Defendant's Eviction Trial Brief

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Frank D’Anna, Pro Per Salvatore B. D’Anna, Pro Per 3941 ¾ Kenwood Dr. Spring Valley, CA 91977 Telephone: (619) 602-6647 Fax: (619) 374-2268 Email: [email protected]

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO EAST COUNTY DIVISION

Greenpoint Mortgage Funding, Inc.,

Plaintiff,

vs.

Frank D’Anna, Salvatore B. D’Anna

Defendant

) ) ) ) ) ) ) ) ) )

Case No.: 37-2009-00033936 DEFENDANT’S TRIAL BRIEF Trial Date: June 24, 2009

mailto:[email protected]

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Table of Contents

I. INTRODUCTION .................................................................................................................................... 1

A. Nature of case ............................................................................................................................ 1

B. Factual summary ....................................................................................................................... 1

C. Issues to be decided .................................................................................................................. 3

II. LEGAL AUTHORITY ......................................................................................................................... 3

A. NON COMPLIANCE CALIFORNIA CIVIL CODE 2923.5.................................................. 3

B. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS ………... 6

C. NON JUDICIAL FORECLOSURE SALE IS VOID, NOT VOIDABLE ….………….….. 11

D. Matter of First Impression in the Superior Court ................................................................. 13

III. CONCLUSION ................................................................................................................................. 14

EXHIBIT A ……………………………………………………………………………………………. 16

EXHIBIT B ……………………………………………………………………………………………. 22

EXHIBIT C ……………………………………………………………………………………………. 36

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Table of Authorities

Cases

Vella v. Hudgins (1977) 20 C3d 251, 255, 142 CR 414, 572 P2d 28 ................................ 1,4

Cheney v. Trauzettel (1937) 9 C2d 158, 159, 69 P2d 832 ................................................ 1,4

Kessler v. Bridge (1958, Cal App Dep't Super Ct)

161 Cal App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814 ............................... 4

Pierson v. Fischer (1955) 131 Cal.App.2d 208 [280 P.2d 491] .................................... 11,12

Holland v. Pendleton Mtge. Co. (1943) 61 Cal.App.2d 570 [143 P.2d 493] ..................... 11

Leonard v. Bank of America etc. Assn. (1936) 16 Cal.App.2d 341 [60 P.2d 325] ....... 11,12

United Bank & Trust Co. v. Brown (1928) 203 Cal. 359 [264 P. 482], ............................ 11

Scott v. Security Title Ins. & Guar. Co. (1937) 9 Cal.2d 606 [72 P.2d 143] ...................... 11

Standley v. Knapp (1931) 113 Cal.App. 91 [298 P. 109] .................................................... 11

Seccombe v. Roe, supra, 22 Cal.App. 139 ......................................................................... 11

Lancaster Security Inv. Corp. v. Kessler (1958) 159 Cal.App.2d 649 [324 P.2d 634] ... 12

Wolfe v. Lipsy (1985) 163 Cal.App.3d 633, 639-640 [209 Cal.Rptr. 801] ...................... 12

Sorensen v. Hall (1934) 219 Cal. 680, 682-683 [28 P.2d 667 ......................................... 12

Garfinkel v. Superior Court (1978) 21 Cal.3d 268, 279, fn. 16

[146 Cal.Rptr. 208, 578 P.2d 925]; ............................................................................... 12

In re GANICE MORGAN-AUSTIN, DARREN AUSTIN, Debtors. GANICE MORGAN-

AUSTIN, DARREN AUSTIN, Plaintiff, vs. PATELCO CREDIT UNION, Defendant. . 13

Statutes

CCP § 1161a .................................................................................................................... 1,3,4

Evid Code § 624 ................................................................................................................ 1,3

Civ. Code § 2924 ..................................................................................................... 1,2,8,9,12

Civ. Code § 2923.5 ............................................................................... 2,3,4,5,6,8,10,11,13,14

Civ. Code § 2924.8 .............................................................................................................. 11

Other Authorities

55 American Jurisprudence Second .................................................................................. 11

Defendant’s Trial Brief - 1

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I. INTRODUCTION A. Nature of case.

At issue is the right of possession to the property located at 644 Hillsview Rd. El Cajon, CA

92020 after a non judicial foreclosure sale under CCP § 1161a. A qualified exception to the rule

that title cannot be tried in an unlawful detainer proceeding [see Evid Code § 624; 5.45[1][c]] is

contained in CCP § 1161a. By extending the summary eviction remedy beyond the conventional

landlord-tenant relationship to include purchasers of the occupied property, the statute provides

for a narrow and sharply focused examination of title. A purchaser of the property as described

in the statute, who starts an unlawful detainer proceeding to evict an occupant in possession,

must show that he or she acquired the property at a regularly conducted sale and thereafter "duly

perfected" the title [CCP § 1161a; Vella v. Hudgins (1977) 20 C3d 251, 255, 142 CR 414, 572

P2d 28 ]. To this limited extent, as provided by the statute, title may be litigated in the unlawful

detainer proceeding [ Cheney v. Trauzettel (1937) 9 C2d 158, 159, 69 P2d 832 ].

B. Factual summary.

The evidence at trial will establish the following facts which are dispositive of the issues to be decided:

1. In July 2008, the Governor of California signed into law SB 1137, intended to ameliorate

the deleterious effects on the state economy and local economies and the California

housing market resulting from the foreclosures of residential properties in unprecedented

numbers resulting from subprime lending practices.n1 In SB 1137, the Legislature found

and declared (1) that residential property foreclosures increased sevenfold from 2006 to

2007; (2) that more than 84,375 properties were lost to foreclosure in California in 2007;

and (3) that 254,824 loans went into default, the first step in the foreclosure process.

