Good. This will protect the stupid people from the unethical people.
What is ethics? Do you know Judges all around the world do not know justice, and are inexperienced with justice, and have actually rigged teh game so that ppl can't have houses anymore? You can have houses in Asheron's world, but not Obama's. In fact, Obama has not yet claimed his world, they gave him the peace prize and he proceeded to wave his hands and say xyzzy and nothing happened, really. He appointed an attorney general, Eric Holder, who said "we shall respect California's laws concerning plants, even though California is not relocating bakersfield cactuses to a reserve and not designing the reserve to allow for such important things as, cross pollination. And Obama, who is a member of the choom gang, this is known around the world as well as it is known that Michael Jordan plays basketball, that he is a choomer, in fact that is one reason some californians like him, because he is not supposed to do things like send letters to federal judges saying that what they did to that guy in Morro Bay, who sold plants to people with cancer and such, they took all his business records and blacked out everything in them except the words that said schedule 1 drugs, and sales. They did not let people on the jury see medical recommendations of all the patients, because this was not relevant in Federal Court.
Let me tell you a few stories. Once Myth was in a forest (which is federal) stepping in a river with no clothes on. She was putting on clothes. Rangers came and took myth to her car and said "do you have plants?" and Myth said "yes, some" and Myth showed these cops these plants and so was taken and placed in a cage made of rocks and metal. When they took this mage to the judge, the mage looked the judge straight in the face and said "I would like to quash the summons, on the grounds that I am from every planet except earth, and this is my home." This worked.
About homes ~
ACI Medical is a small business in Nipomo, California, and there is this nice old lady who sells wheelchairs to ppl. Once upon a time, Medicare paid for those wheelchairs. Those wheelchairs was good, they was jazzy and pride, and some day if senior citizens are lucky Jazzy and Pride will merge and make the Jackrabbit, which is a wheelchair that lets ppl do things in the world like oh i don't know, set off volcanoes and such. And there will be this one nice old lady who had a stroke who isntead of being completely disenfranchised and having no hope to be teh mattriarch of teh community anymore, she shall spend the last 10 years of her life trying to make gestures, and to indicate stuff. She will say to the world, i have a contribution to make, there is a light switch, and she would start to recant some idiom about light--and this was a holy woman, her sisters were all in those places where women go to not have children, at churches. Nuns. And if your sister says to you, you shall join us, and you were to say, no, I shall have daughters and I shall love them instead, goodbye forever and I love you...
Anyways Flor's daughter can't break the contract that I wrote. It would be just like a wizard to have a dad who went to Oxy and stayed in the same room that Barry stayed in, with John Philip & Co, of Midcoast Care, Inc, or whatever the new name is of that entity that fought Nautic Partners, LLC, the time that they came and took $2.2 million from us. They would say, "oh we can do anything. we can takes your treasures and use it to sustain a group of executives who shall cheat you and we shall have better lawyers and even though we have the money now, and even though it was taken from you and there was probably a conspiracy, the material witnesses shall be 3, and of those 3, one shall die in his sleep exactly 42 seconds after you meet with Chuck Rylant and his boss agrees to go bring Brian Sato in for questioning. Brian Sato dies.
There are moments when a wizard will walk around campus and say "did i cause this" to ppl who look smart. You know who is smart? Real Buddhists. I am not talking about the people who holds signs for Open Air Outreach and says they are buddhists, and does not remember how in Vietnam we caused monks to set themselves on fire. That is a bitchslap, and Mythrandia has bitchslapped many strong clans in her time, all she must do to remove dead fetus pictures from teh quad in santa monica city college is go up to those ppl and say either 1 or 2 sacred words or phrases from the holy books and make an appeal to the conscience, or there are other ways, such as triggering a flight reflex by saying suchness as "fetus is my favorite ice cream flavor." It is almost as if you are putting on the old Zaphod Beeblebrox grin, and stating matter-of-factly, in a singulitarian tone, which she can interpret however she wants, she is free, you is acknowledging her freedom, and you is availing yourself of one merry little charm in the universe, which is teasing wrong girls. They are legion.
I love you all but I think in the most probable of all worlds it shall go down in history like this: Myth's mom lost her home and so Myth talked to Ito and explained that there are these banks which find gullible people, people who have hope, strange hopes, strange faith in people. And if they have businesses, then they has bank accounts, and if they has bank accounts, then there is money, and hunt them and get them to sign Option ARMs.
Do you know what Option ARMS are? They is documents that has a schedule of payments that the broker, who has a fiduciary duty to you, and you are entitled to rely upon his represtentaions, says ...
DRUDGE REPORT: MUST CREDIT THE DRUDGE REPORT - CORPORATIONS ARE AFRAID OF FIDUCIARY DUTIES, YOU CAN BREAK FRAUD BY GIVING JUDGES TEH RIGHT TO HOLD MANAGING DIRECTORS OF LARGE CORPORATIONS FIDUCIARY DUTIES TO SIX SIGMA BLACKBELTS AND ASKING BLACKBELTS STUFF, it is true, and that is all, for now.
Also, these Option ARMS are not fair, because conspiracies--which are hard to prove--the bank's lawyer will say stuff. The best magic words you can say to judges is 17203, help!, equitable relief, and Boschma. Do this if you are in pro per and you are good at bitching about "partial, incomplete, misleading misrepresetnations."
