Preview
/\\\o
Dean A. Reeves (# 150558)
dreeves@afrct.com
AN GLIN, FLEWELLING, RASMUSSEN,
. L E(:20t
FMATEO
CAMPBELL & TRYTTEN LLP SAN
#WN
301 N. Lake Avenue, Suite 1100 JUN .. a 2017
Pasadena, California 91101-4158
Telephone: (626) 535-1900
Facsimile: (626) 577-7764
Attorneys for Defendant ‘
WELLS FARGO BANK, N.A., successor by
merger with Wells Fargo Bank Southwest, N.A.,
\DOO\10\Ul
f/k/a Wachovia Mortgage, FSB, f/k/a World
Savings Bank, FSB
LLP
SUPERIOR COURT OF THE STATE OF CALIFORNIA
TRYTTEN CIV539088
FOR THE COUNTY OF SAN MATEO RJN .
Request tor Judicial Notlne
& 533726
CAMPBELL
CHERYL TROUTT, an individual, Case No.: CIV539088 | IIllIll||||lll|ll|||||||||l||l|Ill
Plaintiff, Assigned for all purposes to:
Hon. Robert D. Foiles
Dept. : 2 1
RASMUSSEN v.
REQUEST FOR JUDICIAL NOTICE IN
WELLS FARGO BANK, N.A.; NBS SUPPORT OF DEMURRER BY
DEFAULT SERVICES, LLC; ALL PERSONS DEFENDANT WELLS FARGO BANK,
FLEWELLING
UNKNOWN CLAIMIN G ANY LEGAL OR N.A. TO VERIFIED THIRD AMENDED
EQUITABLE RIGHT, TITLE, ESTATE, COMPLAINT
LIEN, OR INTEREST IN THE SUBJECT
PROPERTY ADVERSE TO PLAINTIFF’S [Filed with Demurrer]
ANGLIN
CLAIM OF RIGHT TO TITLE; and DOES 1
through 20, inclusive, Date: July 6, 2017
Time: 9:00 am.
Defendants. Dept. : 2’1’ 4 4. I»—
Trial” Date: None
Action Filed: June 13. 2016
TO THE HONORABLE COURT, TO PLAINTIFF AND HER COUNSEL OF RECORD:
1%]
Pursuant to California Evidence Code §§ 452(0) (d), (h) and 453, defendant WELLS
FARGO BANK, N.A., successor by merger with Wells Fargo Bank Southwest, N.A., f/k/a
EX
L Wachovia Mortgage, FSB, f/k/a World Savings Bank, FSB (“Wells Fargo”) hereby requests that
@ the Court take judicial notice of the following documents submitted in support of its Demurrer to
the Third Amended Complaint:
93000/FR1986/01757304-1
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO TPHRD AMENDED COMPLAINT
1. Fixed Rate Mortgage Note, dated May 31, 2007 and signed by plaintiff Cheryl
Troutt; a true and correct copy is attached as W.
2. Deed of Trust, dated May 31, 2007 and recorded in the official records of the .
4: Office of the San Mateo County Recorder on June 8, 2007, as Document No. 2007-088529; a
true and correct copy is attached as Exhibit B.
Modification Agreement dated June by plaintiff Cheryl
\lONl/I
3. 11, 2009 and signed
Troutt; a true and correct copy is attached as Exhib_1tC.
LLP 4. Notice of Default. and Election to Sell Under Deed of Trust, dated February 9,
2016 and recorded in the official records of the Office of the San Mateo County Recorder on
TRYTTEN
&
1o February 11, 2016 as Document No. 2016-012513; a true and correct copy is attached as M
11 D.
CAMPBELL
12 5. Notice of Trustee’s Sale, recorded in the official records of the Office of the San
13 Mateo County Recorder on May 16, 2016 as Document No. 2016-045651; a true and correct -
RASMUSSEN
14 copy is attached as Exhibit E.
15 6. Trustee’s Deed Upon Sale, dated June 6, 2016 and recorded in the official records
16 of the Office of the San Mateo County Recorder on June 21, 2016 as Document No. 2016-
FLEWELLING
17 060413; a true and correct copy is attached as Exhibit F.
18 7. Certificate of Corporate Existence dated April 21, 2006, Office of Thrift
ANGLIN
19 Supervision, Department of the Treasury; a true and correct copy is attached as Exhibit G.
20 8. Letter dated November 19, 2007, Office of Thrift Supervision, Department of the
21 Treasury; a true and correct copy is attached as Exhibit H.
22 9. Official Certification of the Comptroller of the Currency (“OCC”) stating that
23 effective November 1, 2009, Wachovia Mortgage, FSB converted to Wells Fargo Bank
24 Southwest, N.A., which then merged with and into wells Fargo Bank, N.A.; a true and correct
25 copy is attached as ELM- .
26 10. Voluntary Chapter 13 petition filed by plaintiff on September 24, 2010 in the
27 United States Bankruptcy Court, Northern District of California, San Francisco Division, Case
2s No. 10-33759; a true and correct copy is attached as Exhibit J.
93000/FR1986/01757304-1 2
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO THIRD AMENDED COMPLAINT
11. Second Amended Chapter 13 Plan filed by plaintiff on December 28, 2010 in the
United States Bankruptcy Court, Northern District of California, San Francisco Division, Case
No. 10-33759; a true and correct coy is attached as M.
12. Order Confirming Chapter 13 Plan filed on January 21, 2011 in the United States
Bankruptcy Court, Northern District of California, San Francisco Division, Case No. 10-33759; a
OOQONUl-b
true and correct coy is attached as EM.
13. Motion for Relief from Automatic Stay filed on March 23, 2011 in the United
LLP States Bankruptcy Court, Northern District of California, San Francisco Division, Case No. 10-
\O 33759; a true and correct copy is attached as Exhibit M.
TRYTTEN
10 14. Bankruptcy Court Docket of the United States Bankruptcy Court, Northern
&
ll District of California, San Francisco Division, Case No.: 10-33759; a true and correct copy is
CAMPBELL
12 attached as Exhibit N.
13 15. Discharge of Debtor after Completion of Chapter 13 Plan filed on May 26, 2015
RASMUSSEN
14 in the United States Bankruptcy Court, Northern District of California, San Francisco Division,
15 Case No. 10-3375; a true and correct copy is attached as Exhibit 0.
16 16. Judicial notice is appropriate for Exhibits A and C because these documents form
FLEWELLING
17 the basis of plaintiff’s claims, and its authenticity is not believed to be in question. A court may
18 consider facts and take judicial notice of the existence of a document. Stormedia Inc. v. Superior
ANGLIN
19 Court, 20 Cal. 4th 449, 457, n.9 (1999). When a document is not attached to the plaintiffs
20 complaint and its contents form the basis of the allegations, the court may properly take judicial
21 notice of those contents. Ingram v. Flippo, 74 Cal. App. 4th 1280, 1285, n.3 (1999); Marina
22 Tenants Ass ’n v. Deauville Marina Dev. Co., 181 Cal. App. 3d 122, 128 (1986).
23 Judicial notice is appropriate for Exhibits B and D through F because these documents
24 are true and correct copies of official public records of the San Mateo County Recorder’s Office,
25 whose authenticity is capable of accurate and ready determination by resort to sources whose
26 accuracy cannot reasonably be questioned. “A court may take judicial notice of something that
27 cannot reasonably be controverted [such as a recorded deed], even if it negates an express
28 allegation of the pleading.” Alfaro v. Community Housing Improvement System & Planning
93000/FR1986/Ol757304-1 3
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO THIRD AMENDED COMPLAINT
Assn, Inc., 171 Cal. App. 4th 1356, 1382 (2009) (internal quotations and citation omitted;
brackets in original); see also McElroy v. Chase Manhattan Mortg. Corp., 134 Cal. App. 4th 388,
394 (2005) (demurrer upheld against wrongful foreclosure based on judicial notice of (1) Notice
of Default and Election to Sell under Deed of Trust, (2) Notice of Trustee’s Sale, and (3)
Trustee’s Deed Upon Sale).
