1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TIMOTHY L. MCCANDLESS, ESQ. SBN 147715LAW OFFICES OF TIMOTHY L. MCCANDLESS1881 Business Center Drive, Ste. 9ASan Bernardino, CA

(909) 890-9192 Telephone(909) 382-9956 Facsimile

Attorney for Defendant ANTHONY J. MARTIN

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF STANISLAUS

U.S. BANK NATIONAL ASSOCIATION, as successor in interest to the Federal Deposit Insurance Corporation Including Any Assignors or Successors In Interest,

Plaintiff,

vs.

ANTHONY J. MARTIN and DOES 1 through 50 inclusive,

Defendants.

Case No.: 645068

DEFENDANT’S NOTICE OF MOTION AND SECOND IN LIMINE MOTION TO EXCLUDE ALL EVIDENCE (RE: FAILURE TO STATE A CLAIM)

DATE: August 5, 2010TIME: 8:30 a.m.DEPT: 22

To the Court, to Plaintiff, U.S. BANK NATIONAL ASSOCIATION, as

successor in interest to the Federal Deposit Insurance Corporation Including Any Assignors

or Successors In Interest [hereinafter “U.S. BANK” ] and its attorney of record:

PLEASE TAKE NOTICE that, on Thursday, August 5, 2010, 2010, at 8:30

AM, or as soon thereafter as the matter may be heard, Defendant, ANTHONY J. MARTIN,

will in limine judicii move the court, and hereby does move, for an order excluding from trial

all evidence proffered by Plaintiff U.S. BANK.

The motion will be heard in Department 22 of the Stanislaus Superior Court.

1_____________________________________________________________________________________

MOTION IN LIMINE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The motion will be brought pursuant to Evidence Code sections 353 and 400 et seq.,

Code of Civil Procedure section 430.10(b), and related decisional law.

The ground of the motion will be that the Unlawful Detainer Complaint, fails to

disclose the reason why Plaintiff supposedly complied with Civil Code section 2932.5 and

Civil code section 2924; and accordingly the Complaint fails to state a claim for which relief

may be granted, and thus there remain no issues of fact for which relevant evidence might be

adduced at trial.

More importantly, it is acknowledged that banks, lenders and third party buyers have

a secured interest in deed which was assigned and recorded as mandated by Civil Code

Section 2932.5. In this case, plaintiff did not have the power of sale as mandated by Civil

Code Section 2924 because there is no evidence that the secured interest of the current

beneficiary has been properly acknowledged and recorded. Though Plaintiff may argue that

the FDIC “may” have conveyed the secured interest of Downey Savings and Loan to plaintiff

U.S. BANK, the Receiver Deed was never recorded by U.S. Bank regarding the subject

property.

The motion will be based upon this notice of motion and motion, the attached

Memorandum of Points and Authorities, on the pleadings and other papers on file for the

above-captioned case, and upon such other and further evidence as the court may deem fit.

//

DATED: August 4, 2010. ________________________________________ LAW OFFICES OF TIMOTHY L.

MCCANDLESS By: Timothy P. McCandless, Esq.Attorney for DEFENDANT ANTHONY J.

MARTIN

2_____________________________________________________________________________________

MOTION IN LIMINE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MEMORANDUM OF POINTS AND AUTHORITIESI.

FACTUAL BACKGROUND

Defendant Anthony J. Martin was the title owner of the Subject Property by virtue of

a Deed of Trust dated February 23, 2006 between defendant and the now defunct bank

DOWNEY SAVINGS AND LOAN ASSOCIATION F.A. [hereinafter “DOWNEY”] until

Plaintiff conducted an invalid non-judicial foreclosure proceeding on May 15, 2009. The

Trustee’s Deed Upon sale was recorded on May 22, 2009 showing DSL SERVICE

COMPANY granting and conveying the subject property to the now defunct bank

DOWNEY.

The court’s records for this case will show that Plaintiff U.S. BANK filed its

Complaint on or about November 6, 2009. The instant case was then filed as a “limited

jurisdiction” case by the Plaintiff.

Plaintiff alleges that the assets of Downy were sold by the Federal Deposit Insurance

Corporation [hereinafter “FDIC”] to plaintiff U.S. BANK, N.A. on or about November 21,

2008 under the Purchase and Assumption Agreement. Because of this, U.S. Bank was

conveyed either a Receiver’s Deed or Receiver’s Bill of Sale. However, there is no such

document recorded with the Stanislaus Recorder’s office. As of November 21, 2008,

Downey Savings & Loan was no longer the beneficiary of the Deed of Trust regarding the

subject property, which was recorded on February 23, 2006.

