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TIMOTHY L. MCCANDLESS, ESQ. SBN 147715 LAW OFFICES OF TIMOTHY L. MCCANDLESS 1881 Business Center Drive Suite 9A San Bernardino, CA 92408 (909) 890-9192 Telephone (909) 382-9956 Facsimile Attorney for Plaintiff, Faye Myrette-Crosley UNITED DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION Faye Myrette-Crosley

CASE NO: 4:10-CV-03523-CW NOTICE OF MOTION AND MOTION FOR ENTRY OF DEFAULT JUDGMENT AGAINST DEFENDANT ONEWEST BANK; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF;DECLARATION OF FAYE MYRETTE-CROSLEY;DECLARATION OF TIMOTHY MCCANDLESS AND PROPOSED ORDER Fed. R. Civ. P. 55(b)(2)

Plaintiff,
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V. CLARION MORTGAGE CAPITAL, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; MTC FINANCIAL DBA TRUSTEE CORPS; INDYMAC FEDERAL BANK, F.S.B.; FEDERAL HOME LOAN MORTGAGE CORPORATION; ONEWEST BANK, F.S.B.; and DOES 1 through 50 inclusive

JUDGE: HON. CLAUDIA WILKEN

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Defendants.

TO ALL PARTIES AND THEIR COUNSEL OF RECORD: Plaintiff hereby moves the Court, pursuant to Federal Rule of Civil Procedure 55, for an order granting a default judgment against Defendant ONEWEST BANK, F.S.B. The motion is

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based on this notice, the accompanying memorandum of points and authorities, the attached declarations and exhibits thereto, and such other matters as the Court may deem justified. For the foregoing reasons, Plaintiff, Faye Myrette-Crosley respectfully requests the

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Court: 1) Enter default judgment against Defendant ONEWEST BANK, F.S.B. as to the claim for relief in the complaint. 2) Enter a permanent injunction against Defendant ONEWEST. 3) Award Plaintiff damages against Defendant ONEWEST. 4) Award Plaintiff costs against Defendant ONEWEST. 5) For the cancellation of the sale and restitution of the home to Plaintiff. 6) For such other and further relief as the court may deem just and proper.

Dated May 5, 2011

The Law Offices of Timothy McCandless

___________________________________ Timothy McCandless Attorney for Plaintiff, Faye Myrette-Crosley

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PLAINTIFF FAYE MYRETTE CROSLEYS MEMORANDUM OF LAW IN SUPPORT OF THE MOTION FOR DEFAULT JUDGMENT I. INTRODUCTION On July 1, 2010, Plaintiff filed and served the Complaint for real property against Defendant ONEWEST BANK, F.S.B. arising out of Defendants in this action against Defendant(s), ONEWEST BANK, FSB. [hereinafter ONEWEST].

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Defendant ONEWEST BANK, F.S.B. failed to answer the complaint under Rule 12(a)(1)(B) and is therefore is in default. The clerk having entered default against Defendant, ONEWEST BANK, F.S.B. respectfully requests that the Court enter default judgment in its favor. II. BACKGROUND Plaintiff commenced this action in the Superior Court of Contra Costa on July 1, 2010. Defendant was served with the Summons and Complaint on July 8, 2010.On August 10, 2010 A Request for Entry of Default against Defendant OneWest Bank, FSB was entered and signed by Clerk D. Wagner of the Superior Court of California Contra Costa. See Exhibit B attached hereto as a true and correct copy of the Request for Entry of Default on file with the Court. On August 11, 2010, Federal Deposit Insurance Corporation as receiver for Defendant Indymac Federal Bank, F.S.B. timely removed the action to this Court. Defendant ONEWEST BANK, F.S.B. did not answer the complaint within twenty-one days. On August 09, 2010 Plaintiff filed an application for entry of default. On August 10, 2010 the clerk of the Superior Court of Contra Costa entered default. On March 25, 2011 Defendant having still not answered in accordance with Rule 12(a)(1)(B), Plaintiff moved for a Request to Enter Default in accordance with Fed. Rule of Civil Procedure 55. III. MEMORANDUM OF POINTS AND AUTHORITIES Where, as here, a party has failed to file an answer or otherwise defend a claim, default judgment may be entered against that party. The legal effect of a partys failure to respond is twofold:

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1) The party is deemed to admit liability concerning the allegations in the pleading 2) The Court may enter judgment against the defaulting party of the damages are capable of being ascertained.

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First, Defendant ONEWEST denied full and equal services to PLAINTIFF in that they did not call contact or offer her alternatives to foreclosure as mandated by Civil Code 2923.5. The terms and conditions were never disclosed to Plaintiff and the loan exceeded the reasonable expected value of the property at that time. The loan terms were unconscionable and could not reasonably afford Plaintiff the ability to repay the loan. Second and furthermore, the Notice of Default was invalid, falsely executed and unenforceable due to the intentional and willful violations including but, not limited to failing and/or refusing to mail the Notice of Default within ten business days to Plaintiff, to post and mail the Notice of Default within one month, to properly set the sale date, to publish the Notice of Sale twenty days prior to the date set for sale, and to record the Notice of Sale as required by California Civil Code 2924. Plaintiff has suffered damages accordingly and is requesting that judgment be entered forthwith for the cancellation of the sale and restitution of the home to plaintiff.

