S.D. Cal. 2009); (―Yamamoto did

not mandate dismissal whenever the party seeking rescission fails to plead the

ability to tender.‖) Cook v. Wells Fargo Bank, 09cv2757, Dist. Ct (S.D. Cal. 2010)

at (A) (2); (―Yamamoto did not concern a motion to dismiss, and did not discuss

whether ability to tender must be alleged in a claim for rescission under TILA.‖)

Baldain v. American Home Mortgage Servicing, Inc., S-09-0931, Dist. Ct (E.D.

Cal. 2010); (―[I]t is not necessary that a plaintiff plead allegations of his ability to

repay the loan when making a claim under TILA. Moreover, determination of a

party's ability to repay a loan is a question of fact, which cannot be determined in a

motion to dismiss.‖) Victoria v. JPMorgan Chase Bank, S-09-2059, Dist. Ct (E.D.

Cal. 2009); (―[N]o language in the statute or regulations requires the consumer to

tender or make an offer to tender the loan proceeds in his notice of rescission to the

creditor…. [A] court may alter the parties' obligations once the notice of rescission

has been effected rather than alter the requirements a notice must contain. Thus,

the Court conclude[d] that plaintiff[] had no obligation to tender or make an offer

to tender the loan proceeds in the[] notice of rescission.‖) Hernandez v. Hilltop

Financial Mortgage, Inc., 622 F. Supp. 2d 842, at *848-849 (N.D. Cal. 2007);

(―[W]hen lender contests notice of rescission, the security interest is not

extinguished upon giving the notice and instead occurs only when the court so

orders‖) In re Mcgee v. Gregory Funding, LLC, US Dist. Ct, (D. Ore 2010)(citing

Yamamoto); (―Yet Yamamoto did not hold that a district court must, as a matter of

law, dismiss a case if the ability to tender is not pleaded.‖) Ing Bank v. Ahn, 2009

WL 2083965 at * 2 (N.D.Cal.2009); (―Tender by the borrower is not always a

precondition to rescission and does not have to be pled to state a claim for

rescission‖.) Harrington v. Home Capital Funding, Inc., No. 08cv1579, 2009 WL

514254, at *3 (S.D. Cal. Mar. 2, 2009).

Courts become the biggest threat to the American People when they provide the

means and permit unscrupulous creditors/servicers to circumvent the penalties

imposed upon them and prevent the remedial protection needed by consumers, for

whom Congress sought to protect when TILA was enacted not

creditors/servicers.20

See Palmer v. Wilson, supra, 502 F.2d at *864 Eugene A.

Wright, Circuit Judge, concurring in part and dissenting in part: (―§ 1635 was not

20

Minatur innocentibus qui parcit nocentibus

Shelley v. Quality 41 Reply Brief

enacted to benefit third-party creditors. Its purpose is "to blunt unscrupulous sales

tactics by giving homeowners a means to unburden themselves of security interests

exacted by such tactics." Eby v. Reb Realty, Inc., 495 F.2d 646 (9th Cir., 1974),

citing 114 Cong.Rec. 1611 (1968) (remarks of Congressman Cahill). … [T]he

defendants could have avoided it by complying with the requirements of the Act.

… Although the remedy might be harsh, it is the one Congress adopted, and I

would not substitute our judgment for its.‖); Edmonds v. Compagnie Generale

Transatlantique, 443 US 256, at *270 (1979) (―Some inequity appears inevitable in

the present statutory scheme, but we find nothing to indicate and should not

presume that Congress intended to place the burden of the inequity on the [people]

whom the Act seeks to protect.‖) Id.; (―Because TILA is to be construed liberally

to effect its remedial purpose of protecting consumers who are inherently at a

disadvantage in loan and credit transactions by assuring that they will not be easily

misled about the costs of financing (Semar v. Platte Valley Federal S & L Ass'n,

supra, 791 F.2d at p. 705; Wiggins v. Avco Financial Services, supra, 62 F.Supp.2d

at p. 94, citing Thomka v. A.Z. Chevrolet, Inc. (3d Cir. 1980) 619 F.2d 246, 248),

we are adverse to reading into the statute an implicit basis for terminating

consumers' remedies that would only benefit lenders at the expense of borrowers.‖)

Lozo, supra, 42 Cal at *290; (―The plain language of the statute seems to suggest

that the defendants should have been required to remove their lien…. Here the

district court apparently felt that it had no discretion and that tender was a

mandatory requirement for rescission. This view is inconsistent with the statute….

Under the Act a court should be concerned that defendants ultimately receive the

money they advance under a loan agreement, but it must be careful that such

concern does not provide lenders with a method of frustrating the main purpose of

the Act, which is to allow rescission.‖) Ljepava v. MLSC Properties, Inc., 511 F.

2d 935, at *944 (9th

Cir. 1975)

Even when a consumer is in bankruptcy, district courts in California have

recognized that a creditor‘s inaction after receiving a rescission notice during court

proceedings raises serious doubt as to whether the creditor is entitled to anything

and whether anything is owed at all. See In re Hubbel, 09-3424; In re Perez, 09-

3425 (N.D. Cal. 2010) (―[N]otice of TILA rescission, in conjunction with the

lenders‘ failure to take legal action within 20 days of receiving that notice, created

serious doubt as to the enforceability of the security interest. The [] judge…

concluded that, given the self-executing nature of TILA, the initial presumption

weighed against [equitable relief]. This conclusion, however, in no way prevented

the lenders from challenging that conclusion‖. Id. at *1-2. ―[T]he TILA violation

established serious doubt as to whether [creditors] had a valid security interest

justifying granting it relief from the automatic [voiding], because such a violation

Shelley v. Quality 42 Reply Brief

leads automatically to the rescission of the loan contract.‖ Id. at *3. ―[N]otice of

rescission was good enough to say there is reason to believe that maybe there is not

right to have relief at all…. [T]he Judge concluded that the matter could only be

fully adjudicated in an evidentiary proceeding‖. Id. at *4. ―[T]he creditors … were

and are free to … challenge the [] notice[s] of rescission under TILA.‖ Id. at *5.

―Indeed, one can interpret the judge‘s holding as agreeing to [grant equitable relief]

on the condition that Appell[ees] establish that the contract had not been rescinded

under TILA. Such a condition is entirely appropriate under this statutory

scheme…. The [] judge was presented with certain evidence that suggested that the

loan[] based upon which the Appell[ees] sought to foreclose on Debtors‘ homes

had been rescinded under TILA. And if the moving party has no legal rights

relating to Debtors‘ property, then that party has no right to be relieved…. TILA‘s

self-executing rescission provision cast serious doubt on Appell[ee]‘s rights. The

weight of case law and other sources of authority suggests that this procedure was

perfectly appropriate.‖ Id. at *10. ―[N]either [credito]r had initiated an[y] []

proceeding [or] challenge[d] the rescission. Under the statutory terms, which on

their face are self-executing, the loan[] had been rescinded. Cf. Avila v. Stearns

Lending, Inc., No. 08-419, 2008 WL 1278231 (C.D. Cal. Apr. 7, 2008) (holding

that, in the context of a preliminary injunction, that a party seeking rescission

under TILA need not show an ability to repay a loan in order to establish a

likelihood of success on the merits).‖) In re Hubbel,; In re Perez,supra, at 13;

(―Although the policy of avoiding harsh Truth-in-Lending sanctions has great

weight in cases where both damages and rescission of the debt are imposed by the

Act, we find it inapplicable when the harshness results from events independent of

the Truth-in-Lending claim…. It was a bad debt incurred by a lender who chose to

lend money at the risk of losing it.‖) Riggs v. Government Emp. Financial Corp.,

623 F. 2d 68, at *74 (9th Cir. 1980).

Both State and Federal courts in California have recognized the abolishment of the

common law rules for seeking rescission in a court of equity and the establishment

for the enforcement of an effective rescission in civil actions. See Doty v. Superior

Court, Cal. App. 2nd

Dist., Div. 8, at *9 (2009)(―The trial court erred in concluding

that rescission is only a remedy and is not an "independent cause[] of action."

