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Norman Allen
P.O. Box 70
Janesville, CA 96114
530-253-2100
In Pro Per

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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LASSEN

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)
)
)
Plaintiff,
)
)
vs.
)
)
)
SUMMIT FINANCIAL GROUP;
)
DANA CAPITOL CORP.; STEVE WEICH; )
ROD HOSILYK; DWIGHT A. BENNETT; )
JUDITH A. ST. JOHN; WILSHIRE CREDIT )
CORP.; EVANS APPRAISAL SERVICES, )
)
INC.; and DOES 1-10,
)
)
Defendants.
)
)
NORMAN W. ALLEN
)
Plaintiff,
)
vs.
)
)
T.D. SERVICE COMPANY; WELLS FARGO )
)
BANK, N.A. as Trustee for MLMI Trust
)
Series 2005-HE3; and DOES 1-10,
)
)
)
Defendants,
)
WELL FARGO BANK, N. A., as Trustee for )
MLMI Trust Series 2005-HE3; and BAC
)
)
HOME LOANS SERVICING, LP, a Texas
)
limited partnership, successor by merger to
)
Wilshire Credit Corporation,
)
)
)
Cross-Complainants,
)
vs.
)
NORMAN W. ALLEN,

Case No.: 45679


(Consolidated with Case No. 50324)
(Related Cases: No. 46190 and
Appellate Case No. C072171)
PLAINTIFF/CROSS-DEFENDANT
NORMAN W. ALLENS :
OBJECTION TO BANKS: NOTICE OF
MOTION AND MOTION BY WELLS
FARGO BANK, N.A. AS TRUSTEE AND
BANK OF AMERICA, N.A. FOR
CLARIFICATION OF DECEMBER 16,
2014 RULING

The Honorable Judge C. Anders Holmer


Department
Time: 8:30 AM
Date: April 30, 2015

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OBJECTION TO BANKS' REQUEST FOR CLARIFICATION OF ORDER

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)
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NORMAN W. ALLEN; DWIGHT A.
)
BENNETT; JUDITH A. ST. JOHN; EVANS )
APPRAISAL SERVICES INC.; and ROES 1- )
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10,
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Cross-Defendants,
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AND ALL OTHER CROSS - ACTIONS
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)
)

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ALLENS OBJECTION TO BANKS: NOTICE OF MOTION AND MOTION BY


WELLS FARGO BANK, N.A. AS TRUSTEE AND BANK OF AMERICA, N.A.
FOR CLARIFICATION OF DECEMBER 16, 2014 RULING

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Plaintiff/Cross-Defendant Norman W. Allen brings forth his objections to the Motion by


Wells Fargo Bank, N.A. as Trustee and Bank of America, N.A. for Clarification of December
16, 2014 Ruling.

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Introduction

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Defendants Wells Fargo Bank, N.A. (WFB) and Bank of America, N.A., (BofA)

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(collectively(Banks')) continuing and contemptible disregard for truth in this case and Court, and

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related cases and Courts, repeat their false allegations that: 1. "(property was uninsured despite

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dangers posed by fire season...)" Banks' Notice of Motion and Motion for Clarification (pg. 3,

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line 24) as the Banks primary justification for the July 21, 2011 imposition of a Rents and

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Profits Receiver: the truth is the Subject Property and Improvements were fully insured by

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Servicer force placed hazard insurance from May, 2009 to this date. 2. The second justification

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for the appointment of a rents and profits receiver was to collect Allen's cell tower lease

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payments: the truth is Wells Fargo and BAC had been collecting Allen's cell tower lease

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payments since April 12, 2011, without acquiring a court order.


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OBJECTION TO BANKS' REQUEST FOR CLARIFICATION OF ORDER

MEMORANDUM OF POINTS AND AUTHORITIES

I. HAZARD INSURANCE

1. Since there were no improvements on Allen's property, Allen stopped buying private

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hazard insurance in May, 2009.


