Motion for Stay Pending Appeal and Preference B239793

IN THE COURT OF APPEAL OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

David Gates, Trustee of the David Gates Trust dated August 5, 1996,

Plaintiff and Appellant, vs.

MGC Mortgage Inc., LLP Mortgage Ltd., LP, Loan Acquisition Corporation,

Defendants and Respondents. Appeal From the Superior Court for Santa Barbara County

Colleen K. Sterne, Judge SBSC Case 1384851

EXTREMELY TIME SENSITIVE (foreclosure sale set for April 5, 2012)

MOTION FOR STAY PENDING APPEAL AND

MOTION FOR PREFERENCE - CCP §36

Nancy D McCarron CBN 164780

950 Roble Lane Santa Barbara, CA 93103

805-965-3492 Attorney for Appellant

TABLE OF CONTENTS

STATEMENT OF THE MOTION …………………………………………… 1

STATEMENT OF FACTS ……………………………………………………... 3

ISSUE PRESENTED ON APPEAL ………………………………………….. 6

APPEALABILITY ………………………………………………………………. 6

STANDARD OF REVIEW …………………………………………………….. 6

SUMMARY OF ARGUMENTS ON APPEAL ……………………………… 7

ISSUE AND ARGUMENT ON THIS MOTION …………………………… 8

GLOBAL PUBLIC POLICY CONSIDERATIONS ………………………… 10

VERIFICATION ………………………………………………………………… 14 PROOF OF SERVICE …………………………………………………………………. 15

TABLE OF STATUTES

Civil Code §3387…………………………………………………………………. 6, 8

Code of Civil Procedure §36 …………………………………………………… 1, 8

Code of Civil Procedure §632 ………………………………………………….. 6

Code of Civil Procedure §904.1(a)(6) ………………………………………… 6, 7

California Rules of Court, Rule, 8.240 ……………………………………… 2, 8

Evidence Code §§450-453 …………………………………………………………. 3

Evidence Code §1451 ………………………………………………………………. 7

UCC Article 3 §3-308 ………………………………………………………….. 3, 7

MISCELLANEOUS

60 Minutes - April 3, 2011 http://www.cbsnews.com/video/watch/?id=7361572n 4,11

1099-C instructions http://www.irs.gov/instructions/i1099ac/ar02.html#d0e530 … 5

Criminal Affirmance by Mary Ramirez, Prof Washburn Univ. Law School..12

Aequitas Audit: “Foreclosure in California” (A Crisis in Compliance) ……. 12

i

TABLE OF AUTHORITIES

Royal Thrift v. County Escrow (2004-2nd D) 123 C.A.4th 24, 35-36 ………… 1

Stewart v. Whitmyre (1961) 192 C.A.2d 327,328-329 ……………………… 1

Eldridge v. Burne (1978) 76 C.A.3d 396, 403 …………………………………. 6

Sjorberg v.Hastorf (1948) 33 C.2d 116,119 …………………………………… 6

Demarist v. Quickloan Funding,Inc 2009 WL 940377 @9 (C.C.Cal.2009)… 6

El Dorado Meat Co.v.Yosemite Meat Locker (2007) 150 C.A.4th 612,617…. 6 Huang v. Luir (2007) 150 C.A.4th 400, 408-409…………………………………… 6

Strategix, Ltd. v. Infocrossing West, Inc. (2006) 142 C.A.4th 1068, 1072………… 6

Herbst v. Swan (2002) 102 C.A.4th. 813. 816 (de novo-constitutional issues) …… 6

Kuhn v. Dept. of Gen Serv. (1994) 22 C.A.4th. 1627, 1633………………………....... 6 Store Media v. Superior Court (1999) 20 Cal.4th 449, 457 footnote 9……… 7

Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374 ………….. 7

Love v. Wolf (1964) 226 C.A.2d 378,403 ………………………………………. 7

People v Long (1970) 7 C.A.3d 586 ……………………………………………… 7

Du Bois v. Lark (1959) 54 C.A.2d 737 …………………………………………. 7

Fares v. Morrison (1942-2nd) 54 C.A.2d 773 ………………………………….. 7

Huber,Hunt v. Moore (1977) 67 C.A.3d 278, 313 ……………………………. 7

Engelking v.Carlson (1939) 13 C.2d 216 ……………………………………… 7

Paxton v County of Alameda (1953) 119 C.A.2d 393 ………………………… 7

Danielson v. Roche (1952) 109 C.A.2d 832 …………………………………….. 7

Marriage of Anaheh Firem (1990) 219 C.A.3d 272, 279 ……………………… 7

Demarist v. Quickloan Funding. 2009 WL 940377 @ 9 (C.C.Cal.2009) …… 8

San Francisco Conservation v. Emeryville (1968) 69 Cal.2d 533, 538 ……. 9

ii

TO ANY INDIVIDUAL JUDGE OF THIS HONORABLE COURT

STATEMENT OF THE MOTION

Plaintiff appellant David W. Gates, trustee of the David W. Gates

Trust dated August 5, 1996, by his attorney, moves this Honorable

Court for an emergency order staying the sale of his ranch of 35 years

set for April 5, 2012. Gates verifies he is 70, in poor health, and seeks

preference in brief and oral argument schedules. CRC 8.240; CCP§36.

This district held an appeal of the denial of an injunction prohibiting foreclosure of a primary residence, regardless of its label, constitutes

a mandatory injunction invoking the automatic stay of CCP §916,

as foreclosure would alter the status quo, moot the appeal and cause

irreparable harm. Royal Thrift v. County Escrow (2004-2nddist) 123

C.A.4th 24,35-36; Stewart v. Whitmyre (1961) 192 C.A.2d 327,328-329

Since trustee below has foreclosed in other cases despite a stay, and

appellant must move for preference in setting a briefing schedule, he

asks the court to reaffirm its controlling law by ordering a stay of all

proceedings as the causes pleaded below all relate to the foreclosure.

Absent a stay, a pretend lender who never held any beneficial

interest in his note or trust deed, and who never lent Gates a penny,

will steal a $1,000,000 ranch for free by forgery, perjury, and fraud.

The court affirmed these crimes by turning a blind eye to undenied evidence of forgery and an uncontroverted expert opinion on a fraud.

The court disregarded this district’s prohibitions on taking judicial

notice of the truth of disputed hearsay in recorded documents, and a

Supreme Court mandate prohibiting the same error. Gates cited the

cases in his injunction motion, in objections and during oral argument

1

Preliminary injunction evaluation is based on admissible

evidence and rests on two factors: likelihood that applicant will

prevail on the merits, and balancing the interim harm to applicant

if injunction is denied compared to respondent’s harm if granted.

The court found factor 2 “tips in favor of Gates” [Vol.III.p.20:708].

This part is unchallenged. The court erred in the remaining prong.

The court found foreclosure statutes and enforcement of negotiable

instruments under UCC Article 3 governed here. [Vol.III.p.20:708]

The court erred in applying UCC, evidence rules and judicial notice.

Evid. §§450-453. The court took judicial notice of fabricated, forged

hearsay in documents and overruled evidentiary objections to them.

The court compounded its error by finding the hearsay facts as true.

The court’s evidentiary analysis was clear error. [Vol.III.p.20:711].

The court denied Gates’ sixth amendment right to a jury trial,

his due process right to discovery and an opportunity to prove fraud.

In an effort to guard its erroneous decision from appellate scrutiny,

the court denied a request for stay without opposition or a hearing,

exposing Gates to certain irreparable harm. [Vol.III p.20:703,ln 12].

Denial of the injunction is an appealable order. CCP §904.1(a)(6).

Although not due until opening brief date, Gates files his Appendix

[CRC 8.124] early with this motion for court review as necessary.

Should the court require additional time to evaluate this motion

Gates asks the court for a temporary stay pending consideration of

this emergency motion to prevent irreparable harm, and asks for a

speedy hearing due to his old age (70) and poor health. CCP §36(a)

This motion includes Points & Authorities and entity certification.

2

STATEMENT OF FACTS

The most important fact which the court refused to acknowledge

is that Gates is not trying to avoid paying a debt. Gates will make his

payments and cure any arrears once the real beneficiary is identified.

Foreclosing Respondents are not, and never have been an owner, note

holder, or beneficiary of Gates’ loan. Foreclosing Respondents failed

to file an answer to Gates’ verified complaint and failed to offer party affidavits swearing they are the actual owner, lender or beneficiary.