While the equitable action for a rescission was abolished in 1961, there is now a

"legal action for restitution based on a completed unilateral rescission. [Citations,

inter alia to Civil Code section 1688 et seq.]" (4 Witkin, Cal. Procedure (5th ed.

2008) Pleading, § 541, p. 668.)‖.); Paularena v. Superior Court, 231 Cal.App.2d

906, at *913 (1965)(―[A]fter rescinding a contract, a party may seek any form of

relief warranted under the circumstances, whether legal or equitable. As all such

actions will be to enforce a rescission, the right of the parties to a jury and the court

Shelley v. Quality 43 Reply Brief

in which the action must be brought will be determined by the nature of the

substantive relief requested and not by the form of the complaint.‖ Id.); Palmer v.

Wilson, supra, 502 F.2d at *861(―Although tender of consideration received [was]

an equitable prerequisite to rescission, the requirement was abolished by the Truth

in Lending Act.‖ Id.).

And there is a host of precedent both State and Federal which support that the rule

has changed and allegations of tender, showing of ability or offer to make tender

thereof are no longer requisites and make no mention of such requirement at either

State or Federal level. Runyan v. Pacific Air Industries, Inc., 2 Cal.3d 304 (1970)

(―This method contemplated a rescission by the individual act of one of the parties

to the contract and has been referred to as a unilateral rescission. Having rescinded

the contract by his own act, the rescinding party then brought an action to enforce

the out-of-court rescission. Such action was considered to be one at law brought on

the implied promise on the part of the nonrescinding party to repay or return the

consideration received. In reality, it is an action in which the law, in order to

prevent the unjust enrichment of defendants from the property of plaintiff, itself

implies a promise to repay the sum demanded. In other words, it is an action in

assumpsit upon a promise implied by law.‖ Id. at *311-312. (internal quatations

and citations omitted). ―The rescission statutes should make plain that, after

rescinding a contract, a party may seek any form of relief warranted under the

circumstances, whether legal or equitable. As all such actions will be to enforce a

rescission, the right of the parties to a jury and the court in which the action must

be brought will be determined by the nature of the substantive relief requested and

not by the form of the complaint.‖ Id. at *313. ―[I]n such actions the court should

do complete equity between the parties and to that end may grant any monetary

relief necessary to do so. It is the purpose of rescission to restore both parties to

their former position as far as possible and to bring about substantial justice by

adjusting the equities between the parties despite the fact that the status quo cannot

be exactly reproduced.‖ Id. at *316. ―[The] general principles of equity have

recognized that the restoration to the rescinding party of the consideration with

which he originally parted does not necessarily in all instances restore him to his

former position and bring about substantial justice. The rescinding vendee of land

who in reliance upon the contract has placed improvements on the property must

invariably be compensated for them if he is to be afforded complete relief. In

instances such an adjustment may be compelled so as to forestall unjust enrichment

of the nonrescinding party through whose fault the grounds of rescission have

arisen.‖ Id. at *317. (internal quotations and citations omitted)); (―The effect of a

rescission is to void the contract ab initio. In other words, the effect of the election

of plaintiff's [exercise] to avoid the contract … for the fraud practiced upon him is,

Shelley v. Quality 44 Reply Brief

that, as between the parties there has never existed any [agreement]‖.) Weltman v.

Kaye, 334 P. 2d 917. at *614 Cal App, 2nd

Dist., Div. 1 (1959); (―[U]nilateral

rescission was justified and declared that title to the house was vested in

appellant[]…. [I]n this state a contract may be rescinded by a contracting party

unilaterally if his consent to be bound by the agreement was induced either by a

material misrepresentation, though innocently made, or a mistake. (Civ. Code, §

1689; Crocker-Anglo Nat. Bank v. Kuchman, 224 Cal. App.2d 490, 495-497 [36

Cal. Rptr. 806]; Evans v. Spatt, 131 Cal. App.2d 47, 48-49 [279 P.2d 1026]; Rest.,

Contracts, § 476.)‖) Wood v. Kalbaugh, 39 Cal. App. 3d 926, at *929-930 (1974);

(―[A] person suing to rescind a contract, as a rule, is not required to restore the

consideration at the very outset of the litigation. See 3 Restatement (Second) of

Contracts, supra, § 384, and Comment b; Restatement of Restitution § 65,

Comment d (1936); D. Dobbs, Law of Remedies § 4.8, p. 294 (1973).‖) Oubre v.

Entergy Operations, Inc., 522 US 422, at *426 (1998); (―§ 1635(b). By its terms,

then, the Act gives the borrower who rescinds an eligible loan transaction the right

to void the security interest and the right to recover statutorily identified finance

charges incurred in the transaction.‖) Barrett v. JP Morgan Chase Bank, NA, 445

F. 3d 874, at 878 (6th Cir 2006) (―To the extent banks wish to avoid a three-year

window for bringing rescission claims, the Act offers them a fail-safe way for

doing so: satisfy the disclosure requirements.‖) Id. at *881-882; (―To exercise the

right to rescind, a borrower must "notify the creditor of the rescission by mail,

telegram or other means of written communication." 12 C.F.R. § 226.23(a)(2).

Notice is deemed effective "when mailed, when filed for telegraphic transmission

or, if sent by other means, when delivered to the creditor's designated place of

business." Id. If a creditor then refuses to cancel the loan, the borrower has one

year from the refusal to file suit for damages pursuant to 15 U.S.C. § 1640.‖)

Ramos v. Citimortgage, Inc., US Dist. Ct. (E.D.Cal. 2009) 08-cv-02250 LEXIS

956 at *6-7; (―Generalities such as these — which come to us unsupported by any

instance in which a common law court treated [such] benefits as consideration or

property that must be returned or offset against the plaintiff's recovery in rescission

— fall far short of the showing required to overcome the plain language of §

1[635(b]). Moreover, even at common law, it is quite likely that [such] benefits

would be ignored for purposes of a rescissory remedy. Under the "direct product"

rule, the party seeking rescission was required to credit the party against whom

rescission was sought only with gains that were the "direct product" of the property

the plaintiff had acquired under the transaction to be rescinded: "The phrase `direct

product' means that which is derived from the ownership or possession of the

property without the intervention of an independent transaction by the possessor."