2. SB 1137 modified the foreclosure process to require mortgagees, beneficiaries, or

authorized agents to provide notice to borrowers and explore options that could avoid

foreclosure.

3. Effective September 6, 2008, a mortgagee, trustee, beneficiary, or authorized agent may

not file a notice of default pursuant to Civ. Code § 2924 until 30 days after the

mortgagee, beneficiary, or authorized agent has contacted the borrower in person or by


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telephone in order to assess the borrower's financial situation and explore options for the

borrower to avoid foreclosure.

4. A notice of default filed pursuant to Civ. Code § 2924 must include a declaration from

the mortgagee, beneficiary, or authorized agent that it has contacted the borrower, tried

with due diligence to contact the borrower, or the borrower has surrendered the property

to the mortgagee, trustee, beneficiary, or authorized agent.

5. On October 16, 2008 Plaintiff had a Notice of Default recorded in the San Diego County

Recorder’s Office which is attached to this Trial Brief as Exhibit A and made a part

hereof.

6. The Declaration of compliance with newly enacted Civil Code 2923.5 was attached to the

Notice of Default and stated that the Plaintiff contacted Defendant on July 11, 2006 to

discuss his financial situation to avoid foreclosure which is a false statement.

7. On February 2, 2009 Defendant had a Notice of Intention to Preserve Interest in Real

Property recorded in the San Diego County Recorder’s Office due to Plaintiff’s non

compliance with Civil Code 2923.5.

8. On February 6, 2009 Defendant sent a Notice of Non Compliance which included a copy

of the recorded Notice of Intention to Preserve Interest recorded on February 2, 2009 to

all parties involved in this matter including two Certified Letters to Plaintiff and two

Certified Letters as well as a fax to the Trustee conducting the non judicial foreclosure

sale. A copy of the recorded notice from the San Diego County Recorder’s Office is

included with the Certified Letter of Non Compliance attached hereto as Exhibit B and

made a part hereof.

9. All parties sent Notice of Non Compliance ignored it and proceeded to sell Defendant’s

property on February 25, 2009 where Plaintiff purchased the property with a credit bid of

$204,750.00.

10. On or about March 17, 2009 Defendant was contacted by someone named Jake May who

informed Defendant that he represented the bank that now owned the property and was

authorized to offer to Defendant close to $5,000 in exchange for the keys to the house.

11. Defendants informed Jake May that they have been trying to either receive consideration

for a loan modification or to purchase the property outright from Plaintiff’s with the

assistance of Defendant’s parents who own several properties throughout San Diego

County.


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12. Jake May insisted that an unlawful detainer action had already been filed and that if

Defendants vacated the premises, he would make sure that they had the first right to

purchase the property before it was put on the market. He stated that Defendant would

be back in his home in about 3 weeks.

13. On March 17, 2009 Jake May faxed a copy of the Move Out Agreement which was

between Defendant and Countrywide Home Loan Servicing, LP and not Plaintiff

Greenpoint Mortgage Funding Inc. The contract stated that Countrywide had purchased

the home at 644 Hillsview Rd at the non judicial foreclosure sale and was now the owner

and had already commenced eviction proceedings against Defendant. The move out

agreement as well as all correspondence between Defendant and Jake May are attached

hereto as Exhibit C and made a part hereof.

14. Defendants refused to sign the contract and filed a lawsuit against Greenpoint,

Countrywide, MERS, and Old Republic on April 3, 2009.

15. Plaintiff’s filed this Unlawful Detainer lawsuit on April 23, 2009. C. Issues to be decided.

1. Whether Plaintiff duly perfected title to Defendant’s home after the non judicial foreclosure sale.

2. Whether Plaintiff could have perfected title to Defendant’s home without compliance with Civil Code 2923.5.

3. Whether the Recorded Notice of Intention to Preserve Interest in Real Property due to non compliance with Civil Code 2923.5 which attaches to any sale of the property is proof that Plaintiff could not have perfected title.

II. LEGAL AUTHORITY A. NON COMPLIANCE CALIFORNIA CIVIL CODE 2923.5 A qualified exception to the rule that title cannot be tried in an unlawful detainer

proceeding [see Evid Code § 624; 5.45[1][c]] is contained in CCP § 1161a. By extending the

summary eviction remedy beyond the conventional landlord-tenant relationship to include

purchasers of the occupied property, the statute provides for a narrow and sharply focused

examination of title. A purchaser of the property as described in the statute, who starts an

unlawful detainer proceeding to evict an occupant in possession, must show that he or she

acquired the property at a regularly conducted sale and thereafter "duly perfected" the title [CCP


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§ 1161a; Vella v. Hudgins (1977) 20 C3d 251, 255, 142 CR 414, 572 P2d 28 ]. To this limited

extent, as provided by the statute, title may be litigated in the unlawful detainer proceeding [

Cheney v. Trauzettel (1937) 9 C2d 158, 159, 69 P2d 832 ].

Under CCP § 1161, in general; Words and Phrases Term "duly" implies that all of those

elements necessary to valid sale exist. Kessler v. Bridge (1958, Cal App Dep't Super Ct) 161 Cal

App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814. Title that is "duly perfected"

includes good record title, but is not limited to good record title. Kessler v. Bridge (1958, Cal

App Dep't Super Ct) 161 Cal App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814. Title is

"duly perfected" when all steps have been taken to make it perfect, that is, to convey to purchaser

that which he has purchased, valid and good beyond all reasonable doubt. Kessler v. Bridge

(1958, Cal App Dep't Super Ct) 161 Cal App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS

1814.

