Free Response to Motion - District Court of California - California

Case 3:08-cv-00589-H-JMA

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MILES, BAUER, BERGSTROM & WINTERS, LLP Tami S. Crosby, SBN 129021 1665 Scenic Avenue, Suite 200 Costa Mesa, CA 92626 714-481-8355 714-481-9152 Facsimile Specially Appearing as Attorneys for Defendant CITI RESIDENTIAL LENDING

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA - SAN DIEGO

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- 1REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF SPECIALLY APPEARING DEFENDANT CITI RESIDENTIAL LENDING'S OPPOSITION TO PLAINTIFF'S 2ND AMENDED MOTION FOR TEMPORARY RESTRAINING ORDER
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COPERNICO MAMERTO, Plaintiff,
v.

) Case No: 08-CV-0589-H-JMA
)

CITI RESIDENTIAL LENDING and SPECIALIZED LOAN SERVICING, LLC, Defendant.

) ) ) ) ) )
)

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF SPECIALLY APPEARING DEFENDANT CITI RESIDENTIAL LENDING'S OPPOSITION TO PLAINTIFF'S 2ND AMENDED MOTION FOR TEMPORARY RESTRAINING ORDER

) Date: June 16, 2008 ) Time: 10:30 a.m. ) Dept.: H

TO THE HONORABLE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT, in conjunction with the Opposition and pursuant to Federal Rules of Evidence, Rule 201, Defendant CITI RESIDENTIAL LENDING, INC., named herein as CITI RESIDENTIAL LENDING, respectfully requests that this Court take judicial notice of the following documents which are attached hereto under the following exhibits numbers:
1.

Notice of Default and Election to Sell Under Deed of Trust, recorded on January 2, 2008 with the San Diego County Recorder's office as Instrument No. 200800003792.

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2.

Notice of Trustee's Sale, recorded on April 7, 2008 with the San Diego County Recorder's office as Instrument No. 2008-0180799.

Judicial notice of the foregoing is appropriate because their contents and authenticity cannot reasonably be disputed. Under Federal Rule of Evidence 201 (b), judicial notice is proper for facts

that are capable of accurate and ready determination by resorting to sources whose accuracy cannot be reasonably questioned. record. Matters that are appropriate for judicial notice include matters of public

See, Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). When

a party has requested judicial notice and supplied the court with the necessary information, judicial notice is mandatory. (Federal Rule of Evidence 201 (d).) Accordingly, Defendants CITI RESIDENTIAL LENDING, INC. requests that this Court take

judicial notice of the foregoing publicly recorded documents.

Respectfully Submitted, Miles, Bauer, Bergstrom & Winters, LLP

Dated: June 2, 2008

By:

/s/ Tami S. Crosby Tami S. Crosby Specially Appearing as Attorneys for CITI RESIDENTIAL LENDING, INC.

-2REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF SPECIALLY APPEARING DEFENDANT CITI RESIDENTIAL LENDING'S OPPOSITION TO PLAINTIFF'S 2ND AMENDED MOTION FOR TEMPORARY RESTRAINING ORDER
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EXHIBIT
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Case 3:08-cv-00589-H-JMA
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DOC #

2008-0000379
8:00 AM

111111111111111111111111111111111111111111111111111111111111111111111I
RECORDING REQUESTED BY:",
RECORDiNG REQUESTED BY:

JAN 02, 2008

FIDELITY NATIONAL TITLE WHEN RECORDED MAIL TO: CR Tille Services Inc. P.O. Box 1500 Rancho Cucamonga, CA 91729-150Jj,()() TS No.: T07-32401-CA Loan No.: 0094408879

OFFICIAL RECORDS SAH 0lE50 COUNTY RECORDER'S OFFICE GREGORY J. SMITH. COU~lr( RECORDER FEES: 15.00

DA:

PAGES:

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0111 U11101

t>

1111111111111111111111111110111

HIli

0111

om IIII 0111

01110111

NOTICE OF DEFAULT AND ELECTION TO SELL UNDER DEED OF TRUST
IMPORT ANT NOTICE IF YOUR PROPERTY IS IN FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR PAYMENTS IT MAY BE SOLD WITHOUT ANY COURT ACTION, and you may have the legal right to bring your account in good standing by paying all of your past due payments plus permitted costs and expenses within the time permitted by law for reinstatement of your account. which is normally five business days prior to the date set for the sale of your property. No sale date may be set until three months from the date this notice of default may be recorded (which date of recordation appears on this notice). This amount is $12,648.48 as of 12-31-2007, and will increase until your account becomes current. While your property is in foreclosure, you still must pay other obligations (such as insurance and taxes) required by your note and deed of trust or mortgage. If you fail to make future payments on the loan, pay taxes on the property. provide insurance on the property, or pay other obligations as required in the note and deed of trust or mortgage, the beneficiary or mortgagee may insist that you do so in order to reinstate your account in good standing. In addition, the beneficiary or mortgagee may require as a condition of reinstatement that you provide reliable written evidence that you paid all senior liens, property taxes, and hazard insurance premiums. Upon your written request, the beneficiary or mortgagee will give you a written itemization of the entire amount you must pay. You may not have to pay the entire unpaid portion of your account, even though full payment was demanded, but you must pay all amounts in default at the time payment is made. However, you and your beneficiary or mortgagee may mutually agree in writing prior to the time the notice of sale is posted (which may not be earlier than the three month period stated above) to, among other things. (I) provide additional time in which to cure the default by transfer of the property or otherwise; or (2) establish a schedule of'payments in order to cure your default; or both (I) and (2). Following the expiration of the time period referred to in the first paragraph of this notice, unless the obligation being foreclosed upon or a separate written agreement between you and your creditor permits a longer period, you have only the legal right to stop the sale of your property by paying the entire amount demanded by your creditor. To find out the amount you must pay, or to arrange for payment to stop the foreclosure, or if your property is in foreclosure for any other reason, contact: Deutsche Bank National Trust Company, as Trustee, in trust for the registered holders of Argent Securities lnc., Asset-Backed Pass-Through Certificates, Series 2006- W4 c/o CITI RESIDENTIAL LENDING INC., AS ATTORNEY IN FACT ATTN: FORECLOSURE DEPARTMENT

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2006
purposes only and Is not an attempt to collect a debt In violation of the automatic stay or the discharge Injunetlon.

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TS No.: T07-32401-CA Loan No.: 0094408879 NOTICE OF DEFAULT AND

2007
ELECTION TO SELL UNDER DEED OF TRUST

P.O. Box 1500 Rancho Cucamonga, CA 91729-1500 Phone: 714-634-2474 REINSTATEMENT

LINE

714-634-2474

EXT 38145

Uyou have any questions, you should contact a lawyer or the governmental agency which may have insured your loan. Notwithstanding the fact that your property is in foreclosure, you may offer your property for sale provided the sale is concluded prior to the conclusion of the foreclosure. Remember, ACTION.

YOU MAY LOSE LEGAL RIGHTS

IF

YOU DO NOT TAKE PROMPT

NOTICE IS HEREBY GIVEN: That CR Title Services Inc. is either the original trustee, the duly appointed substituted trustee, or acting as agent for the trustee or beneficiary under a Deed of Trust dated 02-15-2006, executed by COPERNICO S. MAMERTO AND MERCEDITA L. MAMERTO, HUSBAND AND WIFE, AS JOINT TENANTS., as Trustor, to secure certain obligations in favor of ARGENT MORTGAGE COMPANY,LLC." as beneficiary, recorded 02-27-2006, as Instrument No. 2006·0135047, in Book, Page, of Official Records in the Office of the Recorder of SAN DIEGO County, California describing land therein as: AS MORE FULLY DESCRIBED IN SAID DEED OF TRUST including 1 NOTE(S) FOR THE ORIGINAL sum of$408,OOO.OO, that the beneficial interest under such Deed of Trust and the obligations secured thereby are presently held by the undersigned; that a breach of, and default in, the obligations for which such Deed of Trust is security has occurred in that payment has not been made of: INSTALLMENT OF INTEREST ONLY PAYMENTS PLUS IMPOUNDS IF APPLICABLE AND/OR ADVANCES DUE WHiCH BECAME DUE ON 09/01/2007 PLUS LATE CHARGES IF ANY, AND ALL SUBSEQUENT INSTALLMENTS OF INTEREST PLUS ADVANCES AND LATE CHARGES THAT BECOME PAYABLE. That by reason thereof, the present beneficiary under such deed of trust, has executed and delivered to said duly appointed Trustee, a written Declaration of Default and Demand for same, and has deposited with said duly appointed Trustee, such deed of trust and all documents evidencing obligations secured thereby, and has declared and does hereby declare all sums secured thereby immediately due and payable and has elected and does hereby elect to cause the trust property to be sold to satisfy the obligations secured thereby. Dated: 12-31-2007 CR Title Services Inc. by FIDELITY NATIONAL TITLE

~~URANCE CO, ASAGFNf ~

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Federal Law requires us to notify you that we are acting as a debt collector. If you are currently in a bankruptcy or have received a discharge in bankruptcy as to this obligation, this communication Is Intended for Informational

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EXHIBIT
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Default Division
RECORDING REQUESTED BY:

DOC #

2008-0180799
8:00 AM

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11111111111111111111111111111111111111111111111111111111111111111II11I

REco~~f*EDBY CR Title Se::ovicesInc. AND fvHEN RECORDED MAIL TO: CR Title Services Inc. P.O. Bos: 1500 Rancho Cucamonga, CA 91729-1500