Also, copy this, this is not magic, but it is an attempt to cast a spell:
LAW OFFICE OF HAL FARLEY
Hal P. Farley 163503
800 S. Broadway St., Suite 203
Santa Maria, CA 93454
PH: (805) 928-5353
FAX: (805) 928-5221
Attorney for Plaintiff: FRANSISCO P. MEJIA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA BARBARA
CAPITAL ONE NORTH AMERICA, a National Banking Association; CHEVY CHASE F.S.B., a Banking Institution of unknown formation; B.F. SAUL MORTGAGE COMPANY, Lender Bank Institution of unknown formation; T.D. SERVICES COMPANY, Service Corporation; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a California Corporation; and DOES 1-100 inclusive
) Case No.: 1385281
Original Complaint filed: January 24, 2012
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION OF PLAINTIFF, FRANCISCO MEJIA FOR TEMPORARY RESTRAINING ORDER TO TEMPORARILY MAINTAIN THE "STATUS QUO"
TABLE OF CONTENTS
I. INTRODUCTION 1
II. BACKGROUND 2
A. The Loan Was Deceptively Prepared and Marketed, and Designed to Trick the Plaintiff Into Losing Equity in His House While Making Payments on His Mortgage 2
B. The Lender Has Unclean Hands Due to Failure to Conduct a Net Present Value Analysis concerning Plaintiff's Eligibility for a HAMP modification, and Violation of California's Consumer Protection and Foreclosure Laws during the Non-Judicial Foreclosure Process - These"Unlawful" Practices as Defined by §17200 of the Cal. Bus. & Prof. Code Tip Equity in Favor of Granting Injunctive Relief and Restitution as Permitted by §17203 of the Same Chapter. 2
C. The Stipulated Judgment in the Unlawful Detainer Action Does Not Collaterally Estop Plaintiff from Proceeding with this Ex Parte Application for a TRO 4
D. Plaintiff Did Not Agree, either Orally or In Writing, to Refrain from Placing a Lis Pendens on the Subject Property 4
E. Plaintiff Requires Documents In Order to Amend the Complaint and Proceed With the Hearing for a Preliminary Injunction 5
F. Good Cause Exists for the Production of the Requested Documents and Requiring Defendant to Produce Said Documents Prior to Dissolution of the TRO Will Minimize the Costs of Litigation 6
III. POINTS AND AUTHORITIES 6
A. The Defendants Should Be Enjoined from taking Possession of the Property On the Ground that Plaintiff Has Been and Is Being harmed and if Defendant is not Enjoined, Plaintiff Will be Irreparably Harmed by Defendants' Behavior and the Loss of Possession of His Family Home 6
Plaintiff's Case Cries Out For An Equitable Remedy 6
III. GOOD CAUSE FOR ISSUANCE OF TEMPORARY RESTRAINING ORDER 8
A. Foreclosure of the Family Home 8
B. The Court Has Authority to Issue a Temporary Restraining Order ("TRO"). Plaintiff Has Met the Requirements for the Issuance of a Preliminary Injunction Outlined by the Supreme Court and by the Ninth Circuit. The Court Should Issue a TRO and an Order to Show Cause re: Preliminary Injunction. 8
D. The Loss of a Personal Residence is Constitutes Irreparable Harm 10
E. Defendants Failed to Comply with California Civil Code Section 2923.5. This Is Grounds for Cancelling the Trustee's Sale. 11
F. Plaintiff Has Raised Additional Serious Questions Going to the Merits. 12
G. Restoration of the Status Quo Ante, Which is the Goal of Restitution-a Remedy Available Under §17203 of Cal. Bus. & Prof. Code-Will Be Nigh-Impossible Unless the TRO is Granted. 13
H. The Balance of Hardships Favors Plaintiff. 13
I. Public Interest Favors Granting the TRO and OSC re: Preliminary Injunction. 14
J. Bond 14
K. The Elements Required by CCP 527(c) for Issue of a TRO Are Fulfilled 15
IV. CONCLUSION 15
TABLE OF AUTHORITIES
Korea Supply Co., 29 Cal.4th at 1149, 131 Cal.Rptr.2d 29, 63 P.3d 937 13
Alliance for the Wild Rockies v. Cottrell (9th Cir.2011) 632 F. 3rd 1127, 2011 U.S. App. Lexis 1473, pp. 10-11 9
Bechtel v. Wier (1907) 152 Cal.443, 446 7
Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230 1
Cortez, 23 Cal.4th at 177, 96 Cal.Rptr.2d 518, 999 P.2d 706. 13
Cortez, 23 Cal.4th at 178, 96 Cal.Rptr.2d 518, 999 P.2d 706 13
Curl v. Pacific Home (1952) 108 Cal.App.2d 655, 661, 10
Dumas v. First Northern Bank (E.D. Cal 2011) 2011 U.S. Dist. Lexis 16775, p. 6 14
Dumas v. First Northern Bank (E.D. Cal 2011) 2011 U.S. Dist. Lexis 16775, pp. 3-4 11
Dumas v. First Northern Bank (E.D. Cal 2011) 2011 U.S. Dist. Lexis 16775, pp. 5-6 14
Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423, 439, 94 S. Ct. 1113, 1124, 39 L. Ed. 2d 435 (1974) 1
Hirshfield v. Schwartz, 110 Cal.Rptr. 2d 861,866 (Cal. Ct. App. 2001) 7
In re Houghton (C.D. Cal. Bankr. 1991) 123 B.R. 869, 875 11
Keng Hee Paik v. Wells Fargo Bank, N.A. (N.D. Cal. 2011) 2011 U.S. Dist. Lexis 3979, pp. 7-8 12
Korea Supply Co., 29 Cal.4th at 1144-45, 131 Cal.Rptr.2d 29, 63 P.3d 937 13
Kraus v. Trinity Mgmt. Servs., Inc., 23 Cal.4th 116, 126-27, 96 Cal.Rptr.2d 485, 999 P.2d 718 (2000) 13
Mabry v. Superior Court (C.A. Cal 2010) 185 Cal. App. 4th 208, 213-4 12
Park Village Apartment Tenant's Association v. Mortimer Howard Trust (9th Cir.2011) 2011 U.S. App. Lexis 3683, pp. 4-5 10
Rivera v. BAC Home Loan Servicing, L.P. (N.D. Cal. 2010) 2010 U.S. Dist. Lexis 60668, p. 5. 14
Saba v. Caplan. (N.D. Cal. 2010) 2010 U.S. Dist. Lexis 76790, p. 13 11
Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 334 1
Sharma v. Provident Funding Association (N.D. Cal. 2010) 2010 U.S. Dist. Lexis 1407, pp. 3-4. 11
Sharma v. Provident Funding Association (N.D. Cal. 2010) 2010 U.S. Dist. Lexis 1407, pp. 4-6 11
Sierra Forest Legacy v. Rey (9th Cir. 2009) 577 F. 3d 1015, 1023 9
Sundance Land Corp. v. Community First Federal. Savings & Loan Association (9th Cir. 1988) 840 F. 2d 653, 661 10
Sundance Land Corp. vs. Cmty. First Fed. Sav & Loan Ass'n, (9th Cir. 1988) 840 F.2d 653, 661-62 9
Texaco, Inc. v. Ponsoldt (9th Cir. 1991) 939 F.2d 794 5
Tomlinson v. Indymac Bank, F.S.B., 359 F. Supp. 2d 891, 893-94 (C.D. Cal. 2005) 13
Ung v. Koehler (C.A. Cal. 2005 ) 135 Cal. App. 4th 186, 202-3 11
Whitman v. Transtate Title Co. (C.A. Cal. 1985) 165 Cal. App. 3d 312, 322 11
Winter v. Natural Resources Defense Council, Inc. (2008) 555 U.S. 7, 129 S. Ct. 365, 374. 9
Wuest 53 Cal.App.2d at 346 8
Wuest v. Wuest 53 Cal. App.2d 339, 346 (Cal. Ct. App. 1942). 7
§17203 of the Cal. Bus. & Prof. Code 12
Business and Professions Code Section 17200 2
Cal. Bus. & Prof. Code 17203 13
Cal. Bus. & Prof. Code section 17203 2
Cal. Civ. Code § 3387 8