Defendant sent notice on February 6, 2009 to Greenpoint and to all others involved with

his loan informing them of their non compliance with Civil Code Section 2923.5. Not only did

Defendant give all of them written notice by certified mail, Defendant had no other remedy at his

disposal other than also having Plaintiff’s non compliance recorded in the San Diego County

Recorder’s Office. The first page of the notice shows that it was addressed and sent by Certified

Mail to 8 separate addresses including Plaintiff and the substituted Trustee who also received it

by fax. The notice states in relevant parts:

Re: NOTICE OF NON COMPLIANCE CALIFORNIA CIVIL CODE § 2923.5

Dear All:

Notice is once again given that the LENDERS AND OR TRUSTEES LISTED

ABOVE has not complied with California civil code 2923.5. As such all notices of

default and or trustee sales and such other recordings and actions are void as a

matter of law….


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I have in good faith attempted to mediate the loan and the true beneficiary has

refused to negotiate in good faith. They have not complied with the provisions in

which they were to meet with me in person or by telephone in order to assess the

borrower’s financial situation and explore options for the borrower to avoid

foreclosure. During the initial contact, the mortgagee, Beneficiary, or authorized

agent shall advise the borrower that he or she has the right to request a

subsequent meeting and, if requested, the mortgagee, beneficiary, or authorized

agent shall schedule the meeting to occur within 14 days. The assessment of the

borrower’s financial situation and discussion of options may occur during the

first contact, or at the subsequent meeting scheduled for that purpose.

I am unhappy to find that out of the numerous entities involved in this matter, not

one has even attempted to comply with California Civil Code 2923.5….

For the reasons stated above, the attached Notice of Intention to Preserve Interest

in Property was recorded with the San Diego County Recorder on February 2,

2009. My decision to record and thereby preserve my interest came only after

several months of my repeated attempts to negotiate with an undisclosed

beneficiary. Your continuing lack of cooperation left me no choice but to turn this

matter over to the county recorder office for future resolution by putting the world

on notice of my continued interest in my property.

If we had met as required by California Civil Code § 2923.5 the property would

have reflected a value of approximately $200,000. I am willing to pay an interest

rate of 6.25 % and I will be able to make monthly payments of $1,246.00. The

principal balance of my loan should be reduced the present market value of

$200,000. As an alternative, I am willing to pay an interest rate of 1.75% and am

able to make monthly payments of $1,246.00 with the principal balance of my

loan remaining at $352,000.


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Please be advised that you are all on Notice that if you continue to pursue the sale

of my property by recording the date it is to be sold, you will do so knowing that

any subsequent buyer will take title with Notice of my interest in my property due

to your intentional tortuous violations of the law and you will be held liable for

the consequences of your actions.

I write this letter with the hope that out of the ever growing list of entities involved, one of

you will discuss this matter further and give it the attention it deserves. Please call me at

619-602-6647 and/or send a fax to 619-374-2268.

Plaintiff , and including the Trustee who was served this notice twice by Certified Mail

and once by Fax, cannot say that they were unaware of their non compliance with California

Civil Code § 2923.5. Compliance with Civil Code § 2923.5 is a prerequisite to the entire non

judicial foreclosure process and the Notice of Default cannot be recorded until it has been met. It

is not only improbable, but impossible that Defendant complied with section 2923.5 on July 11,

2006 as stated in the Notice of Default. In Addition, Defendant was supposed to be given a

subsequent meeting and information on how to contact a HUD Hope representative for

assistance which never occurred. The requirements of 2923.5 are state below.

B. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. The Legislature finds and declares all of the following:

(a) California is facing an unprecedented threat to its state economy and local economies because of

skyrocketing residential property foreclosure rates in California. Residential property foreclosures

increased sevenfold from 2006 to 2007. In 2007, more than 84,375 properties were lost to foreclosure in

California, and 254,824 loans went into default, the first step in the foreclosure process.

(b) High foreclosure rates have adversely affected property values in California, and will have even

greater adverse consequences as foreclosure rates continue to rise. According to statistics released by the

HOPE NOW Alliance, the number of completed California foreclosure sales in 2007 increased almost

threefold from 1,902 in the first quarter to 5,574 in the fourth quarter of that year. Those same statistics


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report that 10,556 foreclosure sales, almost double the number for the prior quarter, were completed just

in the month of January 2008. More foreclosures mean less money for schools, public safety, and other

key services.

(c) Under specified circumstances, mortgage lenders and servicers are authorized under their pooling

and servicing agreements to modify mortgage loans when the modification is in the best interest of

investors. Generally, that modification may be deemed to be in the best interest of investors when the net

present value of the income stream of the modified loan is greater than the amount that would be

recovered

through the disposition of the real property security through a foreclosure sale.

(d) It is essential to the economic health of California for the state to ameliorate the deleterious effects on

the state economy and local economies and the California housing market that will result from the

continued foreclosures of residential properties in unprecedented numbers by modifying the foreclosure

process to require mortgagees, beneficiaries, or authorized agents to contact borrowers and explore

options that could avoid foreclosure. These changes in accessing the state's foreclosure process are

essential to ensure that the process does not exacerbate the current crisis by adding more foreclosures to

the glut of foreclosed properties already on the market when a foreclosure could have been avoided.

Those additional foreclosures will further destabilize the housing market with significant, corresponding

deleterious effects on the local and state economy.

(e) According to a survey released by the Federal Home Loan Mortgage Corporation (Freddie Mac) on

January 31, 2008, 57 percent of the nation's late-paying borrowers do not know their lenders may offer

alternatives to help them avoid foreclosure.