Gates refuses to pay an imposter who does not hold, and never held,

any beneficial interest in either the note he executed or a trust deed.

Gates refuses to pay an imposter who recorded forged assignments.

Gates is a 70 year old man who has been disabled since age 45.

Gates bought the subject ranch 35 years ago. [App.Vol.I,p.1.29 deed]

Gates refinanced his existing WaMu loan on 9-29-2005 with a higher

amount to construct a secondary structure to generate rental income.

Rental income from tenants has always helped him make payments.

Gates timely made payments for four years until tragedies in 2009.

Gates resided with his wife of 20 years until her death on 11-19-08.

6 months later the home burned in Jesusita fire (5-6-09) [Vol.I,p.1.3]

The severe trauma and stress resulted in remedial heart surgery.

When his 6-1-09 payment came due he called GMAC (WaMu’s loan

servicer) to tell them he was unable to make a payment without rent.

Unbeknownst to Gates, a week later 2 fraudulent assignments

with robo-signed executions were hastily recorded.[Vol-I,p.1.63-1.66]

Both contained all familiar indicia of forged, fabricated instruments.

Expert Bill Paatola described the fraud to the court [Vol-II,p.11.457]

3

Paatola attached Secretary of State reports showing MGC did not

exist until 2008. [Vol-II,p.11.474] MGC could not have prepared the

2006 assignment because it did not exist then, notwithstanding that

the document was purportedly notarized in Florida---not Texas.

Paatola explained how a “blurry” effect on the purported signatures

indicated the signatures had been photshopped onto the assignment.

Paatola testified that even if the first assignment were legitimate

then WaMu would have been selling an asset it had previously sold

to the WaMu 2005-AR-16 trust in 2005. (Gates’ loan was securitized).

If the subject note and deed of trust belonged to the trust, WaMu

would have had no beneficial interest to sell in 2006, but could only

have sold loan servicing rights per the governing P&S agreement.

Paatola further testified he located Gates’ loan in the WaMu 2005 AR-

16 Trust on Bloomberg’s securitized loan website. [V-II,p.11.454]

He attached a Bloomberg print showing Gates’ loan. [Vol-II,p11.474]

and showed 6 of 17 tranches had already been paid. [Vol-II,p.11.475]

The court must note that defendants never objected to Paatola’s

expert testimony nor offered any countering expert or lay affidavits.

Defendants realized everything Paatola testified to was indisputable.

None of this mattered to the court, who found the assignments valid!

Gates asks this court to listen to 60-Minutes’ robo-signing report at: http://www.cbsnews.com/video/watch/?id=7361572n televised April 3, 2011

Robo-signers explain how, while working at DocX, owned by Lender

Processing Services, they forged thousands of documents which were

fraudulently created before regulators shut DocX down after investigation.

The court turned a blind eye to uncontroverted evidence of fraud.

4

Only 4 days after assignments were hastily recorded after notice

to GMAC on the fire, GMAC and MGC notified Gates on the same day

[6-16-09] GMAC had sold loan servicing rights to MGC [VolII-10.388].

Why GMAC hastily sold loan servicing rights after the fire to MGC is

explained in a detailed chronology in Gates’ Reply. [Vol-I, p.10-370]

GMAC could not foreclose on a distressed owner as it was prohibited

under conditional receipt of $16 billion TARP$. MGC could foreclose

as BEAL didn’t get TARP$ because he had too many billions in cash?

Farmers refused to issue claim funds until Gates rebuilt, forcing

him to charge materials to rebuild so he could collect on the fire claim.

After rebuilding 80% he owed $200,000. Farmers issued $202,548.64

via checks payable to Gates and MGC --loan servicer. Gates never told

Farmers about MGC, whose staff directed him to sign the checks and

forward them to MGC. Staff promised to endorse and return them.

MGC is waiting for Gates to finish the last 20% so they can convert

his final reimbursement funds. After pleading for five months to

refund Farmers’ reimbursement for materials funds, Gates hired

counsel who convinced MGC to refund half of the converted funds.

Gates got $113,622.96 of $202,548.64 in 2010. [Vol.I.p.1.109-1.111]

In 2011 Gates received an IRS 1099-C form from Dovenmuehle

Mortgage, Inc. as “servicer for MGC Mortgage, Inc.” [Vol-I,p.1.112]

The 1099-C recited “Cancellation of Debt” showing his loan number.