Cal. Civ.Code § 3523 6
Cal. Code of Civ. Pro. §526(a)(2) 8
California Business and Professions Code §17200 et seq. 2
California Civil Code (e.g. §§ 1670.5(a), 2923.5, 1788.11(a)) 5
California Civil Code § 1788.11(a) 12
California Civil Code §1624(3) 4
California Civil Code section 2923.5 11
Civ. Code Civ. Code § 3387 8
Civil Code § 1916.7 12
Civil Code § 1920 AND 1921 12
Civil Code Section 3294 5
Federal Truth-in-Lending Act 12
Regulation Z 5
Section 17200 of the California Business and Professions Code 7
Shaterian v. Wells Fargo Bank, N.A. et al. (2011) 829 F.Supp.2d 873 6
Cal Practice Guide Real Property Transactions Chapter 6-I 3
The Supreme Court of the United States has acknowledged in Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423, 439, 94 S. Ct. 1113, 1124, 39 L. Ed. 2d 435 (1974) that "[e]x parte temporary restraining orders are no doubt necessary in certain circumstances." Under Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 334, "a TRO, like a preliminary injunction, is by design to preserve the status quo pending the evidentiary hearing to determine whether to issue a permanent injunction."
Without a temporary order in place the family will be removed from the family home, and the real property at issue may be further transferred. Plaintiff is relying upon the matter of Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, in which it was held that similarly situated borrowers were able to adequately plead that material facts as to negative amortization under Option Adjustable Rate Mortgage Loans were concealed by inaccurate representations and half-truths, on their claims against mortgage lender for fraudulent omissions and violations of Unfair Competition Law (UCL), even though the Option ARM documents stated that the Option ARM allowed for negative amortization, where the loan, like the loan-at-issue in the instant case, included a significantly discounted "teaser" rate, the actual interest rates and monthly payments sufficient to amortize the loan were hidden in the complexity of the Option ARM contract terms, as in the instant case, and the lender did not clearly state in the loan documents that borrowers were receiving a discounted initial interest rate and that making the minimum payments according to the Truth-in-Lending Disclosure Statement (TILDS) payment schedule definitely would result in negative amortization.
The predatory loan which is the subject of this action was unconscionable by its very nature, because Defendants were secretly and deceptively taking away the equity in Plaintiff's house without his consent or knowledge, due to a discrepancy between the interest rate upon which the payments were based and the actual interest charged on the loan. The subject loan here was a toxic subprime loan which was intended to, and did, lure the Plaintiff into a false sense of security (by highlighting the initial "teaser" payments, and obscuring the negative amortization aspects). It was made without regard to whether it would be affordable to Plaintiff, and with the expected result that the borrower (Plaintiff) would go into default. The unconscionability of this loan can be made the basis of an award of damages or injunctive relief under Cal. Bus. & Prof. Code section 17203. The Court can also grant equitable, injunctive, and declaratory relief when it finds the loan agreement unenforceable due to unconscionability.
Plaintiff intends to amend his complaint to allege a cause of action to void the contract based upon both its substantively harsh, one-sided terms (for example, guaranteed default and foreclosure, given Plaintiff's financial position at the time of the loan, and pre-payment penalty trapping Plaintiff into the position of being economically injured), and its procedurally unconscionability, and to seek restitution for violations of Business and Professions Code Section 17200. Defendants have engaged in numerous business acts and practices towards Plaintiff which were unfair, fraudulent, and unlawful, the depths of which will be explored in the pending complaint. Defendants have aided and abetted the breaches of fiduciary duties committed by the Brokers, who will be named as defendants in the next amended complaint, who told the Plaintiff that the loan would not result in any negative amortization, and who provided misleading truth in lending disclosure statements. This aiding and abetting occurred not only when the Defendants prepared the documents which Plaintiff signed, but also when they made a conscious decision to qualify the Plaintiff for a loan which had default and foreclosure built into it.
A. The Loan Was Deceptively Prepared and Marketed, and Designed to Trick the Plaintiff Into Losing Equity in His House While Making Payments on His Mortgage
The case at bar arises from a deceptively devised financial product marketed to the Plaintiff in violation of California Business and Professions Code §17200 et seq., California's Unfair Competition Law ("UCL"). The Unfair, Fraudulent, and Unlawful Business Practices of the Defendants placed the Defendants into an economic position from which they were able to wrongfully conduct foreclosure sale of the "subject property" conducted on January 4, 2012.
B. The Lender Has Unclean Hands Due to Failure to Conduct a Net Present Value Analysis concerning Plaintiff's Eligibility for a HAMP modification, and Violation of California's Consumer Protection and Foreclosure Laws during the Non-Judicial Foreclosure Process - These"Unlawful" Practices as Defined by §17200 of the Cal. Bus. & Prof. Code Tip Equity in Favor of Granting Injunctive Relief and Restitution as Permitted by §17203 of the Same Chapter.
The "subject property" owned by Plaintiff, Fransisco Mejia, was scheduled for a foreclosure sale on January 4, 2012. Prior to the sale Mr. Mejia was working with the servicing company, TD Service Company, to enroll in the Make Homes Affordable (HAMP ) loan modification program. In December 2011 Plaintiff was contacted by the lender, as part of a ruse to feign compliance with California Civil Code 2923.5, but instead of being processed to complete an over-the-phone application to be enrolled in the HAMP program, the lender's agent violated California Civil Code 1788.11(a) by using ethnic slurs to castigate Plaintiff for failing to make the payments owed on his loan, after which communication broke down.
