1

2
3

Dwight A. Bennett
695-725 Hwy 36 w
Susanville, CA 96130
530-260-1189
[email protected]
In Pro Per

4
5
6

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LASSEN

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

)
)
)
Plaintiff,
)
)
vs.
)
)
SUMMIT FINANCIAL GROUP;
DANA CAPITOL CORP.; STEVE WEICH; )
)
ROD HOSILYK; DWIGHT A. BENNETT;
JUDITH A. ST. JOHN; WILSHIRE CREDIT )
)
CORP.;
)
EVANS APPRAISAL SERVICES, INC.; and
)
DOES 1-10,
)
Defendants.
)
)
NORMAN W. ALLEN
)
)
Plaintiff,
)
vs.
)
)
T.D. SERVICE COMPANY; WELLS FARGO )
BANK, N.A. as Trustee for the MLMI Trust )
)
Series 2005-HE3; and DOES 1-10,
)
)
Defendants,
WELL FARGO BANK, N. A., as Trustee for )
)
MLMI Trust Series 2005-HE3; and BAC
)
HOME
)
LOANS SERVICING, LP, a Texas limited
)
partnership, successor by merger to Wilshire
)
Credit Corporation,
)
)
Cross-Complainants,
)
)
vs.
)
)
NORMAN W. ALLEN; DWIGHT A.
)
BENNETT;
JUDITH A. ST. JOHN; EANS APPRAISAL )
)
SERVICES INC.; and ROES 1-10

NORMAN W. ALLEN,

Lead Case No.: 45679

(Consolidated with Case No. 50324)
(Related Cases Nos. 46190 & DV49327)
[Appellate Case No. C065379]
DEFENDANT/CROSS-DEFENDANT
DWIGHT A. BENNETTS
NOTICE OF APPLICATION AND
APPLICATION FOR
RECONSIDERATION OF ORDER
APPOINTING RECEIVERSHIP
OR
IN THE ALTERNATIVE TO
MODIFY THE ORDER:
[CCP 1008(a)];
DECLARATION OF DWIGHT A.
BENNETT IN SUPPORT OF
APPLICATION TO RECONSIDER
ORDER OF JULY 21, 2011:
MEMORANDUM OF POINTS AND
AUTHORITIES:
REQUEST FOR TAKING OF
JUDICIAL NOTICE:

Motion to Reconsider Ex Parte Order Appointing Receivership - 1

Cross-Defendants,

2
3

AND ALL OTHER CROSS - ACTIONS

)
)
)
)

4
5
6
7

TO THE ABOVE-ENTITLED COURT, ALL INTERESTED PARTIES HEREIN,

AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE THAT on ______________________ at _________, or as

10

soon thereafter as the matter may be heard, in Department 1 of the above-

11

entitled Court, located at 220 SOUTH LASSEN STREET, SUSANVILLE, CA

12

96130 Defendant DWIGHT A. BENNETT will make the accompanying

13

Application.

14
15

Dated: _________________

16
17
18

______________________________________
Dwight A. Bennett, in pro per.

19
20
21
22
23
24
25
26
27
28

Motion to Reconsider Ex Parte Order Appointing Receivership - 2

1
2

Application
Defendant Dwight A. Bennett, a natural person will and hereby does

apply for a reconsideration of the order made by the Court on July 21, 2011

and signed by the court on July 21, 2011 (hereinafter the ORDER) appointing

a receiver (hereinafter the RECEIVER) on ex parte motion by cross-plaintiff

Wells Fargo Bank NA (hereinafter WFB). The ex parte motion for appointment

of a receiver was defective as a matter of law and is not curable and defendant

preserves that question in the event of an appeal.

9
10
11
12
13

Defendant seeks a reconsideration of the Courts ruling on

July 21, 2011:
(1) Denying Bennett's separate real property;
a portion of the remainder of A.P.N. 099 - 260 - 69 11.
(2) Bennett's personal property.
(3) The personal property of third parties not enjoined.

14

(4) Tack and equipment from Bennetts lifelong horse interest/business

15

brought to the subject property by Bennett.

16

(5) Bennetts 34-35 horses, 2 goats, 1 donkey, 2 dogs.

17

(6) Wells Fargos July 23rd 2011 letter ordering defendant to vacate the

18

real property still legally in his name by July 25, 2011.