There is no Receiver’s Deed recorded by U.S. BANK N.A. as the new beneficiary of

the Deed of Trust executed by Defendants thus, under California Civil Code Section 2924,

plaintiff could enforce the power of sale.

Moreover, there is no evidence, or any recorded documents at the Stanislaus

Recorder’s office that an assignment of the Deed of Trust regarding this subject property was

ever executed and recorded. Attached as See Exhibit “1” to this Motion in Limine is a true

and correct copy of the printout of all documents recorded pertaining to Defendant

ANTHONY J. MARTIN. No Assignment was ever recorded by Downey, the FDIC or

plaintiff U.S. BANK. See Exhibit “1” to this Motion in Limine and Exhibit “2” which is the

court’s ruling for Summary Judgment which states in pertinent part:

3_____________________________________________________________________________________

MOTION IN LIMINE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

“Plaintiff’s Motion for Summary Judgment - DENIED. The Plaintiff as moving party has established a prima facie showing that it is entitled to judgment for possession against Defendant as a matter of law. However, Defendant's objections Nos. 1, 3-6, 8, 9, and 11 to the Johnson Declaration are overruled; and objections Nos. 2, 7 and 10 are sustained, based on a lack personal knowledge and/or hearsay, regarding the alleged transfer of the beneficial interest to Plaintiff and as to the reasonable rental value. Further, the Court finds the Defendant has met his burden of establishing triable issues of fact to rebut the presumption of validity of the sale and the issue of whether Plaintiff had the right to proceed with foreclosure. Namely the evidence of a gap in title and security interest from Downey Savings & Loan through the FDIC to Plaintiff during the time of the foreclosure proceeding, as well as missing evidence to show whether the Trustee, DSL Service Company, was authorized to act as Plaintiff’s agent in continuing to pursue the sale once Downey Savings & Loan had lost its security interest. (See Plaintiff’s undisputed fact # 7 and Defendant’s objection thereto; and Declaration of Defense counsel, McCandless, paragraphs 2, 8, 9, 10, 12 and 13). As such, triable issues of material fact remain and the motion for summary judgment is denied.”

After November 11, 2008, DOWNEY did not own a secured interest in the subject

property. DOWNEY did not have the power to continue with the foreclosure of the subject

property after the FDIC took over. More importantly, the agent of DOWNEY was not

lawfully empowered to execute a Trustee’s Deed After Sale because they did not own a

security interest and U.S. BANK did not record the Receiver’s Deed.

Thus, this non-judicial foreclosure of this particular property is invalid and plaintiff

U.S. BANK is not the lawful owner of this property and not entitled to obtain possession

pursuant to California Civil Procedure Section 1161a.

II.

THE COURT HAS POWER TO EXCLUDE ALL EVIDENCE FROM TRIAL, ON

GROUNDS ANALOGOUS TO A GENERAL DEMURRER.

The court has power to consider and grant an objection to all evidence under

Evidence Code sections 353 and 400 et seq. If no cause of action or defense is stated by the

respective pleading, then no “factual issue” any longer exists, and therefore no evidence may

be admitted on grounds of “relevance” under Evidence Code sections 400 et seq.

It is well established that a party may bring an in limine objection in order to exclude

4_____________________________________________________________________________________

MOTION IN LIMINE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

all evidence, as a sort of general demurrer or “motion for judgment on the pleadings”.

“Although not in form a motion, this method of attacking the pleading is identical in purpose

to a general demurrer and motion for judgment on the pleadings and is governed by the same

rules. [Citations.]” 5 WITKIN, Cal.Proc.3rd page 386, “Pleading” at §953. See also 6

WITKIN, Cal.Proc.3rd pages 571-573, “Proceedings Without Trial” at §§272-273.

According to 5 WITKIN, Cal.Proc.3rd page 340, “Pleading” at §899, a “general”

demurrer concerns only the defense that the pleading does not state facts sufficient to

constitute a cause of action or defense. That is precisely what defendant contends here: the

Unlawful Detainer Complaint fails to state a claim for which relief may be granted, because

it fails to plead a necessary element of compliance with Civil Code sections 2932.5 and 2924

et al.

III.

THE COURT MUST STRICTLY ENFORCE

THE TECHNICAL REQUIREMENTS FOR A FORECLOSURE.