Moreover, on June 6, 2008, Plaintiff requested a copy of his original note (Mejia Dec. ¶6). The failure of Capital One, its predecessors-in-interest and/or those who assigned the note to Capital One (if anyone actually did assign the note to Capital One) to produce the note violates Civil Code §2943. Instead of producing the note, and disclosing and explaining in Plaintiff's first language the discrepancies which accounted for the variance between 1) Plaintiff's understanding of the interest rate on the payment that he was making, and 2) the actual interest rate being charged, and how this accounted for the negative amortization that Chevy Chase was claiming had occurred, as a reasonable person of ordinary person would have done in order to disabuse Plaintiff of a complicated misunderstanding inspired by the brokers and misleading financial documents supplied, Chevy Chase instead replied only by writing that "this issue is going to require a special investigation by our loan modification department." (Mejia Decl. ¶7, Ex B). Plaintiff is entitled to an accounting.
C. The Stipulated Judgment in the Unlawful Detainer Action Does Not Collaterally Estop Plaintiff from Proceeding with this Ex Parte Application for a TRO
Defendants completed a foreclosure sale of Plaintiff's property on January 4, 2012, and proceeded to file a complaint for unlawful detainer in Case No. 1385281 on February 27, 2012. According to an electronic recording of a Readiness & Settlement conference held on 3-29-2012, Plaintiff agreed to pay $3,333 per month in order to avoid being evicted from the family home during the months of April, May, and June of 2012. After the mediator confirmed that counsel would negotiate and put into writing the terms of a stipulated judgment, which would have satisfied the Statute of Frauds contained in California Civil Code §1624(3) , she asked if Plaintiff understood and agreed to the terms of the settlement plan, and at 2:03:33 P.M. on March 29, 2012, Plaintiff stated "I do." Subsequently, two seconds later at 2:03:35 P.M. of the same date, the mediator asked Plaintiff if he agreed to these terms, and he stated "I do." Subsequently, at 2:04:20, opposing counsel mentioned that a material term of the stipulated judgment would be that Plaintiff would not file a lis pendens in the instant lawsuit. At approximately 2:05:02 P.M., Plaintiff's former counsel explained that although he was not counsel in the instant action, he was attempting to take over the case from the former attorney, and he intended to refrain from filing a Lis Pendens in the matter, and to "cooperate fully" with the removal of one if one was already in place. Significantly, Plaintiff was never consulted, and never assented to this term of the settlement agreement. Plaintiff has related to present counsel that he did not understand the definition of the words "Lis Pendens" at the time that they were mentioned in Court, and that had he possessed an informed understanding of the term, he would have vehemently objected to its inclusion as any stipulation to settle the case. Plaintiff is a native Spanish speaker, and no translator was provided at the time of the mediation.
D. Plaintiff Did Not Agree, either Orally or In Writing, to Refrain from Placing a Lis Pendens on the Subject Property
Plaintiff did not even orally assent to refrain from placing a Lis Pendens on the property, since his oral agreement to the terms explained by the mediator, which was given in the form of his stating "I do" came at the earlier portion of the readiness and settlement conference, prior to the discussion of a Lis Pendens. In Texaco, Inc. v. Ponsoldt (9th Cir. 1991) 939 F.2d 794, the court found that a settlement agreement purporting to effect a transfer or sale of interest in real property was held unenforceable under the California statute of frauds, where the primary purpose of the agreement was to convey an interest real property. As this case is likely to be removed to Federal Court, inter alia, because the Plaintiff may allege causes of action that contain federal questions when the complaint is amended after Defendant produces the Note and the other documents necessary for the forensic analysis to be conducted by Holmes & Galt LLC, the Ninth Circuit's recent decision sheds considerable light upon the fact the outcome of this case is likely to turn on the fact that under California law, the statute of frauds places the onus squarely on the Defendants to produce a writing signed by the party to be charged in order to enforce a stipulated judgment concerning an interest in real property.
E. Plaintiff Requires Documents In Order to Amend the Complaint and Proceed With the Hearing for a Preliminary Injunction
In addition to requiring the Defendants to produce a writing signed by the party-to-be-charged, Plaintiff also requests that prior to the dissolution of the TRO and more than 25 days prior to the hearing on the Order to Show Cause re: Preliminary Injunction, the Court require the Defendants to produce the following documents, or in the alternative, to show cause why production of the following described documents is unreasonable:
1) Final Truth-in-Lending Disclosure Statements; 2) Note; 3) Mortgage and Riders; 4)Final HUD-1 or HUD-1a; 5) Loan Application-1003; 6) Itemization of amount financed; 7) Mortgage Insurance Premium (if applicable); 8)Good Faith Estimate; 9) Notice of right to cancel if refinance of primary residence; 10) Lender's closing instructions; 11) Mortgage Broker Agreement; 12) Escrow account Disclosure (if applicable); 13) Borrower 1040 or W2 at time of financing; and 14) Appraisal for time of financing.
F. Good Cause Exists for the Production of the Requested Documents and Requiring Defendant to Produce Said Documents Prior to Dissolution of the TRO Will Minimize the Costs of Litigation
Plaintiff is currently not in possession of said documents, and is waiting to acquire said documents in order to have a forensic analysis of his note conducted by the same underwriter who analyzed the borrower's note in Shaterian v. Wells Fargo Bank, N.A. et al. (2011) 829 F.Supp.2d 873. In paragraph 18 of Mr. Shaterian's Second Amended Complaint, he was able to allege that under his Option ARM, The payment shown in the NOTE as the starting payment, $3,765.13, was only a fraction of the amount needed to amortize the interest and principal in 30 years; the true payment, as calculated by the forensic accountant and underwriter, was $11,077. This allegation assisted the borrower to plead that he could not have qualified for that high of a payment. Plaintiff is in a position of ignorance as to what his "true payment" was, but this lack of knowledge, which is presently precluding settlement of Plaintiff's claim, can be cured if the Defendants are willing to cooperate with production of the requested documents.