(f) As reflected in recent government and industry-led efforts to help troubled borrowers, the mortgage

foreclosure crisis impacts borrowers not only in nontraditional loans, but also many borrowers in

conventional loans.

(g) This act is necessary to avoid unnecessary foreclosures of residential properties and thereby provide

stability to California's statewide and regional economies and housing market by requiring early contact

and communications between mortgagees, beneficiaries, or authorized agents and specified borrowers to


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explore options that could avoid foreclosure and by facilitating the modification or restructuring of loans

in appropriate circumstances.

SEC. 2. Section 2923.5 is added to the Civil Code, to read:

2923.5. (a) (1) A mortgagee, trustee, beneficiary, or authorized agent may not file a notice of default

pursuant to Section 2924 until 30 days after contact is made as required by paragraph (2) or 30 days

after satisfying the due diligence requirements as described in subdivision (g).

(2) A mortgagee, beneficiary, or authorized agent shall contact the borrower in person or by telephone in

order to assess the borrower's financial situation and explore options for the borrower to avoid

foreclosure. During the initial contact, the mortgagee, beneficiary, or authorized agent shall advise the

borrower that he or she has the right to request a subsequent meeting and, if requested, the mortgagee,

beneficiary, or authorized agent shall schedule the meeting to occur within 14 days. The assessment of

the borrower's financial situation and discussion of options may occur during the first contact, or at the

subsequent meeting scheduled for that purpose. In either case, the borrower shall be provided the toll-

free telephone number made available by the United States Department of Housing and Urban

Development (HUD) to find a HUD-certified housing counseling agency. Any meeting may occur

telephonically.

(b) A notice of default filed pursuant to Section 2924 shall include a declaration from the mortgagee,

beneficiary, or authorized agent that it has contacted the borrower, tried with due diligence to contact the

borrower as required by this section, or the borrower has surrendered the property to the mortgagee,

trustee, beneficiary, or authorized agent.

(c) If a mortgagee, trustee, beneficiary, or authorized agent had already filed the notice of default prior to

the enactment of this section and did not subsequently file a notice of rescission, then the mortgagee,

trustee, beneficiary, or authorized agent shall, as part of the notice of sale filed pursuant to Section 2924f,

include a declaration that either:

(1) States that the borrower was contacted to assess the borrower' s financial situation and to explore

options for the borrower to avoid foreclosure.

(2) Lists the efforts made, if any, to contact the borrower in the event no contact was made.


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(d) A mortgagee's, beneficiaries, or authorized agent's loss mitigation personnel may participate by

telephone during any contact required by this section.

(e) For purposes of this section, a "borrower" shall include a mortgagor or trustor.

(f) A borrower may designate a HUD-certified housing counseling agency, attorney, or other advisor to

discuss with the mortgagee, beneficiary, or authorized agent, on the borrower's behalf, options for the

borrower to avoid foreclosure. That contact made at the direction of the borrower shall satisfy the

contact requirements of paragraph (2) of subdivision (a). Any loan modification or workout plan offered

at the meeting by the mortgagee, beneficiary, or authorized agent is subject to approval by the borrower.

(g) A notice of default may be filed pursuant to Section 2924 when a mortgagee, beneficiary, or

authorized agent has not contacted a borrower as required by paragraph (2) of subdivision (a) provided

that the failure to contact the borrower occurred despite the due diligence of the mortgagee, beneficiary,

or authorized agent. For purposes of this section, "due diligence" shall require and mean all of the

following:

(1) A mortgagee, beneficiary, or authorized agent shall first attempt to contact a borrower by sending a

first-class letter that includes the toll-free telephone number made available by HUD to find a HUD-

certified housing counseling agency.

(2) (A) after the letter has been sent, the mortgagee, beneficiary, or authorized agent shall attempt to

contact the borrower by telephone at least three times at different hours and on different days. Telephone

calls shall be made to the primary telephone number on file.

(B) A mortgagee, beneficiary, or authorized agent may attempt to contact a borrower using an automated

system to dial borrowers, provided that, if the telephone call is answered, the call is connected to a live

representative of the mortgagee, beneficiary, or authorized agent.

(C) A mortgagee, beneficiary, or authorized agent satisfies the telephone contact requirements of this

paragraph if it determines, after attempting contact pursuant to this paragraph, that the borrower's

primary telephone number and secondary telephone number or numbers on file, if any, have been

disconnected.

(3) If the borrower does not respond within two weeks after the telephone call requirements of paragraph

(2) have been satisfied, the mortgagee, beneficiary, or authorized agent shall then send a certified letter,

with return receipt requested.


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(4) The mortgagee, beneficiary, or authorized agent shall provide a means for the borrower to contact it

in a timely manner, including a toll-free telephone number that will provide access to a live

representative during business hours.

(5) The mortgagee, beneficiary, or authorized agent has posted a prominent link on the homepage of its

Internet Web site, if any, to the following information:

(A) Options that may be available to borrowers who are unable to afford their mortgage payments and

who wish to avoid foreclosure, and instructions to borrowers advising them on steps to take to explore

those options.

(B) A list of financial documents borrowers should collect and be prepared to present to the mortgagee,

beneficiary, or authorized agent when discussing options for avoiding foreclosure.

(C) A toll-free telephone number for borrowers who wish to discuss options for avoiding foreclosure with

their mortgagee, beneficiary, or authorized agent.

(D) The toll-free telephone number made available by HUD to find a HUD-certified housing counseling

agency.

(h) Subdivisions (a), (c), and (g) shall not apply if any of the following occurs:

(1) The borrower has surrendered the property as evidenced by either a letter confirming the surrender

or delivery of the keys to the property to the mortgagee, trustee, beneficiary, or authorized agent.