Restatement of Restitution § 157, Comment b (1937).‖) Randall v. Loftsgaarden,

478 US 647, at *658 (1986); (―[A] `rescission' means that a prior contract is void

Shelley v. Quality 45 Reply Brief

ab initio. A rescission not only terminates the contract as to future performance of

its terms but also requires a restoration of the parties to their former position prior

to rescission. . . ." (1 Miller & Starr, Cal. Real Estate (3d. ed. 2003) Contracts, §

1:103, pp. 352-353, fns. omitted.)‖) Rose v. Katsaras, B194202, Cal.App., 2nd

Dist., Div. 4, at ¶C (2007) Some courts have held that it is within the Court‘s

discretion, however § 1635(b) provides that ―[t]he procedures prescribed by this

subsection shall apply except when otherwise ordered by a court.‖ This doesn‘t

exclude Appellant‘s choice of exercising his US Const. art. Amend. VII right and

leaving discretion and ability to make any such orders to the Jury as it does not

specify that such an order is left solely to the discretion of the Court, a judge or a

chancery and the following is a further analysis of what provisions are procedural

and possibly subject to modification. ―Return of money or property following

rescission‖ not before. ―When an obligor exercises his right to rescind‖ it is a

Constitutionally protected liberty which when valid is a self-enforcing remedy and

―he is not liable for any finance or other charge, and any security interest given

by the obligor, including any such interest arising by operation of law, becomes

void‖ automatically without any procedures being taken. ―Within 20 days after

receipt of a notice of rescission, the creditor shall return … any money or property

… downpayment, or otherwise, and shall take any action necessary or appropriate

to reflect the termination of any security interest created under the transaction.‖

Although this is a procedure which requires action of the creditor, failure to take

those actions does not change the fact that the security interest has been voided but

requires that the creditor reflect its termination and failure to do so only exposes it

to liability for damages. ―[A]ny property to the obligor, the obligor may retain

possession of it.‖ This is not a procedure, but a substantive right belonging and

subject only to the discretion and liberty of the consumer. ―Upon the performance

of the creditor’s obligations‖ which are the only obligations requiring actual

performance, ―the obligor shall tender the property to the creditor, except that if

return of the property in kind would be impracticable or inequitable, the obligor

shall tender its reasonable value.‖ No property of any of the Defendants was ever

received or held by Plaintiff, therefore no property to return, thus no property

belonging to any of the Defendants to reasonably value, and the fact remains

uncontradicted that there was no outstanding or unpaid principal balance amount

owed on the credit extended. ―Tender shall be made at the location of the property

or at the residence of the obligor, at the option of the obligor.‖ An option which

was in fact chosen but received no response to or a claim to accept or take

possession of anything within twenty days as demanded in the offer. ―If the

creditor does not take possession of the property within 20 days after tender by

the obligor, ownership of the property vests in the obligor without obligation on

his part to pay for it.‖ § 1635(b)(emphasis added) This is not a procedure and

Shelley v. Quality 46 Reply Brief

cannot be modified by a court order because nothing more can be required of an

obligor if everything which could be, has already been done and the time for any

objection to the prescribed procedures has already expired. Furthermore procedural

modifications may not be ordered in favor of those in procedural default especially

when the party has not asked for it. And the Court cannot deprive Plaintiff of a

clearly uncontroverted vested ownership property interest for no reason under any

color of law. See Marbury v. Madison, supra, at *165-166 ―[W]hen the legislature

proceeds to impose on [an] officer other duties: when he is directed peremptorily to

perform certain acts; when the rights of individuals are dependent on the

performance of those acts; he is so far the officer of the law; is amenable to the

laws for his conduct; and cannot at his discretion sport away the vested rights of

others.‖ Id.21

IV. THE ALLEGATIONS OF FORFEITURE WERE NEVER DISPUTED AND

THE PROPERTY TENDERED WAS NEVER OBJECTED TO AS

INSUFFICIENT NOR WAS IT CLAIMED ANY TENDER WAS EVER OWED

FROM PLAINTIFF.

There couldn‘t be anything more required,22

everything had been satisfied on

Plaintiff‘s/Appellant‘s part and there‘s no logical reason why not to expect the

ultimate conclusion from the words of the rescission notice which are the same in

15 U.S.C. § 1635(b) which make it clear that ―the obligor shall tender the property

to the creditor… at the residence of the obligor, at the option of the obligor. If the

creditor does not take possession of the property within 20 days after tender by the

obligor, ownership of the property vests in the obligor without obligation on his

part to pay for it.‖ Id.; (―It would be dangerous in the extreme, to infer from

extrinsic circumstances, that a case for which the words of an instrument expressly

provide, shall be exempted from its operation.‖) Sturges v. Crowninshield, 17 U.S.

(4 Wheat) 122, 202, 4 L.Ed. 529, at *107 (1819); (―No procedural principle is

more familiar to this Court than that a constitutional right, or a right of any other

sort, may be forfeited in criminal as well as civil cases by the failure to make

timely assertion of the right before a tribunal having jurisdiction to determine it.‖)

United States v. Olano, 507 US 725, at *731 (1993) see also Yakus v. United

States, 321 US 414, at *444 (1944); (―[P]laintiff in the case at bench had a

statutory remedy and was thus not required to rely on the equitable doctrine of

rescission. The Legislature may establish a statutory procedure for the exercise of a

common law right and in the absence of some constitutional infirmity a failure to

comply with the procedure may be deemed a waiver of the right to relief.‖) A & A

21

Firmior et potentior est operatio legis quam dispositio hominis 22

Ubi non est principalis, non potest esse accessorius

Shelley v. Quality 47 Reply Brief

Electric, Inc. v. City of King, 54 Cal. App. 3d 457, at *465-464 (1976); (―The

Rescission and Offer of Restitution Were Legally Sufficient and Timely…. They

were enclosed in [a] letter … the receipt of which was admitted in court by counsel

for the defendant. The letter contain[ed] the … referred to [] enclosed notice of

rescission and offer to restore…. It is quite evident that this [] called for action on

the part of the defendant, if they intended to question the legal sufficiency of the

notice and offer. In the absence of any objection, the plaintiff is entitled to the

presumption that the documents referred to were legally sufficient to achieve the

purpose intended. By failing to object, the defendant has waived the right to

question the adequacy of the instruments. 17 C.J.S., Contracts, § 439, p. 924;

Cal.Code of Civil Procedure, §§ 2074, 2076.‖) Graham v. Atchison, T. & S.F. Ry.,

176 F.2d 819, at *826 (9th

Cir.1949) (―Grant that these statements may lack

specificity, yet they were not contradicted. And we cannot brush them aside upon

the assumption that they are of a character which the jury might not have believed.

We are, therefore, of the view that the trial court erred in holding that the evidence

showed, as a matter of law, that there was no valid rescission and offer of

restitution. We are also convinced that the question of the timeliness of the

rescission should have been submitted to the jury. It is of the essence of rescission

that it be timely. Lapse of time may destroy a person's ability to defend his

position.‖) Id. at *827.; (―It is well settled that such objection must be made at the

time so as to afford the debtor an opportunity to obviate the objection. "All

objections to the mode of an offer of performance, which the creditor has an

opportunity to state at the time to the person making the offer, and which could be

then obviated by him, are waived by the creditor if not then stated." ( Civ. Code,

sec. 1501.)‖) McManus v. Patch, 20 Cal. App. 479 (Cal. App. 1912); (―Factual

Basis for Forfeiture. "The general rule of law is that upon default the factual

allegations of the complaint, except those relating to the amount of damages, will

be taken as true." Geddes v. United Financial Group, 559 F.2d 557, 560 (9th

Cir.1977) (citations omitted). "Rule 55 `tracks the ancient common law axiom that

a default is an admission of all well-pleaded allegations against the defaulting

party.'" D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 107 (2nd

Cir. 2006)

(citation omitted).‖) US v. Real Prop. Located At 730 Glen-Mady Way, 590 F.

