Free Response to Order to Show Cause - District Court of California - California

Case 3:08-cv-01134-L-LSP

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JANIS L. TURNER (Cal Bar No. 079217) JANIS L TURNER ALC 2515 Camino Del Rio South Ste. 242B San Diego CA 92108 (619)718-4800 (voice) (619)718-4815 (fax) [email protected] Attorney for Plaintiff RICHARD A. CONNORS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA RICHARD A. CONNORS, an individual ) ) Plaintiff ) ) v. ) ) ) HOME LOAN CORP. dba EXPANDED ) MORTGAGE CREDIT, a Texas Corp. ) MORTGAGE ELECTRONIC ) REGISTRATION SYSTEMS (MERS) a ) Delaware Corp., U.S. BANK NATIONAL ) ASSOCIATION as trustee for CREDIT ) SUISSE FIRST BOSTON HEAT-2005-2 ) AMERICA'S SERVICING COMPANY ) CAL WESTERN RECONVEYANCE ) CORP., a California Corp. ) ) Defendants ) ___________________________________ ) Case No 08 CV 1134 L LSP DECLARATION OF JANIS L. TURNER IN RESPONSE TO OSC RE SANCTIONS

Date: Time: Judge: Dept:

August 22, 2008 10 AM Honorable M. James Lorenz 14

Janis L. Turner of full age upon her oath makes the within declaration under penalty of 21 perjury in response to the the courts OSC re Sanctions concerning Service of the within matter. 22 1. 23 penalty of perjury and as to facts within my own personal knowledge and as to matters to 24 which I could competently testify were I called upon to do so. 25 2. 26 action. Plaintiff named as Defendants HOME LOAN CORPORATION dba EXPANDED 27 MORTGAGE CREDIT (HOME LOAN), MORTGAGE ELECTRONIC 28 Dec of Janis L. Turner 1 On July 24, 2008 Plaintiff duly filed the Initial Complaint that commenced the within I am attorney for the Plaintiff in the above entitled matter. I make this declaration under

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REGISTRATION SYSTEMS ( MERS), U.S. BANK NATIONAL ASSOC as trustee for CREDIT SUISSE FIRST BOSTON HEAT-2005-2 (US BANK), AMERICA'S SERVICING COMPANY (ASC) and CAL WESTERN RECONVEYANCE CORP (CAL WESTERN). Thereafter Plaintiffs counsel commenced serving the various entities involved herein. HOME LOAN is a Texas Corporation. It was duly authorized to do business in California at the time it entered into a business arrangement with Plaintiff but apparently subsequently surrendered its status as a corporation authorized to do business in California. It had, however retained a registered agent for service of process as set forth in the appended and incorporated exhibit (Exhibit 1). Thereafter all documents were duly served via Knox Attorney Service at the offices of the registered agent for service of process. In addition documents were sent via DHL for a supplemental service at the Main Corporate Offices of HOME LOAN. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS (MERS) was duly authorized to do business in California at the time it entered into a business arrangement with Plaintiff but apparently subsequently has its status as a corporation authorized to do business in California suspended. It had, however retained a registered agent for service of process as set forth in the appended and incorporated exhibit (Exhibit 2). Thereafter all documents were duly served via Knox Attorney Service at the offices of the registered agent for service of process. In addition documents were sent via DHL for a supplemental service at the Main Corporate Offices in Reston, Virginia. U.S. BANK NATIONAL ASSOCIATION was found to be a part of US BANCORP, a Delaware Corporation. It is at all times a Corporation licensed to do business in the State of California with its Corporate Headquarters in Minneapolis Minn. It also has a registered agent for service of process as set forth in the appended and incorporated exhibit (Exhibit 3).

Dec of Janis L. Turner

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9.

Thereafter all documents were duly served via Knox Attorney Service at the offices of the registered agent for service of process. In addition documents were sent via DHL for a supplemental service at the Main Corporate Offices.

