1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Stacie L. Power (CSB #275055) Law Offices of Stacie Power 12413 Kibbie Lake Way Rancho Cordova, California 95472-7717 (916) 353-1228 Attorneys for Plaintiff/Defendant Mary A. Lauenstein

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF PLACER

) ) ) ) Plaintiff, ) ) ) v. ) ) World Savings Bank, FSB; Golden West ) Association Service Co., A California ) Corporation;Wells Fargo Bank, N.A., A/K/A ) ) Wachovia Mortgage, A Division of Wells ) Fargo Bank, N.A., F/K/A Wachovia Mortgage,) FSB; NDEX West, LLC; and DOES 1 through ) 20, ) ) ) Defendants. ) Mary A Lauenstein, Trustee of the Mary A Lauenstein Trust Dated December 21, 1988, Wells Fargo Bank, N.A., Plaintiff, v. Mary Lauenstein, Does 1-10 Inclusive,

Case No.: S-CV-0029439 Plaintiff Mary A Lauensteins Ex Parte Application to Shorten Time to Hear Her Motions for Orders to Consolidate this Instant Action with the Unlawful Detainer Action and for a Stay of All Proceedings Pending the Hearing; Declarations of David Bryant and Stacie Power Supported With Verified Complaint Trial Date: Date Filed: July 1, 2011

26

Defendants.
27 28

) Case No.: MCV0050962 ) ) ) ) ) ) Trial Date: ) Date Filed: May 16, 2011 ) ) ) )

TO EACH PARTY AND TO THE COUNSEL OF RECORD FOR EACH PARTY:

Motion to Consolidate Page - 1

1 2 3 4 5

YOU ARE HEREBY NOTIFIED THAT on [date] at [time], in Department [number] of this Court located at 10920 Justice Center Drive, Roseville, California 95678Plaintiff in this action, Defendant in Case No. MCV0050962, will move the Court for an order consolidating the following actions: 1. Mary A Lauenstein, Trustee of the Mary A Lauenstein Trust Dated December

6 7 8 9 10 11

21, 1988 v. World Savings Bank, FSB; Golden West Association Service Co., A California Corporation; Wells Fargo Bank, N.A., A/K/A Wachovia Mortgage, A Division of Wells Fargo Bank, N.A., F/K/A Wachovia Mortgage, FSB; NDEX West, LLC; and DOES 1 through 20; Case No. S-CV-0029439 in which the following parties have appeared: Plaintiff: Mary A Lauenstein; Counsel of Record: Stacie L. Power;

12 13 14 15 16

Defendants: 2. Wells Fargo Bank, N.A. v. Mary Lauenstein, Does 1-10 Inclusive, Case No.

MCV0050962 in which the following parties have appeared: Plaintiff: Wells Fargo Bank, N.A.; Counsel of Record: Fred Kaiser Mary Lauenstein; Counsel of Record: Stacie L. Power

17 18 19 20 21 22

Defendant:

Consolidation is requested for all purposes and a stay in both cases is requested pending a hearing on this motion. This motion is made on the ground that most of the issues of fact and law are common to both actions and many of the same witnesses will testify in both actions. A single trial of

23 24 25 26 27 28

the issue of Wrongful Foreclosure and Unlawful Detainer will avoid unnecessary costs and delays and will serve the interests of economy and convenience. The motion will be based upon this notice, the attached memorandum in support and declarations of David Bryant and Stacie Power, the Verified Complaint, the files and records

Motion to Consolidate Page - 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

in this action, and any further evidence and argument that the Court may receive at or before the hearing.