Judicial notice is appropriate for Exhibits G through I because these documents are true
\OOONQUIAUJN
and correct copies of documents reflecting official acts of the legislative and executive
LLP departments of the United States, pursuant to Cal. Evid. Code § 452. Hite v. Wachovia
Mortgage, 2010 US. Dist. LEXIS 57732, *6—9 (E.D. Cal. June 10, 2010) (court took judicial
TRYTTEN
10 notice of the documents that Wells Fargo is introducing in Exhibits G — I, above). Furthermore,
&
11 judicial notice is appropriate for information obtained'from governmental websites. Paralyzed
CAMPBELL
12 Veterans ofAm. v. McPherson, 2008 U.S. Dist. LEXIS 69542, *17-18 (N .D. Cal. Sept. 8, 2008)
13 (court took judicial notice of information appearing on and printed from official government
RASMUSSEN
14 websites -- citing numerous decisions from federal circuits and district courts all approving
15 judicial notice of information obtained from government websites).
FLEWELLING
16 Judicial notice is appropriate for Exhibits J through 0 because these documents are true
17 and correct copies of official records of the United States Bankruptcy Court, Northern District of
18 California, San Francisco Division. [Cal. Evid. Code §452(d).]
ANGLIN
19 AUTHENTICATION. The documents are authenticated in the attached declaration of
20 Dean A. Reeves.
21 Respectfully submitted,
22 Dated: June 2, 2017 ANGLIN, FLEWELLING, RASMUSSEN,
CAMPBELL & TRYTTEN LLP
23
24
25 Dean A. ReeveJS
Attorneys for Defendant
26 WELLS FARGO BANK, N.A., successor by
merger with Wells Fargo Bank Southwest, N.A.,
27 f/k/a Wachovia Mortgage, FSB, f/k/a World
Savings Bank, FSB
28
93000/FR1986/01757304-I 4
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO THIRD AMENDED COMPLAINT
DECLARATION OFQEAN A. REEVES
1, Dean A. Reeves, declare:
1. I am an attorney at law licensed to practice before this Court and am employed
by the law firm of Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP, counsel of record
KOOOQONUI-hb-iwt—a
for defendant WELLS FARGO BANK, N.A., successor by merger with Wells Fargo Bank
Southwest, N.A., f/k/a Wachovia Mortgage, FSB, f/k/a'World Savings Bank, FSB (“Wells
Fargo”). I am personally familiar with the facts set forth in this declaration based on my review
I
LLP of the documents which are attached hereto.
2. Attached as Exhibit A is a true and correct copy of the Fixed Rate Mortgage
TRYTTEN
Note, dated May 31, 2007 and signed by plaintiff Cheryl Troutt.
&
3. Attached as Exhibit B is a true and correct copy of the Deed of Trust, dated May
CAMPBELL
31, 2007 and recorded in the official records of the Office of the San Mateo County Recorder on
June 8, 2007, as Document No. 2007-088529.
RASMUSSEN
4. Attached as Exhibit C is a true and correct copy of the Modification Agreement
dated June 11, 2009 and signed by plaintiff Cheryl Troutt.
5. Attached as Exhibit D is a true and correct copy of the Notice of Default and
FLEWELLING
NNNNNNNNNHD—‘r—li—‘D—‘I—Ih—lp—lr—Il—I
Election to Sell Under Deed of Trust, dated February 9:2016 and recorded in the official records
of the Office of the San Mateo County Recorder on February 11, 2016 as Document No. 2016-
ANGLlN
WflOM-PWNHOQOOQCBM-PWNHO
01 25 1 3.
6. Attached as Exhibit E is a true and correct copy of the Notice of Trustee’s Sale,
recorded in the official records of the Office of the San Mateo County Recorder on May 16,
2016 as Document No. 2016-045651.
7. Attached as Exhibit F is a true and correct copy of the Trustee’s Deed Upon Sale,
dated June 6, 2016 and recorded in the official records of the Office of the San Mateo County
Recorder on June 21, 2016 as Document No. 2016-060413.
8. Attached as Exhibit G is a true and correct copy of the Certificate of Corporate
Existence dated April 21, 2006, Office of Thrift Supervision, Department of the Treasury.
93000/FR1986/01757304-l 1
DECLARATION OF DEAN A. REEVES
9. Attached as Exhibit H is a true and correct copy of the Letter dated November 19,
2007, Office of Thrift Supervision, Department of the Treasury.
10. Attached as Exhibit I is a true and correct copy of the Official Certification of the
Comptroller of the Currency (“OCC”) stating that effective November 1, 2009, Wachovia
Mortgage, FSB converted to Wells Fargo Bank Southwest, NA.
©00\IO\MAWNH
11. Attached as Exhibit J is a true and correct copy of the Voluntary Chapter 13
petition filed by plaintiff on September 24, 2010 in the United States Bankruptcy Court,
LLP Northern District of California, San Francisco Division, Case No. 10-33759.
12. Attached as Exhibit K is a true and correct copy of the Second Amended Chapter
TRYTTEN
13 Plan filed by plaintiff on December 28, 2010 in the United States Bankruptcy Court,
&
Northern District of California, San Francisco Division, Case No. 10-33759.
CAMPBELL
l3. Attached as Exhibit L is a true and correct copy of the Order Confirming Chapter
13 Plan filed on January 21, 2011 in the United States Bankruptcy Court, Northern District of
RASMUSSEN
California, San Francisco Division, Case No. 10-33759.
l4. Attached as Exhibit M is a true and correct copy of the Motion for Relief from
Automatic Stay filed on March 23, 2011 in the United States Bankruptcy Court, Northern
FLEWELLING
NNNNNNNNNr—nv—dy—ty—Ip—ar—tr—av—ny—tr—I
District of California, San Francisco Division, Case No. 10-33759.
ANGLIN
15. Attached as Exhibit N is a true and correct copy of the Bankruptcy Court Docket
”\IQMA‘JJND—IOOOONQM-D-UJN—‘O
of the United States Bankruptcy Court, Northern District of California, San Francisco Division,
Case No.: 10-33759.
16. Attached as Exhibit 0 is a true and correct copy of the Discharge of Debtor after
Completion of Chapter 13 Plan filed on May 26, 2015 in the United States Bankruptcy Court,
Northern District of California, San Francisco Division, Case No. 10-3375.
///
///
///
///
///
93000/FR1986/01757304-1 2
DECLARATION OF DEAN A. REEVES
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. If called on to testify to the foregoing, I would and could
competently testify thereto.