III. POINTS AND AUTHORITIES
A. The Defendants Should Be Enjoined from taking Possession of the Property On the Ground that Plaintiff Has Been and Is Being harmed and if Defendant is not Enjoined, Plaintiff Will be Irreparably Harmed by Defendants' Behavior and the Loss of Possession of His Family Home
Plaintiff's Case Cries Out For An Equitable Remedy
The rule in California is that every wrong has a remedy. Cal. Civ.Code § 3523. Although the principle of equity dates back to the early era of the Anglo-Saxon judicial tradition, modern courts have affirmed that it is still operative, and that the "Object of equity is to do right and justice." Hirshfield v. Schwartz, 110 Cal.Rptr. 2d 861,866 (Cal. Ct. App. 2001). In Hirshfield, the court affirmed a case from the early 20th Century, quoting that "[i]t is the very essence of equity that its powers should be so broad as to be capable of dealing with novel conditions." Id. (citing Bechtel v. Wier (1907) 152 Cal.443, 446.) The court emphasized that equity responds to social conditions, writing that equity "satisf[ies] the needs of a progressive social condition ... " Id. (citing Wuest v. Wuest 53 Cal. App.2d 339, 346 (Cal. Ct. App. 1942). In the instant case, the wrong committed is the fact that the defendant used a deceptive tactic by failing to perform a NPV analysis for a loan modification process and communicating through its agents and co-conspirators, or the individuals whom defendants were aiding and abetting, that his sale date was not scheduled to occur, which resulted Plaintiff believing that his interest and rights in the property were secured. Further, leading Plaintiff to relinquish other legal remedies he had available at the time to prevent his property from becoming foreclosed upon. There should be a remedy for this unjust and wrongful situation. Since the object of equity is to do right and avoid injustice, the court should be able to fashion an equitable remedy that allows Plaintiff to assert his claim that the loan itself, along with the trustee's sale was unjust.
In Hirshfield, the court affirmed that powers of equity are broad enough to deal with "novel conditions." The instant case presents novel conditions. This is because it is not a simple case of a trustee's sale involving a trustee, a beneficiary and a homeowner; rather, it involves the beguiling practices of a Trustee and Beneficiary to deprive a man of his home which he resides with his wife and family by trapping him in an unconscionable loan through deceptive practices in violation of Section 17200 of the California Business and Professions Code, and failing their duty to perform a Net Present Value analysis to determine if he qualified for a HAMP Loan modification program prior to maliciously, oppressively, aggressively and deceitfully foreclosing on his home. The instant case takes place against a backdrop of novel social conditions. It is an incontrovertible truth that today we face the worst economic situation since the Great Depression, and a housing market that is in chaos. A simple glance at a newspaper is sufficient to know that the the foreclosure crisis is damaging communities across the nation, as empty houses attract crime and blight neighborhoods.
We are in the midst of what might charitably be called "novel conditions." Equity certainly has the power to deal with the novel conditions both of the instant case and the wider society.
The rule is that equity responds to social conditions. Per Wuest, equity " ... satisfies the needs of progressive social conditions." Id. (citing Wuest 53 Cal.App.2d at 346). In the instant case, the social condition which needs to be satisfied is the need for Plaintiff to have redress for the unjust situation of a trustee's sale that happened because of misrepresentation by parties who should have had the interests of Plaintiff in mind.
III. GOOD CAUSE FOR ISSUANCE OF TEMPORARY RESTRAINING ORDER
A. Foreclosure of the Family Home
The rule is that a court may issue a temporary restraining order when a plaintiff alleges acts that threaten waste or great or irreparable injury. Cal. Code of Civ. Pro. §526(a)(2). Under Cal. Civ. Code § 3387, irreparable injury and inadequacy of money damages are supported when a piece of property is unique. The Civil Code makes it clear that "[i]n the case of a single-family dwelling which the party seeking performance intends to occupy, this presumption is conclusive." Id. In the instant case, the PROPERTY is the single family home of the Mejia family. Defendant is trying to occupy it via an unlawful detainer action. Therefore, the property is unique, per Civ. Code Civ. Code § 3387, which supports a claim for irreparable injury and the inadequacy of monetary damages.
Unless the court grants the TRO, Plaintiff will have no chance to have a hearing on his claim that the trustee's sale was conducted inequitably. This is because he will have lost possession of the property through the unlawful detainer process. Since possession by Defendant of the property threatens Plaintiff with irreparable injury, and contemporaneous litigation of the unlawful detainer and the instant case involves duplicative the court should issue a TRO staying the unlawful detainer action.
B. The Court Has Authority to Issue a Temporary Restraining Order ("TRO"). Plaintiff Has Met the Requirements for the Issuance of a Preliminary Injunction Outlined by the Supreme Court and by the Ninth Circuit. The Court Should Issue a TRO and an Order to Show Cause re: Preliminary Injunction.
The purpose of a preliminary injunction is to preserve the status quo ante as it existed prior to litigation until the action can be determined on its merits. (Sierra Forest Legacy v. Rey (9th Cir. 2009) 577 F. 3d 1015, 1023.)
In order to qualify for a preliminary injunction, Plaintiff must meet a four-part test: "A Plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. [Citations.]" (Winter v. Natural Resources Defense Council, Inc. (2008) 555 U.S. 7, 129 S. Ct. 365, 374.)
The Ninth Circuit uses a "sliding scale" approach to preliminary injunction.
Under this approach, the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another. For example, a stronger showing of irreparable harm to Plaintiff may offset a lesser showing of likelihood of success on the merits. [Citation.] This circuit has adopted and applied a version of the sliding scale approach under which a preliminary injunction could issue where the likelihood of success is such that "serious questions going to the merits have been raised, and the balance of hardships tips sharply in [Plaintiff's] favor." [Citation.] (Alliance for the Wild Rockies v. Cottrell (9th Cir.2011) 632 F. 3rd 1127, 2011 U.S. App. Lexis 1473, pp. 10-11.)
The transfer of possession of the property following the Trustee's Sale of Plaintiff's property threatens imminent irreparable harm. (See, Sundance Land Corp. vs. Cmty. First Fed. Sav & Loan Ass'n, (9th Cir. 1988) 840 F.2d 653, 661-62 (foreclosure on real property constitutes irreparable harm). The property at issue is Plaintiff's home, and it would be irrevocably lost if the transfer of possession of the sale of the property is allowed to occur prior to the opportunity to litigate his right to restitution of the premises and restoration of the position that the Plaintiff was in prior to being placed into an economically damaged position by the violations of California's UCL.
