- response to osc

7/31/2019 - Response to Osc

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Carlos Aguirre

38587 154th Street East

Palmdale, California 93591

(661) 414-2866 Cell

(661) 367-5252 FaxAttorney In Pro Se

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

Carlos Aguirre

Plaintiff,

v.

WORLD SAVINGS BANK; WELLSFARGO BANK; GOLDEN WESTSAVINGS ASSOCIATION SERVICECOMPANY; CAL-WESTERNRECONVEYANCE CORPORATION;AND ALL PERSONS CLAIMINGBY, THROUGH OR UNDER SUCHPERSON, ALL PERSONSUNKNOWN, CLAIMING ANYLEGAL OR EQUITABLE TITLE,

ESTATE, LIEN OR INTEREST INTHE PROPERTY DESCRIBED INTHE COMPLAINT ADVERSE TOPLAINTIFFS TITLE THERETO; AndDOES 1 to 10, Inclusive,

Defendants.

CASE NO: 2:11-cv-06259-ODW-JEM(x)

RESPONSE TO ORDER TO SHOW

CAUSE RE LACK OF SUBJECT

MATTER JURISDICTION;

MEMORANDUM OF POINTS AND

AUTHORITIES

Plaintiff, Carlos Aguirre provides the following response to the courts Order

to Show Cause re lack of subject matter jurisidiction over Plaintiffs claims.

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RESPONSE TO ORDER TO SHOW CAUSE


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MEMORANDUM OF POINTS AND AUTHORITIES

1. The undersigned Carlos Aguirre (hereinafter Plaintiff), a natural person

and not a collective entity, under penalty of perjury, whom within his knowledge,

information and belief, respectfully submits this response to the courts Order to

Show Cause herein as follows.

2. Plaintiff is proceeding pro se. Therefore, this Court must construe this

claim liberally and hold it to a less stringent standard than the Court would apply to

a pleading drafted by a lawyer. Please see: Platsky v. Central Intelligence Agency,

953 F.2d 26 (2nd Cir. 1991)---Deciding that:

In order to justify the dismissal of a pro se complaint, it must be " 'beyond

doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.' " Haines v. Kerner, 404 U.S. at 521, 92

S.Ct. at 594 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,

102, 2 L.Ed.2d 80 (1957)).

JURISDICTION UNDER 42 U.S.C. 1983

3. Plaintiff invokes this Court's jurisdiction for his constitutional rights under

28 U.S.C. 1983. This Court has plenary jurisdiction over the present dispute and

all parties pursuant to 28 U.S.C. 1331 in that the claims alleged therein arise

under the laws of the United States, including but not limited to 42 U.S.C. 1981,

1982, 1983,and 1988(a).

4. Plaintiff asserts 42 U.S.C. 1983 as a basis for this Court's jurisdiction.

See Gordon v. City of Oakland, 09-CV-05794-WHA, 2010 WL 1463578, at *2

(N.D. Cal. Apr. 13, 2010) (citingBalistreri v. Pacifica Police Dep't, 901 F.2d 696,

699 (9th Cir. 1990)). Therefore, this Court has subject matter jurisdiction to

entertain Plaintiffs claims under 42 U.S.C. 1983.

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The California Constitution (Art. I, 1) is self-executing and confers a right of action beyondthe scope of the mere common law tort. See, e.g.,Burt v. Orange (2004) 120 Cal.App.4th273, 284.

Defendants Acted Under Color of Law

5. To state a claim under 42 U.S.C. 1983, a plaintiff must allege that: (1)

the defendant violated a right secured by the United States Constitution or the laws

of the United States; and (2) the defendant did so acting under color of state

law. West v. Atkins, 487 U.S. 42, 48 (1988).

6. Where As, here, Plaintiff alleges that Defendants were acting under color

of state law and violated Plaintiffs rights secured by the United States Constitution

and the laws of the United Statesby foreclosing with no right and authority; and

by filing defective and fraudulent documents in the Los Angeles County Recorders

Office, engaging in felonious acts.