IV. THE RELIEF REQUESTED IS APPROPRIATE A Court may order a default judgment pursuant to Fed. R. Civ. P. 55(b) following the entry of default by the court clerk under Rule 55(a). Fed.R. Civ. P. 55(b). Upon entry of default by the clerk, Plaintiff is deemed to have admitted all well-pled factual allegations in Plaintiffs complaint. Although the procedural requirements for a default are satisfied, the decision to grant or to deny a request for default judgment lies within the Courts discretion. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). When exercising this discretion, the Court is guided by the following: 1) The merits of the Plaintiffs claim 2) Sufficiency of the complaint 3) The amount of money at stake in this action 4) The possibility of prejudice to the Plaintiff

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5) The possibility of dispute concerning material facts 6) Whether the default was due to excusable neglect 7) The policy of the Federal Rules of Civil Procedure favoring a decision on the merits

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Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Nonetheless, despite the discretionary standard, default judgments are more often granted than denied. Philip Morris USA, Inc. v. Castworld Products, Inc., 219 R.R.D. 494, 498 (C.D. Cal. 2003) (quoting PepsiCo. V. Triunfo-Mex, Inc.,189 F.R.D. 431, 432 (C.D. Cal. 1999)). A. A permanent Injunction Should be Entered. Permanent Injunction relief is appropriate where a Plaintiff demonstrates: 1) It has suffered irreparable injury 2) There is no adequate remedy at law 3) The balance of hardships favors an equitable remedy 4) An issuance of an injunction is in the publics best interest. Plaintiff satisfies each element as Defendants, and each of them, failed to comply with California Civil Code section 2923.5(c)(1), in that said Defendants failed and/or refused to comply with the mandates of said section which requires in part that the Defendants provide Plaintiff with options to avoid the foreclosure of her property, and as such any foreclosure sale would be void. In addition, Defendant INDYMAC chose to ignore PLAINTIFFS submissions of her completed loan modification package.If the trustee sale scheduled for May 16, 2011 commences, Plaintiff will suffer further irreparable harm as Plaintiff who is suffering from stomach cancer and is wholly responsible for taking care of a special-needs deaf child including three other minor children would lose her home. Defendants actions merit permanent injunctive relief, not only to protect Plaintiff and her familys existence but to also protect other consumers in these types of action from being deceived. Additionally, the defendants failure to respond or otherwise appear in this action makes it difficult for Plaintiff to prevent further harm unless the Court grants the relief requested. (See Pepsico, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1178 (C.D. Cal. 2002) granting injunctive relief in part because in the absence of opposition by the non-appearing defendant, it cannot be said that it is absolutely clear. That defendants allegedly wrongful behavior has ceased and will not begin again). V.

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CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court: 1) Enter Default Judgment finding the Defendant ONEWEST liable.

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2) Enter a permanent injunction against Defendant ONEWEST. 3) Other and further relief as the Court may deem just and proper.

Dated May 5, 2011

The Law Offices of Timothy McCandless

___________________________________ Timothy McCandless Attorney for Plaintiff, Faye Myrette-Crosley

TIMOTHY L. MCCANDLESS, ESQ. SBN 147715

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LAW OFFICES OF TIMOTHY L. MCCANDLESS 1881 Business Center Drive Suite 9A San Bernardino, CA 92408 (909) 890-9192 Telephone (909) 382-9956 Facsimile Attorney for Plaintiff, Faye Myrette-Crosley UNITED DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION
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FAYE MYRETTE-CROSLEY

CASE NO: 4:10-CV-03523-CW DECLARATION OF FAYE MYRETTECROSLEY IN SUPPORT OF REQUEST FOR ENTRY OF DEFAULT JUDGMENT

Plaintiff, V.

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CLARION MORTGAGE CAPITAL, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; MTC FINANCIAL DBA TRUSTEE CORPS; INDYMAC FEDERAL BANK, F.S.B.; FEDERAL HOME LOAN MORTGAGE CORPORATION; ONEWEST BANK, F.S.B.; and DOES 1 through 50 inclusive Defendants.