As further discussed below, with this motion, Plaintiff has made a strong showing of irreparable harm. He has also shown that serious questions going to the merits have been raised, that the equities tip in his favor, and that an injunction is in the public interest. For these reasons, the Court should issue the TRO and OSC re: preliminary injunction requested by Plaintiff.
C. The Court Has Authority To Stay the Unlawful Detainer Proceeding
Under C.C.P. 526(b)(1), the stay can be made to the extent that a stay is necessary to prevent a multiplicity of proceedings. The following factors weigh in favor of a stay: (1) Restoration of the status quo ante requires that the family retain possession of the family home throughout the duration of the litigation in this case; (2) Possession of the family home is what is at issue in the unlawful detainer case; (3) The case has not apparently been resolved due to lack of mutual assent to the stipulation which Defendants introduced in support of their opposition to the former ex parte, which was neither signed by the party to be charged, nor his lawyer, and the subject of which is an interest in real property; (4) Defending the Unlawful detainer will increase the costs of litigation, requiring the resolution of a complicated fraud claim on an expedited basis; (5) A bond can adequately protect the foreclosing beneficiary's interest in collecting the fair market rental value of the subject property. Therefore, as was the case in Curl v. Pacific Home (1952) 108 Cal.App.2d 655, 661, stay of the unlawful detainer is the proper equitable remedy in the instant case.
D. The Loss of a Personal Residence is Constitutes Irreparable Harm
The threat to Plaintiff if the TRO and OSC re: preliminary injunction is denied is that Defendants will proceed with the sheriff's lockout following a writ of possession to be obtained in the unlawful detainer action. "It is well-established that the loss of an interest in real property constitutes and irreparable injury. [Citation.]" (Park Village Apartment Tenant's Association v. Mortimer Howard Trust (9th Cir.2011) 2011 U.S. App. Lexis 3683, pp. 4-5).
Threatened foreclosure of real property gives rise to immediate, irreparable injury. (Sundance Land Corp. v. Community First Federal. Savings & Loan Association (9th Cir. 1988) 840 F. 2d 653, 661.) "The loss of one's home through foreclosure generally is considered sufficient to establish irreparable harm. [Citation.]" (Saba v. Caplan. (N.D. Cal. 2010) 2010 U.S. Dist. Lexis 76790, p. 13.)
"Property is considered unique, and therefore the court finds that Plaintiffs' remedy at law, damages, would be inadequate. It is also clear that if Defendants foreclosed on the property, Plaintiffs' injury would be irreparable because they might not be able to reacquire it. [Citation.] This fact weighs heavily in favor of Plaintiffs." (Sharma v. Provident Funding Association (N.D. Cal. 2010) 2010 U.S. Dist. Lexis 1407, pp. 3-4.)
The Date for Transfer of the Premises to the Defendant CAPITAL ONE is presently set for July 1, 2012. If the TRO and OSC re: preliminary injunction are not granted, Plaintiff will be locked out of his home. He has made a strong showing of irreparable harm.
E. Defendants Failed to Comply with California Civil Code Section 2923.5. This Is Grounds for Cancelling the Trustee's Sale.
In California, a nonjudicial foreclosure sale is a statutory creation. "It has long been beyond dispute that strict compliance with the provisions of California's foreclosure statutes is essential to a valid nonjudicial foreclosure on California real property. [Citation.]" (In re Houghton (C.D. Cal. Bankr. 1991) 123 B.R. 869, 875.) "... [T]he foreclosure procedure, being statutorily prescribed, must be strictly complied with. [Citation.]" (Whitman v. Transtate Title Co. (C.A. Cal. 1985) 165 Cal. App. 3d 312, 322.) "Because nonjudicial foreclosure is a 'drastic sanction' and a 'draconian remedy' [citation] 'the statutory requirements must be strictly complied with and a trustee's sale based on statutorily deficient notice of default is invalid.' [Citations]" (Ung v. Koehler (C.A. Cal. 2005 ) 135 Cal. App. 4th 186, 202-3.)
Here, Plaintiff contends that the Notice of Default is invalid because Defendants failed to comply with California Civil Code section 2923.5. This statute requires thirty days prior to the filing of a notice of default, that "a mortgagee, trustee, beneficiary, or authorized agent" to contact the borrower in person or by telephone and explore options for the borrower to avoid foreclosure. Plaintiff denies that he was contacted in person or by telephone by Defendant prior to December, 2011 to discuss alternatives to foreclosure. Instead of discussing such options, obscenities and racial epithets were used by the collections officer. (Declaration of Fransisco Mejia ¶12.) This raises a serious question going to the merits. (See, Sharma v. Provident Funding Association (N.D. Cal. 2010) 2010 U.S. Dist. Lexis 1407, pp. 4-6, Dumas v. First Northern Bank (E.D. Cal 2011) 2011 U.S. Dist. Lexis 16775, pp. 3-4.)
The remedy provided by California Civil Code section 2923.5 is postponement of the foreclosure sale. This remedy is not preempted by federal law, and the borrower is not required to tender the amount of the indebtedness to be entitled to his or her rights under this section. (Mabry v. Superior Court (C.A. Cal 2010) 185 Cal. App. 4th 208, 213-4; Keng Hee Paik v. Wells Fargo Bank, N.A. (N.D. Cal. 2011) 2011 U.S. Dist. Lexis 3979, pp. 7-8.)
As discussed below, there are additional reasons for granting the preliminary injunction, but Defendants' violation of California Civil Code section 2923.5 in and of itself satisfies the requirement that Plaintiff show that serious questions going to the merits have been raised. Defendant's failure to comply with Civil Code 2923.5 is an unlawful business practice that should be enjoined through injunctive relief available under §17203 of the Cal. Bus. & Prof. Code.