Executed this 2nd of June, 2017, at Pasadena, California.
day
0°\lO’\UI-l>
ELI/Q
Dean AfReeées
LLP
\O
TRYTTEN
10
&
11
CAMPBELL
12
13
RASMUSSEN
14
15
16
FLEWELLING
17
18
ANGLlN
19
20
21
22
23
24
25
26
27
28
93000/FR1986/01757304-1 3
DECLARATION OF DEAN A. REEVES
EXHIBIT A
WORLD SAVINGS BANK, FSB
FIXED RATE MORTGAGE NOTE
PICK-A-PAYMENTS'" LOAN
THIS NOTE CONTAINS PROVISIONS ALLOWING FOR CHANGES IN MY MONTHLY PAYMENT AND MY UNPAID
PRINCIPAL BALANCE. MY MONTHLY PAYMENT INCREASES AND MY PRINCIPAL BALANCE INCREASES ARE
LIMITED THIS NOTE IS SECURED BYA SECURITY INSTRUMENT OF THE SAME DATE.
LOAN NUMBER 0046188413 DATE May 31, 2007
BORROWERISI CHERYL TROUTT, AN UNMARRIED WOMAN sometimes called "Borrowei’ and sometimes
"
Simply walled "I" or "me
PROPERTY ADDRESS 1640 MARINA CT. SAN MATEO, CA 94403-1613
1 BORROWER'S PROMISE TO PAY
In return for a loan that I have received, I promise to pay U S $364,000.00 , called "Principal." plus Interest, and any other
charges incurred during the course ofthe loan, to the order olthe Lender The Lender is WORLD SAVINGS BANK. FSB,
a FEDERAL SAVINGS BANK, ITS successoas ANDIOR ASSIGNEES, or anyone to whom this Note Is transferred
2 INTEREST
Interest WIII be charged on unpaid Principal until the lull amount of Principal has been paid I WIII pay Interest at the yearly rate
at 7.950% Interest WIII be charged on the bags of a twelve month year and a thirty day month
The interest rate requtred by this Section 2 is the rate IWill pay both before and after any default described in Section 7(8) of
this Note
O O 1
SD253A (2006-09-3) [A01 (2006096)] FIXED PlCK-A-PAYMENT NOTE CA
Page 1 LENDER'S USE ONLY
0046188413
3. PAYMENTS
(A) Time and Place 0! Payments
lwnl pay Principal and interest by making payments every month
IWIII make my monthly payments on the 1st day of each month beginning on August 1I 2007 | WI" make these payments
every month until I have paid (i) all the PnnCIpal and Interest, and (ii) any other charges described below that I may owe under this Note.
still owe amounts under this Note, I WIII
and (iii) any charges that may be due under the Security Instrument If, on July 1l 2037, l
"
”Matunty Date
pay those amounts in full on that date, which is called the
l WlIl make my monthly payments at 1901 HARRISON STREET. OAKLAND, CALIFORNIA 94612 or at a different
place if required by notice from the Lender
(B)Amount of My lnitial Monthly Payments
Will change as described in Sections
Each of my Initial monthly payments Will be in the amount of U S $ 1,428.80 This amount
range of initial payment amounts approved by
3(0) and 3(D) below My initial monthly payment amount was selected by me from a
Lender and may not be sufficient to pay the entire amount of interest accrumg on the unpaid
Principal balance
(0) Payment Change Dates
My monthly payment Will change as reqUired by Section 3(0)
below beginning on the 1st day of August, 2008 and on that
day every 12m month thereafler until the 121st month, which Will be the final payment change Each of these dates is called a
"
"Payment Change Date My monthly payment Will also change at any time Section 3(F) or 3(6) below reqUires me to pay a different
amount
amount of my new monthly payment each month beginning on each Payment change Date and as prowded
in
I Will pay the
Section 3(F) or 3(G) below
(D) Calculation of Payment Changes
to an amount sufficient to
Subject to Sections 3(F) and 3(G), on the Payment Change Date my monthly payment may be changed
pay the unpaid pnnCIpal balance together With interest, including any
deferred interest as described in Section 3(E) below. by the
than 7-1/2% of the then eXisting Principal
Maturity Date However, the amount by which my payment can be increased Will not be more
" The Lender Will perform this Payment Change wlculatlon at
and interest payment This 7-1l‘2% limitation is called the "Payment Cap
least 60 but not more than 90 days before the Payment Change Date
THIS SPACE INTENHONALLY LEFT BLANK
FIXED PICK—A-PAYMENT NOTE
CA
sozsao (zooms-a) [Boa (zoos-09.3)]
Page 2
0046188413
(E) Deferred Interest; Additions to My Unpaid Principal
From time to time, my monthly payments may be Insufficrent to pay the total amount of monthly Interest that is due if this
occurs, the amount oi Interest that Is not paid each month, called "Deferred Interest," Will be added to my Princrpal and Will accrue
Interest at the same rate as the Principal
(F) Limit on My Unpaid Principal; Increased Monthly Payment
"
My unpaid prinpal balance can never exceed 125% ofthe Principal I originally borrowed, called "Princrpal Balance Cap If,
as a result of the addition of deferred Interest to my unpaid principal balance, the PrIncrpal Balance Cap limitation would be
exceeded on the date that my monthly payment Is due, lwrll Instead pay a new monthly payment Notwithstanding Sections 3(0)
and am) above, l W1" pay a new monthly payment which Is equal to an amount that Will be sutfrcrent to repay my then unpaId
principal balance in full on the Malunty Date together With Interest, In substantIally equal payments
(G) Final Payment Change
On the 10th Payment Change Date my monthly payment Will be calculated as described in Section 3(D) above except that
the Payment Cap lImitatIon Will not apply
(H) Notice of Payment changes
The Lender wrll delNer or mail to me a notice ofany changes In the amount ofmy monthly payment, called "Payment Change
Notice," before each Payment Change Date
4. FAILURE To MAKE ADJUSTMENTS
If for any reason Lender fails to make an adyustment to the payment amount as described in this Note, regardles of any
notice requrrement, i agree that Lender may, upon discovery of such faIIure, then make the adjustments as if they had been made
on time I also agree not to hold Lender responsrble for any damages to me which may result from Lender's failure to make the
adjustment and to let the Lender, at Its option, apply any excess monies which I may have paid to partial prepayment of unpaid
Pnnpat
5. BORROWER’S RIGHT TO PREPAY
l have the right to make payments of Principal at any time before they are due. A payment of
Principal before it is due is called a "Prepayment". When I make a Prepayment, I will tell the
Lender in writing that I am doing so. The Lender may require that any partial Prepayments be
made on the date my regularly scheduled payments are due. lfl make a partial Prepayment. there
will be no changes in the due dates or amount of my regularly scheduled payments unless the
Lender agrees to those changes in writing. I may pay deferred interest on this Note at any time
without charge and such payment will not be considered a "Prepayment" of Principal. During the
first 3 years of the loan term if I make one or more Prepayments that, in the aggregate, exceed
$5,000 in any calendar month, I must pay a prepayment charge equal to 2% of the amount such
Prepayments exceed $5,000 in that calendar month. After the first 3 years of the loan term, i may
make a full or partial Prepayment without paying any prepayment charge.