Despite numerous inquiries MGC failed to explain why it was sent.

[http://www.irs.gov/instructions/i1099ac/ar02.html#d0e530] The court

was not authorized to resolve issues of fact for a jury at the threshold.

Prejudicial errors resulted in affirming criminal conduct and fraud.

5

ISSUE PRESENTED ON APPEAL

Was it prejudicial error to conclude Gates is unlikely to prevail on

the merits by taking judicial notice of disputed hearsay in recorded

documents denying his right to confront witnesses and prove fraud?

APPEALABILITY

Denial of preliminary injunction is appealable. CCP §904.1(a)(6)

Denial of prohibition against foreclosure is appealable as a final order.

Eldridge v. Burne (1978) 76 C.A.3d 396, 403; Sjorberg v.Hastorf (1948) 33 C.2d 116,119. It is conclusively presumed the loss of a

single family residence can not be compensated with pecuniary

damages. Civil Code §3387. Demarist v. Quickloan Funding,Inc. 2009 WL 940377 at page 9 (C.C.Cal.2009).

STANDARD OF REVIEW

On pure questions of law the standard of review is de novo.

El Dorado Meat Co., v. Yosemite Meat Locker Svs. (2007) 150 C.A.4th.

612, 617. Huang v. Luir (2007) 150 C.A.4th 400, 408-409. (injunction)

Analysis is hybrid when order is based on questions of law mixed with facts.

Where the trial court's ruling depends on determination of the applicable

principles of law, however, it is subject to independent appellate review.

Strategix, Ltd. v. Infocrossing West, Inc. (2006) 142 C.A.4th 1068, 1072.

Herbst v. Swan (2002) 102 C.A.4th. 813. 816 (de novo-constitutional issues)

Even when the standard is substantial evidence where records show

a court based its ruling on a “mere scintilla” of evidence it need not affirm.

Kuhn v. Dept. of Gen Serv. (1994) 22 C.A.4th. 1627, 1633. Where a court

refused to issue a Statement of Decision after a request under CCP

§632 it is reversible error per se. The court refused a request for it.

6

SUMMARY OF ARGUMENTS ON APPEAL

1. It was prejudicial error to conclude Gates is unlikely to prevail on

the merits by taking judicial notice of disputed hearsay in recorded

documents denying his right to confront witnesses and prove fraud.

A. Taking Judicial Notice of disputed hearsay is prejudicial error.

Store Media v. Superior Court (1999) 20 Cal.4th 449, 457 footnote 9;

Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374. Love v. Wolf (1964) 226 C.A.2d 378, 403;People v Long (1970) 7 C.A.3d 586

Court took judicial notice of forged recordings and found hearsay true.

B. Evidence §1451 is not conclusive and does not apply herein.

Du Bois v. Lark (1959) 54 C.A.2d 737. Even if §1451 applied the truth

of hearsay contained in documents is a jury issue. Fares v. Morrison (1942-2nd) 54 C.A.2d. 773. Court’s misapplication was prejudicial error

C. Uncontroverted expert opinion is conclusive and may not be

disregarded by court. Huber,Hunt v. Moore (1977) 67 C.A.3d 278, 313;

Engelking v.Carlson (1939) 13 C.2d 216; Paxton v County of Alameda

(1953) 119 C.A.2d 393; Danielson v. Roche (1952) 109 C.A.2d 832

[expert Paatalo testified Gates’ loan was securitized into AR-16 trust]

D. Court may not find a fact which is inherently implausible.

Marriage of Anaheh Firem (1990) 219 C.A.3d 272, 279. Paatalo found

Gates’ loan in a securitized trust; it could not have been sold to MGC.

Court’s finding that MGC was owner of Gates’ loan was implausible.

2. UCC §3-308 imposed a burden on MGC/LLP to prove validity of

challenged undated signatures on assignments and allonge; hearsay

without a right to confront witnesses violated due process and §3-308.

3. Refusal to issue CCP §632 statement is reversible error per se.

7

ISSUE AND ARGUMENT ON THIS MOTION

Is appellant entitled to a stay of proceedings pending appeal after

denial of a stay below, and to preference under CRC 8.240; CCP§36?