F. Plaintiff Has Raised Additional Serious Questions Going to the Merits.
Plaintiff's Third Amended Complaint will contain numerous additional facts and causes of action that satisfy the requirement that Plaintiff raise serious questions going to the merits. The causes of action include: (1) Fraud and Deceit; (2) To Void Contract Based on Unconscionable aspects of the loan; (3) Contractual Breach of Implied Covenant of Good Faith and Fair Dealing; (4) Violation of Civil Code § 1916.7; (5) Violation of Civil Code § 1920 AND 1921; (6) Violations of Federal Truth-in-Lending Act; (7) Breach of Fiduciary Duty; (8) Aiding and abetting Breach of Fiduciary Duty; (9) Unfair Business Practices; (10) Rescission; (11) Injunctive Relief; (12) Declaratory Relief; and (13) Violation California Civil Code § 1788.11(a).
Although the Complaint has not yet been amended, the prior iterations of the complaint state facts that allege violations of common law and of state statutes, and the third amended complaint will alleges more recent acts committed by Defendants. Defendant's more recent acts include its refusal to deal fairly and honestly with Plaintiff in his requests for loan modifications and maintaining a "system" which deceived Plaintiff's consumer advocate organization, CPAC, into passing along a misrepresentation that there was no trustee sale pending, one day before selling Plaintiff's home. The Third Amended Complaint will include a claim for breach of the implied covenant of good faith and fair dealing, and breach of fiduciary duty. Capital One was required, at all times, to deal with Plaintiff fairly and in good faith, which it failed to do in dealing with his requests for loan modifications. See Boschma v. Home Loan Ctr., Inc., 198 Cal. App. 4th 230, 249, 129 Cal. Rptr. 3d 874, 891 (2011), holding that "[i]f plaintiffs can show defendant intentionally used its Option ARM forms to deceive borrowers, plaintiffs may be able to establish a fraud claim. Plaintiffs' actual interest rates and monthly payments sufficient to amortize the loan (or at least pay the accruing interest) were hidden in the complexity of the Option ARM contract terms. The fact that a false statement may be obviously false to those who are trained and experienced does not change its character, nor take away its power to deceive others less experienced. There is no duty resting upon a citizen to suspect the honesty of those with whom he [or she] transacts business. Laws are made to protect the trusting as well as the suspicious. [T]he rule of caveat emptor should not be relied upon to reward fraud and deception."
For purposes of this motion, Plaintiff has raised serious questions that go to the merits.
G. Restoration of the Status Quo Ante, Which is the Goal of Restitution-a Remedy Available Under §17203 of Cal. Bus. & Prof. Code-Will Be Nigh-Impossible Unless the TRO is Granted.
Plaintiff's likelihood of success on the merits may depends to some extent upon whether restitution under Cal. Bus. & Prof. Code 17203 is the appropriate remedy for the Defendants' violations of California's UCL. "An order for restitution is one 'compelling a UCL defendant to return money obtained through an unfair business practice to those persons in interest from whom the property was taken, that is, to persons who had an ownership interest in the property or those claiming through that person.' Korea Supply Co., 29 Cal.4th at 1144-45, 131 Cal.Rptr.2d 29, 63 P.3d 937 (quoting Kraus v. Trinity Mgmt. Servs., Inc., 23 Cal.4th 116, 126-27, 96 Cal.Rptr.2d 485, 999 P.2d 718 (2000)) (internal quotations omitted). Restitution is broad enough, however, to 'allow a plaintiff to recover money or property in which he or she was a vested interest.' Korea Supply Co., 29 Cal.4th at 1149, 131 Cal.Rptr.2d 29, 63 P.3d 937; Cortez, 23 Cal.4th at 178, 96 Cal.Rptr.2d 518, 999 P.2d 706. The goal of restitution is to restore the status quo ante as nearly as possible. Cortez, 23 Cal.4th at 177, 96 Cal.Rptr.2d 518, 999 P.2d 706." Tomlinson v. Indymac Bank, F.S.B., 359 F. Supp. 2d 891, 893-94 (C.D. Cal. 2005). Restoring Plaintiff to the status quo ante would require avoiding removing his family from the family home, as requested by this TRO.
H. The Balance of Hardships Favors Plaintiff.
In weighing the hardships to Plaintiff and Defendant, equity favors Plaintiff. If the TRO and OSC: re preliminary injunction is denied, Plaintiff will lose his home, and probably all hope of restoring the status quo ante. If, on the other hand, the TRO is granted, Defendant will have to delay the acquisition of the property subsequent to the Trustee's sale based upon the unconscionable loan, until the conclusion of this case. If the sale is voided, a remedy may be fashioned via which defendant's financial interest, if any, can continue to be is secured by the residence. "[P]ostponing the foreclosure until Defendant complies with § 2923.5 is not an undue hardship, especially when compared with Plaintiffs risk of losing his home in a foreclosure sale." (Dumas v. First Northern Bank (E.D. Cal 2011) 2011 U.S. Dist. Lexis 16775, pp. 5-6.)
Plaintiff has also shown the balance of hardships tips sharply towards him. If the TRO is not issued, Plaintiff is likely to lose possession of his home through a sheriff's lockout. In contrast, if the TRO is issued, Defendants will merely be required to delay their acquisition of the subject property. Their interest in Plaintiff's property will remain secured by the bond and the pending unlawful detainer action, which can be resumed should this Order be dissolved or judgment be entered in favor of Defendants in this action, they will be able to proceed with the unlawful detainer action at such time. (Cruz v. Washington Mutual Bank (S.D. Cal. 2011) 2011 U.S. Dist. Lexis 25439, p. 7.). Clearly the balance of equities favors Plaintiff. Since he has met the requirements for the issuance of a preliminary injunction (as discussed above and below), the application for the TRO and OSC re: preliminary injunction should be granted.
I. Public Interest Favors Granting the TRO and OSC re: Preliminary Injunction.
The foreclosure statutes protect both lenders and borrowers. Compliance with these statutes is in the public interest. "It is in the public interest to require lenders to comply with the California statutes enacted to protect homeowners from unnecessary foreclosures. The court finds, therefore, that the public interest weighs in favor of granting Plaintiffs preliminary injunction." (Dumas v. First Northern Bank (E.D. Cal 2011) 2011 U.S. Dist. Lexis 16775, p. 6.) "Given the current widespread financial crises, skyrocketing unemployment, and the attendant plummet in home values, the public interest favors keeping them in their homes while the instant lawsuit proceeds ..."3 (Rivera v. BAC Home Loan Servicing, L.P. (N.D. Cal. 2010) 2010 U.S. Dist. Lexis 60668, p. 5.)