19
20

Or in the alternative clarification of the Order;

21

(1) If above represents the orders set forth by the court as alleged by

22
23
24
25
26

The Ryan Firm and Wells Fargo Bank NA.

(2) That the court-appointed receiver no longer receive orders from the
Ryan Firm, is neutral to all parties of the above entitled action, and
answers and reports only to the Court as required under Code of Civil
Procedure 568.( C.C.P) and C.R.C., Rule 3.1179 et. Seq.
Specifically, defendant requests that the court revoke the order. The ex

27

parte order fails to comply with or conform to California Statute requirements

28

in any manner whatsoever. Or in the alternative the Court modify the order to

Motion to Reconsider Ex Parte Order Appointing Receivership - 3

conform to California State law, the Constitution of the State of California and

the Constitution of the United States of America.

Currently, it does not begin to comport with any of the above.

Defendant sets forth this application presenting to the court new

information and requesting the application of law as required by Code and

Statute and the rights to Constitutional Due Process afforded all natural

7
8
9
10
11
12
13

citizens. The new information under this application will be set forth in the
following subparagraphs, which are further set out in the accompanying
Memorandum of Points and Authorities:
Ground 1:
The Order should be voided because it was based on a complaint for ex
parte application for appointment of receiver that was unverified in violation of
California Rules of Court Rule 3.1175(a).

14
15
16

Ground 2:
The Order should be voided because an Order to Show Cause was not

17

returned and no date was set for which Defendant Bennett could prepare and

18

defend why the appointment should not be confirmed in violation of the

19

California Rules of Court, Rule 3.1176(a).

20
21

Ground 3:

22

The Order should be voided for failure to undertake a serious

23

determination of a proper Bond for either the applicant, WFB, or the receiver,

24

as to a proper amount to insure the security of Defendant Bennetts property.

25
26
27

during the period of receivership as required under the California Rules of

Court, Rule 3.1178, Code of Civil Procedure section 529, Code of Civil
Procedure section 566(b) and the Code of Civil Procedure section 567(b). In the
alternative, the Order should be modified because the bond amount set by the

28

Motion to Reconsider Ex Parte Order Appointing Receivership - 4

Order for the receiver and the applicant, WFB, are woefully inadequate to

insure that Defendant Bennetts personal property is secured.

3
4

Ground 4:

The Order should be voided because WFB has committed extrinsic fraud

6
7
8
9
10
11

by misleading the Court and the Parties in the following ways:

a) WFB, specifically and on the record misled the court in representing
the deed of trust contained provisions for the assignment of rents and
proceeds for a business enterprise or secured in any way, personal
property items according to terms of sale or encumbrance.
b) WFB further misled the court in representing that the contract of sale
between Allen and Bennett was written by Allen and Bennett and that

12

it contained any description whatsoever of the improvements in

13

question in the above entitled matter.

14

c) WFB misled the Court in knowingly and intentionally controverting

15

and editing the California Rules of Court in omitting the specific

16

requirement that when receivership is applied for by ex parte motion

17

both applicant and receiver are to post undertakings. (Emphasis

18

added) See California Rules of Court, Rule 3.1178.

19
20
21
22
23
24

d) The receiver is under fraudulent orders by WFBs counsel to sell

Bennetts personal possessions and to give away the rest to those that
claim ownership.
Ground 5:
The Order for receivership must be clarified as WFB is knowingly and
intentionally subverting, controverting, and wrongfully expanding the Order

25

submitted and signed by the court, unconstitutionally denying defendant

26

protections under the Fourth Amendment of the Constitution of the United

27

States, which ensures that we will be secure in our persons and property in

28

that no warrant shall issue for seizing property that is not supported by oath or
affirmation, setting out the cause for the seizure. Currently under the terms of
Motion to Reconsider Ex Parte Order Appointing Receivership - 5

the receivership as defined to the receiver by WFB, Defendant Bennett is not

allowed to touch any of his personal property, tools of his trade, chattel in

horses or vehicles nor any object or item belonging to any party whatsoever.