2. The Ryan Firm, Wells Fargo Bank and servicer BAC Home Loans (BAC)
(predecessor to BofA), with malice aforethought, conspired to misrepresent that the Subject
Improvements were uninsured, and further, conspired to withhold notice from Allen that, in
truth, Servicer force placed hazard insurance on the Improvements would be, and had been
charged to Allen's escrow account; consequentially the Improvements were fully insured on
July 21, 2011. Worse yet, following the 2011 Summary Adjudication the Banks' continued to
withhold Notice of force placed hazard insurance and charged hazard insurance to Allen's
escrow account, whilst a Receiver was purportedly necessary to purchase hazard insurance.
Since May, 2009 force placed hazard insurance has always been in place, always through
the Servicer, and always paid through Allen's escrow account, first through Wilshire Credit
Corporation, then BAC, BofA, and since July, 2013, Nationstar Mortgage:
May 2010 Homeowners Insurance $2,228.00
May 2011 Homeowners Insurance $2,228.00
May 2012 Homeowners Insurance $2,228.00
May 2013 Insurance Payment
$2,228.00
(RJN Exhibit 1, pg. 3, center; and pg. 4, low middle, left)

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Requirement for Notification of Force Placed Insurance:


CFR 1024.37 Force-placed insurance.
(c) Requirements before charging borrower for force-placed insurance. (1) In
general. Before a servicer assesses on a borrower any premium charge or fee
related to force-placed insurance, the servicer must:
(i) Deliver to a borrower or place in the mail a written notice containing the
information required by paragraph (c)(2) of this section at least 45 days before
a servicer assesses on a borrower such charge or fee;
(ii) Deliver to the borrower or place in the mail a written notice in accordance
with paragraph (d)(1) of this section; and
(iii) By the end of the 15-day period beginning on the date the written notice
described in paragraph (c)(1)(ii) of this section was delivered to the borrower
or placed in the mail, not have received, from the borrower or otherwise,
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OBJECTION TO BANKS' REQUEST FOR CLARIFICATION OF ORDER

evidence demonstrating that the borrower has had in place, continuously,


hazard insurance coverage that complies with the loan contract's
requirements to maintain hazard insurance.
(d) Reminder notice. (1) In general. The notice required by paragraph (c)(1)
(ii) of this section shall be delivered to the borrower or placed in the mail at
least 15 days before a servicer assesses on a borrower a premium charge or
fee related to force-placed insurance. A servicer may not deliver to a borrower
or place in the mail the notice required by paragraph (c)(1)(ii) of this section
until at least 30 days after delivering to the borrower or placing in the mail the
written notice required by paragraph (c)(1)(i) of this section.

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3. If the Banks' were subject to the contractually required benefits and liabilities of the

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MLMI 2005-HE3 REMIC Pooling and Servicing Agreement, then the Banks' knew they were
required to maintain Hazard Insurance on the Mortgage Pooled Properties. On Page 67 of the
MLMI 2005-HE3 Pooling and Servicing Agreement filed with the Securities and Exchange
Commission on January 12, 2006 as Document EX-4.1 and accompanied by the 8-K Current
Report and EX-99.1 Mortgage Loans Sale and Assignment Agreement; It is stated:

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Section 3.10. Maintenance of Hazard Insurance

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The Servicer shall cause to be maintained, for each Mortgage Loan


secured by a first lien, fire and hazard insurance with extended coverage in an
amount, to the extent permitted by applicable law, that is at least equal to the
lesser of (i) the replacement value of the improvements that are part of such
Mortgaged Property and (ii) the greater of (a) the outstanding principle
balance of the Mortgage Loan and (b) an amount such that the proceeds of
such policy shall be sufficient to prevent the related Mortgagor and/or
mortgagee from becoming a co-insurer. Each such policy of standard hazard
insurance shall contain, or have an accompanying endorsement that contains,
a standard mortgage clause.
(RJN Exhibit 2, exhibit page 102)

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The Court need only ask the Receiver for receipts for the necessary purchase of hazard
insurance for the Subject Properties during her Receivership in 2011, 2012 and 2013.
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OBJECTION TO BANKS' REQUEST FOR CLARIFICATION OF ORDER

II. RENTS AND PROFITS

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The Ryan Firm mailed a Demand to Pay Rent to Party Other Than Landlord to

Tallac Tower Group, LLC on April 12, 2011, purporting that Wells Fargo Bank was the

secured party and assignee of Allen's cell tower lease payments. (RJN Exhibit 3. pg. 1), two

months prior to Jennifer Fishman's June 10, Declaration wherein Fishman, a BAC Operation

Team Lead, is ...authorized to make this declaration on behalf of BAC. The information set

forth in this declaration was assembled by employees of BAC, with the assistance of counsel,

based on a review of BAC and Wells Fargo Bank, N.A. (emphasis added) (RJN Exhibit 4, pg.