An appellant may seek a stay pending appeal if the trial court

denied the stay. Gates’ request for stay was denied. [Vol-III p.20.703]

Absent a stay, a pretend lender who never held any beneficial interest

in his note or trust deed, and who never lent Gates a dollar, will steal

his $1,000,000 ranch by recording a forged, fraudulent assignment.

He will be denied an opportunity to prove the assignment is a fraud.

Gates filed nine causes of action against 10 defendants who were

involved in either the securitization of his mortgage through WaMu

(JP Morgan Chase as Successor in Interest) on 9-29-2005, the loan

servicing of his loan since 9-29-05, the fabrication of fraudulent and

forged documents recorded against his property, or the wrongful

foreclosure being prosecuted by a trustee who is participating in it.

By denying Gates’ application for preliminary injunction pendente lite he is deprived of an opportunity to confront witnesses to prove fraud.

Gates would suffer by losing his home of 35 years to an imposter.

Irreparable harm is conclusively presumed. Civil Code §3387.

Demarist v. Quickloan Funding. 2009 WL 940377 @ 9 (C.C.Cal.2009)

Since all causes of action are related to the wrongful foreclosure,

the forged and fabricated assignments recorded against his ranch,

and the elder abuse involved in embezzling funds Farmers issued to

reimburse Gates for materials purchased to rebuild 80% of his home,

Gates would be handicapped if forced to proceed in the trial court.

8

The trial court has demonstrated a clear bias towards Gates and is

presumed to be biased now that Gates appealed the erroneous ruling.

Gates will not receive fair treatment in the court on remaining claims.

Gates’ discovery would be handicapped in that defendants will refuse

to respond to interrogatories or produce documents Gates needs to

prove the elements of his remaining causes of action related to fraud.

If Gates who is disabled loses his ranch on April 5, 2012 in a

trustee sale he will be homeless for the first time in his life at 70.

The ranch Gates has nurtured and improved for 35 years will be

acquired by an imposter from Texas who never lent him a dollar and

who was never the owner, beneficiary, or note holder in due course.

The real beneficiaries --- the investors who purchased certificates in

the WaMu Series 2005-AR-16 Trust to fund Gates’ loan, along with

thousands of other loans, will not be repaid and could still sue Gates

to collect on his promise to pay (the underlying note). Andrew Beal

(Beal Bank) will acquire a $1,000,000 ranch for free. Is this justice?

After Beal created MGC to start loan processing in 2008 [Vol.p10.385]

Beal’s annual net income soared from $281 billion in 2008 to $559

billion in 2009 [Vol-II,p 10.395]. (using LPP as pretend lender)

This court has unlimited jurisdiction to issue a stay pending appeal

San Francisco Conservation v. Emeryville (1968) 69 Cal.2d 533, 538.

Gates continues to worry about his failing heart and is afraid of a

heart attack from all the stress this fraud has caused. Gates asks the

court to stay all proceedings pending appeal and to accelerate briefing

and oral argument due to age and poor health. CRC 8.240; CCP §36

9

GLOBAL PUBLIC POLICY CONSIDERATIONS

After the Great Depression of 1934, as part of the New Deal, the

National Housing Act (NHA) was enacted to revive the economy and

encourage citizens to work toward the “American Dream” of a home.

Fannie Mae, Freddie Mac, Ginnie May, FHA, FNHA, etc. all evolved.

The Tax Reform Act of 1986 created an anomaly entitled “REMIC”

(Real Estate Mortgage Investment Conduit) to facilitate origination of

loans thru securitization, explained in Gates’ complaint. [Vol-I,1.76]

By 2000 Wall Street brokers met with banksters to devise a new

secondary subprime mortgage market, wherein thousands of loans

would be securitized (converted to certificates to be sold to investors).

The subprime mortgages were for risky borrowers who did not qualify

in traditional bank loan portfolios. Brokers devised the pooling of

loans by the thousands, spreading the risk of default among millions

of investors, to be guaranteed by our government. How could it lose?

Highest commissions were paid to originators of the riskiest loans

while brokers, banksters, and trustees made billions in commissions.

The loans started at prevailing interest (teaser rates) but within a few

years jumped to shock rates so high they were destined to default.