Supp. 2d 1295, at *1300 (E.D. Cal. 2008). Litton was never hindered from

answering the complaint in its attempts in settling on the rescission and other

claims, nor can such attempts be argued as having prevented Litton from availing

itself of forfeiture and seeking equitable relief (if any was owed) under F.R.Civ.P.

7(b)(1) from the Court and ―sought relief before the § 1[635] forfeitures began to

accrue instead of waiting‖. United States v. St. Regis Paper Co., 368 U.S. 208 at

226 (1961). A substantive provision which Congress has, pursuant to its U.S.

Const. Art. I § 8 cl. 3 plenary powers to regulate commerce prescribed such a

Shelley v. Quality 48 Reply Brief

forfeiture penalty contained in 15 U.S.C. § 1635(b). See Gerasta v. Hibernia Nat'l

Bank, 575 F.2d 580 at 586 (5th

Cir.1978) Alvin B. Rubin, concurring: ―[T]he

forfeiture provision contained in Section 1635(b) is still a part of the statute; it

should be enforced as written in an appropriate case‖. Id.; Pedro v. Pacific Plan,

393 F. Supp. 315 at 324 (N.D. Cal. 1975)(―Having refused to voluntarily honor

plaintiff's election to cancel (by reconveying the deed of trust within [twenty]

days…or thereabouts), [Defendant] forfeited its right to restitution under 15 U.S.C.

§ 1635(b) and 12 C.F.R. § 226.9(d).‖)Id.; Sosa v. Fite, 498 F.2d 114, at *119 (5th

Cir. 1974)(―[I]n the case sub judice, [Plaintiff]'s express offer of restoration fell on

deaf ears, thereby rendering applicable, upon the creditor's failure to comply with

section 1635(b), the plain directive of the statute: "If the creditor does not take

possession of the property within [twenty] days after tender by the obligor,

ownership of the property vests in the obligor without obligation on his part to pay

for it." 15 U.S.C.A. § 1635(b) (emphasis supplied). Congress' intended operation

of the statute, as evidenced by the 1635(b) creditor-forfeiture provision, therefore

clearly calls for a debtor windfall if the creditor does not set about to rectify his

earlier nondisclosures in the manner envisaged by the statute. In fact, the Act flatly

provides that if his creditor continues in his untoward ways, the debtor incurs no

obligation to pay for property which he is at the same time entitled to keep.‖) Id.;

(―The declaration goes upon a rescission of the contract. It contains ambiguous

language, but the allegations of tender … and that the tender still is kept good

make the ground sufficiently clear.‖ National Bank & Loan Co. v. Petrie, 189 US

423, at *424 (1903) ―Its usual consequence is that as between the parties the one

who is defrauded has a right, if possible, to be restored to his former position. That

right is not taken away because the consequence of its exercise will be the undoing

of a forbidden deed. That is a consequence to which the law can have no objection,

and the fraudulent party, who otherwise might have been allowed to disclaim any

different obligation from that with which the other had been content, has lost his

right to object because he has brought about the other's consent by wrong.‖) Id. at

*425. In a very recent case Nguyen v. Chase Bank USA, N.A., CV09-04589 (C.D.

Cal. 2010) the District Court ruled in favor of plaintiffs whom had rescinded and

filed an action against creditors whom had ignored the rescission and subsequent

offer to tender. The facts and circumstances in that case have amazingly striking

similarities to the one at bar, except it appears the Court in that case did not keep

the plaintiffs from knowledge of the activity in the case. The right went

uncontested, the property was worth twice as much as the loan amount, they had an

appraisal to prove it, the defendant‘s refused to make any actual specific demand

or counterclaim for any amount of tender, the Court was unable to determine that

amount, the defendants refused to comply with the Court‘s orders and the plaintiffs

did everything they possibly could to resolve the controversy. But however their

Shelley v. Quality 49 Reply Brief

rights were respected and enforced, remedies recognized and honored, and relief

prayed for afforded and granted. Whereas the same of Appellant‘s were refused,

denied, ignored, deprived, obstructed and condemned from the District Court. In

fact from the same District Court that the case at bar came from as the plaintiff in

that case is also a resident to the city of Westminster where Appellant‘s home of 25

years (the real property at issue) that has been in the family since it was built in the

1950s is. Perhaps it‘s because in Orange County (especially in Westminster)

there‘s an apparent biased partiality in favor of Vietnamese people and

discrimination against non-Asians, because the fact that the judge from the

California Superior Court at the West Justice Center had no problem with and felt

that there was nothing wrong with unlawfully taking Appellant‘s property (which

he still owns outright) and giving it away for free to a partnership comprised of all

Vietnamese men created after the fact only so they could turn around and illegally

sell it at a handsome profit (considering they paid nothing for it). Now Appellant is

in no way racially prejudice, but it is a great dishonor for the Federal Government

(the same one he‘s worked for over 25 years) to take from him and allow

everything to be taken from him, destroy his life and leave him with nothing,

especially when he was drafted into the Vietnam War and served overseas fight

and risking his life so these people could have a better life (apparently his or better

than).

V. GRANTING OF UNTIMELY F.R.C.P. 12(B)(6) MOTION WAS ERROR,

CLAIMS WENT UNCONTESTED AND MET THE MINIMUM PLEADING

REQUIREMENTS. ANY FACTUAL CONCERNS SHOULD HAVE BEEN

DECIDED BY A JURY.

If Plaintiff had been given the chance and opportunity the complaint could‘ve been

amended, though not necessarily required to include that tender had been offered

sufficient for the purposes of § 1635(b) which Defendants did not accept and

would not respond to, but it makes little difference because a Rule 12(b)(6) motion

to dismiss tests the legal sufficiency not the factual basis of the complaint which is

a decision for the trier of fact. See Scheuer v. Rhodes, 416 US 232, at *236 (1974)

―When a federal court reviews the sufficiency of a complaint, before the reception

of any evidence either by affidavit or admissions, its task is necessarily a limited

one. The issue is not whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claims. Indeed it may appear on

the face of the pleadings that a recovery is very remote and unlikely but that is not

the test.‖ Id.; (―It is axiomatic that the motion to dismiss for failure to state a claim

is viewed with disfavor and is rarely granted…. [S]uch a dismissal must be

reviewed with particular skepticism to assure that plaintiffs are not denied a full

and fair opportunity to present their claims.‖) Hall v. City of Santa Barbara, 833 F.

Shelley v. Quality 50 Reply Brief

2d 1270, at *1274 (9th

Cir 1986)(original quotations and brackets omitted); (―A

dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure

12(b)(6) is a ruling on a question of law that [is] review[ed] de novo…. [R]eview

in this case is even more searching than usual because the district court dismissed

the [] complaint without leave to amend. Dismissal without leave to amend is

improper unless it is clear, upon de novo review, that the complaint could not be

saved by any amendment.‖) Schneider v. California Dept. of Corrections, 151 F.