10.

AMERICAS SERVICING COMPANY has been the most difficult entity to actually locate.

11.

On July 2, 2008 I duly appeared before this Court at which time the court entered a Temporary Restraining Order as to foreclosure of the property of Plaintiff RICHARD CONNORS. At the time the court entered the TRO, it strongly recommended to me that at that time I serve my notice of motion, motion, supporting papers, and the order granting the Temporary Restraining Order on all other Defendants, that in addition to serving them through a registered agent for service of process, I duly contacted them and attempt to speak with their respective attorneys.

12.

On July 3, 2008, I duly commenced attempting to make contact with representatives for the various Defendants.

13.

I first contacted U.S. BANK at their headquarters in Saint Paul Minnesota and spoke with representatives in their Corporate Trust Legal Department asking for their attorney contact for local counsel in California.

14.

As a part of that conversation I made it clear that a TRO had been granted and that a Motion for Preliminary Injunction was set for July 15, 2008. I spoke with a paralegal who informed me that she had spoken with one of the attorneys and that I should direct copies of the documents via overnight mail to their attention. I did so and again made it clear or at least felt I made it clear that this was a matter of some urgency. Based upon that agreement I duly served the documents upon them via DHL on July 8, 2008, as set forth in the appended DHL receipt record (Exhibit 4)

15.

I next contacted HOME LOAN CORPORATION at their address in Texas. I spoke with a person who would not give me their name but said she was a paralegal and directed me to send copies of the documents to their offices, based upon that conversation I duly served the documents on them via DHL on July 8, 2008 as set forth in the appended DHL

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record (Exhibit 5). In addition, I also served the documents via Knox Attorney Service on their registered agent for service of process (Exhibit 6). I next contacted MORTGAGE ELECTRONIC REGISTRATION SYSTEMS (MERS). I received no answer at their location in Sacramento and served the papers by means of DHL as well as on their registered agent for service of process. Their registered agent is located in Sacramento, California. I also served the same documents on July 8, 2008 to their corporate headquarters in Reston, Virginia as set forth in the attached DHL record (Exhibit 7). On July 15, 2008 when I left court I once again attempted to call each of these entities to check on objections or other responses and other than an e-mail from the paralegal for US BANK NATIONAL ASSOCIATION which is appended hereto, I received no response. CAL WESTERN duly appeared in court through its counsel, whom at the time I thought also represented ASC by virtue of a letter sent to my client. I subsequently discovered that they had only been retain to write the letter and did not represent ASC for purposes of this action. ASC has been the most difficult Defendant to locate. I first searched the California Secretary of States Web Site and found they were not listed as a corporate entity or Limited Liability Company authorized to do business in California. Thereafter I looked on the internet and contacted my client for addresses. All he had or the internet had was a Post office Box in Des Moines Iowa. I even attempted calling a "Customer Service" number for ASC but was told they could not give out a street address. This however, led me to the Secretary of State for the State of Iowa. The Iowa Secretary of State's Web site gave me information which said that the legal name was :Wells Fargo Home Mortgage" as holding the fictitious business name of ASC (Exhibit 8)

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23.

I returned to the California Secretary of States Web site and found that WELLS FARGO HOME MORTGAGE had been merged out but that it shared the same Corporate address as ASC in Des Moines (Exhibit 8 )

24.

I also found that WELLS FARGO had a Registered Agent located in California. (Exhibit 9).

25. 26.

According to the Iowa Secretary of States Web Site they serve as a registered agent. Thereafter all documents were duly served via Knox Attorney Service at the offices of the registered agent for service of process. In addition documents were sent via DHL for a supplemental service at the Main Corporate Offices of both ASC and WELLS FARGO and were also serve via DHL under the Federal Courts more expansive service rules on the Iowa Secretary of State.

27.