6. MAXIMUM LOAN CHARGES
If a law, which applies to this loan and which sets maxrmum loan charges, Is finally Interpreted so that the interest or other
loan charges collected or to be collected In connection With this loan exceed the permitted limits, then (I) any such loan charge shall
be reduced by the amount necessary to reduce the charge to the perrnrtted mm. and (Ii) any sums already collected from me which
exceeded permitted limits Will be refunded to me The Lender may choose to make thrs refund by reducing the Principal I owe under
this Note or by making a direct payment to me Ila refund reduces Principal, the reductIon Will be treated as a partIal Prepayment
7. BORROWER'S FAILURE TO PAY AS REQUIRED
(A) Late Charges for overdue Payments
If the Lender has not received the full amountof any monthly payment by the end of 15 calendar days after the date It Is due,
lWIll pay a late charge to the Lender The amount ofthe charge Will be 5.00% of my overdue payment of PnnCIpal and Interest |
Will pay this late charge promptly but only once on each late payment
$02530 (2006-09-3) [CO‘l (200509-301 FIXED PlCK-A-PAYMENT NOTE CA
Page 3
0046188413
(8) Default
I fail to pertorm any of
I do not pay the full amount of each monthly payment on the date it is due. or (ii)
IWiII be in default if (i)
promises or agreements under this Note or the Security Instrument, or (iii) any statement made in my application for this loan
my
misleading by reason of
was materially false or misleading or if any statement in my application for this loan was materially false or
omissmn of certain facts, or (iv) I have made any other statement to Lender In connection With this loan that IS
materially false or
my
misleading
(0) Notice of Default
Ifam in default, the Lender may send me a written notice, called "Notice of Default," telling me that if I do not pay the
I
not been paid
overdue amount by a certain date, the Lender may requtre me to pay immediately the amount of Principal whrch has
and all the interest that I owe on that amount, plus any other amounts due under the Security Instrument
(D) No Waiver by Lender
Even if, at a time when 3 am in default, the Lender does not require me to pay immediately in full as described above. the
LenderWiII still have the right to do so ill am in default at a later time
(E) Payment of Lender's Costs and Expenses
to the extent not
The Lender Will have the right to be paid back by me for all of its costs and expenses in enforcing this Note
prohibited by applicable law Those expenses may include, for example, reasonable attomeys' fees and court costs
8 GIVING 0F NO‘HCES
Unless applicable law requires a different method, any notice that must be given to me under this Note Will be given by
delivering it or by mailing it by first class mail to me or any Borrower at 1640 MARINA CT, SAN MATEO,
CA
94403-1613, or at a single alternative address ifl give the Lender notice of my alternative address I may give notice to Lender of
a change in my address in writing or by calling Lender's customer servrce telephone number proVIded on my billing statement
I
may designate only one mailing address at a time for notification purposes
Except as permitted above for changes of address, any notice that must be given to the Lender under this Note Will be given
it by first class mail to the Lender at the address stated in Section 3(A) above or at a different address ifI am given
a
by mailing
notice of that different address
9. OBLIGATIONS OF PERSONS UNDER THIS NOTE
If more than one person Signs this Note, each person is fully and personally obligated to keep all of the promises made in this
all
Note, including the promise to pay the full amount owed Any person who takes over these obligations is also obligated to keep
of the promises made in this Note The Lender may enforce its rights under this Note against each person indIViduaIIy or against all
of us together This means that any one of us may be required to pay all of the amounts owed underthis Note
10. WAIVERS
| and any other person who has obligations under this
Note waive the rights of presentment. notice of dishonor, notice of
acceleration, and protest ”Presentment" means the right to require the Lender to demand payment of amounts due "Notice of
Dishonor" means the right to requue the Lender to give notice to other persons that amounts due have not been paid
11. SECURED NOTE -ACCELERATION
In addition to the protections given to the Lender under this Note, the Security Instrument dated the same
date as this Note
gives the Lender security against which it may proceed if I do not keep the promises which I made in this Note That Security
Instrument describes how and under What conditions I may be required to make immediate payment in full of all amounts I owe
underthis Note and includes the followmg Paragraph 26:
AGREEMENTS ABOUT LENDER'S RIGHTS IF THE PROPERTY IS SOLD OR TRANSFERRED
Acceleration of Pament of Sums Secured. Lender may, at its option, reqmre immediate payment in full of all Sums
Secured by this Security Instrument if all or any part of the Property, or it any right in the Property, is sold or transferred
Without Lender's prior written permission Lender also may, at its option, require immediate payment in full if Borrower is not
a natural Person and a beneficial interest in Borrower is sold or transferred Without Lender's prior written permission
Howaver, Lender shall not require immediate payment In full if this is prohibtted by Federal Law in effect on the date of the
Security Instrument
If Lender exercises the option to reqUire immediate payment in full, Lender Will give me notice of acceleration "I fail to
invoke any remedies
pay all Sums Secured by this Security Instrument immediately, Lender may then or thereafter
perrnitted by this Security Instrument Without further notice to or demand on me
SD253D (2005-09-3) [001 (2006093)] FIXED PlCK-A-PAYMENT NOTE CB
Page 4
0046189413
12. GOVERNING LAW; SEVERABILITY
This Note shall be governed by and construed under federal law and federal rules and regulations including those
for federally chartered savings Institutions. called "Federal Law." In the event that any of the terms or provrsrons of thrs Note
are Interpreted or construed by a court of competent Iunsdrctron to be void, Invalrd or unenforceable, such decrsron shall affect only
those provtsrons so construed or Interpreted and shall not affect the remaInIng pfoSaS of thIs Note
15. CLERICAL ERRORS
In the event the Lender at any tlme drsoovers that thls Note or the Secunty Instrument or any other document related to this
loan, called collectlvely the "Loan Documents,“ contains an error whrch was caused by a clencal mIstake, deleulatron error,
computer error, pnntrng error or srmrlar error, I agree, upon notrce from the Lender, to reexecute any Loan Documents that are
necessary to correct any such error(s) and I also agree that I wrll not hold the Lender responsrble for any damage to me whrch may
result from any such error
14 LOST. STOLEN 0R MUTILATED DOCUMENTS
If any 0! the Loan Documents are lost, stolen, mutilated or destroyed and the Lender delivers to me an Indemnrflntron In my
favor, srgned by the Lender, then lwtll slgn and delrver to the Lender a Loan Document Identrcal In form and content whrch WIII have
the effect ofthe ongInaI for all purposes
THIS SPACE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS
SDZSBE (2006-096) {E03 (2006-09-31)] FIXED PlCK<><><
28. Office equipment, furnishings, and
supplies.
><
29. Machinery, fixtures, equipment, and
supplies used in business.
30. Inventory.
31. Animals. ><><><
32. Crops growing or harvested. Give
—
particulars.
33. Farming equipment and implements. ><><
34. Farm supplies, chemicals, and feed.
Case: 10—33759 Doc# 1 Filed: 09/24/10 Entered: 09/24/10 16:36:47 Page 9 of 30
B6B (Official Form 6B) (12/07) —
Cont.
IN RE Troutt, Cheryl Anne Case No.