3d 1194, at *1196 (9th

Cir 1998)(original quotation and brackets omitted);

(―[P]laintiff's factual allegations must be weighted in favor of the plaintiff. In other

words, the [sufficiency] determination, frequently made sua sponte before the

defendant has even been asked to file an answer, cannot serve as a factfinding

process for the resolution of disputed facts.‖) Denton v. Hernandez, 504 US 25, at

32 (1992); (―For purposes of review of a Rule 12(b)(6) dismissal, the factual

allegations of [Plaintiff]'s complaint are taken as true.‖) Zinermon v. Burch, 494

US 113, at *118 (1990); (―[The Court] must accept p[laintiff]'s allegations as true.

A court may dismiss a complaint only if it is clear that no relief could be granted

under any set of facts that could be proved consistent with the allegations.‖)

Hishon v. King & Spalding, 467 U.S. 69, at *73 (1984); (―Taking as true the

allegations of the complaint, as they must be on a motion to dismiss, the complaint

stated a cause of action.‖) Cruz v. Beto, 405 US 319, at *322 (1972). It‘s also more

than evident that if a valid claim for enforcing compliance with a properly

exercised right of rescission had not been stated then the Defendants likely would

not have procedurally defaulted and waited until the 3 year statute of limitations on

rescission had passed before filing their Rule 12(b)(6) motion. Given the fact that

Appellee Litton Loan Servicing LP omitted from its untimely request for judicial

notice to the District Court the adjustable rate promissory note allegedly bearing

Appellant‘s signature which they had apparently twice claimed to have in their

possession (see RJN Ex. # 2-MC *3-4, at *4 and *8-9, at *9 Id.), shows that they

had full knowledge that the stamp on the back of the note (see RJN Ex. # 2-FWR)

evidenced that there was a nonrecourse against the note most likely because it had

been paid (see RJN, D-ATH) or there was misrepresentation or other fraudulent

conduct in possibly obtaining the maker‘s signature.

VI. SEVERAL DEEDS AND OTHER INSTRUMENTS POSSIBLY RELATING

TO APPELLANT‘S PROPERTY ARE VOIDABLE AND/OR IF NOT VOID,

WHICH APPELLANT HAS DECLARED THEM SO AND IS SEEKING THAT

THE COURT ORDER THAT THEY BE DECLARED VOID AS SUCH.

Shelley v. Quality 51 Reply Brief

The following Deeds in Shelley RJN Ex. #s 2-DGA, 2-DTPA, 2-TDL,23

3-DTD, 3-

TPGD are void for several varying reasons some being forgery, other fraudulent

deceptive practices, misrepresentation and complete lack of authority and legal

capacity. Patterns that seem to be signature trademarks of Defendants particularly

with Quality. See Pro Value Properties, Inc. v. Quality Loan Service Corp., 170

Cal.App.4th 579 (2009) (―QLS instituted nonjudicial foreclosure proceedings,

commencing with the recordation of a notice of default. QLS was not the trustee

named in the deed of trust, and so was required to record a substitution of trustee

pursuant to Civil Code section 2934a. This it neglected to do. Pursuant to a

recorded notice of trustee sale, QLS sold the Property to the highest bidder…. QLS

issued a trustee's deed of sale to Pro Value, which was subsequently recorded.

Some time thereafter [it was] realized that there was no recorded substitution of

trustee naming QLS as trustee. Consequently … the trustee's deed of sale was

void.‖ Id. at *581. [T]he trial court ruled that the trustee's sale was void and that

the trustee's deed of sale which QLS issued … was of no force or effect…. The

court found that [] the trustee's sale was void, and there was no contract as a matter

of law‖. Id. at *582. ―In short, the trustee does not contract with the purchaser for

the sale of the foreclosed property, but performs ministerial acts which, when

properly executed, result in the transfer of title to the purchaser…. Here, the trustee

did not properly execute the ministerial acts set forth by statute. This statutory

violation resulted in a void sale, which required QLS to return the purchase price,

with interest‖. Id. at *583.); Fv-1, Inc. v. Pro Value Properties, Inc., Cal. App, 2nd

Dist., Div. 5 (2009)U(same); See also Dimock v. Emerald Properties, 97 Cal. Rptr.

2d 255 (2000) 81 Cal.App.4th

868 (―[T]here simply cannot be at any given time

more than one person with the power to conduct a sale under a deed of trust. We

would create inestimable levels of confusion, chaos and litigation were we to

permit a beneficiary to appoint multiple trustees, each one retaining the power to

sell a borrower's property.‖ Id. at *260. ―[S]ection 2934a only permits a

substitution by way of a recorded document. The terms of the deed of trust itself do

not provide any alternative means of making a substitution…. As [Appellant]

points out, because [Appellees] had no power to convey his property its deed [of

sale] was void as opposed to merely voidable. That is, the [trustee‘s] deed was a

complete nullity with no force or effect as opposed to one which may be set aside

23

This deed is also void for some of the same reasons why the one from Quality is,

which is the purported trustee was not the Trustee named in the Deed of Trust nor

was it ever duly appointed by substitution as such and said this statement in

rescinding said instrument in Shelley RJN Ex. # 2-TDR, at *1 ―PURPORTED

TRUSTEE'S DEED UPON SALE‖ Id. which supports that the deed never had any

validity therefor neither did Quality‘s.

Shelley v. Quality 52 Reply Brief

but only through the intervention of equity.‖ Id. at *261. ―Where no such recitals

as to the regularity of a sale appear in a deed and there was a defect in the notice to

the trustor, the deed has been found void. Where such recitals appear on the face of

a deed but the deed also sets forth facts which are inconsistent with the recital of

regularity, the deed has been found void on the basis that the deed showed that the

recitals were not valid. Only where recitals of regularity appear in the deed and no

contrary recitals are made have notice defects been found to make a deed voidable,

rather than void…. These factual recitals, relating to the notice given [Appellant]

and the conduct of the sale, cannot be interpreted as making any representation as

to whether a [] substitution of trustee had been recorded…. Accordingly, in

attacking the [] deed [Appellant] was not required to rely upon equity in setting

aside a merely voidable deed. Rather, he could rely on the face of the record to

show that the [] deed was void. Because [Appellant] was not required to rely upon

equity in attacking the deed, he was not required to meet any of the burdens

imposed when, as a matter of equity, a party wishes to set aside a voidable deed. In

particular, contrary to the [Appellee‘s] argument, he was not required to tender any

of the amounts due under the note.‖ Id. at *262. (citations omitted)). While it may

be that ―[a] nonjudicial foreclosure sale is a creature of statute.‖ Pro Value v.

Quality Loan, supra, at *583. Whom may elect to have exercise and whom may

exercise the ―power of sale in a deed of trust is a creature of contract, arising from

the parties' agreement. `The power of sale only exists if it is expressly granted by

the trustor in the security documents.' (4 Miller & Starr, Cal. Real Estate (3d ed.

2003) § 10:123, p. 381.) The statutory scheme governing nonjudicial foreclosures

does not expand the beneficiary's sale remedy beyond the parties' agreement, but

instead provides additional protection to the trustor: `Statutory provisions

regarding the exercise of the power of sale provide substantive rights to the trustor

and limit the power of sale for the protection of the trustor.'‖Gabel v. FIDELITY

NATIONAL FORECLOSURE SOLUTIONS, Cal. App. 2nd

Dist., Div. 6 (2007);

Bank of America v. LaJolla Group II, 28 Cal.Rptr.3d 825, at *828 (2005)(same).