Realizing this would occur, brokers created credit default swaps in

which they bought “the short position” hedging against pool defaults,

selling “the long position” to unwary investors relying on fraudulent

“AAA” ratings by rating agencies who were part of the conspiracy.

Brokers bought insurance against defaults [government backed AIG]

and lenders made borrowers buy ALTA policies for payoffs on defaults

Brokers and banksters would make billions fully insured against loss.

10

Motivated by insatiable greed banksters and brokers originated

millions of loans to borrowers they knew would default in a few years.

The end result was the collapse of our entire financial system in 2008.

See Congressional report “Anatomy of a Financial Collapse” [V-I 1.97]

See excerpts on WaMu (who originated Gates’ loan) from the report.

In the frenzy for billions in commissions banksters were careless in

processing loan files, often losing notes, trust deeds, title policies, etc.

as the millions of files got shuffled around Wall Street into the pools.

This was exacerbated at WaMu when FDIC seized it on 9-25-08,

sold it to JP Morgan Chase that day and WaMu filed bankruptcy.

When the bubble burst in 2008 housing prices nose-dived leaving half

of American homes underwater. Prices fell 40% while shock rates

kicked in on the mortgages. As monthly payments doubled owners

could not afford the payments; they could not sell in a down market;

they could not refinance. Default rates skyrocketed to a level never

before seen in our history. Thousands of homes across America fell

into foreclosure and millions of families became homeless and jobless.

As banksters foreclosed on thousands of homes they realized notes,

trust deeds and assignments were missing. Cognizant that judges

would expect them, banksters cured the dilemma by fabricating the

missing instruments through photoshop. They looked real! After all,

what Judge would believe a bank forged instruments to file in court?

Loan Processing Services, dba Doc X came to the rescue!! [V-II 10.383]

It advertised as a network of “runners” ensuring “speedy foreclosure”

to banksters posting a “price list” for creating the missing documents.

“Create a Note Allonge” was $12.95. Create entire collateral file. $95 http://www.cbsnews.com/video/watch/?id=7361572n televised April 3, 2011

11

Judges were duped into believing forged, fabricated documents

were real as they were notarized, recorded and offered by a bank!

It was not until Congress & 50 Attorney Generals investigated that

nationwide bank fraud came to light. All 50 states were prepared to

indict the criminals who forged documents and filed them in courts.

Obama created the Mortgage Fraud Task Force 1/27/12 [V-I 1.107]

Banksters used shareholders’ funds to buy immunity for their crimes.

[V-III 10.381] Our government settled with banksters for $26 billion.

This settlement affirmed the crimes and will ensure more of the same.

See “Criminal Affirmance” by Mary Ramirez, Professor at Washburn

University Law School, 13-yr.veteran DOJ prosecutor. [V-III 18.601]

She explains how affirming crimes of elite banksters puts them in a

class above the law. As law-abiding citizens, left homeless and jobless

watch the banksters get richer they ponder if they should also break

the law as they discover “crime pays” -- resulting in a lawless society.

Anger percolates to inevitable revolution. We see it in its embryonic

stage; i.e. “Occupy Wall Street” & “Occupy County Recorder’s Office.”

Protests occur daily and angry citizens are moving toward violence.

Banksters cavalierly continue to file forged, fabricated documents.

Judges continue to validate them! Citizens & lawyers are outraged.

As Congress found in its report our financial system is broken. Id.

California’s Foreclosure system is broken. (see audit) [V-III 19.682]

Eric Holder is investigating after an Aequitas audit revealed 99% of

foreclosures had irregularities, 84% had violations of law and suspect

documents, with a high rate of conflicts as to the actual beneficiary,

creating doubt as to whether homeowners were denied due process.

“California’s foreclosure process appears utterly broken.”[VIII 19.696]

12

Our financial system is collapsed. Our foreclosure system in broken

Millions of families are homeless--their homes vacant and vandalized.

The collapse resulted in a tsunami of litigation across 50 states; every

district court in America, and every bankruptcy court in every city.

Courts will be burdened for years to come trying to resolve this mess.

But the answer is not to turn a blind eye and deaf ear on the victims.

If prosecutors won't punish banksters because they are "too big to fail"

then courts must take action. Courts can not continue to affirm crime!

Gates asks the court to consider the global effects of this decision.