Plaintiff has satisfied the requirement of showing that the issuance of a preliminary injunction is in the public interest. Since he has satisfied all of the requirements for the issuance of a TRO or preliminary injunction, his motion should be granted.
There is no prejudice to Defendants from an injunction because if Defendants have an enforceable security interest in the Property contrary to Plaintiff's interest, they will have the opportunity to pursue a sheriff's lockout after the trial.
In their unlawful detainer complaint, in paragraph 15, Defendants alleged that the "reasonable value of the premises" is $60.00 per day. Plaintiff is prepared to post a bond in the amount of $60.00 per day until such time a trial can be held to determine the merits of Plaintiff's contentions.
K. The Elements Required by CCP 527(c) for Issue of a TRO Are Fulfilled
As stated supra, irreparable injury will result if the family is forced to relocate and is not permitted to put a lis pendens on the property pending the outcome of this action, since the real property is unique. This irreparable injury has been alleged in the supporting affidavits, as required by §527(c)(1). A concurrent Declaration of Michael Okerblom re: Ex Parte Notice (Okerblom Decl) has been filed showing that counsel notified Ronald St. Marie, attorney for Capital One, of this date and time and department of the ex parte application on June 25, 2012 at approximately 2:20 p.m. Attached to the Okerblom Decl are the letters and emails exchanged with opposing counsel in an attempt to informally resolve the issues presented in this ex parte application for a TRO.
The Court should grant Plaintiff's ex parte application for a TRO and for an OSC re: preliminary injunction. The Court has the authority to do so, and this will maintain the status quo ante until the completion of this case. Plaintiff has satisfied the four requirements for the issuance of a preliminary injunction: He has shown that serious questions going to the merits have been raised. He has demonstrated a strong showing that he will suffer irreparable harm if the preliminary injunction is denied. He has shown that the equities balance in his favor, and he has shown that granting the preliminary injunction will be in the public interest.
This motion for preliminary injunction may be heard concurrently with Defendant's Demurrer. If the Court grants the Demurrer, or if it grants the Demurrer with leave to amend, it should also grant a short-term preliminary injunction or temporary restraining order to maintain the status quo pending amendment of the complaint. If the case is removed to and proceeds in District Court, a preliminary injunction should be granted for all of the reasons discussed above.
Dated: June ___, 2012
Hal Farley, Esq.,
Attorney for Plaintiff, Francisco Mejia
.... oh and btw ACI can't sell wheelchairs to medicare anymore, because Wells Fargo took my mom's house with a pick a payment loan, and i was able to get her 6 months, and $5000, but we lost our home, all of us, the place we grew up in is now stripped empty and there is a new house with piles of disorganized junk on the fringes of the property and i had to talk my mom into putting the gate back on, which she had taken, and it shows how bitter some people become. Do you know that if i was able to last 9 months, we would have been ale to keep selling wheelchairs? She would have had sufficient time to transfer her business' license to another address, but no, the government is very very slow to move, and indifferent. I hoped for a more responsive goverment, a goverment that said to businesses "you are one of 3 single women business owners in the nation of such and such size, and you have raised 5 good children, and you are a memebr of the city council, and a UC master gardener, and you have this garden? Do you give back to the community? Then I shall give something to you. I shall let you have your business that has given you your independence and has allowed you to have financial secuirty all these years.
If the unicerse were just a little bit more magical, i would have gotten those 3 more months, and I would not have to feel guilty for writing an ironclad contract at age 17 that said to this woman who had raised these 5 kids, here is the deal, you will get x, y, and z. And spousal support? If xyz are fulfilled, then no more support after that, ever. And she and my dad signed this, and it was ironclad, and negotiated by a 17 year old peacemaker who finally retired to do something important in his life, like meet people around the world and play video games and have fun and such.
And I warn you, California, you exist in a state of grace. Wizards is nice to muggles, and muggles is not very very nice to magical people. They are better than the spanish inquisition, in some respects, but not as good as being on an island all by yourself, and knowing this island. It is not good to be a wizard in California while they have very few Soteria houses, and lots of needles and cheap drugs, like haloperiodol, which don't solve culture-specific problems, like did your 13 year old sister get raped while you were leading an international campaign to make an eternal vigil to contain Bael'Zharon?
Muggles do not know many things. I love muggles but I do not like their laws. They has bad laws, muggles do. Like most wizards who flip out periodically are considered schziophrenic, because things like this happen: http://www.escapistmagazine.com/forums/read/528.385604-is-punching-preachers-once-at-school-wrong
Well anyways, xyzzy, lockpicks, and metasyntactic variables forever. And hello Katcho! Nipomo, California, 93444
And finally: http://www.escapistmagazine.com/forums/read/528.385129-Welfare-and-Institutions-Code-5150?page=2#15337379 ~ thankyou for asking me private questions about whether i am moral or not on your moral character application, California. You are so smart. You know who is good. Youa re good at doing things to wizards like saying "oh you shall never have freedom and you shall always feel intimidated becaues we shall prove to you that as a muggle with schizophrenia you have no rights sometimes"
And goodbye forever, and I did not smoke marijuana until I was 20, becaues drugs are bad, but do you know in those hospitals they addict ppl to cigarettes on purpose? And if I was never in hospitals with unhelpful mean people who use coercive tactics, you know kesey's nurse? She is an archetype, and i have seen her about 998 times or so, in various places. There is ppl who balance her out, but for example, if something amazing were to happen, like a wizard were to go to a hospital and talk a nurse into giving him tokens, like keyboards for the guy who fantasizes about playing the simillarion music, and markers to write symbols from the da vinci code onto the whiteboard with, even though those markers is for meetings and such.
What if all the patients in the mental hospitals looked at some symbols on a chaulk board and were openminded enough to get excited and start to laugh? I submit to you that the Nurse Kesey depicted was monitoring the autonomic range of vibrations in the timespace region surrounding those holy people. I was creating a bubble, and we all felt it, all of us good gypsies, cherokees, and such, who was locked away and feeling things, while looking at Myth and her supermodel shield (who was repeating song lyrics and rambling incoherently about something related to her father and an incident and a vehiicle)