2, lines 17-20) Fishman states that 13. Wells Fargo will suffer irreparable injury if a receiver

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does not take possession and control of the Subject Property from Allen for the following

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reasons: (a) As has occurred with past rents collected by Allen, future rental proceeds which are

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not collected by a receiver are likely to be dissipated by Allen without servicing the debt; (b) A

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receiver is needed to oversee rent collection and maintenance of the Subject Property to avoid

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reduction in the value of the Subject Property which is security for the Note, and to ensure that

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the tenants will make payments to the receiver rather than to Allen; (RJN Exhibit 4, pg. 5, lines

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16-24) The cell tower lease was the only Rents and Profits arising from the Subject Property,

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and Allen did not and could not legally collect rents from Improvements that were not on Allen's

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Property.

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Payments made by Tallac Tower Group to Wells Fargo and BAC, two prior to Fishman's
June 10, 2011 Declaration, and another prior to the July 21, 2011 imposition of the Receiver:

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April 25, 2011 check #2330 - to Wells Fargo Bank, N.A. - $900.00
May 23, 2011 check #2339 - to BAC Home Loans Servicing - $900.00
June 21, 2011 check #2344 - to BAC Home Loans Servicing - $900.00
(RJN Exhibit 5, pg 2, first 3 lines, and pg. 4, top, #2.)

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It is noteworthy that Allen negotiated the cell tower lease to help offset excessive
payments for what the Banks' had known for over 5 years to be unimproved land. Allen waited
for the Beneficiary to file a claim against the ALTA policy Mr. Bennett had purchased, at sale,
through Chicago Title Company; and to take action against the appraiser, the County of Lassen,
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OBJECTION TO BANKS' REQUEST FOR CLARIFICATION OF ORDER

and the private surveyor, Mr. James Eddy, who fouled the Certificate of Compliance procedure.

Since July, 2005 Allen had been saddled with a $3,035.69 mortgage payment, reduced in June,

2006 to $2,528.40 after Wilshire Credit Corporation (WCC) received constructive notice of the

missing Improvements, and reduced the property tax impounds, clearly the Banks' knew the

Subject Property had no improvements. From 2005, when Allen notified Banks' of the boundary

and improvements issues, and throughout the installation of the cell tower, Allen was informed

and believed, by representation of Chicago Title Insurance Company, that only the creditor or

beneficiary of the Note was in the position to take action, and that a claim had been entered by a

creditor against the ALTA policy on the missing improvements. Pursuant with communications

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with Chicago Title regarding the ALTA policy purchased by Bennett at time of sale, the ALTA

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policy was in place and fully indemnified the creditor or beneficiary against the boundary errors

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that occurred in the division by the subject Lassen County Certificate of Compliance.

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III. BANKS' COMMISSIONS ARE NOT OMISSIONS

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The Bank's commissions are legion, based in fraud, and by their cannot be labeled as

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omissions. It is necessary to correct the record and Allen will address here a few commissions

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that are related to the Banks' Motion for Clarification re Lassen Case 45679, and related cases:

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1. The Banks have falsely alleged that Allen participated in a Scheme to Partition

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the original 54.03 acre parcel when in fact Allen did not participate in the division by Certificate

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of Compliance (CoC) , which is part of the California Subdivision Map Act. The CoC not only

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occurred prior to Allen's involvement, but was conducted in accordance with every normal, legal

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and official process required for completion according to custom and law What was unknown to

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the parties undertaking the CoC is that communications between Stephen Weich of Summit

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Financial Group, Inc. and James Eddy, a licensed surveyor acting under contract with Bennett,

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may have led to an apparent payoff, or other consideration, under which Mr. Eddy failed to

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fulfill the legal requirements necessary for the division by CoC of a property with

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improvements. Mr. Eddy, ironically, is the father-in-law and adjoining property owner of
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OBJECTION TO BANKS' REQUEST FOR CLARIFICATION OF ORDER

Defendant/Cross-Defendant Chris Talley (Summit Financial Group's appraiser for the Subject