Nor, is any other person to remove their private and personal property, or

provable belongings except Ms. St. John so that the proceeds thereof will serve

to offset any deficiency of judgment for the adjacent Allen property. Thereby

7
8
9
10
11

defendant is denied even the means to live. Further, WFB has ordered their
defendant to leave the real property, and only home for ten years, by July 25,
2011 taking nothing with him.
Ground 6:
WFB admitted in open court on July 21, 2011, on the record, that the

12

Corporate Assignment of Deed of Trust is extrinsically fraudulent quoting (in

13

paraphrase) Mr. Timothy Ryan said, How these mortgage pools work is, when

14

they get a bunch of mortgages to add to the trust pools they come with a large

15

stack of blank assignments and later when they are needed, for example, if the

16

property goes into default, they just fill them out, sign them and send them off

17

to be recorded it may be two or three years later.

18
19

Ground 7:

20

This Order should be voided because it is an abuse of discretion for the

21
22
23
24

violations of statutory law listed above.

Ground 8:
The Order should be voided or in the alternative modified because the
duly appointed receiver is taking direct orders from the WFB, thus violating the

25

receivers neutrality, resulting in great harm to Defendant Bennett. The

26

resulting Order has abandoned all of Defendants property right laws by

27

circumventing foreclosure Notice of Default on Bennetts property, no evidence

28

of any debt or judgment to Wells Fargo against Defendants property or

Defendant, no ruling regarding the disposition or ownership of the property on
Motion to Reconsider Ex Parte Order Appointing Receivership - 6

record, no trial has taken place. A receivership is a receivership and only when

properly ordered under statute, legally administrated, and provably required.

The burning of the Bill of Rights did not occur at the July 21, 2011

3
4

settlement conference and simply put, it in no manner have affected Bennetts

rights yet currently is depriving him of his Constitutional protections under the

law.

7
8
9
10
11

Defendant is not allowed to feed or touch his own horses, and they are
consistently being underfed, he cannot touch his tools having been denied all
personal property including clothes and shoes, he is not permitted to touch or
operate his equipment or vehicles, denied all avenues of income and literally
starved. While a steady stream of sight seers enter upon the premises and
remove whatever they for Bennett is forbidden from interfering with any party

12

that arrives. Further, Bennett is under the orders of this Court, per;

13

information, presented by Ryan Any attempt to molest this horse will

14

also.. have you held in contempt of court. Liabilities are accruing and

15

tortious actions compounding hourly.

16

Defendant respectfully requests the Court to provide written citation of the

17

California Codes under which these orders are authorized, including the

18

systematic starvation, public abuse and humiliation of Bennetts dependent

19

minor child. The above represents the new information and relevant law arising

20

following the Courts Order of July 21, 2011 addressed in the memorandum

21

that follows hereunder.

22
23
24
25
26
27
28

Motion to Reconsider Ex Parte Order Appointing Receivership - 7

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO

RECONSIDER JULY 21, 2011 ORDER OF JUDGE GIORDANO

I. Brief Summary Of The Underlying Complex Litigation

4
5
6
7
8
9
10
11
12

Six (6) related unlimited civil complaints and cross-complaints plus one
(1) cross-action under jurisdiction of the California Courts of Appeal were
scheduled for trial and final disposition on the merits August 22, 2011 after
nearly 4 years of litigation. The Final Mandatory Settlement Conference
scheduled for July 21, 2011 was used, as has been a consistent practice
tolerated by the Court, to flood the Court with Motions for Summary
Adjudications and ex parte applications including the receivership under this
application.
Pursuant to the Judges statements in open Court; five minutes before

13

the Court Clerks Office closed on July 20th Wells Fargo Bank NA (Hereinafter

14

WFB) filed an unverified ex parte Application for Receivership to the certain

15

parcel of real property known as A.P.N. 099-260-69-11, (Herein referred to as

16

Bennetts land), lying adjacent to A. P. N. 099-260-70-11 (Herein referred to as

17

the Allen Property) which a putative note and deed of trust secure, to which

18

they frequently claim various and conveniently mutating legal or principal

19

relationships and occasionally fiduciary authority to the deed of trust but are

20

so far unable to produce the security note or any document appointing WFB

21
22
23
24

as trustee.
The unknown whereabouts of the putative security instruments is likely
the cause of WFBs uncertainty or confusion as to their relationship, if any,
with the Allen Mortgage. WFB, to date, is allowed standing in the above
actions purely by their self-dealing assertions of various rights and by two

25

allegedly fraudulent forged documents recorded into the Official Records of

26

Lassen County, California. (Further examined and provided as EXIBITS A & B

27

below).