The harshness of non-judicial foreclosure has been recognized. “The exercise of the

power of sale is a harsh method of foreclosing the rights of the grantor.” Anderson v. Heart

Federal Savings (1989) 208 Cal.App.3d 202, 6 215, citing to System Inv. Corporation v.

Union Bank (1971) 21 Cal.App.3d 137, 153. The statutory requirements are intended to

protect the trustor from a wrongful or unfair loss of his property Moeller v. Lien (1994) 25

Cal.App.4th 822, 830; accord, Hicks v. E.T. Legg & Associates (2001) 89 Cal.App.4th 496,

503; Lo Nguyen v. Calhoun (6th District 2003) 105 Cal.App.4th 428, 440, and a valid

foreclosure by the private power of sale requires strict compliance with the requirements of

the statute. Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and Mortgages,

Chapter 10 §10.179; Anderson v. Heart Federal Sav. & Loan Assn., 208 Cal. App. 3d 202,

211 (3d Dist. 1989), reh'g denied and opinion modified, (Mar. 28, 1989); Miller v. Cote (4th

Dist. 1982) 127 Cal. App. 3d 888, 894; System Inv. Corp. v. Union Bank (2d Dist. 1971) 21

Cal. App. 3d 137, 152-153; Bisno v. Sax (2d Dist. 1959) 175 Cal. App. 2d 714, 720.

It has been a cornerstone of foreclosure law that the statutory requirements,

intending to protect the trustor from a wrongful or unfair loss of the property, must be

5_____________________________________________________________________________________

MOTION IN LIMINE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

complied with strictly. Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and

Mortgages, Chapter 10 §10.182. “Close” compliance does not count. As a result, any

trustee’s sale based on a statutorily deficient Notice of Default is invalid (emphasis

added). Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and Mortgages,

Chapter 10 §10.182; Anderson v. Heart Federal Sav. & Loan Assn. (3dDist. 1989) 208 Cal.

App. 3d 202, 211, reh'g denied and opinion modified, (Mar. 28, 1989); Miller v. Cote (4th

Dist. 1982) 127 Cal. App. 3d 888, 894; System Inv. Corp. v. Union Bank (2d Dist. 1971) 21

Cal. App. 3d 137, 152-153; Saterstrom v. Glick Bros. Sash, Door & Mill Co.(3d Dist. 1931)

118 Cal. App. 379.

It is a fundamental precept of property law that in order to enforce the power of sale,

the beneficiary of a deed of trust must be able to prove the existence of their secured interest

in the subject property. Here, U.S. Bank has never demonstrated that it ever had such a

secured interest.

There are triable issues of fact which exist as to whether the F.D.I.C. ever conveyed

an interest in this particular property to U.S. Bank, N.A. by Receiver’s Deed, whether U.S.

Bank, N.A. made any efforts to record such Receiver’s Deed, why the Receiver’s Deed was

not recorded, if in fact it even exists.

Additionally, any trustee’s sale based on a statutorily deficient Notice of Trustee Sale

is invalid. Anderson v. Heart Federal Sav. & Loan Assn. (3d Dist. 1989) 11 208 Cal.App. 3d

202, 211, reh'g denied and opinion modified, (Mar. 28, 1989). The California Sixth District

Court of Appeal observed, “Pursuing that policy [of judicial interpretation], the courts have

fashioned rules to protect the debtor, one of them being that the notice of default will be

strictly construed and must correctly set forth the amounts required to cure the default.”

Sweatt v. The Foreclosure Co., Inc. (1985 - 6th District) 166 Cal.App.3d 273 at 278, citing to

Miller v. Cote (1982) 127 Cal.App.3d 888, 894 and SystemInv. Corp. v. Union Bank (1971)

21 Cal.App.3d 137, 152-153.

The same reasoning applies even to a notice of a trustee’s sale. Courts will set aside a

foreclosure sale when there has been fraud, when the sale has been improperly, unfairly, or

unlawfully conducted, or when there has been such a mistake that it would be inequitable to

let it stand. Bank of America Nat. Trust & Savings Ass’n v. Reidy (1940) 15 Cal. 2d 243, 248;

6_____________________________________________________________________________________

MOTION IN LIMINE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Whitman v. Transtate Title Co.(4th Dist. 1985) 165 Cal. App. 3d 312, 322-323; In re

Worcester (9th Cir. 1987) 811 F.2d 1224, 1228. See also Smith v. Williams (1961) 55 Cal.