Properties). Allen, based on information and belief, understands that Eddy, following the

discovery of the boundary error, was found removing Lassen case 45679 pertinent CoC files

from the Lassen County Surveyors Office. Moreover, it has come to Allen's and Bennett's

attention that Eddy, hired by Bennett as a licensed private surveyor to examine the Subject

Properties and prepare an elevation drawing for CoC submission to the Lassen Surveyors Office,

was the acting Lassen County Surveyor, and as entitled, Eddy approved his own examination

and drawings and pushed Bennett's CoC through the normal required procedures of approval by

the Lassen County Planning Department, and the Lassen County Board of Supervisors. More

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scandalous is that Mr. Pickering, counsel for Evans Appraisal Services and appraiser Chris

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Talley, hired Chris Talley's father-in-law Eddy to opine as expert witness on the few CoC

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documents, some counterfeit, remaining in the Lassen County Surveyors Office files.

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2. On July 21, 2011 Allen and the attorneys of record in Lassen case 45679 were at

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Whispering Pines Stables, the same day the Receiver was imposed on the Subject Properties and

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Improvements. Herein is a partial listing of those present: Mr. Tim Ryan of The Ryan Law Firm,

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as counsel for Banks' and Receiver; Mr. Peter Talia as counsel for Allen; Mr. Gerald Pickering

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as counsel for Evans Appraisal Services and Mr. Chris Talley; and Mr. Craig Close as counsel

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for Ms. Judith St. John; and Mr. Dwight Bennett.

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Let it be noted here that the Banks' and Ryan later claimed in their motion to seize and

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transfer horses already taken on July 21, 2011, that Ryan found 28 stinking horse carcasses on

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the Subject Properties, tons of flies and huge piles of manure inside stalls and outside the barn,

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and worst of all, starving and dying horse, and no horse feed (hay) on the property.

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Nothing further from the truth has been alleged by the Banks': all attorneys of record at

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this conclave remarked on how healthy the horses looked, the amount and quality of feed present

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for the horses, that there were no flies on the property, and no smells that might be associated

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with a boarding and riding stables. Bennett's help were working on cleaning the last stall in the

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large stable, everyone present enjoyed the sights and remarked on how good the horses looked,

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and the well maintained facilities that included stables, corrals, restrooms and picnic areas.
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OBJECTION TO BANKS' REQUEST FOR CLARIFICATION OF ORDER

Let it be known that these attorneys of record, as eyewitnesses and as officers of the

court, did not see and did not report abused, starving and dying horses, and yet they have not

stepped forward to right the Banks' fraudulent allegations in this and related cases, thus allowing

the Banks' and their various counsel to demolish Bennett's constitutional rights.

3. What is intentionally forgotten by the Banks', Lassen County District Attorney's, and

attorney's of record who are officers of the court in Lassen 45679 in their zealous prosecution of

Bennett is: the Receiver was in place for 36 days before The Grace Foundation salvaged the

abused, sick and dying horses; the Receiver did not call a veterinarian while the horses were

under her care; that the horses were well fed and healthy on July 21, 2011, the day the Receiver

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was imposed and the day the attorneys of record as officers of the court, were at Whispering

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Pines Stables.

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IV. EQUITABLE LIEN AND EQUITABLE MORTGAGE

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The Banks argue they were awarded an equitable lien and equitable mortgage over the
Subject Properties after the July 21, 2011 Summary Adjudication, but: a court of equity has
never been convened, so no equitable settlement has been determined, thus the equitable dollar
amount can only be zero ($0.00), therefore the services of a Receiver are not warranted.
Where a complaint fails by its allegations to show that the conditions
required by law have been complied with, an order appointing a
receiver is void for all purposes. In re Stein, 14 Cal.App.2d 303 (1936);
Rondos v. Superior Court, 151 Cal.App.2d 190 (1957)
http://www.bronstonlaw.com/selectedissues.htm

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There were not enough rents from Allens cell tower or Whispering Pines to support the

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Receiver. The Banks paid the Receivers excessive charges, and purportedly these excessive

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costs will be passed on to Allen's mortgage and Bennetts Bankruptcy estate. If Bennett had

