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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Sep-20-2012 9:49 am
Case Number: CGC-12-522638
Filing Date: Sep-20-2012 9:48
Filed by:
Juke Box: 001 Image: 03771192
MEMORANDUM OF POINTS AND AUTHORITIES
RODOLFO VELASQUEZ VS. BANK OF AMERICA NATIONAL ASSOCIATION et al
001003771192
Instructions:
Please place this sheet on top of the document to be scanned.LAW OFFICES OF RUSSELL DAVIS
Russell Davis (SB 177959)
29 Lakewood Avenue t
San Francisco, CA 94109 3
Tel.: (415) 409-5627 ode LE,
Fax: (415) 520-2666 oun of San Francisco
Attorneys for Plaintiff AUG 20 2012
CLERK OF
ar Man Qt& COURT
Deputy Clerk
THE SUPERIOR COURT OF SAN FRANCISCO COUNTY
UNLIMITED JURISDICTION
RODOLFO VELASQUEZ, ) ACTION NO.: CGC-12-522683
)
Plaintiff, )
) Points and Authorities in Support of
vs. ) Motion to Reconsider or to Vacate the Court’s
Order re: Amount of Bonding
)
BANK OF AMERICA NATIONAL ) Date: October 25, 2012
ASSOCIATION, AMERICA’S ) Time: 9:30 am
WHOLESALE LENDER, ) Dept.: 501
COUNTRYWIDE HOME LOANS INC., _)
DOES 1-100 )
Defendants. )
)
Introduction
On September 6", 2012, the court heard argument regarding the plaintiff's motion for a
preliminary injunction prohibiting the sale of his real property pendente lite. The court granted the
motion; however, shortly thereafter it imposed a bonding requirement of $17,868.00. Plaintiff was
served by mail on September 10, 2012. Davis declaration, para. 3, exhibit 2. As shown below,
plaintiff submits that it is manifestly unjust to impose more than a nominal bonding requirement
because the subject promissory note and trust deed, under which the beneficiary claims to exercise
its power of sale, are void.
Argument
I. The beneficiary of the trust deed encumbering plaintiff’s property is not a legal entity.
Attached to the declaration of Russell Davis as exhibit 1 is a true and correct copy of adocument from the United States Patent and Trademark Office. It shows that “America’s Wholesale
Lender” is a service mark for Countrywide Home Loans Inc., and that the mark has been assigned
to Bank of America Corporation. “America’s Wholesale Lender” is not trademarked or service
marked in California. Declaration of Russell Davis, para. 5.
A trademark is "any word, name, symbol, or device or any combination thereof adopted and
used by a person to identify goods made or sold by him and to distinguish them from goods made
or sold by others." (Bus. & Prof. Code, § 14207.) A service mark is "a mark used in the sale or
advertising of services to identify the services of one person and distinguish them from the services
of others." (Bus. & Prof. Code, § 14206.). Cytanovich Reading Center v. Reading Game, 162 Cal.
App. 3d 107, 111, 208 Cal. Rptr. 412 (Cal.App.Dist.1 11/28/1984).
A legal entity is a body, other than a natural person, that can function legally, sue or be sued,
and make decisions through agents. Black’s Law Dictionary. A service mark is not a legal entity.
Crab Boat Owners Ass’n v. Hartford Ins. Co. of the Midwest, 325 F. Supp. 2d 1057, 1064, (N.D.
Cal. 2004). See also Doctors Medical Center of Modesto, Inc. v Principal Life Insurance Co. 2011
WL 1438156 (E.D. Cal. 2011, page 13), Pimal Property, Inc. v Capital Ins. Group, Inc., 2012 WL
608392, fn.1 (C.D. Ariz), Govango, Inc. v. Malabar Bag LLC 2012 WL 1836178, pg 2 (E.D. La.
2012, No. Civ. A. 11-1600)!
It is black letter law that one of the essential elements of a contract are parties capable of
contracting. CA Civil Code section 1550. As “America’s Wholesale Lender” is not a legal entity,
it cannot enter contracts. The subject contract is a note and trust deed entered into by “America’s
Wholesale Lender.” Davis declaration, exhibit 3. Because it was and remains a party not capable
of contracting the subject contract is void, and the service mark known as “America’s Wholesale
Lender” cannot foreclose its trust deed under the power of sale in that deed.
‘Federal cites are appropriate because “America’s Wholesale Lender” was service marked
by the U.S. Patent and Trademark Office. It was not so marked in California. A legal entity is a
natural person or a corporation or other business structure formed under the laws of a specific State.
Federal Rule of Civil Procedure 17(b). As there is no such entity formed in CA, it is appropriate to
use federal law.
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II. It is manifestly unjust to demand a high bonding requirement.
As shown above, “America’s Wholesale Lender” does not have the right to foreclose the
plaintiff's property. As such, the defendant’s demand for a high bonding requirement is manifestly
unjust because under no circumstances can the defendant foreclose pursuant to the existing trust
deed. Further, the beneficiary of the promissory note is also “America’s Wholesale Lender.” Again,
because it is not a legal entity, the promissory note is also void----therefore no debt is owed under
that promissory note. The purpose of the bonding requirement is to secure money owed to the
defendant(s). However, there is no valid debt under the existing note and therefore nothing to
secure. Therefore, the plaintiff's bonding requirement to prevent foreclosure pendente lite should
be a nominal amount to simply comport with statutory requirements.
Conclusion
For the foregoing reasons, plaintiff submits that the current bonding requirement is
manifestly unjust and requests that the court lower it to a nominal amount.