APR 07,2008

OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORY J. SMITH. COUNTY RECORDER FEES: 12.00

PAGES:
I_IUIIIU_IIlU_IIIUII_llllllm_"UI_IIUIII_UIIID_IIIU"_lDmU_IIID_IIIUII_IUI

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_-,-,lYJ 1191J..J-c:::l~
T.S. No. T07-32401-CA Loan No. 0094408879

SPAce ABOve nus UNe FOR IlI!CORDER'S USE

NOTICE OF TRUSTEE'S SALE
YOU ARE IN DEFAULT UNDER A DEED OF TRUST DATED 02-15-2006. UNLESS YOU TAKE ACTION TO PROTECT YOUR PROPERTY, IT MAY BI: SOLD AT A PUBLIC SALE. IF YOU NEED AN EXPLANA nON OF THE NATURE OF THE PROCEEDING AGAINST YOU, YOU SHOULD CONTACT A LAWYER. A public auction sale to the highest bidder for cash, cashier's check drawn on a state or national bank, check drawn by a slate or federal credit union, or a check drawn by a state or federal savings and loan association, or savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state win be held by the duly appointed trustee as shown below, of all right, title, and interest conveyed to and now held by the trustee in the hereinafter described property under and pursuant to a Deed of Trust described below. The sale will be made, but without covenant or warranty, expressed or implied, regarding title, possession, or encumbrances, to pay the remaining principal sum of the note{s) secured by the Deed of Trust, with interest and late charges thereon, as provided in the note(s), advances, under the tenns of the Deed of Trust, interest thereon, fees, charges and expenses of the Trustee for the total amount (at the time of the initial publication of the Notice of Sale) reasonably estimated to be set forth below. The amount may be greater on the day of sale. . Trustor: COPERNICO S. MAMERTO AND MERCEDITA L. MAMERTO, HUSBAND AND WIFE, AS JOINT TENANTS. Duly Appointed Trustee: CR Tide Services Inc. Recorded 02-27-2006 as Instrument No. 2006-8135047 in book, page of Official Records in the office of the Recorder of SAN DIEGO County, California, Date ofSale:04-23-2008 at 10:00 AM Place of Sale: AT THE SOUTH ENTRANCE TO THE COUNTY COURTHOUSE, 220 WEST BROADWAY, SAN DIEGO, CALIFORNIA Amount of unpaid balance and other charges: 5429,666.88 Street Address or other common designation of real property: 8485 MIGUEL VISTA PLACE SAN DIEGO, CA 92114 A,P.N.: 583-780-38 The undersigned Trustee disclaims any liability for any incorrectness of the street address or other common designation, if any, shown above. lfno street address or other common designation is shown, directions to the location of the property may be obtained by sending a written request to the beneficiary within 10 days of the date of first publication of this Notice of Sale. The Trustee shall incur no liability for any good faith error in stating the proper amount of unpaid balances and charges. For Sales Information please contact AGENCY SALES AND POSTING at WWW.FIDELITYASAP.COM REINSTATEMENT LINE: 888-485-9191 or 7]4-259-7850

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931
Date: 04-03-2008 CR Title Services Inc. P.O. Box 1500 ho Cuumonga, C 91 1 CER

Federal Law requires us to notify you that we are acting 8& a debt collector. If you are currently In a bankruptcy or have received a discharge In bankruptcy as to this obligation, this communication Is Intended for Informational purposes only and Is not an attempt to collect a debt In violation of the automatic stay or the discharge Injunction.

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PROOF OF SERVICE
I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 1665 Scenic Avenue, Suite 200, Costa Mesa, California 92626-9804. On 6/2/08, I caused to be personally served a copy of the following document(s):

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REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF SPECIALLY APPEARING DEFENDANT CITI RESIDENTIAL LENDING'S OPPOSITION TO PLAINTIFF'S 2ND AMENDED MOTION FOR TEMPORARY RESTRAINING ORDER

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BY MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with First Class postage, thereon fully prepaid at Costa Mesa, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I have placed a true and correct copy thereof in a sealed envelope(s) with postage thereon fully prepaid addressed as follows: Copernico S. Mamerto, Pro se, 8485 Miguel Vista Place San Diego, California 92114 619) 472-9924 (Plaintiff, pro se) Alan I. White, Esq. 20281 SW Birch Street, Suite 100 Newport Beach, 92660 (Counsel for Defendant Specialized Loan Servicing)

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STATE: I declare under penalty of perjury under the laws of the State of California that the above is true and correct. FEDERAL: I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct, and that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on 6/2/08, at Costa Mesa, California, /s/ Marion Pineda Marion Pineda

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-3REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF SPECIALLY APPEARING DEFENDANT CITI RESIDENTIAL LENDING'S OPPOSITION TO PLAINTIFF'S 2ND AMENDED MOTION FOR TEMPORARY RESTRAINING ORDER
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