A securitization chart shows Gate's loan in AR-16 trust.[V-I 1.811

A Pooling & Service Agreement (P&S) governed party rights & duties

The P&S recites the parties [V-I1 10.3711 see excerpts [V-I1 10.3961

"DB Structured Products,Inc." (DP) was never a party to the P&S.

DP wadis a strangerto the P&S and Gates' loan. WaMu's purported

conveyance of the trust deed to DB [V-I 1.631 was a nullity as WaMu

could not have conveyed it in 2006 because his note had already been

conveyed to the 2005-AR-16 trustee (Deutsche Bank) on Oct. 1,2005.

Secondly, WaMu could not convey to DB as it was a strangerto P&S.

DB's later assignment to MGC was a nullity as it derived from nullity.

Gates provided indisputable and uncontroverted evidence of fraud.

His chance to prove it was slashed by a judge a t the court's front door.

The court affirmed elite bankster crime by handing them Gates'home.

Once can not imagine a more egregious miscarriage of justice.

March 21, 2012 - / l & k d & M ~ h - J ~ a r b c ~ DU& McCarron, CBN 164780 Attorney for Plaintiff Appellant

VERIFICATION

I, DAVID GATES, as trustee of the David W. Gates Trust dated

August 5, 1996 declare:

I am appellant. I have read the motion for stay pending appeal

and preference in briefing and oral argument. I am over 70 years old

and in poor health. I had heart surgery after my wife died and my

home burned in the Jesusita fire. I am afraid that the stress from all

the fraud committed and this litigation could cause a heart attack.

I have owned my ranch a t 1200 Palomino Road, in Santa Barbara, CA

since I purchased it in 1976 when I was 35 years old. It has always

been my primary residence and the only source of happiness in my life

since my wife died and our home burned in the Jesusita fire in 2009.

I can make the monthly payment for the amount stated on the last

statement I received and can pay arrears. I do not want to pay MGC

because paying MGC would affirm owing a debt I do not owe to them.

I declare, under penalty of perjury and the laws of California, the

statements herein are based on personal knowledge and are true.

Executed on March 21, 2012 in Santa Barbara, California.

DAVID GATES, as uste tee of the David W. Gates Trust dated August 5, 1996

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA

Court of Appeal, Second Appellate District, Division Six, B239793 David W. Gates v. MGC, et a1 SBSC 1384851, Dept. 5 Colleen K. Sterne

I am counsel for appellant and not a party to the action. My address is 950 Roble Lane, Santa Barbara, CA 93103.805-450-0450 fax 805-965-3492 On March 21 ,2012 I served respondents with the following document:

APPELLANT'S Motion for Stay Pending Appeal and Preference - B239793

[ 1 (By Personal Delivery) as follows: Clerk of the Court, Santa Barbara 1100 Anacapa St., Santa Barbara CA, for Colleen Sterne, Judge Dept 5

[ 1 (By Facsimile) The fax machine I used complied with Rule 2003(3) and no error was reported by machine. Pursuant to Rule CRC, 2008 [c1(4). I caused the machine to maintain a record of same.

[ x 1 (By Email) to addresses by agreement & nancvduffvsb@vahoo.com:

Regina McClendon, Locke Lord LLP for respondents MGC, LLP, LAC 300 So Grand Ave, Suite 2600 rmcclendon@lockelord.com Los Angeles, CA 90071 213-485-1500 fax 213-485-1200

Laurie Selkowitz, Wargo & French for JP Morgan Chase defendants 1888 Century Park East, Suite 1520 lselkowirtz@war~ofrench.com Los Angeles, CA 90067 310-853-6900 fax 310-853-6333

Steve Bennett, Wright, Finlay & Zak for ~ a l - ~ d s t e r n Reconveyance 4665 Mac Arthur Court, Suite 280 sbennett@/mritrhtleeal.net Newport Beach, CA 92660 -77-9200

1 1 (By Mail) §1013a, $2015.5 CCP. I am familiar &ith mail collection in Santa Barbara. I deposited the envelope in the mail kt Santa Barbara, CA. I am aware on a motion of the party served, service 1s presumed invalid if postal cancellation date is more than one day after deposit date on affidavit.

I [ x 1 (STATE) I declare under penalty o the abovc is true and correct.