28

Motion to Reconsider Ex Parte Order Appointing Receivership - 8

It is on this authority that WFB was awarded receivership, and if the

claims of WFBs legal counsel have merit, a mortgage lien has also been

imposed upon defendants previously unencumbered real property.

The Court should GRANT the Application for the following reasons:

5
6

II. Argument

1) Grounds 1-3.

8
9
10
11
12

A)

The Application and Order fail to meet minimal statutory requirements.

C.C.P. 564 through 574 are specific as to the conditions allowing imposition
of a receivership, WFBs Application must comport with the actual property to
be protected under the deed.

13

Bennett has an imposed mortgage with WFB whatsoever and no trial has

14

been conducted to determine if any of the properties affected by the

15

receivership imposed are Fraudulent, this is merely a presumption by Wells

16

Fargo and inadmissible under Evidence Code 600, and thus not grounds for

17

any action until proven at trial or by an admission. Further, Bennetts personal

18

property is unencumbered but detained under the structure of the current

19

application and business assets are frozen wrongfully.

20
21
22
23
24

B)

WFB next presents the purported Deposition of Bennett on pg. 9 of the

application. This is not admissible under C.C.P. 2025.540 as it is a rough

draft, WFB has used this prohibited rough draft now in three motions, yet
refuses to provide Defendant a copy for correction or rebuttal. No party to this
action except WFB has ever seen the deposition rough draft in total nor has

25

WFB ever presented anything but fragments of the rough draft obtained

26

through purported Southern California Rules of Discovery. Bennett has

27

objected to its use and demanded a copy for correction and rebuttal but this

28

Court has denied the request. Bennett herein objects again and renews all
previous objections. Ironically, Mr. Ryans only Verified Declaration included in
Motion to Reconsider Ex Parte Order Appointing Receivership - 9

the Application is to the validity and admissibility of Bennetts purported

deposition.

3
4

C)

addition to any other matters supporting an application for the ex parte

appointment of a receiver, the applicant must show in detail by verified

The application is not verified as required by C.R.C. Rule 3.1175, [i]n

complaint or declaration. C.R.C. R. 3.1175.

8
9
10

D)

To date neither the appointed Receiver nor the Applicant have posted

undertakings or even tried to determine what undertaking would be

appropriate under C.R.C., Rule 3.1178:

11

At the hearing of an application for appointment of a receiver

on notice or ex parte, the applicant must, and other parties
may, propose and state the reasons for the specific amounts of
the undertakings required from (1) the applicant by Code of
Civil Procedure section 529, (2) the applicant by Code of Civil
Procedure section 566(b), and (3) the receiver by Code of Civil
Procedure section 567(b), for any injunction that is ordered in
or with the order appointing a receiver. C.R.C., R. 3.1178.

12
13
14
15
16
17

E)

18

hearing were crossed out and entirely omitted from the process. Apparently

19

since the application utterly failed to follow any other California law or Due

20

Process, it should be deemed to be void or voidable as well.

21
22
23

The required Order to Show Cause, allowed return time and relevant 2nd

By cancelling the 2nd hearing on an order of such magnitude as the

current Order, a receivership, through an ex parte hearing filed minutes before
the closing of the courthouse, the property rights of Defendant Bennett of been
seriously curtailed.

24
25

Grounds 4 & 5

26

Extrinsic Fraud

27
28

On July 21, 2011, Defendant and cross-plaintiff WFB, alleging beneficial

ownership of the putative Allen Note, did by extrinsic fraud, petition the court
by ex parte application and wrongfully place Bennetts personal property and
Motion to Reconsider Ex Parte Order Appointing Receivership - 10

business property under the instant Court Ordered Receivership purportedly

under Code of Civ. Proc. 564. Said receivership is alleged by WFB to be legally

representational of the covenants, conditions, and terms of the Allen Note and

Deed of Trust and the real property sales contract between Bennett as seller

and Allen as buyer, written by Steven Weich, Loan Broker.

The Allen Deed of Trust is specific in reference to the improvements

6
7
8
9
10
11

encumbered starting on, page 2. Together with all the improvements now or
hereafter erected on the property and all easements, appurtenances, and
fixtures now or hereafter a part of the property.
The real estate sales contract, WFB advised the Court on the record, and
paraphrasing pending reporters transcript, Clearly, establishes the
improvements that were encumbered under the Wells Fargo Deed of Trust.