DATED: July ___, 2011

Respectfully submitted, _________________________ Stacie L. Power (CSB #275055) Law Offices of Stacie Power Attorneys for Plaintiff/Defendant

Motion to Consolidate Page - 3

1 2 3 4 5

MEMORANDUM OF POINTS AND AUTHORITIES A. Notice Requirements This application is based upon California Rules of Court 305 and 379. Plaintiff has complied with the above notice requirements as set forth in the accompanying declaration of David L. Bryant. Movant will deliver a copy of the papers

6 7 8 9 10 11

herein to counsel for Defendant at the hearing. B. Good Cause Requirement This action arises out of residential mortgage loan transactions. Plaintiff contends that she is the owner of a residence commonly known as 1290 Alberton Circle, Lincoln, California 95648 (hereinafter the Property). Defendant Wells Fargo Bank, N.A., A/K/A Wachovia

12 13 14 15 16

Mortgage, A Division of Wells Fargo Bank, N.A., F/K/A Wachovia Mortgage, FSB (hereinafter Wells Fargo) contends that it is the owner of the residence, having acquired the residence from a trustees sale. Thereafter, Defendant Wells Fargo, sued Plaintiff for Unlawful Detainer contending

17 18 19 20 21 22

that they are the owners of the subject property and not Plaintiff. Plaintiff disputes such contentions, and allege that all of the Defendants herein lack a position or any standing to assert any ownership or possessory rights related to her residence, including but not limited to bringing an Unlawful Detainer Action. Plaintiff herein has filed an action in the Superior Court, Case No.: S-CV-

23 24 25 26 27 28

0029439seeking from the Defendants the following relief: 1) Fraud; 2) Intentional Misrepresentation; 3) Negligent Misrepresentation; 4) Concealment; 5) Violation of Business and Professions Code 17200, et Seq.; 6) Unjust Enrichment; 7) Quiet Title; 8) Declaratory

Motion to Consolidate Page - 4

1 2 3 4 5

Relief; 9) Violation of Civil Code 2932.5; 10) Breach of Fiduciary Duty; 11) Breach of Covenant of Good Faith and Fair Dealing. As Plaintiff alleges throughout their complaint and the evidence will show, the Defendants: 1) Fraudulently misled the Plaintiff in the loan origination and modification, 2) failed to properly conduct a non-judicial foreclosure on the property; 3) made unlawful

6 7 8 9 10 11

assignments; 4) failed to record all such assignments; and 5) violated numerous other California laws. All such acts removed each of the defendants from having any position or any standing to assert any ownership or possessory rights and all standing in this Court, and/or the Unlawful Detainer Court. Further, each of the Defendants lacked any and all position or standing to foreclose.

12 13 14 15 16

The above reflects that Wells Fargo contends it is the successor in interest to the Deed of Trust, however, it is believed, that the evidence will show the note is held by an unknown Defendant. The note is within a REMIC/CDO, subject to a different agreement, with different parties, terms and conditions than that of the Deed of Trust. The ownership of the Deed of

17 18 19 20 21 22

Trust and Adjustable Rate Note have been separated, therefore, no party has the authority to execute a trustee sale pursuant to the Deed of Trust. C. Parties All of the known parties and issues are, or should be present in both actions. However, there is an indispensable party to both this action and the Unlawful Detainer Action, such as

23 24 25 26 27 28

the true party who has a position or standing to either conduct the alleged judicial foreclosure and/or to prosecute any Unlawful Detainer action. Plaintiff contends such a party is not currently present in any of the actions to claim rights to standing.

Motion to Consolidate Page - 5

1 2 3 4 5

C.

Legal Argument California Code of Civil Procedure section 1048 allows for the consolidation of cases

involving a common question of law or fact. Cal. Civ. Code 1048(a). Consolidation is appropriate to avoid unnecessary costs or delay. Id. The two cases above involve common questions of law and fact. The resolution of these two cases as a single case promotes the

6 7 8 9 10 11

efficient use of judicial resources. Also, by resolving the issues at the same time, in front of one judge, the parties involved will save time and money on costly litigation. The court has authority to consolidate a summary unlawful detainer action with an action from another court such as here, where the unlawful detainer court is not particularly well equipped to resolve complicated issues of title, and whether a non-judicial foreclosure

12 13 14 15 16 17 18 19 20 21 22 23 24 25

sale was properly executed. See California Code of Civil Procedure 403, which provides courts authority to order two cases within the same county consolidated: A judge may, on motion, transfer an action or actions from another court to that judge's court for coordination with an action involving a common question of fact or law within the meaning of Section 404. The motion shall be supported by a declaration stating facts showing that the actions meet the standards specified in Section 404.1, are not complex as defined by the Judicial Council and that the moving party has made a good faith effort to obtain agreement to the transfer from all parties to each action. Notice of the motion shall be served on all parties to each action and on each court in which an action is pending. Any party to that action may file papers opposing the motion within the time permitted by rule of the Judicial Council. The court to which a case is transferred may order the cases consolidated for trial pursuant to Section 1048 without any further motion or hearing.