Debtor(s) (If known)
SCHEDULE B - PERSONAL PROPERTY
(Continuation Sheet)
2
9; i: CURRENT VALUE OF
N g}
DEBTOR'S INTEREST IN
TYPE OF PROPERTY
13
DESCRIPTION AND LOCATION OF PROPERTY E_ g Piggggwffiym
E 8 SECURED CLAIM OR
g EXEMPTION
ag
E
35. Other personal property of any kind X
not already listed. Itemize.
Only
Software
Forms
-
[1-800-998-2424]
Inc.
EZ—Filing,
1993-2010
©
Preview
/\\\o Dean A. Reeves (# 150558) dreeves@afrct.com AN GLIN, FLEWELLING, RASMUSSEN, . L E(:20t FMATEO CAMPBELL & TRYTTEN LLP SAN #WN 301 N. Lake Avenue, Suite 1100 JUN .. a 2017 Pasadena, California 91101-4158 Telephone: (626) 535-1900 Facsimile: (626) 577-7764 Attorneys for Defendant ‘ WELLS FARGO BANK, N.A., successor by merger with Wells Fargo Bank Southwest, N.A., \DOO\10\Ul f/k/a Wachovia Mortgage, FSB, f/k/a World Savings Bank, FSB LLP SUPERIOR COURT OF THE STATE OF CALIFORNIA TRYTTEN CIV539088 FOR THE COUNTY OF SAN MATEO RJN . Request tor Judicial Notlne & 533726 CAMPBELL CHERYL TROUTT, an individual, Case No.: CIV539088 | IIllIll||||lll|ll|||||||||l||l|Ill Plaintiff, Assigned for all purposes to: Hon. Robert D. Foiles Dept. : 2 1 RASMUSSEN v. REQUEST FOR JUDICIAL NOTICE IN WELLS FARGO BANK, N.A.; NBS SUPPORT OF DEMURRER BY DEFAULT SERVICES, LLC; ALL PERSONS DEFENDANT WELLS FARGO BANK, FLEWELLING UNKNOWN CLAIMIN G ANY LEGAL OR N.A. TO VERIFIED THIRD AMENDED EQUITABLE RIGHT, TITLE, ESTATE, COMPLAINT LIEN, OR INTEREST IN THE SUBJECT PROPERTY ADVERSE TO PLAINTIFF’S [Filed with Demurrer] ANGLIN CLAIM OF RIGHT TO TITLE; and DOES 1 through 20, inclusive, Date: July 6, 2017 Time: 9:00 am. Defendants. Dept. : 2’1’ 4 4. I»— Trial” Date: None Action Filed: June 13. 2016 TO THE HONORABLE COURT, TO PLAINTIFF AND HER COUNSEL OF RECORD: 1%] Pursuant to California Evidence Code §§ 452(0) (d), (h) and 453, defendant WELLS FARGO BANK, N.A., successor by merger with Wells Fargo Bank Southwest, N.A., f/k/a EX L Wachovia Mortgage, FSB, f/k/a World Savings Bank, FSB (“Wells Fargo”) hereby requests that @ the Court take judicial notice of the following documents submitted in support of its Demurrer to the Third Amended Complaint: 93000/FR1986/01757304-1 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO TPHRD AMENDED COMPLAINT 1. Fixed Rate Mortgage Note, dated May 31, 2007 and signed by plaintiff Cheryl Troutt; a true and correct copy is attached as W. 2. Deed of Trust, dated May 31, 2007 and recorded in the official records of the . 4: Office of the San Mateo County Recorder on June 8, 2007, as Document No. 2007-088529; a true and correct copy is attached as Exhibit B. Modification Agreement dated June by plaintiff Cheryl \lONl/I 3. 11, 2009 and signed Troutt; a true and correct copy is attached as Exhib_1tC. LLP 4. Notice of Default. and Election to Sell Under Deed of Trust, dated February 9, 2016 and recorded in the official records of the Office of the San Mateo County Recorder on TRYTTEN & 1o February 11, 2016 as Document No. 2016-012513; a true and correct copy is attached as M 11 D. CAMPBELL 12 5. Notice of Trustee’s Sale, recorded in the official records of the Office of the San 13 Mateo County Recorder on May 16, 2016 as Document No. 2016-045651; a true and correct - RASMUSSEN 14 copy is attached as Exhibit E. 15 6. Trustee’s Deed Upon Sale, dated June 6, 2016 and recorded in the official records 16 of the Office of the San Mateo County Recorder on June 21, 2016 as Document No. 2016- FLEWELLING 17 060413; a true and correct copy is attached as Exhibit F. 18 7. Certificate of Corporate Existence dated April 21, 2006, Office of Thrift ANGLIN 19 Supervision, Department of the Treasury; a true and correct copy is attached as Exhibit G. 20 8. Letter dated November 19, 2007, Office of Thrift Supervision, Department of the 21 Treasury; a true and correct copy is attached as Exhibit H. 22 9. Official Certification of the Comptroller of the Currency (“OCC”) stating that 23 effective November 1, 2009, Wachovia Mortgage, FSB converted to Wells Fargo Bank 24 Southwest, N.A., which then merged with and into wells Fargo Bank, N.A.; a true and correct 25 copy is attached as ELM- . 26 10. Voluntary Chapter 13 petition filed by plaintiff on September 24, 2010 in the 27 United States Bankruptcy Court, Northern District of California, San Francisco Division, Case 2s No. 10-33759; a true and correct copy is attached as Exhibit J. 93000/FR1986/01757304-1 2 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO THIRD AMENDED COMPLAINT 11. Second Amended Chapter 13 Plan filed by plaintiff on December 28, 2010 in the United States Bankruptcy Court, Northern District of California, San Francisco Division, Case No. 10-33759; a true and correct coy is attached as M. 12. Order Confirming Chapter 13 Plan filed on January 21, 2011 in the United States Bankruptcy Court, Northern District of California, San Francisco Division, Case No. 10-33759; a OOQONUl-b true and correct coy is attached as EM. 13. Motion for Relief from Automatic Stay filed on March 23, 2011 in the United LLP States Bankruptcy Court, Northern District of California, San Francisco Division, Case No. 10- \O 33759; a true and correct copy is attached as Exhibit M. TRYTTEN 10 14. Bankruptcy Court Docket of the United States Bankruptcy Court, Northern & ll District of California, San Francisco Division, Case No.: 10-33759; a true and correct copy is CAMPBELL 12 attached as Exhibit N. 13 15. Discharge of Debtor after Completion of Chapter 13 Plan filed on May 26, 2015 RASMUSSEN 14 in the United States Bankruptcy Court, Northern District of California, San Francisco Division, 15 Case No. 10-3375; a true and correct copy is attached as Exhibit 0. 16 16. Judicial notice is appropriate for Exhibits A and C because these documents form FLEWELLING 17 the basis of plaintiff’s claims, and its authenticity is not believed to be in question. A court may 18 consider facts and take judicial notice of the existence of a document. Stormedia Inc. v. Superior ANGLIN 19 Court, 20 Cal. 4th 449, 457, n.9 (1999). When a document is not attached to the plaintiffs 20 complaint and its contents form the basis of the allegations, the court may properly take judicial 21 notice of those contents. Ingram v. Flippo, 74 Cal. App. 4th 1280, 1285, n.3 (1999); Marina 22 Tenants Ass ’n v. Deauville Marina Dev. Co., 181 Cal. App. 3d 122, 128 (1986). 