12

That contract was willfully and fraudulently misrepresented to the Court

13

by WFB for with specificity it does not speak to homes or barns or structures of

14

any kind. It is without mention of square footage, age, construction type or

15

condition. While this does not change the outcome, it directs the receiver that

16

no business or personal property were encumbered.

17

A receiver may not be appointed except in cases expressly authorized by statute.1

18

`
A person seeking appointment of a receiver must establish one of the statutory
grounds for receivership and must also show irreparable injury and inadequacy of other
remedies.2

19
20

A receivership can be harsh, time-consuming, expensive, and potentially unjust, so it

should not be granted unless it is essential.3

21
22
23

24

Miller v. Oliver, 174 Cal. 407, 410, 163 Pac. 355 (1917); Turner v. Superior Court, 72 Cal. App. 3d
804, 811, 140 Cal. Rptr. 475 (1977); Witkin, supra note 1, Provisional Remedies 420, at 341; R. Weil &
I. Brown, California Practice Guide, Civil Procedure Before Trial 9:734 (1999

25

Alhambra-Shumway Mines, Inc. v. Alhambra Gold Mine Corp., 116 Cal. App. 2d 869, 873, 254
P.2d 599 (1953); Weil & Brown, supra note 2, 9:759.

26
3

27
28

Weil & Brown, supra note 2, 9:743-9:744. See also City & County of San Francisco v. Daley, 16
Cal. App. 4th 734, 744, 20 Cal. Rptr. 2d 256 (1993); Golden State Glass Corp. v. Superior Court, 13 Cal.
2d 384, 393, 90 P.2d 75 (1939) (superior court should appoint receiver only where necessary to adequately
protect the rights of the parties); Witkin, supra note 1, 417, at 339 (receivership is harsh and drastic, and
should be granted only in cases of extreme necessity).
Motion to Reconsider Ex Parte Order Appointing Receivership - 11

1
2
3
4
5
6
7
8
9

A major reason the statutory limits are so stringent

is that the appointment of a receiver necessarily
"means the taking of property by the court from one
who may turn out to be the rightful owner thereof,"
and it may thus "strike at the very substance of a
person's property rights." (Takeba v. Superior Court
(1919) 43 Cal.App. 469, 475; accord, Marsch, supra,
23 Cal.App.4th at pp. 247-248.) In this case,
however,
Bennett
[c]omplains
that
the
appointment of a receiver deprives him of
possession or control. This is the very rationale
underlying
the
restrictive
and
cautionary
application of section 564.

10
11
12
13
14
15

The very harm mentioned above, is evidenced by cross-plaintiffs service on

July 23, 2011 ordering Bennett vacate his own property by July 25, 2011.
Further ordering that Bennett not remove or molest the sole remaining
boarded horse under contract with Bennett for training to which boarding is
an incidental circumstance.
Defendant Bennett has steadfastly challenged Wells Fargo Banks

16

standing and capacity to sue, moreover their purported interest; beneficial or

17

legal, regarding either of the real properties in question. For this Bennett has

18

received an enraged and aggressive treatment from Wells Fargo Bank, BAC,

19

and the Ryan Firm. Bennetts challenges failed and WFB and Ryans efforts to

20

punish must cease. By attempting to impose an unlawful receivership WFB

21

simulates contempt charges in an effort to deny defendant protection

22

through mortgage law you should mortgage note was not opposed.

23
24
25
26
27
28

Wells Fargo Bank should provide the same or greater protection under
Federal Mortgage provisions. Bennett can and will meet the terms of a fair
mortgage and is the only person that has a proven history of profitable
operation of the stables when not beset by loan issues and legal actions.
Fairly judged Defendant was the only party that did not seek any
complaints except in defense and not one fraud or intentional
misrepresentation is on file during the lending process. Each party has openly
Motion to Reconsider Ex Parte Order Appointing Receivership - 12

acknowledged the mistakes of boundary were unknown to all. It is fairly said

that to now deny defendant the opportunity to engage in the business that

paid the costs and to allow the same opportunity to meet the fairly determined

monthly payments.