The stark reality is that unlawful detainer courts are not particularly well equipped to resolve complicated issues of title and whether a non-judicial foreclosure sale was properly

26 27 28

executed. In the matter of Greenhut v. Wooden, (1982) 129 Cal.App.3d 64, the Appellate Court lamented over the fact that the superior court denied the motion to consolidate, the

Motion to Consolidate Page - 6

1 2 3 4 5

unlawful detainer matter proceeded without resolving the issues of title, notwithstanding the fact that the particular issues were an exception to the limited jurisdiction of the unlawful detainer court. The court stated, in pertinent part: While we agree that trying title in the unlawful detainer action in this case would have prolonged the trial, the law as well as equity demanded such a trial in view of the refusal to consolidate. Id., at 70.

6 7 8 9 10 11

Sadly, unlawful detainer courts in some departments in the State of California dispatch as many as fifty unlawful detainer actions in a single morning, leaving defendants little opportunity to avoid an injustice. The propriety of consolidating cases in which allegations challenging the manner in which an unlawful detainer plaintiff obtained title was addressed in Asuncion v. Superior Court, (1980) 108 Cal.App.3d 141, 146, 166 Cal.Rptr. 306, held that,

12 13 14 15 16

consistent with due process guarantees, homeowners cannot be evicted without being permitted to raise affirmative defenses which if proved would maintain their possession and ownership. The court suggested the use of certain existing procedural devices to facilitate accommodating an unlawful detainer action with a separately filed fraud action, such as a stay

17 18 19 20 21 22

of the unlawful detainer proceedings until trial of the fraud action, or, in the alternative, consolidation of the actions. Id., at 146-147, 166 Cal.Rptr. 306. It would appear from the facts contained herein that the court would properly exercise its discretion by granting the Motion to Consolidate the unlawful detainer action to the within action. Conclusion

23 24 25 26 27 28

As stated above these two cases involve predatory and abusive lending practices by a shadowy group of companies who have played an extraordinary role in the current foreclosure crisis gripping our Country. Plaintiff was one of millions who fell prey to the deceptive lending practices of outfits like World Savings Bank, who supplied untold numbers of sub

Motion to Consolidate Page - 7

1 2 3 4 5

prime loans to Wall Street, there to be securitized and resold on the secondary market in the form of bonds and real estate trust investments. The scheme was facilitated by Defendants, known and unknown, allowing its members to trade and sell Notes and Deeds of Trust without complying with the cumbersome legal requisites of documenting and recording such transfers as required by California law. The scheme has come full-circle as companies with

6 7 8 9 10 11

no ownership interest in the Note or Deed of Trust (such as World Savings Bank, Wells Fargo, and NDEX West, LLC) have wrongfully foreclosed without meeting the basic preforeclosure requirements of California Law. The court needs to grant Plaintiffs motion to consolidate in order that all of the evidence can be presented to a single trier of fact, so justice can prevail.

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DATED: July _____, 2011

Respectfully submitted, _________________________ Stacie L. Power (CSB #275055) Law Offices of Stacie Power Attorneys for Plaintiff/Defendant

Motion to Consolidate Page - 8

1 2

Declaration of David L. Bryant in Support of Ex Parte Application Shortening Time I, David L. Bryant, declare and say:

3 4 5 6 7 8

1. 2. 3.