I duly caused the original Complaint, the 1st Amended Complaint, the Motion for TRO , the Points and Authorities, and Supporting Documents, The Motion for Preliminary Injunction Points and Authorities, and Supporting Documents, and hard copies of the courts orders to be served on all Defendants as set forth above.

28.

On or about July 28th I received a call from Ken Cole Corporate Counsel for HOME LOAN. I told him about the TRO and pending Motions. He asked for an extension of time within which to respond to the complaint. I said I could grant him that but that I would prepare a joint Motion for submission to the court that essentially HOME LOAN had no interest in the preliminary injunction issues since it did not affect them one way or the other.

29.

I duly prepared the Joint Motion and on July 29th duly sent it to him via electronic mail a copy of the email and attachment are appended hereto (Exhibit 10).

30.

Thereafter I heard from Counsel for ASC seeking the service documents. Before I could send them to him he filed notice with the court and sought an extension of time.

31. 32.

As of yesterday I received the attached e-mail from US BANK (Exhibit 11). I have duly served all parties to this action though it has taken me longer that I would have wished.

Dec of Janis L. Turner

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33.

I am still awaiting information from the California Secretary of State concerning the "merged out" status of WELLS FARGO HOME LOAN in Claifornia. Given the current budget crisis in California I suspect it will be some time before I receive and answer to my written request.

34. 35.

All parties, however have been served under the procedures of the Federal Rules. During all of this I have had two emergencies for other clients and a trial in a matter entitled Schneider v. Ibarra et al in the San Diego Superior Court.

36.

Since my practice almost entirely consists of cases involving mortgages and problems arising out of them they are often at a crisis level,

37.

I admit that by inadvertence I fell behind in the deadlines in this matter. I certainly intended no disrespect to the court.

38.

It was very difficult to assure that notice reached all of the Defendants in this matter particualrly as ASC seems to work at being invisible. In the current climate I can understand why they feel a need to do it but at times I felt as though I was working through a maze without a map.

39.

As I said I did not intentionally fail to file proofs of service and in fact I was trying to determine for sure that I had actually given notice to everyone involved.

40.

I submit this declaration is response to the Court's OSC.

Executed under penalty of perjury this 8th Day of August 2008 at San Diego, County of San Diego, State of California under the laws of the State of California.

s/ Janis L. Turner_____ Attorney for Plaintiff Richard A. Connors E-mail: [email protected]

Dec of Janis L. Turner

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CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED that on August 8, 2008 the Response to OSC of Counsel for Plaintiff RICHARD CONNORS with exhibits, re Service all pleadings and most particualrly Documents Concerning TRO and Preliminary injunction was filed electronically with the clerk of the court using the CM/ECF system which will automatically send e-mail notice of filing to the following counsel of record. Counsel additonally served a chambers copy of the within document on the Hon M. James Lorenz via Knox Attorney Service. Additionally Defendants who have not yet appeared they were served with the within documents via US Mail. Either directly or to their registered agents for service of process as set forth in the appended and incorporated mailing list Dated: August 8, 2008 s/ Janis L. Turner_____ Attorney for Plaintiff Richard A. Connors E-mail: [email protected]

Electronic Service Thomas Abbott [email protected] Counsel for Defendant CAL WESTERN RECONVEYANCE Edward D. Vogel [email protected] Counsel for Defendant AMERICA'S SERVICING COMPANY Counsel designated by US BANK

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MAILING LIST Additionally Defendants were served as follows: Via US Mail:

Ken R. Cole General Counsel Home Loan Corp 450 Gears Rd Ste 600 Houston TX 77067 MORTGAGE ELECTRONIC REGISTRATION SYSTEMS C/O Registered Agent 2216 16 th St Sacramento CA 95818

US BANK NATIONAL ASSOC, as Trustee Trust Legal Department 60 Livingston Ave St Paul MN 55107 MORTGAGE ELECTRONIC REGISTRATION SYSTEMS C/O Corporate Counsel MERS 1818 Library Street Ste 300 Reston VA 20190