5
6
7
8
9
10
11

Wells Fargo need not dispose of Bennetts property to continue avoiding

the undertaking. But rather begin the actual process they have requested
overseeing a mortgage loan not in default. Bennett willingly agrees to waive
the undertakings and desires a receivership. A receivership practiced
according to proper rules of court is the only way that the equitable
conclusion can be implemented by the court. Where the receivership is a one
sided tool designed to avoid its true function there is abuse of process. This is
well established law. The receivership must pertain to the mortgage monies

12

and true values then determine their best fair evaluation and provide

13

recommendations to the Court that best serve laws and all parties.

14
15

The receivership has no right to the private property or business

16

inventory if a proper receivership ensures peace Bennett can finally return to

17

work and the beneficiary can be returned to an equitable investment position.

18

This is what all parties claim to have intended all parties should look to their

19

own responsibilities as a summary adjudication is designed to accomplish. So

20

that the cost of litigation is ended the return of equitable progress begins again

21
22
23
24

finally and the courts are relieved of costs and provided time.
The theories of ownership will not be challenged if the laws of property are
followed by the trustee and all parties. Clearly with the additional assignments
as attested to by Ms. Fishman it is virtually impossible to track the notes
movements. Defendant is weary of trying, and would much rather pay a

25

mortgage than track it. There is no foreclosure proceeding remaining and there

26

need not be another with receivership properly applied. This requires an

27

unbiased receiver not being used and directed for private agendas. All easily

28

accomplished by returning to established practice. None of the parties belong

in the receivership process, the receiver is rightfully authorized to establish the
Motion to Reconsider Ex Parte Order Appointing Receivership - 13

best solution and this court must return the process to the rules of the court

through the code of civil procedure.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

In sum, the ultimate issues are: (1) the power of the

superior court to authorize a rents and profits receiver
appointed at the behest of a beneficiary under a deed of
trust(Wells Fargo Bank NA)in a foreclosure
proceeding to take possession of property which is not
a part of the security for the debt, and (2) the authority
of the superior court to authorize its rents and profits
receiver to sell all of the property in his possession
(part of which is security for the debt and part of which
is not) while judicial and nonjudicial foreclosure
proceedings are pending. (Turner v. Superior Court,
[1977] 72 Cal. App. 3d 804) The substance of Wells
Fargos argument is that a receiver is a receiver
regardless of the purpose for which he is appointed and
that pursuant to its inherent equitable powers the court
can expand the receivership to include property not
originally included therein, particularly where the
possession of such property is necessary or convenient
to the operation of a business in the hands of a rents
and profits receiver; otherwise, no rents and profits
could be produced. However, the deed of trust does not
guarantee that rents and profits will be generated by
the land and improvements thereon. We have been
cited to no authority for the proposition that a court
has the power to authorize a receiver in the course of
the performance of his duties to reach out and latch
onto the appropriate property to the use of the
receivership which is not properly a part of the
receivership estate. On the contrary, what authority
there is on the subject points unerringly to a contrary
result.
Let the order to show cause hearing and standard unbiased effort of a

24

court appointed receiver determine equitable solution and all parties proceed

25

thereto find conclusion. The current charges of contempt are contempt only to

26

outmoded unlawful mortgage practice. It is time for the lawyers at Wells Fargo

27

to step back from litigating and avoid abuse of process. Thus fair mortgage as

28

afforded by law can enter the void.

Ground 7
Motion to Reconsider Ex Parte Order Appointing Receivership - 14

Where a Court purports to set a receivership based on mortgage

instruments but beyond the terms of a note and deed of trust, in an action for

foreclosure, that court exceeds its jurisdiction. Due process has been

foreclosed upon and Constitutional issues are raised.

5
6
7
8
9
10
11
12
13
14
15

California authority is in accord. For example, the court in

Cal. T.I. & T. Co. v. P'dm't. Cable Co. (1897) 117 Cal. 237,
240-241 [49 P. 1], limited the receiver's possession to
property specifically referred to in the mortgage: "The
mortgage did not cover the assets of the corporation
defendant therein, beyond the property as hereinbefore
stated, and the receiver was appointed, not to collect the
debts due the corporation defendant, but only to take
possession of the mortgaged property, operate the road,
etc. [] When, therefore, he took possession of the money
of the defendant and collected money due to it before his
appointment, and which was not covered by the lien of
the mortgage, he transcended his authority as receiver,
and it was no defense to the motion for him to say he had
mingled the funds thus received with those received in
the course of his receivership and had paid out the
money. (See also Locke v. Klunker, supra, 123 Cal. 231;
Turner v. Superior Court, [1977] 72 Cal. App. 3d 804)

16
17

The Trial Judge, Honorable Raymond Giordano stated in open court

18

that he could not read the application as there was not time to do so.