(2) The borrower has contracted with an organization, person, or entity whose primary business is

advising people who have decided to leave their homes on how to extend the foreclosure process and

avoid their contractual obligations to mortgagees or beneficiaries.

(3) The borrower has filed for bankruptcy, and the proceedings have not been finalized.

(i) This section shall apply only to loans made from January 1, 2003, to December 31, 2007, inclusive

that are secured by residential real property and are for owner-occupied residences. For purposes of this

subdivision, "owner-occupied" means that the residence is the principal residence of the borrower.

(j) This section shall remain in effect only until January 1, 2013, and as of that date is repealed, unless a

later enacted statute, that is enacted before January 1, 2013, deletes or extends that date.

In order to stabilize and protect the state and local economies and housing market at the

earliest possible time, it is necessary for this act to take effect immediately. However, the

provisions of Section 2 of this act, which adds Section 2923.5 to the Civil Code, and Section 4 of


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this act, which adds Section 2924.8 to the Civil Code, shall become operative 60 days after the

effective date of this act. The Act was signed and became effective July 8, 2008 and Section

2923.5 did not become operative until September 6, 2008.

C. NON JUDICIAL FORECLOSURE SALE IS VOID, NOT VOIDABLE

The general rule in the United States on voidness or voidability of sale is set out in 55

American Jurisprudence Second: "[Defects] and irregularities in a sale under a power render it

merely voidable and not void . . . . However, substantially defective sales have been held void

where the defect lay in a particular as to which the statutory provision was regarded as

mandatory . . . ." (55 Am.Jur.2d, Mortgages, § 746, p. 673.) "A sale under a power in a

mortgage without reasonable notice will be set aside." (Id., § 775, p. 691.)

Research as to the circumstances in which California courts have determined sales under a

deed of trust to be either void or voidable for notice defects, we have found no case which

presents our precise factual pattern. No case draws a bright line between a major and a minor

notice defect so as to dictate a certain result. A full range of notice defects is alleged in both

lines of cases, from no notice of any kind of the ultimate sale date ( Pierson v. Fischer (1955)

131 Cal.App.2d 208 [280 P.2d 491], "voidable"; Holland v. Pendleton Mtge. Co. (1943) 61

Cal.App.2d 570 [143 P.2d 493], "void") to inadequate posting on the property to be sold (

Leonard v. Bank of America etc. Assn. (1936) 16 Cal.App.2d 341 [60 P.2d 325], "voidable";

United Bank & Trust Co. v. Brown (1928) 203 Cal. 359 [264 P. 482], "void").

Although the extent of the defect is not determinative, what seems to be determinative is the

existence and effect of a conclusive presumption of regularity of the sale. A deed of trust, which

binds the trustor, may direct the trustee to include in the deed to the property recitals that notice

was given as required under the deed of trust and state that such recitals shall be conclusive proof

of the truthfulness and regularity thereof.

Where there has been a notice defect and no conclusive presumption language in the deed,

the sale has been held void. ( Scott v. Security Title Ins. & Guar. Co. (1937) 9 Cal.2d 606 [72

P.2d 143]; United Bank & Trust Co. v. Brown, supra, 203 Cal. 359; Standley v. Knapp (1931)

113 Cal.App. 91 [298 P. 109]; Seccombe v. Roe, supra, 22 Cal.App. 139.)


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Where there has been a notice defect and conclusive presumption language in the deed,

courts have characterized the sales as "voidable." (Lancaster Security Inv. Corp. v. Kessler

(1958) 159 Cal.App.2d 649 [324 P.2d 634]; Pierson v. Fischer, supra, 131 Cal.App.2d 208;

Mack v. Golino, supra, 95 Cal.App.2d 731; Leonard v. Bank of America etc. Assn., supra, 16

Cal.App.2d 341.) The trustor wishing to set aside a "voidable" sale must prove to the trial court

that the conclusive presumption language does not apply to the sale either because there are

grounds for equitable relief, such as fraud related to the provision, or because the conclusive

presumption does not apply to the buyer, often on the basis that the buyer is not a bona fide

purchaser for value. The trustor may then attempt to prove defective notice. ( Wolfe v. Lipsy

(1985) 163 Cal.App.3d 633, 639-640 [209 Cal.Rptr. 801]; Lancaster Security Inv. Corp. v.

Kessler, supra, 159 Cal.App.2d 649, 655.)1

In the case at hand, the deed of trust, which binds the trustor, directs the trustee to include in

the deed to the property recitals that notice was given as required under the deed of trust and

state that such recitals shall be conclusive proof of the truthfulness and regularity thereof. The

Trustee Deed upon Sale includes the following recitals:

This conveyance is made pursuant to the powers conferred upon Trustee by that

certain Deed of Trust dated 05/05/2005 and executed by FRANK D'ANNA, A MARRIED

MAN, as Trustor, and Recorded on 05/09/05 AS DOC#2005-0391304 of official records

of San Diego County, California, and after fulfillment of the conditions specified in said

Deed of Trust authorizing this conveyance.

Default occurred as set forth in a Notice of Default and Election to Sell which was

recorded in the Office of the Recorder of said County, and such default still existed at the

time of sale.

All requirements of law regarding the mailing of copies of notices or the

publication of a copy of the Notice of Default or the personal delivery of the copy of the

Notice of Default and the posting and publication of copies of the Notice of a Sale have

been complied with. EMPHASIS ADDED.