Therefore having no authority to exercise that power as the Trustee within the

Deed of Trust and having not undertaken the prescribed procedures of substitution

from any authorized party within the Deed of Trust, QLS granted no title nor rights

to anyone at all and the parties named in the purported trustee‘s deed, the party that

instituted the vexatious suit Tillamook Partnership and everyone in the subsequent

chain have and hold no rights nor interest legal or equitable to possession or Title

to the real property at issue. See Title Guarantee & Trust Co. v. Monson, 11 Cal.2d

621, at *627 (1938) ―The rights of the grantee … are no greater than that of her

grantor‖. Id. The purported trustee‘s deed is also void on its face because of the

obvious discrepancies in the scheduled sale date, account number, open bid amount

Shelley v. Quality 53 Reply Brief

claiming to be owed, name of trustor, and absence of a proper legal description

between it and the notice of trustee sale. See Homestead Savings v. Darmiento, 230

Cal. App. 3d 424, at *436 (1991) 281 Cal. Rptr. 367 ―A sale is void where there is

a notice defect and conclusive presumption language and recitals in the deed which

establish on its face the irregularity of the sale. This could occur where there were

postponements of a sale which show that proper notice could not have been given.‖

Id. ―[I]nstruments which are wholly void cannot ordinarily provide the foundation

for good title even in the hands of an innocent purchaser, as where a deed has been

forged or has not been delivered. [Citation.]" (Firato v. Tuttle (1957) 48 Cal.2d

136, 139; accord, Bryce v. O'Brien (1936) 5 Cal.2d 615, 616.) "When a deed is

void ab initio, it `constitutes a nullity; as such it cannot provide the basis for a

superior title as against the original grantor. [Citations.]' [Citation.] `"A void deed

passes no title and cannot be made the foundation of a good title even under the

equitable doctrine of bona fide purchase."' [Citation.]" (In re Marriage of Jovel

(1996) 49 Cal.App.4th

575, 584-585.)‖ Valle v. Washington Mutual Bank,

E045930, Cal. App. 4th

Dist., Div. 2 (2009) at *5. ―[T]here was no effective

execution or delivery of the deed, and as stated in the quotation of 12 California

Jurisprudence, supra, it was void ab initio and an action to avoid it could be

brought at any time. And as stated in 26 Corpus Juris Secundum, supra, "A void

deed passes no title and cannot be made the foundation of a good title even under

the equitable doctrine of bona fide purchase."‖ Erickson v. Bohne, 130 Cal.App.2d

553, at *557 (1955)

The probable deception in obtaining a signature to the Promissory Note and its

failure of consideration for receiving nothing in exchange for it, the absence of the

real property legal description contained within the Deed of Trust which had more

than enough room in the instrument but was left blank then later on inserted a

reference that didn‘t go together with the instrument similarly with the Grant Deed

along with other unauthorized alterations made to them before they were recorded

as well as was the purported trustee‘s deed upon sale and the want of delivery

apparent on its face all raise the presumption of being void as well and cannot be

the foundation of good title, ownership interest is invalid for anyone in the

subsequent broken chain or who obtains possession and they can‘t make it valid by

recordation, it remains void even in favor of an alleged party taking in good faith,

for value, and without notice. See Montgomery v. Bank of America, 85 Cal.App.2d

559 (1948) (―[T]hat on the second or [third] page, which required the [trustor‘s]

signature[], the description was left blank… and thereafter the escrow clerk

prepared the [] deed…but did not insert any description in the blank provided

therefor‖. Id. at *562. ―The evidence is conclusive that the deed[s] w[ere] altered

after [they] w[ere] received…. Since the deed[s] w[ere] altered without the

Shelley v. Quality 54 Reply Brief

knowledge, consent or approval of plaintiff[], after [they] had been signed by [hi]m

and transmitted to the escrow holder, [they] w[ere] void.‖ Id. at *563. ―A void

instrument such as an undelivered or a forged deed does not convey anything and

cannot be made the foundation of a good title. The deed in question in this action is

an undelivered instrument by reason of its having been recorded contrary to the

express instructions of plaintiff[]. It is a forged instrument by reason of the

unauthorized alteration in the description after it had been signed by the grantor[].

It is not necessary to discuss the question whether an escrow holder is an agent or a

trustee. In whatever capacity defendant was acting it was without authority to

deliver the deed to the grantees‖.) Id. at *564.(internal citation omitted); (―The

majority of loans secured by real property in California are evidenced by a

promissory note and a deed of trust. The promissory note is a promise the

debtor/trustor makes to the lender/beneficiary to repay the loan on the terms

indicated in the note. [Citation.] A deed of trust is the document which evidences

the debt that is secured by a particular piece of real property. The deed of trust

contains a legal description of the real property to which it applies and

identifies: (1) the debtor/trustor; (2) the lender/ beneficiary; and (3) the trustee. A

trustee of a deed of trust has two principal functions: (1) to foreclose against the

real property when necessary and (2) to issue and record a reconveyance when the

debt has been paid.‖) Chandler v. Fab Associates, H033123, Cal. App. 6th

Dist.

(2009)(emphasis added); (“Absent a description of the land, the form is a legal

nullity; with the addition of a precise description of the secured property, the form

attains legal viability as a deed of trust. The creditors, therefore, violated TILA's

express purpose and the requirements of Regulation Z. See 12 C.F.R. §

226.8(b)(5).‖) Williamson v. Lafferty, 698 F. 2d 767, at *769 (5th

Cir. 1983); (―In

Bank of Healdsburg v. Bailhache, 65 Cal. 327 [4 P. 106], it was held that "A deed

takes effect from its delivery, and if delivery is wanting, it is void ab initio."

(Syllabus.)‖) Reina v. Erassarret, 90 Cal.App.2d 418, at *426-427 (1949); (―The

fact that a deed of trust conveys a more limited interest in property than a grant

deed (see Hamel v. Gootkin (1962) 202 Cal. App.2d 27, 29-30 [20 Cal. Rptr. 372])

does not mean that forged documents involving that interest should be treated

differently than documents involving other interests. Indeed, decisional authority

relative to forged instruments other than grant deeds uniformly hold such

instruments to be void. For example, in Burns v. Ross, supra, 190 Cal. 269, the

Supreme Court held that the forged assignment of a contract for the sale of real

property was void, and the rights of the original owner of title to the contract were

not defeated, even as to a bona fide purchaser. (See also Forte v. Nolfi, supra, 25

Cal. App.3d 656, holding a forged promissory note and deed of trust void.) (5)

(See fn. 4.) In short, there is no reason in law or policy why the principle that

forged documents are void should not apply to any instrument through which an

Shelley v. Quality 55 Reply Brief

interest in property is passed. (fn. 4.) It is of no consequence that the forged

reconveyance document was recorded.‖) Wutzke v. Bill Reid Painting Service, Inc.,

151 Cal.App.3d 36, at *43-44, fn. 4 (1984)(footnote appended);24

(―Though the

decisions of other jurisdictions are not in entire harmony upon the question, it has

been definitely decided in this state that under our statute of frauds the name of the

grantor or grantee or a description of the property cannot be inserted by an agent

for the grantor, in the absence of the latter, unless the agent's authority be in

writing. If the authority of the agent be not in writing, his insertion of the name of

grantor or grantee or description of the property does not pass the title…. In view

of these authorities the conclusion is inescapable that the deed in question was not

voidable but was void in toto, a nullity…. Numerous authorities have established

the rule that an instrument wholly void, such as an undelivered deed, a forged

instrument, or a deed in blank, cannot be made the foundation of a good title, even

under the equitable doctrine of bona fide purchase. ( Promis v. Duke, 208 Cal. 420

[281 Pac. 613]; Gould v. Wise, 97 Cal. 532 [32 Pac. 576, 33 Pac. 323]; Bardin v.