JUDGE: HON. CLAUDIA WILKEN

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TO THE COURT AND THEIR ATTORNEYS OF RECORD:

I have personal knowledge of all facts stated in this declaration and, if called to testify, I could and would competently do so. I am the borrower and the owner of this property. I have

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been in contact with Indymac regarding a modification of my home loan. Indymac never contacted me prior to filing the notice of default that was filed on I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Submitted this 5th Day of May, 2011

________________________________________________ Faye Myrette-Crosley, Plaintiff

TIMOTHY L. MCCANDLESS, ESQ. SBN 147715 LAW OFFICES OF TIMOTHY L. MCCANDLESS 1881 Business Center Drive Suite 9A San Bernardino, CA 92408 (909) 890-9192 Telephone (909) 382-9956 Facsimile Attorney for Plaintiff, Faye Myrette-Crosley UNITED DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

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FAYE MYRETTE-CROSLEY

CASE NO: 4:10-CV-03523-CW DECLARATION OF TIMOTHY MCCANDLESS IN SUPPORT OF REQUEST FOR ENTRY OF DEFAULT JUDGMENT

Plaintiff, V. CLARION MORTGAGE CAPITAL, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; MTC FINANCIAL DBA TRUSTEE CORPS; INDYMAC FEDERAL BANK, F.S.B.; FEDERAL HOME LOAN MORTGAGE CORPORATION; ONEWEST BANK, F.S.B.; and DOES 1 through 50 inclusive Defendants.

JUDGE: HON. CLAUDIA WILKEN

TO THE COURT AND THEIR ATTORNEYS OF RECORD:

I, Timothy McCandless, declare and say: 1. I am an attorney duly licensed to practice before this Court, and am counsel of the Law Offices of Timothy L. McCandless, and am the counsel of record for Plaintiff, FAYE MYRETTE-CROSLEY in the above captioned matter. I make this declaration, which is filed in support of Plaintiffs Motion for Entry of Default Judgment, and I could and would testify competently to the matters set forth herein. 2. On July 1, 2010, Plaintiff filed the Complaint in this action against Defendant(s), ONEWEST BANK, FSB. Service of the summons and complaint commenced on July 8, 2010. Attached hereto as Exhibit A is a true and correct copy of the proof of service on file with the Court, reflecting that Defendant was served with the Summons and Complaint on July 8, 2010.

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3. On August 10, 2010 A Request for Entry of Default against Defendant OneWest Bank, FSB was entered and signed by Clerk D. Wagner of the Superior Court of California

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Contra Costa. Attached hereto as Exhibit B is a true and correct copy of the Request for Entry of Default on file with the Court. 4. Defendant has not been granted any extension of time to respond to the Complaint.

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5. I am informed and believe that Defendant, ONEWEST BANK, FSB is not an infant or incompetent person/entity. 6. I am informed and believe that Defendant is not in service of the military.

I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct and is executed this 5th day of May, 2011 at San Bernardino California.

________________________________ Timothy McCandless, Declarant

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EXHIBIT A
Proof of Service of OneWest Bank FSB

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EXHIBIT B
REQUEST FOR ENTRY OF DEFAULT
TIMOTHY L. MCCANDLESS, ESQ. SBN 147715 LAW OFFICES OF TIMOTHY L. MCCANDLESS 1881 Business Center Drive Suite 9A San Bernardino, CA 92408 (909) 890-9192 Telephone (909) 382-9956 Facsimile Attorney for Plaintiff, Faye Myrette-Crosley UNITED DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

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Faye Myrette-Crosley

CASE NO: 4:10-CV-03523-CW PROOF OF SERVICE Plaintiff,

V. CLARION MORTGAGE CAPITAL, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; MTC FINANCIAL DBA TRUSTEE CORPS; INDYMAC FEDERAL BANK, F.S.B.; FEDERAL HOME LOAN MORTGAGE CORPORATION; ONEWEST BANK, F.S.B.; and DOES 1 through 50 inclusive Defendants.

I, Diane Van Tassel certify and declare that I am employed in the county in San Bernardino and state set forth above. I am over the age of 18 and not a party to the within action; my business address is:.1881 Business Center Drive, Ste. 9ASan Bernardino, CA 92868.

On May 5th, 2011 I served the foregoing document described as: NOTICE OF MOTION AND MOTION FOR ENTRY OF DEFAULT JUDGMENT AGAINST DEFENDANT ONEWEST BANK; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF;DECLARATION OF FAYE MYRETTE-CROSLEY;DECLARATION OF TIMOTHY MCCANDLESS AND PROPOSED ORDER (X) by placing () the original (X) a true copy thereof enclosed in a sealed envelope addressed as follows:

Attorney for DEFENDANTS FDIC as Receiver for Indymac Federal Bank FSB
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MICHAEL J. HASSEN CHRISTOPHER H. DOYLE Two Embarcadero Center, Fifth Floor San Francisco, CA 94111-3813 415/398-8080; Fax: 415/398-5584 ONEWEST BANK c/o Maria Curiel 888 E. Walnut Street Pasadena, CA 91101-5646

(X) (BY MAIL) I deposited with the U.S. postal service on that same day with postage thereon fully prepaid at the city set forth above. (X) (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on May 5th 2011 in San Bernardino California.

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______________________ Diane Van Tassel

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