Dated: 09/19/2012
Rudolfo Velasquez
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Oa SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Sep-20-2012 9:49 am Case Number: CGC-12-522638 Filing Date: Sep-20-2012 9:48 Filed by: Juke Box: 001 Image: 03771192 MEMORANDUM OF POINTS AND AUTHORITIES RODOLFO VELASQUEZ VS. BANK OF AMERICA NATIONAL ASSOCIATION et al 001003771192 Instructions: Please place this sheet on top of the document to be scanned.LAW OFFICES OF RUSSELL DAVIS Russell Davis (SB 177959) 29 Lakewood Avenue t San Francisco, CA 94109 3 Tel.: (415) 409-5627 ode LE, Fax: (415) 520-2666 oun of San Francisco Attorneys for Plaintiff AUG 20 2012 CLERK OF ar Man Qt& COURT Deputy Clerk THE SUPERIOR COURT OF SAN FRANCISCO COUNTY UNLIMITED JURISDICTION RODOLFO VELASQUEZ, ) ACTION NO.: CGC-12-522683 ) Plaintiff, ) ) Points and Authorities in Support of vs. ) Motion to Reconsider or to Vacate the Court’s Order re: Amount of Bonding ) BANK OF AMERICA NATIONAL ) Date: October 25, 2012 ASSOCIATION, AMERICA’S ) Time: 9:30 am WHOLESALE LENDER, ) Dept.: 501 COUNTRYWIDE HOME LOANS INC., _) DOES 1-100 ) Defendants. ) ) Introduction On September 6", 2012, the court heard argument regarding the plaintiff's motion for a preliminary injunction prohibiting the sale of his real property pendente lite. The court granted the motion; however, shortly thereafter it imposed a bonding requirement of $17,868.00. Plaintiff was served by mail on September 10, 2012. Davis declaration, para. 3, exhibit 2. As shown below, plaintiff submits that it is manifestly unjust to impose more than a nominal bonding requirement because the subject promissory note and trust deed, under which the beneficiary claims to exercise its power of sale, are void. Argument I. The beneficiary of the trust deed encumbering plaintiff’s property is not a legal entity. Attached to the declaration of Russell Davis as exhibit 1 is a true and correct copy of adocument from the United States Patent and Trademark Office. It shows that “America’s Wholesale Lender” is a service mark for Countrywide Home Loans Inc., and that the mark has been assigned to Bank of America Corporation. “America’s Wholesale Lender” is not trademarked or service marked in California. Declaration of Russell Davis, para. 5. A trademark is "any word, name, symbol, or device or any combination thereof adopted and used by a person to identify goods made or sold by him and to distinguish them from goods made or sold by others." (Bus. & Prof. Code, § 14207.) A service mark is "a mark used in the sale or advertising of services to identify the services of one person and distinguish them from the services of others." (Bus. & Prof. Code, § 14206.). Cytanovich Reading Center v. Reading Game, 162 Cal. App. 3d 107, 111, 208 Cal. Rptr. 412 (Cal.App.Dist.1 11/28/1984). A legal entity is a body, other than a natural person, that can function legally, sue or be sued, and make decisions through agents. Black’s Law Dictionary. A service mark is not a legal entity. Crab Boat Owners Ass’n v. Hartford Ins. Co. of the Midwest, 325 F. Supp. 2d 1057, 1064, (N.D. Cal. 2004). See also Doctors Medical Center of Modesto, Inc. v Principal Life Insurance Co. 2011 WL 1438156 (E.D. Cal. 2011, page 13), Pimal Property, Inc. v Capital Ins. Group, Inc., 2012 WL 608392, fn.1 (C.D. Ariz), Govango, Inc. v. Malabar Bag LLC 2012 WL 1836178, pg 2 (E.D. La. 2012, No. Civ. A. 11-1600)! It is black letter law that one of the essential elements of a contract are parties capable of contracting. CA Civil Code section 1550. As “America’s Wholesale Lender” is not a legal entity, it cannot enter contracts. The subject contract is a note and trust deed entered into by “America’s Wholesale Lender.” Davis declaration, exhibit 3. Because it was and remains a party not capable of contracting the subject contract is void, and the service mark known as “America’s Wholesale Lender” cannot foreclose its trust deed under the power of sale in that deed. ‘Federal cites are appropriate because “America’s Wholesale Lender” was service marked by the U.S. Patent and Trademark Office. It was not so marked in California. A legal entity is a natural person or a corporation or other business structure formed under the laws of a specific State. Federal Rule of Civil Procedure 17(b). As there is no such entity formed in CA, it is appropriate to use federal law. -2-SO ew ND HW BF BW NY NY N YN YN NN NY NY S&B Be Be Be we ewe we He oe YN DA BF YWwNH KF= S Owe KAN AA BR wBw NH II. It is manifestly unjust to demand a high bonding requirement. As shown above, “America’s Wholesale Lender” does not have the right to foreclose the plaintiff's property. As such, the defendant’s demand for a high bonding requirement is manifestly unjust because under no circumstances can the defendant foreclose pursuant to the existing trust deed. Further, the beneficiary of the promissory note is also “America’s Wholesale Lender.” Again, because it is not a legal entity, the promissory note is also void----therefore no debt is owed under that promissory note. The purpose of the bonding requirement is to secure money owed to the defendant(s). However, there is no valid debt under the existing note and therefore nothing to secure. Therefore, the plaintiff's bonding requirement to prevent foreclosure pendente lite should be a nominal amount to simply comport with statutory requirements. Conclusion For the foregoing reasons, plaintiff submits that the current bonding requirement is manifestly unjust and requests that the court lower it to a nominal amount. Dated: 09/19/2012 Rudolfo Velasquez