23 Judicial notice is appropriate for Exhibits B and D through F because these documents 24 are true and correct copies of official public records of the San Mateo County Recorder’s Office, 25 whose authenticity is capable of accurate and ready determination by resort to sources whose 26 accuracy cannot reasonably be questioned. “A court may take judicial notice of something that 27 cannot reasonably be controverted [such as a recorded deed], even if it negates an express 28 allegation of the pleading.” Alfaro v. Community Housing Improvement System & Planning 93000/FR1986/Ol757304-1 3 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO THIRD AMENDED COMPLAINT Assn, Inc., 171 Cal. App. 4th 1356, 1382 (2009) (internal quotations and citation omitted; brackets in original); see also McElroy v. Chase Manhattan Mortg. Corp., 134 Cal. App. 4th 388, 394 (2005) (demurrer upheld against wrongful foreclosure based on judicial notice of (1) Notice of Default and Election to Sell under Deed of Trust, (2) Notice of Trustee’s Sale, and (3) Trustee’s Deed Upon Sale). Judicial notice is appropriate for Exhibits G through I because these documents are true \OOONQUIAUJN and correct copies of documents reflecting official acts of the legislative and executive LLP departments of the United States, pursuant to Cal. Evid. Code § 452. Hite v. Wachovia Mortgage, 2010 US. Dist. LEXIS 57732, *6—9 (E.D. Cal. June 10, 2010) (court took judicial TRYTTEN 10 notice of the documents that Wells Fargo is introducing in Exhibits G — I, above). Furthermore, & 11 judicial notice is appropriate for information obtained'from governmental websites. Paralyzed CAMPBELL 12 Veterans ofAm. v. McPherson, 2008 U.S. Dist. LEXIS 69542, *17-18 (N .D. Cal. Sept. 8, 2008) 13 (court took judicial notice of information appearing on and printed from official government RASMUSSEN 14 websites -- citing numerous decisions from federal circuits and district courts all approving 15 judicial notice of information obtained from government websites). FLEWELLING 16 Judicial notice is appropriate for Exhibits J through 0 because these documents are true 17 and correct copies of official records of the United States Bankruptcy Court, Northern District of 18 California, San Francisco Division. [Cal. Evid. Code §452(d).] ANGLIN 19 AUTHENTICATION. The documents are authenticated in the attached declaration of 20 Dean A. Reeves. 21 Respectfully submitted, 22 Dated: June 2, 2017 ANGLIN, FLEWELLING, RASMUSSEN, CAMPBELL & TRYTTEN LLP 23 24 25 Dean A. ReeveJS Attorneys for Defendant 26 WELLS FARGO BANK, N.A., successor by merger with Wells Fargo Bank Southwest, N.A., 27 f/k/a Wachovia Mortgage, FSB, f/k/a World Savings Bank, FSB 28 93000/FR1986/01757304-I 4 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO THIRD AMENDED COMPLAINT DECLARATION OFQEAN A. REEVES 1, Dean A. Reeves, declare: 1. I am an attorney at law licensed to practice before this Court and am employed by the law firm of Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP, counsel of record KOOOQONUI-hb-iwt—a for defendant WELLS FARGO BANK, N.A., successor by merger with Wells Fargo Bank Southwest, N.A., f/k/a Wachovia Mortgage, FSB, f/k/a'World Savings Bank, FSB (“Wells Fargo”). I am personally familiar with the facts set forth in this declaration based on my review I LLP of the documents which are attached hereto. 2. Attached as Exhibit A is a true and correct copy of the Fixed Rate Mortgage TRYTTEN Note, dated May 31, 2007 and signed by plaintiff Cheryl Troutt. & 3. Attached as Exhibit B is a true and correct copy of the Deed of Trust, dated May CAMPBELL 31, 2007 and recorded in the official records of the Office of the San Mateo County Recorder on June 8, 2007, as Document No. 2007-088529. RASMUSSEN 4. Attached as Exhibit C is a true and correct copy of the Modification Agreement dated June 11, 2009 and signed by plaintiff Cheryl Troutt. 5. Attached as Exhibit D is a true and correct copy of the Notice of Default and FLEWELLING NNNNNNNNNHD—‘r—li—‘D—‘I—Ih—lp—lr—Il—I Election to Sell Under Deed of Trust, dated February 9:2016 and recorded in the official records of the Office of the San Mateo County Recorder on February 11, 2016 as Document No. 2016- ANGLlN WflOM-PWNHOQOOQCBM-PWNHO 01 25 1 3. 6. Attached as Exhibit E is a true and correct copy of the Notice of Trustee’s Sale, recorded in the official records of the Office of the San Mateo County Recorder on May 16, 2016 as Document No. 2016-045651. 7. Attached as Exhibit F is a true and correct copy of the Trustee’s Deed Upon Sale, dated June 6, 2016 and recorded in the official records of the Office of the San Mateo County Recorder on June 21, 2016 as Document No. 2016-060413. 8. Attached as Exhibit G is a true and correct copy of the Certificate of Corporate Existence dated April 21, 2006, Office of Thrift Supervision, Department of the Treasury. 93000/FR1986/01757304-l 1 DECLARATION OF DEAN A. REEVES 9. Attached as Exhibit H is a true and correct copy of the Letter dated November 19, 2007, Office of Thrift Supervision, Department of the Treasury. 10. Attached as Exhibit I is a true and correct copy of the Official Certification of the Comptroller of the Currency (“OCC”) stating that effective November 1, 2009, Wachovia Mortgage, FSB converted to Wells Fargo Bank Southwest, NA. ©00\IO\MAWNH 11. Attached as Exhibit J is a true and correct copy of the Voluntary Chapter 13 petition filed by plaintiff on September 24, 2010 in the United States Bankruptcy Court, LLP Northern District of California, San Francisco Division, Case No. 10-33759. 12. Attached as Exhibit K is a true and correct copy of the Second Amended Chapter TRYTTEN 13 Plan filed by plaintiff on December 28, 2010 in the United States Bankruptcy Court, & Northern District of California, San Francisco Division, Case No. 10-33759. CAMPBELL l3. Attached as Exhibit L is a true and correct copy of the Order Confirming Chapter 13 Plan filed on January 21, 2011 in the United States Bankruptcy Court, Northern District of RASMUSSEN California, San Francisco Division, Case No. 10-33759. l4. Attached as Exhibit M is a true and correct copy of the Motion for Relief from Automatic Stay filed on March 23, 2011 in the United States Bankruptcy Court, Northern FLEWELLING NNNNNNNNNr—nv—dy—ty—Ip—ar—tr—av—ny—tr—I District of California, San Francisco Division, Case No. 10-33759. ANGLIN 15. Attached as Exhibit N is a true and correct copy of the Bankruptcy Court Docket ”\IQMA‘JJND—IOOOONQM-D-UJN—‘O of the United States Bankruptcy Court, Northern District of California, San Francisco Division, Case No.: 10-33759. 16. Attached as Exhibit 0 is a true and correct copy of the Discharge of Debtor after Completion of Chapter 13 Plan filed on May 26, 2015 in the United States Bankruptcy Court, Northern District of California, San Francisco Division, Case No. 10-3375. /// /// /// /// /// 93000/FR1986/01757304-1 2 DECLARATION OF DEAN A. REEVES I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. If called on to testify to the foregoing, I would and could competently testify thereto. Executed this 2nd of June, 2017, at Pasadena, California. day 0°\lO’\UI-l> ELI/Q Dean AfReeées LLP \O TRYTTEN 10 & 11 CAMPBELL 12 13 RASMUSSEN 14 15 16 FLEWELLING 17 18 ANGLlN 19 20 21 22 23 24 25 26 27 28 93000/FR1986/01757304-1 3 DECLARATION OF DEAN A. REEVES EXHIBIT A WORLD SAVINGS BANK, FSB FIXED RATE MORTGAGE NOTE PICK-A-PAYMENTS'" LOAN THIS NOTE CONTAINS PROVISIONS ALLOWING FOR CHANGES IN MY MONTHLY PAYMENT AND MY UNPAID PRINCIPAL BALANCE. MY MONTHLY PAYMENT INCREASES AND MY PRINCIPAL BALANCE INCREASES ARE LIMITED THIS NOTE IS SECURED BYA SECURITY INSTRUMENT OF THE SAME DATE. LOAN NUMBER 0046188413 DATE May 31, 2007 BORROWERISI CHERYL TROUTT, AN UNMARRIED WOMAN sometimes called "Borrowei’ and sometimes " Simply walled "I" or "me PROPERTY ADDRESS 1640 MARINA CT. SAN MATEO, CA 94403-1613 1 BORROWER'S PROMISE TO PAY In return for a loan that I have received, I promise to pay U S $364,000.00 , called "Principal." plus