"A person acts under color of state law only when exercising powerpossessed by virtue of state law and made possible only because thewrongdoer is clothed with the authority of state law."Polk County v.

Dodson, 454 U.S. 312, 317-18 (1981).

7. The conduct of banks in pursuit of non-judicial foreclosures must be done

under the authority of the federal charter which is the `law of the United States' and

therefore `under color of federal law. Here, all Defendants were acting under

federal law for all claims; including Wells Fargo Bank, NA. and Cal-Western

Reconveyance. Furthermore, the `Emergency Economic Stabilization Act of 2008'

Title I established the Troubled Assets Relief Program which provided for the

purchases of troubled assets. Financial institutions were designated as financial

agents of the Federal Government and shall perform all such reasonable duties

related to this Act as financial agents of the Federal Government as may be

required." MOREOVER, TARP authorized the Secretary of the Treasury to

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"designate financial institutions as financial agents [including Wells Fargo

Bank.NA.] of the Federal Government" and mandate such financial institutions to

"perform all reasonable duties related to this Act as financial agents of the Federal,

Government." 12 U.S.C. 5211. Furthermore, Plaintiff re-alleges that; the

Secretary of the Treasury designated Defendant Wells Fargo Bank, NA. as a

financial agent of the Federal Government.

8. Pla int i f f move s thi s cou rt to tak e not ice tha t this Court has

original jurisdiction over the claims in the Second Amended complaint based on

28 U.S.C. 1331, 1343, 2202, 12 U.S.C. 2605, and 42 U.S.C. 1983 which

confer original jurisdiction on federal district courts in suits to address the

deprivation of rights secured by federal law.

9. This Court also has supplemental jurisdiction over the pendant state law

claims because they form a part of the same case or controversy under Article III

ofthe United States Constitution, pursuant to 28 U.S.C. 1367.

10. This Court has original jurisdiction over the claims in this action based

on 28 U.S.C. 1332 which confers original jurisdiction on federal district courts

in suitsbetween diverse citizens that involve an amount in controversy in excess

of $75,000.00.

11. The unlawful conduct, illegal practices, and acts complained of and

alleged in the Second Amended Complaint were all committed in the Southern

District of California and involved real property that is located in the Southern

District of California. Therefore, venue properly lies in this District, pursuant to

28 U.S.C. 1391(b).

12. Plaintiff is now, and at all times mentioned herein, an individual

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residing in the County of Los Angeles, in the State of California. At all times

relevant to this action, Plaintiff has owned real property commonly known as

28403 Falcon Crest Drive, Canyon Country, California 91351. (the "Property"),

further described as: Valued at $477,000.00

Assessor Parcel Number: 2812-070-015

LegalDescription:

Lot: 57 Tract No: 46626 Abbreviated Description: LOT:57 CITY:REGION/CLUSTER:01/01146 TR#:46626 TR=46626 LOT 57 City/Muni/Twp: REGION/CLUSTER: 01/01146

13. At all relevant times, Wells Fargo Bank, N.A.is a national association

organized under the laws of the United States with its main office in South

Dakota.

14. At all relevant times, Wachovia Mortgage, a Division of Wells Fargo

Bank, N.A. andF/K/A Wachovia Mortgage, FSB, is a national associationorganized underthe laws of United States with its main office in Sioux Falls,

South Dakota.

15. The guarantee of rights granted to each Californian is a special and

unique right embedded in the very first clause of the California Constitution.

Article I, 1 of the California Constitution provides:

All people are by nature free and independent and have inalienable rights.

Among these are enjoying and defending life and liberty, acquiring,

possessing, and protecting property, and pursuing and obtaining safety,

happiness, and privacy. (Emphasis supplied)

16. For the reasons mentioned above, this court has subject matter

jurisdiction over Plaintiffs claims.

DATED: July 02, 2012 Respectfully submitted

By: Carlos Aguirre______________UCC 1-308Attorney In Pro Se

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