Grace, supra.)‖ Green v. MacAdam, 175 Cal.App.2d 481, at *485-486

(1959)(quoting Trout v. Taylor, 220 Cal. 652, at *655-656 (Cal. 1934)).; (―Thus, in

cases involving the delivery of deeds, declarations of the alleged grantor made

before and after the making of the deed are admissible upon the issue of delivery‖.)

Kelly v. Bank Of America Nat'l Trust And Sav. Ass'n, 112 Cal.App.2d 388, at 394

(1952); (―The rule is well established that where the "conveying instrument is void

for such reasons as forgery or lack of delivery it does not gain efficacy by

recordation even in favor of an alleged party taking in good faith, for value, and

without notice." (Burby, Handbook of the Law of Real Property (3d ed. 1965) §

130, p. 324.) As summarized by Professor Cribbet: "Nor can recording give

validity to a void deed or mortgage. [Fn. omitted.] Recording places on file, in a

public place, the written evidence of a conveyance; if that conveyance was void for

want of delivery, forgery, lack of capacity in the grantor due to infancy or insanity,

etc., it is void still." (Cribbet, Principles of the Law of Property (2d ed. 1975) pp.

282-283.)‖) Wutzke v. Bill Reid Painting Service, Inc., 151 Cal.App.3d 36, at Fn. 4

(1984); Miller v. Stewart, 22 U.S. 680, at *703 (1824) (―It is not sufficient, that he

may sustain no injury by change in the contract, or that it may even be for his

benefit. He has a right to stand upon the very terms of his contract; and if he does

not assent to any variation of it, and variation is made, it is fatal.‖) Id. See, also,

Crane v. Buckley, 203 U. S. 441, 27 S. Ct. 56, 51 L. Ed. 260 (1906)

VII. THE CASE IS NOT MOOT, THE DISTRICT COURT AND THE

CALIFORNIA SUPERIOR COURT ACTED MALICIOUSLY IN ERROR AND

24

Quod ab initio non valet, in tractu temporis non convalescit

Shelley v. Quality 56 Reply Brief

THIS COURT HAS BOTH THE POWER AND DUTY UNDER THE

ARTICLES, AMENDMENTS AND LAWS MADE PURSUANT TO THE US

CONSTITUTION TO VACATE/REVERSE AND ORDER BOTH OF THEM BE

CORRECTED, RESTORE APPELLANT TO HIS STATUS QUO ANTE,

AWARD DAMAGES, PENALIZE DEFENDANTS AND GRANT APPELLANT

ANY OTHER RELIEF THAT THE COURT MIGHT CONSIDER

APPROPRIATE.

―By nature's law, every man has a right to seize and retake by force his own

property taken from him by another, by force of fraud. Nor is this natural right

among the first which is taken into the hands of regular government after it is

instituted. It was long retained by our ancestors. It was a part of their common

law, laid down in their books, recognized by all the authorities, and regulated as to

circumstances of practice.‖ Thomas Jefferson: Batture Case, 1812.25

(―Plaintiff

complied with Civil Code, section 1691, by [] offer of restoration, the bona fides of

which is not questioned.... In the light of these facts, the plaintiff's cause of action

did not become ―moot‖….‖) Stock v. Meek, 221 P. 2d 15, at *814 - Cal: S. Ct

(1950). The only things mooted are the validity of the rescission both in its cause

and effect which went uncontroverted and the argument of tender in its entirety for

the failure to claim any due, which even if any was, would or might have become

due was forfeited by inaction and noncompliance after the undisputed offer, the

validity of which along with the allegations that Defendants have forfeited any and

all rights that they may have once held still remains uncontroverted and

uncontested. Which due to the undisputedly sufficient value of the offer tendered

and the alleged amount of the alleged debt appears to moot any such argument. See

Phleger v. Countrywide Home Loans, Inc., Dist. Ct. (N.D.Cal. 2009) at V. ¶ 6 ―The

Court agree[d] … that the Ninth Circuit did not hold that proof of repayment is an

element of a TILA claim…. The Court [erred], not only because P[laintiff] ha[d]

not testified that []he cannot tender repayment, as the Yamamotos did, but also

because it is undisputed that at the time t[he] loan [was rescinded], [t]he held real

estate [was] worth [twice the loan amount], which appears to moot any question of

repayment.‖ Id.; (―If [Appellant] has the right under California law to set aside a

foreclosure sale after the sale has taken place, after deeds have been recorded, and

after the property has been sold to a third party, then []he has the right in [federal

courts] to do the same…. If [Appellant] does have such a right under California

law, we are not powerless to enforce it, and we may grant [Appellant] relief to the

same extent California courts would in similar circumstances. Since we determine

that [Appellant] satisfied the requirements for setting aside the foreclosure sale and

25

Injuria non excusat injuriam

Shelley v. Quality 57 Reply Brief

is entitled to relief under California law, this appeal is not moot. See City of Valdez

v. Waterkist Corp. (In re Waterkist Corp.), 775 F.2d 1089, 1091 (9th

Cir.1985).

Under California law, "gross inadequacy of price coupled with even slight

unfairness or irregularity is a sufficient basis for setting the sale aside." Whitman v.

Transtate Title Co., 165 Cal.App.3d 312, 323, 211 Cal.Rptr. 582, 589 (1985); see

also Sargent v. Shumaker, 193 Cal. 122, 129-30, 223 P.2d 464, 467 (1924).. [T]he

misdescription of the parcel for sale found in the Trustee's Deed and the Notice of

Trustee Sale amounted to unfair prejudice.‖) In re Worcester, 811 F. 2d 1224, at

*1228-1229 (9th

Cir 1987) (―The full description of the property, however,

specifically refers to oil and gas rights, which can only be understood relative to a

plot of land, not to a point in space. In addition, the description refers to particular

conveyances relating to the 40-acre parcel. As a result, bidders interested in a

smaller lot who would have researched the described plot would have been

deterred from attending the sale…. The district court erred in concluding that

[Appellant] did not make a valid tender as required under California law. We hold

that [Appellant] did meet the tender requirements of sections 1493 and 1495 of the

California Civil Code. First, [Appellant] expressed h[is] willingness to tender the

amount owed, as required by section 1495, in h[is] [complaint] and [rescission-

]claim before the [district] court. Second, we believe that [Appellant]'s tender was

"effective" since []he had the ability under California law to perform according to

h[is] offer.‖ Id. at *1230. ―In Backus v. Sessions, 17 Cal.2d 380, 110 P.2d 51

(1941), the California Supreme Court held that the ability to tender existed where

the debtor had convertible assets and the mere ability to borrow. Id. at 389-90, 110

P.2d at 56…. [Appellant] seeks to set aside the sale on the grounds that the price

[purportedly] paid was grossly inadequate and there was an irregularity in the sale

that contributed to the inadequacy of the price. Sargent v. Shumaker, 193 Cal. at