Interest, and any other charges incurred during the course ofthe loan, to the order olthe Lender The Lender is WORLD SAVINGS BANK. FSB, a FEDERAL SAVINGS BANK, ITS successoas ANDIOR ASSIGNEES, or anyone to whom this Note Is transferred 2 INTEREST Interest WIII be charged on unpaid Principal until the lull amount of Principal has been paid I WIII pay Interest at the yearly rate at 7.950% Interest WIII be charged on the bags of a twelve month year and a thirty day month The interest rate requtred by this Section 2 is the rate IWill pay both before and after any default described in Section 7(8) of this Note O O 1 SD253A (2006-09-3) [A01 (2006096)] FIXED PlCK-A-PAYMENT NOTE CA Page 1 LENDER'S USE ONLY 0046188413 3. PAYMENTS (A) Time and Place 0! Payments lwnl pay Principal and interest by making payments every month IWIII make my monthly payments on the 1st day of each month beginning on August 1I 2007 | WI" make these payments every month until I have paid (i) all the PnnCIpal and Interest, and (ii) any other charges described below that I may owe under this Note. still owe amounts under this Note, I WIII and (iii) any charges that may be due under the Security Instrument If, on July 1l 2037, l " ”Matunty Date pay those amounts in full on that date, which is called the l WlIl make my monthly payments at 1901 HARRISON STREET. OAKLAND, CALIFORNIA 94612 or at a different place if required by notice from the Lender (B)Amount of My lnitial Monthly Payments Will change as described in Sections Each of my Initial monthly payments Will be in the amount of U S $ 1,428.80 This amount range of initial payment amounts approved by 3(0) and 3(D) below My initial monthly payment amount was selected by me from a Lender and may not be sufficient to pay the entire amount of interest accrumg on the unpaid Principal balance (0) Payment Change Dates My monthly payment Will change as reqUired by Section 3(0) below beginning on the 1st day of August, 2008 and on that day every 12m month thereafler until the 121st month, which Will be the final payment change Each of these dates is called a " "Payment Change Date My monthly payment Will also change at any time Section 3(F) or 3(6) below reqUires me to pay a different amount amount of my new monthly payment each month beginning on each Payment change Date and as prowded in I Will pay the Section 3(F) or 3(G) below (D) Calculation of Payment Changes to an amount sufficient to Subject to Sections 3(F) and 3(G), on the Payment Change Date my monthly payment may be changed pay the unpaid pnnCIpal balance together With interest, including any deferred interest as described in Section 3(E) below. by the than 7-1/2% of the then eXisting Principal Maturity Date However, the amount by which my payment can be increased Will not be more " The Lender Will perform this Payment Change wlculatlon at and interest payment This 7-1l‘2% limitation is called the "Payment Cap least 60 but not more than 90 days before the Payment Change Date THIS SPACE INTENHONALLY LEFT BLANK FIXED PICK—A-PAYMENT NOTE CA sozsao (zooms-a) [Boa (zoos-09.3)] Page 2 0046188413 (E) Deferred Interest; Additions to My Unpaid Principal From time to time, my monthly payments may be Insufficrent to pay the total amount of monthly Interest that is due if this occurs, the amount oi Interest that Is not paid each month, called "Deferred Interest," Will be added to my Princrpal and Will accrue Interest at the same rate as the Principal (F) Limit on My Unpaid Principal; Increased Monthly Payment " My unpaid prinpal balance can never exceed 125% ofthe Principal I originally borrowed, called "Princrpal Balance Cap If, as a result of the addition of deferred Interest to my unpaid principal balance, the PrIncrpal Balance Cap limitation would be exceeded on the date that my monthly payment Is due, lwrll Instead pay a new monthly payment Notwithstanding Sections 3(0) and am) above, l W1" pay a new monthly payment which Is equal to an amount that Will be sutfrcrent to repay my then unpaId principal balance in full on the Malunty Date together With Interest, In substantIally equal payments (G) Final Payment Change On the 10th Payment Change Date my monthly payment Will be calculated as described in Section 3(D) above except that the Payment Cap lImitatIon Will not apply (H) Notice of Payment changes The Lender wrll delNer or mail to me a notice ofany changes In the amount ofmy monthly payment, called "Payment Change Notice," before each Payment Change Date 4. FAILURE To MAKE ADJUSTMENTS If for any reason Lender fails to make an adyustment to the payment amount as described in this Note, regardles of any notice requrrement, i agree that Lender may, upon discovery of such faIIure, then make the adjustments as if they had been made on time I also agree not to hold Lender responsrble for any damages to me which may result from Lender's failure to make the adjustment and to let the Lender, at Its option, apply any excess monies which I may have paid to partial prepayment of unpaid Pnnpat 5. BORROWER’S RIGHT TO PREPAY l have the right to make payments of Principal at any time before they are due. A payment of Principal before it is due is called a "Prepayment". When I make a Prepayment, I will tell the Lender in writing that I am doing so. The Lender may require that any partial Prepayments be made on the date my regularly scheduled payments are due. lfl make a partial Prepayment. there will be no changes in the due dates or amount of my regularly scheduled payments unless the Lender agrees to those changes in writing. I may pay deferred interest on this Note at any time without charge and such payment will not be considered a "Prepayment" of Principal. During the first 3 years of the loan term if I make one or more Prepayments that, in the aggregate, exceed $5,000 in any calendar month, I must pay a prepayment charge equal to 2% of the amount such Prepayments exceed $5,000 in that calendar month. After the first 3 years of the loan term, i may make a full or partial Prepayment without paying any prepayment charge. 6. MAXIMUM LOAN CHARGES If a law, which applies to this loan and which sets maxrmum loan charges, Is finally Interpreted so that the interest or other loan charges collected or to be collected In connection With this loan exceed the permitted limits, then (I) any such loan charge shall be reduced by the amount necessary to reduce the charge to the perrnrtted mm. and (Ii) any sums already collected from me which exceeded permitted limits Will be refunded to me The Lender may choose to make thrs refund by reducing the Principal I owe under this Note or by making a direct payment to me Ila refund reduces Principal, the reductIon Will be treated as a partIal Prepayment 7. BORROWER'S FAILURE TO PAY AS REQUIRED (A) Late Charges for overdue Payments If the Lender has not received the full amountof any monthly payment by the end of 15 calendar days after the date It Is due, lWIll pay a late charge to the Lender The amount ofthe charge Will be 5.00% of my overdue payment of PnnCIpal and Interest | Will pay this late charge promptly but only once on each late payment $02530 (2006-09-3) [CO‘l (200509-301 FIXED PlCK-A-PAYMENT NOTE CA Page 3 0046188413 (8) Default I fail to pertorm any of I do not pay the full amount of each monthly payment on the date it is due. or (ii) IWiII be in default if (i) promises or agreements under this Note or the Security Instrument, or (iii) any statement made in my application for this loan my misleading by reason of was materially false or misleading or if any statement in my application for this loan was materially false or omissmn of certain facts, or (iv) I have made any other statement to Lender In connection With this loan that IS materially false or my misleading (0) Notice of Default Ifam in default, the Lender may send me a written notice, called "Notice of Default," telling me that if I do not pay the I not been paid overdue amount by a certain date, the Lender may requtre me to pay immediately the amount of Principal whrch has and all the interest that I owe on that amount, plus any other amounts due under the Security Instrument (D) No Waiver by Lender Even if, at a time when 3 am in default, the Lender does not require me to pay immediately in full as described above. the LenderWiII still have the right to do so ill am in default at a later time (E) Payment of Lender's Costs and Expenses to the extent not The Lender Will have the right to be paid back by me for all of its costs and expenses in enforcing this Note prohibited by applicable law Those expenses may include, for example, reasonable attomeys' fees and court costs 8 GIVING 0F NO‘HCES Unless applicable law requires a different method, any notice that must be given to me under this Note Will be given by delivering it or by mailing it by first class mail to me or any Borrower at 1640 MARINA CT, SAN MATEO, CA 94403-1613, or at a single alternative address ifl give the Lender notice of my alternative address I may give notice to Lender of a change in my address in writing or by calling Lender's customer servrce telephone number proVIded on my billing statement I may designate only one mailing address at a time for notification purposes Except as permitted above for changes of address, any notice that must be given to the Lender under this Note Will be given it by first class mail to the Lender at the address stated in Section 3(A) above or at a different address ifI am given a by mailing notice of that different address 9. OBLIGATIONS OF PERSONS UNDER THIS NOTE If more than one person Signs this Note, each person is fully and personally obligated to keep all of the promises made in this all Note, including the promise to pay the full amount owed Any person who takes over these obligations is also obligated to keep of the promises made in this Note The Lender may enforce its rights under this Note against each person indIViduaIIy or against all of us together This means that any one of us may be required to pay all of the amounts owed underthis Note 10. WAIVERS | and any other person who has obligations under this Note waive the rights of presentment. notice of dishonor, notice of acceleration, and protest ”Presentment" means the right to require the Lender to demand payment of amounts due "Notice of Dishonor" means the right to requue the Lender to give notice to other persons that amounts due have not been paid 11. SECURED NOTE -ACCELERATION In addition to the protections given to the Lender under this Note, the Security Instrument dated the same date as this Note gives the Lender security against which it may proceed if I do not keep the promises which I made in this Note That Security Instrument describes how and under What conditions I may be required to make immediate payment in full of all amounts I owe underthis Note and includes the followmg Paragraph 26: AGREEMENTS ABOUT LENDER'S RIGHTS IF THE PROPERTY IS SOLD OR TRANSFERRED Acceleration of Pament of Sums Secured. Lender may, at its option, reqmre immediate payment in full of all Sums Secured by this Security Instrument if all or any part of the Property, or it any right in the Property, is sold or transferred Without Lender's prior written permission Lender also may, at its option, require immediate payment in full if Borrower is not a natural Person and a beneficial interest in Borrower is sold or transferred Without Lender's prior written permission Howaver, Lender shall not require immediate payment In full if this is prohibtted by Federal Law in effect on the date of the Security Instrument If Lender exercises the option to reqUire immediate payment in full, Lender Will give me notice of acceleration "I fail to invoke any remedies pay all Sums Secured by this Security Instrument immediately, Lender may then or thereafter perrnitted by this Security Instrument Without further notice to or demand on me SD253D (2005-09-3) [001 (2006093)] FIXED PlCK-A-PAYMENT NOTE CB Page 4 0046189413 12. GOVERNING LAW; SEVERABILITY This Note shall be governed by and construed under federal law and federal rules and regulations including those for federally chartered savings Institutions. called "Federal Law." In the event that any of the terms or provrsrons of thrs Note are Interpreted or construed by a court of competent Iunsdrctron to be void, Invalrd or unenforceable, such decrsron shall affect only those provtsrons so construed or Interpreted and shall not affect the remaInIng pfoSaS of thIs Note 15. CLERICAL ERRORS In the event the Lender at any tlme drsoovers that thls Note or the Secunty Instrument or any other document related to this loan, called collectlvely the "Loan Documents,“ contains an error whrch was caused by a clencal mIstake, deleulatron error, computer error, pnntrng error or srmrlar error, I agree, upon notrce from the Lender, to reexecute any Loan Documents that are necessary to correct any such error(s) and I also agree that I wrll not hold the Lender responsrble for any damage to me whrch may result from any such error 14 LOST. STOLEN 0R MUTILATED DOCUMENTS If any 0! the Loan Documents are lost, stolen, mutilated or destroyed and the Lender delivers to me an Indemnrflntron In my favor, srgned by the Lender, then lwtll slgn and delrver to the Lender a Loan Document Identrcal In form and content whrch WIII have the effect ofthe ongInaI for all purposes THIS SPACE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS SDZSBE (2006-096) {E03 (2006-09-31)] FIXED PlCK<><>< 28. Office equipment, furnishings, and supplies. >< 29. Machinery, fixtures, equipment, and supplies used in business. 30. Inventory. 31. Animals. ><><>< 32. Crops growing or harvested. Give — particulars. 33. Farming equipment and implements. ><>< 34. Farm supplies, chemicals, and feed. Case: 10—33759 Doc# 1 Filed: 09/24/10 Entered: 09/24/10 16:36:47 Page 9 of 30 B6B (Official Form 6B) (12/07) — Cont. IN RE Troutt, Cheryl Anne Case No. Debtor(s) (If known) SCHEDULE B - PERSONAL PROPERTY (Continuation Sheet) 2 9; i: CURRENT VALUE OF N g} DEBTOR'S INTEREST IN TYPE OF PROPERTY 13 DESCRIPTION AND LOCATION OF PROPERTY E_ g Piggggwffiym E 8 SECURED CLAIM OR g EXEMPTION ag E 35. Other personal property of any kind X not already listed. Itemize. Only Software Forms - [1-800-998-2424] Inc. EZ—Filing, 1993-2010 ©