1 Many notice defect cases do not even address the question of whether the sale was void or voidable. In these cases the trustor was precluded from challenging the sale by conclusive presumption language as to the regularity of notice in the executed and delivered deed. ( Sorensen v. Hall (1934) 219 Cal. 680, 682-683 [28

P.2d 667]; Pierson v. Fischer, supra, 131 Cal.App.2d 208, 217; but see Garfinkel v. Superior Court (1978)

21 Cal.3d 268, 279, fn. 16 [146 Cal.Rptr. 208, 578 P.2d 925]; and see also Civ. Code, § 2924, which provides that notice recitals in deeds shall constitute prima facie evidence of compliance and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice.)


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The Trustee recital above is not conclusive proof of Compliance with Civil Code Section

2923.5 which is not mentioned in the above recital. The above recital is only conclusive

evidence that mailing, posting, and publication of Notices were done as required by law. It does

not state that the Declaration required by Civil Code 2923.5 was attached to the Notice of

Default as required by law or that the requirements of Civil Code 2923.5 were made as required

and since no such recital was made, the foreclosure is completely void, not voidable which

relieves Defendant of the requirement to do equity before the Sale will be set aside because

no valid sale ever took place to set aside as it was void ab initio.

D. Matter of First Impression in the Superior Court This case is a matter of first impression in the Superior Court and no appellate decisions

have been decided on the consequences of non compliance with Civil Code 2923.5. The

Legislature was quite clear when they enacted the statute and specifically made compliance with

Civil Code 2923.5 a requirement before the Notice of Default could be recorded. The only case

that has been decided involving Civil Code 2923.5 is from the Bankruptcy Court [In re GANICE

MORGAN-AUSTIN, DARREN AUSTIN, Debtors. GANICE MORGAN-AUSTIN, DARREN AUSTIN, Plaintiff, vs.

PATELCO CREDIT UNION, Defendant.] decided on February 14, 2009. The decision states the

following:

Because of the national epidemic of foreclosures on home mortgages, in July

2008, the California legislature enacted emergency legislation, requiring lenders

to attempt to negotiate workout agreements on loan defaults before commencing

or continuing foreclosure proceedings. See Cal. Civ. Code §§ 2923.5, 2923.6,

2924.8, and 2929.3. The legislation was effective immediately. The legislation did

not require lenders such as Patelco, who had already recorded notices of default,

to re-record those notices after attempting to negotiate.

However, it did require such lenders, who had not yet recorded notices of sale, to

attempt to negotiate before recording a notice of sale. There is no dispute that

Patelco made no attempt to negotiate with the Debtors before recording Notice of

Sale on January 14, 2009.

Patelco contends that the legislation exempted them from any obligation to

negotiate with the Debtors before recording a Notice of Sale because the Debtors

were at that time still debtors in a bankruptcy case. The specific provision upon

which they rely is Cal. Civ. Code § 2923.5(h)(3) which states as follows: (h)

Subdivisions (a), (c), and (g) shall not apply if any of the following occurs:

....

....

(3) The borrower has filed for bankruptcy, and the proceedings have not been

finalized.


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It is undisputed that the Debtors' bankruptcy case was still pending at the time

Patelco recorded the Notice of

Sale. The Debtors contend that the exemption did not apply because the

bankruptcy case had been finalized as to Patelco. Patelco had obtained relief

from the automatic stay and had never filed a proof of claim in the case.

Patelco contends that the phrase is clear and exempts it from compliance unless

the bankruptcy case has been dismissed.

There is some appeal to the Debtors' argument. The exemption may have been

created in recognition of the difficulty created by the automatic stay with respect

communications between creditors and debtors. Once the automatic stay has been

vacated, the Debtors contend, the exemption no longer serves any purpose. On

the other hand, Patelco argues instead that the exemption reflects the legislature's

recognition that the bankruptcy process provides an adequate opportunity for

negotiation.

The Court has no way to determine the legislature's intent in this regard. It can

only construe the statutory language as it would be commonly understood. Doing

so, the Court finds Patelco's construction of the language more plausible.

Therefore, the Court concludes that Patelco did not violate Cal. Civ. Code §

2924.8 when it recorded the Notice of Sale without first attempting to negotiate

with the Debtors.

III. CONCLUSION Plaintiff is not entitled to possession of the property because Plaintiff can not prove that they duly perfected title without first proving that they complied with Civil Code Section 2923.5 which is a prerequisite to the recording of the Notice of Default which makes the entire non judicial foreclosure void an initio. Respectfully submitted,

Dated: June 24, 2009

By:____________________ By: ________________________ Frank D’Anna, Pro Per Salvatore B. D’Anna, Pro Per


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VERIFICATION I, Frank D’Anna, declare that I am the defendant in the above entitled action; I have read the foregoing trial brief and know the contents thereof. The same is true of my own knowledge, except as to those matters which are therein stated on information and belief, and, as to those matters, I believe it to be true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: June 24, 2009 By: __________________ Frank D’Anna, Pro Per VERIFICATION I, Salvatore B. D’Anna, declare that I am the defendant in the above entitled action; I have read the foregoing trial brief and know the contents thereof. The same is true of my own knowledge, except as to those matters which are therein stated on information and belief, and, as to those matters, I believe it to be true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: June 24, 2009 By: _____________________ Salvatore B. D’Anna, Pro Per

EXHIBIT A

EXHIBIT B

B Y S A L V A T O R E B . D ’ A N N A , A T T O R N E Y - I N - F A C T F O R F R A N K D ’ A N N A

FACSIMILE TRANSMITTAL SHEET

TO: FROM:

Debbie Jackson

Frank D’Anna

COMPANY: DATE:

Old Republic Title Company - Trustee Services Division

2/6/2009

FAX NUMBER: TOTAL NO. OF PAGES, INCLUDING COVER:

925-798-3283 6

PHONE NUMBER: SENDER’S FAX NUMBER:

925-363-2239 619-374-2268

RE: TRUSTEE SALE NO. 08-16402

X URGENT FOR REVIEW PLEASE COMMENT PLEASE REPLY PLEASE RECYCLE

NOTES/COMMENTS:

See attached

Salvatore B. D’Anna, Attorney-in-fact SENT VIA CERTIFIED MAIL For Frank D’Anna, Principal 3941 ¾ Kenwood Dr. Spring Valley, CA 91977 Property Address 644 Hillsview Rd El Cajon, CA 92020 February 6, 2009 Countrywide Home Loans Servicing LP Customer Service Correspondence, SV3-14B Purported Loan# 22150300 P.O. BOX 1140 Simi Valley, CA 93062-1140 Old Republic Title Company - Trustee Services Division c/o Debbie Jackson 1000 Burnett Avenue, Suite 400 Concord, CA 94520 Old Republic National Title Insurance Company Purported New Trustee For Loan # 0086769734 500 City Parkway West, Suite 200 Orange, CA 92868-2913 Marin Conveyancing Corporation Purported Trustee For Loan # 0086769734 275 Broadhollow Rd. Melville, NY 11747 Marin Conveyancing Corporation Purported Trustee For Loan # 0086769734 2730 GATEWAY OAKS DR STE 100 SACRAMENTO, CA 95833 Greenpoint Mortgage Purported Servicer P.O. Box 84013 Columbus, GA 31908-4013 Greenpoint Mortgage Funding, Inc Purported Lender 100 Wood Hollow Dr. Novato, CA 94945 Mortgage Electronic Registration Systems, Inc. Purported Beneficiary P.O. Box 2026 Flint, MI 48501-2026

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Re: NOTICE OF NON COMPLIANCE CALIFORNIA CIVIL CODE § 2923.5 Dear All: Notice is once again given that the LENDERS AND OR TRUSTEES LISTED ABOVE has not complied with California civil code 2923.5. As such all notices of default and or trustee sales and such other recordings and actions are void as a matter of law. In California, a Lender is allowed to foreclose on real property without a judicial process, but only if they follow the strict statutory requirements. Nonjudicial foreclosure is deemed to be a harsh remedy subject to careful scrutiny by the courts [see System Inv. Corp. v. Union Bank

(1971) 21 Cal. App. 3d 137, 153, 98 Cal. Rptr. 735] , which is why a private sale must strictly comply with the terms of the power-of-sale provision [ Hill v. Gibraltar Sav. & Loan Assn.

(1967) 254 Cal. App. 2d 241, 243, 62 Cal. Rptr. 188] and any applicable statutory requirements [ Whitman v. Transtate Title Co. (1985) 165 Cal. App. 3d 312, 322, 211 Cal. Rptr. 582] . The trustee also has a duty to conduct the sale fairly and openly, with diligence, discretion, and integrity, so as to protect the rights of all interested persons and obtain a reasonable price [ System Inv. Corp. v. Union Bank (1971) 21 Cal. App. 3d 137, 153, 98 Cal. Rptr. 735 ; Hill v.

Gibraltar Sav. & Loan Assn. (1967) 254 Cal. App. 2d 241, 243, 62 Cal. Rptr. 188]. However, all aspects of the nonjudicial foreclosure process including civil code 2923.5 are also regulated in detail by a comprehensive statutory scheme [see Civ. Code § 2920 et seq.] that is designed to protect the trustor against unreasonable forfeiture [ Garfinkle v. Superior Court of Contra Costa

County (1978) 21 Cal. 3d 268, 278, 146 Cal. Rptr. 208, 578 P.2d 925]. I have in good faith attempted to mediate the loan and the true beneficiary has refused to negotiate in good faith. They have not complied with the provisions in which they were to meet with me in person or by telephone in order to assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure. During the initial contact, the mortgagee, Beneficiary, or authorized agent shall advise the borrower that he or she has the right to request a subsequent meeting and, if requested, the mortgagee, beneficiary, or authorized agent shall schedule the meeting to occur within 14 days. The assessment of the borrower’s financial situation and discussion of options may occur during the first contact, or at the subsequent meeting scheduled for that purpose. I am unhappy to find that out of the numerous entities involved in this matter, not one has even attempted to comply with California Civil Code 2923.5. Proof of this can be found at the website of Old Republic, the now supposed Trustee of the Deed of Trust and in particular, a document titled “RevisedDeclarationDefaultIndividual.pdf” which is required to be submitted before they will initiate a foreclosure. The document as described by the title was recently revised in December 2008 and yet fails to ask for the Civil Code 2923.5 required information. One could conclude that the Civil Code 2923.5 information on any Old Republic recorded document does not reflect the actual knowledge of compliance and/or that the information is produced out of thin air!!

For the reasons stated above, the attached Notice of Intention To Preserve Interest in Property was recorded with the San Diego County Recorder on February 2, 2009. My decision to record and thereby preserve my interest came only after several months of my repeated attempts to negotiate with an undisclosed beneficiary. Your continuing lack of cooperation left me no choice but to turn this matter over to the county recorder office for future resolution by putting the world on notice of my continued interest in my property.

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If we had met as required by California Civil Code § 2923.5 the property would have reflected a value of approximately $200,000. I am willing to pay an interest rate of 6.25 % and I will be able to make monthly payments of $1,246.00. The principal balance of my loan should be reduced the present market value of $200,000. As an alternative, I am willing to pay an interest rate of 1.75% and am able to make monthly payments of $1,246.00 with the principal balance of my loan remaining at $352,000. Please be advised that you are all on Notice that if you continue to pursue the sale of my property by recording the date it is to be sold, you will do so knowing that any subsequent buyer will take title with Notice of my interest in my property due to your intentional tortuous violations of the law and you will be held liable for the consequences of your actions. I write this letter with the hope that out of the ever growing list of entities involved, one of you willdiscuss this matter further and give it the attention it deserves. Please call me at 619-602-6647 and/orsend a fax to 619-374-2268. Sincerely, _________________________________ Frank D’Anna by Salvatore B. D’Anna, attorney-in-fact.