129-30, 223 P. at 467 (1924); Whitman, 165 Cal.App.3d at 323, 211 Cal.Rptr. at

589.‖) In re Worcester, supra, 811 F. 2d at *1231-1232; (The state action by a

fictitious partnership as the plaintiff against Appellant as the defendant in the civil

limited ―proceeding was based on California Code of Civil Procedure, section

1161a…. To prevail, a plaintiff must prove affirmatively that the property was duly

sold and that the title under the sale has been duly perfected…. If grounds for

rescission existed, the proper notice of rescission was given, then plaintiff at the

time of institution of th[e] suit had no title, and the sale after rescission is

nonexistent, and may be declared so. (Civ. Code, 1688, 1689)…. Title is duly

perfected when all steps have been taken to make it perfect, i.e., to convey to the

purchaser that which he has purchased, valid and good beyond all reasonable

doubt, which includes good record title, but is not limited to good record title, as

between the parties to the transaction. The term duly implies that all of those

elements necessary to a valid sale exist, else there would not be a sale at all…. If

Shelley v. Quality 58 Reply Brief

delivery of the deed violated the instructions, or if they were altered … without []

authorization, there was no sale, and no rights can be derived therefrom‖.) Kessler

v. Bridge, 161 Cal. App. Supp. 2d 837 (1958)(internal quotations and citations

omitted); (―It is a contempt of court to sue in the name of a fictitious party.

BLACK'S LAW DICTIONARY, 6th Ed. (13th reprint, 1998), p. 624.‖) US v.

Weldon, CV F08-1643 (E.D. Cal. 2010); (―In an action of unlawful detainer the

court is without jurisdiction to try any issue, except that involving the possession

of real property, and, therefore, any judgment rendered by such a court in such an

action cannot affect the title to said real property. Nor is any finding of fact by the

court, rendering judgment in the action for the possession of the real property, res

adjudicata between the parties in a subsequent proceeding wherein the issue

involved is the title to said real property. Further, it is clear that the municipal court

had no jurisdiction to try any issue involving specific performance or rescission,

because the value of the property exceeded the jurisdictional limits of the court.

(Code Civ. Proc., 89.)‖ Haase v. Lamia, 229 Cal. App. 2d 654, at *658

(1964)(internal quotations citations and brackets omitted). ―The law is well settled,

[] that if a court is wanting in jurisdiction to hear and determine an action it may

not assume to exercise such jurisdiction, even though the parties consent thereto

and actively participate in the trial.‖) Id.; (―A judgment absolutely void upon its

face may be attacked anywhere, directly or collaterally, whenever it presents itself,

either by parties or strangers. It is simply a nullity, and can be neither the basis nor

evidence of any right whatever. … "Nothing can be acquired or lost by it; it neither

bestows nor extinguishes any right ... It neither binds nor bars anyone. All acts

performed under it and all claims flowing out of it are void ... No action upon the

part of the plaintiff, no inaction upon the part of the defendant, no resulting equity

in the hands of third persons, no power residing in any legislative or other

department of the government, can invest it with any of the elements of power or

of vitality." (1 Freeman on Judgments, 5th ed., § 322, pp. 643-644.)‖ City of Los

Angeles v. Morgan, 105 Cal.App.2d 726, at *732 (1951) ―An instrument that is

void ab initio is comparable to a blank piece of paper and so necessarily derives no

validity from the mere fact that it is recorded. As a consequence the record thereof

is not constructive notice of its contents or of the fact that it is actually recorded.

The purpose of our recording statutes (Civ. Code, §§ 1213-1215) is to give notice

to prospective purchasers or mortgagees of land of all existing and outstanding

estates, titles, or interests in it whether valid or invalid, which may affect their

rights as bona fide purchasers and so as to protect them before they part with their

money. Accordingly, it is obvious that invalid documents are not entitled to be

recorded, but if they are recorded, they do not give constructive notice.‖) Id. at

*733(citation omitted); (―It is generally true that a judgment by a court of

competent jurisdiction bears a presumption of regularity and is not thereafter

Shelley v. Quality 59 Reply Brief

subject to collateral attack. But Congress, because its power over the subject of

[commerce] is plenary, may by specific [consumer] legislation create an exception

to that principle and render judicial acts taken with respect to the person or

property of a debtor whom the [consumer] law protects nullities and vulnerable

collaterally. … [A] peremptory prohibition by Congress in the exercise of its

supreme power over [commerce] that no state court have jurisdiction over a

[rescinding] [consu]mer-debtor or his property, would have rendered the

confirmation of sale and its enforcement beyond the County Court's power and

nullities subject to collateral attack. The States cannot, in the exercise of control

over local laws and practice, vest state courts with power to violate the supreme

law of the land. The Constitution grants Congress exclusive power to regulate

[commerce] and under this power Congress can limit the jurisdiction which courts,

state or federal, can exercise over the person and property of a debtor who duly

invokes the [consumer-rescission] law. If Congress has vested in the [consumer]

[righ]ts ex[ercibable] [in any] jurisdiction over [consu]mer-debtors and their

property, and has by its Act withdrawn from all other courts all power under any

circumstances to maintain and enforce foreclosure proceedings against them, its

Act is the supreme law of the land which all courts — state and federal — must

observe. The wisdom and desirability of an automatic statutory ouster of

jurisdiction of all except bankruptcy courts over [consu]mer-debtors and their

property [rights] were considerations for Congress alone.‖) Kalb v. Feuerstein, 308

US 433, at *439-440 (1940)(footnotes omitted); (―[I]f [a Court] act[s] without

authority, its judgments and orders are regarded as nullities. They are not voidable,

but simply void; and form no bar to a recovery sought, even prior to a reversal, in

opposition to them. They constitute no justification; and all persons concerned in

executing such judgments or sentences, are considered, in law, as trespassers. This

distinction runs through all the cases on the subject; and it proves, that the

jurisdiction of any Court exercising authority over a subject, may be inquired into

in every Court, when the proceedings of the former are relied on and brought

before the latter by the party claiming the benefit of such proceedings.‖) Elliot v.

Piersol, 26 US 328, 1 Pet. 328, at *340-41 (1828)

CONCLUSION

In light of the foregoing, the court should either vacate or reverse the trial court's

Order Granting Motion to Dismiss with prejudice and remand with instructions to

enter Default or Summary Judgment in Appellant‘s favor as to rescission then

determine the amount of Damages Appellant is entitled to and vacate the State

Court‘s entry of default judgment, the writ of execution and the writ of possession

and remand with instructions to dismiss as moot, or vacate/reverse either or both

matters with further instructions for further proceedings.

Shelley v. Quality 60 Reply Brief

Respectfully Submitted,

/s/Richard Shelley - 10/02/10

Appellant: Richard Shelley - Dated

CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rules of Appellate Procedure 29(d) and 32(a)(7)(C), I certify

that this brief is proportionately space with one inch margins on all four corners

with a total of 26,744 words.

/s/Richard Shelley - 10/02/10

Appellant: Richard Shelley - Dated

All Rights Reserved

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

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David C. Scott, Esq MCCARTHY & HOLTHUS, LLP 1770 Fourth Avenue San Diego, CA 92101 Attorneys for Defendant/Appellee QUALITY LOAN SERVICE CORP.

09-56133

Oct 3, 2010

/s/Richard Shelley

I, , certify that this brief is identical to the version submitted electronically on [date] .

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Oct 3, 2010Richard Shelley

09-56133

/s/Richard Shelley

Oct 14, 2010