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remained Debtor in Possession the excessive costs and the extent of decimation of property that
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OBJECTION TO BANKS' REQUEST FOR CLARIFICATION OF ORDER

occurred under the Receiver would have been reduced or eliminated. From Banks' Request for

Clarification:

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Indeed, the liabilities of the receiver are not ordinarily chargeable even to
the receiver herself: '"[Sh]e is not personally liable for torts committed in
the performance of [her] receivership duties; liability is in [her] official
capacity only, to be satisfied from receivership funds."' McCarthy v.
Poulsen, 173 Cal. App. 3d 1212, 1219 (1985). It does not follow that those
same liabilities are chargeable to the Banks, simply because they sought
the receiver's appointment. Except when the Banks Receiver was
appointed under fraudulent allegations. (Allen's note)

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See also (1) New Alaska Development Corp. v. Guetschow, 869 F.2d
1298, 1303-1305 (9th Cir. 1989), holding that a state court receiver is
entitled to absolute derivative judicial immunity, where a receiver is acting
in a normal receivership function, as the receiver is an agent of the court;
and (2) Credit Managers Association v. Kennesaw Life and Acc. Ins., 25
F.3d 743,750-751 (9th Cir. 1994), where the Ninth Circuit held that the
general rule in California is that a judgment against a receiver operates
only as an established claim against assets in the receivers possession
and is not enforceable by execution, but then stated that a receiver can
be held personally liable for his misconduct or mismanagement of the
receivership estate. (emphasis added)

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The Banks' knowledge of their fraudulent actions is pertinent to the Banks' lack of

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respect in questioning this Courts Order on the Receiver as well as the Banks' complete and utter

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disregard of the Honorable Judge C. Anders Holmer's order from the bench that Allen be given

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dollar for dollar credit for all cell tower lease payments taken by Wells Fargo Bank, Bank of

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America, and the Receiver.

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OBJECTION TO BANKS' REQUEST FOR CLARIFICATION OF ORDER

Conclusion

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Allen opposes the Banks request that the Court instead remove from any Order on the

Ruling any language addressing whether the Order Appointing Receiver in 2011 was necessary

and proper and how any costs or surcharges associated with the receivership be paid.

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Allen concurs with the Honorable Judge C. Anders Holmer that the receiver was
wrongfully appointed.
The Banks' perpetuation of false allegations in Lassen Superior Court, the Bankruptcy

Court, the 3d District Court of Appeals, and continuing with these same false allegations in their

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Motion for Clarification, demonstrate Mr. Tim Ryan's, Bryan Cave LLP's, and the Banks' eager

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participation in perjury, malicious prosecution, and flagrant disregard of legal ethics.

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Prayer

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Allen respectfully requests that the court order Wells Fargo and Bank of America, and

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their assigns, to cease and desist from any and all past, current and future claims and actions

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against Plaintiff and immediately return to Allen his rightful rents, leases and assigns, and any

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other payment(s) (plus interest) made to, or collected by, Wells Fargo, Wilshire Credit

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Corporation, BAC, Bank of America, and Nationstar.

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Date: ___April 17, 2015

Respectfully Submitted by,

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SIGNED: ___/s/ Norman W. Allen___

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Norman W. Allen, in Pro Per

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Signed at Janesville, California

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OBJECTION TO BANKS' REQUEST FOR CLARIFICATION OF ORDER

VERIFICATION

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I, NORMAN W. ALLEN, am the Plaintiff/Cross- Defendant in the above-entitled action.

I have read the foregoing moving papers, ALLENS OBJECTION TO BANKS: NOTICE

OF MOTION AND MOTION BY WELLS FARGO BANK, N.A. AS TRUSTEE AND

BANK OF AMERICA, N.A. FOR CLARIFICATION OF DECEMBER 16, 2014 RULING

and know the contents thereof. The same is true of my own knowledge, except as to those

matters which are therein alleged on information and belief, and as to those matters, I believe it

to be true.

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If called to the stand to testify under oath to the truth of the matters stated herein I could
and would do so competently and willingly.

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I declare under penalty of perjury that the foregoing is true and correct and that this declaration

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was executed at Janesville, California.

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DATED: April 17, 2015

___/s/ Norman W. Allen______

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Norman W Allen, in pro per

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OBJECTION TO BANKS' REQUEST FOR CLARIFICATION OF ORDER

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