19

Thus, the application has never been considered by its merits

20

whatsoever. All facts and law pertaining to the Application and Order are

21
22
23
24

new and presented for consideration to this Court for the first time.
Where the receivership goes beyond that contemplated in the deed of
trust, that it is an instrument of oppression and malice and utterly
outside of any State and Federal law.
Placing a partys personal property and tools of trade under receivership,

25

is a harsh condition, potentially denying a person their rightful property

26

without due process. A receivership required to proceed according to strict

27

adherence to statute and under the Courts orders and supervision. It should

28

only be undertaken after careful consideration of the evidence in record, the

presentation of facts and careful determination of rights under contract and
Motion to Reconsider Ex Parte Order Appointing Receivership - 15

in equity. It can be imposed when by proof of evidence, loss or damage can be

fairly avoided through no other means, hence in receivership the beneficial

owner of record may expect return.

It is never and may not be authorized to develop inequitable outcomes,

that is perfectly outside the scope and function of a receivership. Let that use

be ceased here and a neutral tool for the court be installed according to law

7
8
9
10
11
12
13
14
15
16
17
18
19
20

and the requirements, terms, and equities of the securities instruments

become the guiding light of that office not punishment, retaliation, malice or
misuse.
In re El San Juan Hotel Corp., 149 B.R. 263, 271
(D.P.R.1992), aff'd, 7 F.3d 218 (1st Cir.1993)(table) ("While
every injury to the debtor estate derivatively injures all
creditors, . . . not every derivative injury will give the
creditors generally the right to sue."). In determining
whether an action accrues individually to a creditor or
generally to the estate, a court should look to the nature of
the injury for which relief is sought and consider whether it
is "peculiar and personal" to the creditor or "general and
common" to the estate. Sunshine Precious Metals, 157 B.R.
at 162. See also In re J.F.D. Enters., Inc., 223 B.R. 610,
621-22 (Bankr.D.Mass.1998), aff'd on other grounds, 2000
WL 560189 (1st Cir.2000)
Plaintiff's application is in no way verified, no need under C.C.P. 529 can
be established that justifies a sudden emergency or reason of irreparable injury
would have occurred with only 30 days were remaining to trial. Mr. Ryan

21

should be satisfied that his client will be returned to equity and cease abuses

22

of process and if not of his choosing this court must impose the law to allow

23

the mortgage scheme he requested be fairly applied.

24
25
26

Ground 8:
The submissions for July 29, 2011 are in and of themselves sufficient

27

evidence of the less than neutral relationship of the Receiver and WFB. Further

28

they exemplify WFBs malice and premeditation in the interference with

personal and business property to say nothing of fair credit practices, let and
Motion to Reconsider Ex Parte Order Appointing Receivership - 16

unbiased receiver be correctly installed after following the statutory

requirements. This is all that is asked of the Court, that the law be

administered fairly, this cannot happen without removal of a biased receiver

and the cooling out of any party seeking to use the process for personal

punishment especially where nothing has been harmed but vanity or pride. The

hearing for reconsideration is intended to return the fair administration of law

and cease interference and bias.

Conclusion

8
9
10
11

The Court should grant the Reconsideration of Order Granting Receivership

to void the Receivership as it failed to comply with the statutory guidelines
outlining Receiverships. The Receivership as Ordered, and especially as
managed by the current Receiver and WFB, is nothing more than a strong

12

armed attempt to circumvent the Constitutional checks and balances of

13

general foreclosure and mortgage law. The Order is vague and misleading on its

14

face and in its operation by the aforementioned parties. The current Order as it

15

stands does great damage to Defendant Bennett and must be voided or altered

16

to avoid further unnecessary harm.

17
18

I declare under penalty of perjury under the laws of the State of

19

California that the foregoing is true and correct, executed on July 29,

20

2011, at Susanville, CA

21
22
23
24
25

_________________________
Dwight A. Bennett
In Pro Per

26
27
28

Motion to Reconsider Ex Parte Order Appointing Receivership - 17