That I am a legal assistant with the Law Offices of Stacie Power. I am not a party in this instant action. This declaration is filed in support of the Plaintiffs Ex Parte application to

shorten time to have heard Plaintiffs Ex Parte Application to Shorten Time to Hear their Motions for Orders Consolidate this Instant Action, with the Unlawful Detainer Action; and

9 10 11 12 13 14 15 16 17 18 19

for a Stay of All Proceedings Pending the Hearing. 4. Commencing on or about 11:15 a. m., August 25, 2010, I telephoned the law

office of Fred W. Kaiser, Esq., known to me to be the attorney for Wells Fargo in the Unlawful Detainer action. I informed his office that the Plaintiff would be seeking an order shorten time for the above matter. That the hearing would be at 9:00 a. m., August 27, 2010, in the Placer County Superior Courts Department___ 10920 Justice Center Drive, Roseville, California 95678. Further, I informed his office that copies of our moving papers would be delivered to them at the hearing, as they were still being prepared. I declare under penalty of perjury under the laws of the State of California that the

20 21 22 23 24 25 26 27 28

foregoing is true and correct. Executed at Sacramento, California, this ____ day of July, 2011.

______________________ David L. Bryant

Motion to Consolidate Page - 9

1 2 3 4 5

Declaration Stacie L. Power in Support of Motion to Consolidate I, Stacie L. Power, declare: 1. I am an attorney for Plaintiff/DefendantMary A Lauenstein, Trustee of the

Mary A Lauenstein Trust Dated December 21, 1988 in Case No. FCM120519, and I have personal knowledge of each fact state in this declaration.

6 7 8 9 10 11

Case No. FCM120519 entitled Wells Fargo, N.A. v. MaryLauenstein, Does 1-10 Inclusivewas commenced on May 16, 2011 when Plaintiff filed their original complaint. 2. Case No. S-CV-0029439 entitled Mary A Lauenstein, Trustee of the Mary A

Lauenstein Trust Dated December 21, 1988 v. World Savings Bank, FSB; Golden West Association Service Co., A California Corporation; Wells Fargo Bank, N.A., A/K/A

12 13 14 15 16

Wachovia Mortgage, A Division of Wells Fargo Bank, N.A., F/K/A Wachovia Mortgage, FSB; NDEX West, LLC; and DOES 1 through 20was commenced on July 1, 2011 when plaintiff filed her original complaint. 3. Each of these actions involves the ownership of the property located at 1290

17 18 19 20 21 22

Alberton Circle, Lincoln, California 95648 (the Property). As alleged in Ms. Lauensteins Complaint, Wells Fargo was not the proper party to bring an unlawful detainer action. Also as alleged in Ms. LauensteinsComplaint, the various parties acted wrongfully and in violation of numerous California laws directly relating the subject matter of both cases. 4. Consolidation of these actions will avoid the risk of inconsistent judgments,

23 24 25 26 27 28

reduce the costs and delays resulting from multiple trials, and conserve judicial resources. 5. Consolidation will not unduly complicate the trial of this action nor confuse

the jury, because the common issues relating to liability of Wells Fargo et al. will predominate and the separate issues are limited to the nature and extent of the Ms. Lauensteins injuries.

Motion to Consolidate Page - 10

1 2 3 4 5

6.

Consolidation will not unduly delay the trial of any of the cases in none has

been set for trial and all are scheduled for trial setting conferences within the next six months. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Sacramento, California, this ____ day of July, 2011.

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

__________________________ Stacie L. Power

Motion to Consolidate Page - 11

1 2

Proof of Service CCP 1012, 1013 & 1013(a) Case: Mary A. Lauenstein v. World Savings Bank, et al.

3 4 5 6 7 8

Court/No: Superior Court of Placer, California / Case No. S-CV-0029439 I am employed in the County of Sacramento, State of California. I am over the age of 18 and not a party to the within action; My business address is 12413 Kibbie Lake Way, California 95742-7717. On this date I served the attached document, MOTION TO CONSOLIDATEon the

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

following Defendants: World Savings Bank, FSB - Successor in Interest is Wells Fargo Bank, N.A. Golden West Savings Association Service Company CSC Lawyers Incorporating Service 2730 Gateway Oaks Dr Ste 100 Sacramento, CA 95833 Wells Fargo Bank, N.A. Fred W. Kaiser 865 University Avenue Sacramento, CA 95825 Phone: 916.924.7500 Fax: 916. 924.0883 NDEX West, LLC CT Corporation as Agent of Service for Process 818 W. 7th Street Los Angeles, CA 90017

I declare under penalty of perjury that the forgoing is true and correct. Executed on this day ____ of July, 2011 at Sacramento, California.

David L. Bryant

Motion to Consolidate Page - 12