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Date Produced: 02/16/2009

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The customer reference number shown below is not validated or endorsed by the UnitedStates Postal Service. It is solely for customer use.

Customer Reference Number: 40586632-42512053-0


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EXHIBIT C

Salvatore B. D’Anna, Attorney-In-Fact SENT VIA EFAX For Frank D’Anna, Principal 3941 ¾ Kenwood Dr. Spring Valley, CA 91977 V: (619) 602-6647 F: (619) 374-2268 Property Address 644 Hillsview Rd El Cajon, CA 92020 March 17, 2009

The Jake May Team Jake May 2335 8th Street Encinitas, CA 92024 Countrywide Home Loans Loan # 22150300 400 Countrywide Way Simi Valley, CA 93065 Re: Offer to Vacate and First Right to Re-Purchase Property

Dear Jake May:

Per our discussion yesterday regarding your offer to pay $5,000 in exchange for vacating the property voluntarily and our right to repurchase the property at 644 Hillsview Rd before it goes on the market, I have attached a copy of the recorded Power of Attorney from my brother Frank D’Anna.

As a preliminary matter, your statement that the Unlawful Detainer has already been filed with the court is erroneous since no 3 day notice has been given which is a prerequisite to filing the unlawful detainer petition. I am very familiar with the eviction process because our family owns numerous rental properties including single family homes, apartments, and commercial centers.

Here’s the promised summary of where we are on the issues we discussed. If you disagree with anything I’ve written, let me know in writing by sending a fax to 619-374-2268 as soon as possible. Otherwise, I’ll move ahead based on these assumptions.

Jake May March 17, 2009 Page 2

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Payment to vacate in lieu of eviction.

1. You have offered to pay Frank D’Anna a lump sum payment of $5,000 to voluntarily vacate the premises rather than filing an unlawful detainer.

2. Frank D’Anna will have 30 days to vacate the premises.

3. You will spend approximately 3-4 weeks preparing the premises for liquidation.

4. The property will then be offered to our family for purchase before it is offered to anyone else and before it is put on the open market for others to purchase.

5. You estimate the property will be listed at a price close to $180,000.

6. You will notify us of the purchase price as soon as it is determined conclusively so that we may have the funds available as soon as the property becomes available.

7. We will have the financing required to make the purchase on hand when you inform us that the property is ready to be sold and before you offer it to anyone else.

As you are aware, we would rather not vacate the premises, but proceed directly to a purchase of the property as soon as a sale price can be determined. In order for the unlawful detainer procedure to apply in foreclosure cases, the Plaintiff must show that they have perfected title. In this case, the Notice of Intent to Preserve Interest recorded on February 2, 2009 put any buyer on notice of our claim to the property. It also shows non-compliance with the foreclosure statutes which is a requirement to perfect title and initiate the unlawful detainer. That being said, Frank D’Anna will vacate his home based on your request and assertions mentioned above that we will be given the opportunity to repurchase the home. By vacating the premises, Frank D’Anna is in no way relinquishing his current rights to either the loan modification or to purchase back his own home. He reserves his right to file a lawsuit based on those claims and all others deemed appropriate should it become necessary. Sincerely,

_________________________________ Frank D’Anna by Salvatore B. D’Anna, attorney-in-fact.

Salvatore B. D’Anna, Attorney-In-Fact SENT VIA EFAX For Frank D’Anna, Principal 3941 ¾ Kenwood Dr. Spring Valley, CA 91977 V: (619) 602-6647 F: (619) 374-2268 Property Address 644 Hillsview Rd El Cajon, CA 92020 March 17, 2009

The Jake May Team Jake May 2335 8th Street Encinitas, CA 92024 Countrywide Home Loans Loan # 22150300 400 Countrywide Way Simi Valley, CA 93065 Re: MOVE OUT AGREEMENT

Dear Jake May:

This is to inform you that we cannot accept the terms as written in the Move Out Agreement you recently faxed over to us. In particular, we will not and cannot agree with Sections 7, 8, and 10. SECTION 7 While this section states that we will not be locked out or removed from the property at any time before the Move Out Date, it nevertheless allows Countrywide to start and/or continue the eviction process before the Move Out Date. Such a clause would inhibit our rights in the court by not being able to present a defense to the action. SECTION 8 In this section, we are giving up any and all claims that we may have or may continue to have against Countrywide or any other entity involved in any way with the subject property. Basically, once the agreement is signed, we have no right moving forward to any claim ever.

Jake May March 17, 2009 Page 2

SECTION 10 This section states that we are voluntarily signing this agreement and have not received any inducements or promises other than what is in the agreement. It also says that we have had the opportunity to have the document reviewed by an attorney before signing it. Both statements would be false if we signed this agreement because we have been inducted into this agreement and have clearly stated our reasoning including the not vacating the premises and requesting to purchase the property immediately. Since I will assume that these three provisions will not be removed by Countrywide, we hereby refuse to accept the terms mentioned above and reject the Move Out Agreement as written. Sincerely,

_________________________________ Frank D’Anna by Salvatore B. D’Anna, attorney-in-fact.

Defendant's Eviction Trial Brief

Documents

Transcript of Defendant's Eviction Trial Brief