2d 617, 621; Stirton v. Pastor (4th Dist. 1960) 177 Cal. App. 2d 232, 234; Brown v. Busch (3d

Dist. 1957) 152 Cal.App. 2d 200, 203-204.

In this case, there is no evidence whether U.S. Bank recorded the Receiver’s Deed

and if there is no record at the Stanislaus Recorder’s office, they did not maintain a properly

acknowledged and recorded security instrument in the subject property, anytime during the

non-judicial foreclosure process.

A primary concern in this matter is the fact that the apparently-foreclosing

predecessor-in-interest, U.S. BANK, had no legal right to foreclose upon the home of

Defendant MARTIN, even if he had not paid as required, if the same U.S. BANK has not

fully complied with Civil Code section 2932.5 and 2924. The basis for its noncompliance,

and why this precludes a finding that Plaintiff’s title was “duly perfected”, is set forth below.

IV.

SINCE 2008, THE ABILITY TO ENFORCE THE POWER OF SALE OF A SECURED

INSTRUMENT IN REAL PROPERTY IS MANDATED BY CALIFORNIA CIVIL CODE

SECTION 2932.5 WHICH ALLOWS AN ASSIGNEE TO PROCEED WITH

A NON-JUDICIAL FORECLOSURE PROVIDING THAT THE ASSIGNMENT IS

PROPERLY ACKNOWLEDGED AND RECORDED.

In 2008, the California Legislature added Civil Code section 2932.5. The previous

section is of particular relevance here:

Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the payment of money, the power is part of the security and vests in any person who by assignment becomes entitled to payment of the money secured by the instrument. The power of sale may be exercised by the assignee if the assignment is duly acknowledged and recorded.

There is no assignment ever recorded by DOWNEY, THE FDIC OR PLAINTIFF

U.S. BANK. See also Code of Civil Procedure section 459: “it is not necessary to state the

facts showing such performance, but it may be stated generally that the party duly performed

7_____________________________________________________________________________________

MOTION IN LIMINE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

all the conditions on his part required thereby; if such allegations be controverted, the party

pleading must establish on the trial the facts showing such performance.”

Nonetheless, this pleading of compliance that “[o]ne of the below necessary

requirements was met by the Beneficiary:” violates another rule of pleading, namely, that

allegations be made positively. “Pleading in the alternative is not permitted. The opposing

party is entitled to a distinct statement of the facts claimed by the pleader to exist, and a

statement in the alternative is uncertain and ambiguous. It is no answer to an objection to

averments made alternatively to say that, if either of the averments is true, a cause of action

is alleged. Such a pleading is vulnerable to special demurrer, and there is authority that the

defect cannot be cured by verdict or by judgment by default. But where the point is raised

for the first time on appeal, it is not ground for reversal if the appellant was not prejudiced by

the uncertainty.” 49 Cal.Jur.3d (1979 ed.), pages 412-413, “Pleading” at §51.

The noncompliance with California’s law of pleading here is prejudicial. The issue of

whether or not the lender recorded a receiver’s deed is expected to be a major factual issue at

the trial. It is true that defendant MARTIN might use contention interrogatories and other

specially worded interrogatories to find out what factual theory, exactly, underlies the cryptic

alternative statement that “[o]ne of the below necessary requirements was met by the

Beneficiary:”. And defendant MARTIN must still then, at that point, discover the evidence

upon which Plaintiff (or, more precisely, Plaintiff’s predecessor-in-interest) relies in

contending that there was compliance with California Civil Code subsection 2932.5.

CONCLUSION

The public record shows, as a matter of law, that PLAINTIFF U.S. BANK and

Plaintiff’s predecessor-in-interest did not comply with the requirement to disclose according

to Code of Civil Procedure subsection 2932.5 Although the Plaintiff could supply this

information and cure the pleading error here, yet such an reparative measure will not cure the

invalidity of that there is no Receiver’s Deed or Receiver’s Bill of Sale that was recorded

with the Office of the County Recorder in Stanislaus County. Until that defect is repaired,

there cannot be any “duly perfected title” that serves as the basis for Plaintiff’s Unlawful

Detainer case. The case must be stopped, and that may be done by an exclusion of all

evidence, as prayed for above.

8_____________________________________________________________________________________

MOTION IN LIMINE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Respectfully submitted,

Dated: 08/03/2010 LAW OFFICES OF TIMOTHY MCCANDLESS ESQ.

_____________________________________Timothy L. McCandless, Esq., Attorney for DefendantsANTHONY J. MARTIN

9_____________________________________________________________________________________

MOTION IN LIMINE