Statement of Decision Writ

8/8/2019 Statement of Decision Writ

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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO

APPELLATE DIVISION

Salvatore B. DAnna

Petitioner,

v.

San Diego SuperiorCourt East County Division

Respondent,

Greenpoint Mortgage Funding, Inc.

Real Party in Interest

After Entry of Judgement Without Statement of Decision

San Diego County Superior Court No. 2009-37-00033936

The Honorable Allan J. Preckel

APPENDIX

PETITION FOR WRIT OF MANDAMUS

SALVATORE B. DANNA, PETITIONER

Salvatore B. DAnna

3941 Kenwood Dr.

Spring Valley, CA 91977

V: (619) 602-6647

F: (619) 374-2268

Email:[email protected]

Defendant/Petitioner

Salvatore B. DAnna, Pro Per
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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Proof of Service- 1

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Frank DAnna, Pro Per

Salvatore B. DAnna, Pro Per3941 Kenwood Dr.


Telephone: (619) 602-6647Fax: (619) 374-2268


Salvatore B. DAnna for Plaintiff, Pro Per


Greenpoint Mortgage Funding Inc. ) Case No. 37-2009-00033936

)

Plaintiffs, ) Proof of Service

)

v. )

)

Frank DAnna, Salvatore B. DAnna )

) Case Filed: April 22, 2009

Defendants. ) Trial Date: June 24, 2009

) Dept. 12

_______________________________________________ ) Judge: Honorable Allan J. Preckel

PROOF OF SERVICE

I, Robert Janica, declare that:

I am at least 18 years of age and not a party to the above-entitled action. My business address is

7752 North Ave #104, Lemon Grove, California; I am employed San Diego County, California.

I served the foregoing Writ of Mandamus on July 16, 2009, by placing document in a sealed

envelope and depositing said envelope at the United States Post Office in Lemon Grove

California with postage fully prepaid to the following address:

Brian H. Tran, Esq. San Diego Superior Court

MILES, BAUER, BERGSTROM & WINTERS, LLP Clerk/Business Office

1665 Scenic Avenue, Suite 200 250 East Main Street

Costa Mesa, CA 92626 El Cajon, CA 92020

I declare under penalty of perjury under the laws of the State of California that the foregoing is

true and correct. Service was made and this declaration executed on July 16, 2009 at LemonGrove, California

By_______________

Robert Janica


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APPENDIX TO THE PETITION FOR WRIT OF MANDAMUS

APPENDIX TO THE PETITION FOR WRIT OF MANDAMUS

Salvatore B. DAnna submits the following documents in support

of the petition for writ of mandamus.

1. PETITION FOR WRIT OF MANDAMUS, P. 1

2. MEMORANDUM IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS, P. 8

3. EXHIBIT A- ENVELOPE, MINUTE ORDER, NOTICE OF JUDGEMENT, MAILING, P. 16-20

4. EXHIBIT B- REPORTERS TRANSCRIPT P. 21-41

5. EXHIBIT C- WRITTEN REQUEST FOR STATEMENT OF DECISION SUBMITTED AT TRIAL, P. 42-43

6. EXHIBIT D- DEFENDANTS TRIAL BRIEF, P. 44-93

1. TRIAL BRIEF EXHIBIT A- NOTICE OF DEFAULT, P. 63-68

2. TRIAL BRIEF EXHIBIT B- NOTICE OF NON COMPLAIANCE WITH 2923.5, P. 69-82

3. TRIAL BRIEF EXHIBIT C- JAKE MAY FAXES WITH MOVE OUT AGREEMENT, P. 83-93


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Memorandum of Points and Authorities ISO Writ of Mandate

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WRIT OF

MANDATE

I. INTRODUCTION

A. Nature of case.This is a request for a Writ of Mandate to order the trial court to issue a Statement of

Decision that was properly requested by Defendant. In addition, clarification should be

requested regarding the minute order entered on July 6, 2009 which appears to state that Plaintiff

was present at the hearing which Defendant was not made aware of or given Notice.

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. THIS COURT SHOULD ISSUE A WRIT OF MANDATE COMPELLING

RESPONDENT TO ISSUE A STATEMENT OF DECISION BECAUSE RESPONDENT

IS AN INFERIOR TRIBUNAL HAVING A DUTY TO SO ACT, AND PETITIONER IS

BENEFICIALLY INTERESTED AND HAS NO PLAIN, SPEEDY, AND ADEQUATE

REMEDY IN THE ORDINARY COURSE OF LAW.

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When Writ of Mandate May Issue. A writ of mandate may issue from any court to any

inferior tribunal, corporation, board, or person to compel the performance of an act that the law

specifically enjoins as a duty from an office, trust, or station, or to compel the admission of a

party to the use and enjoyment of a right or office to which the party is entitled and from which

the party is unlawfully precluded. The writ must be issued on the verified petition of the party

beneficially interested, when there is no plain, speedy, and adequate remedy in the ordinary

course of the law (CodeCiv. Proc. 1085, 1086).

Defendant requested a Statement of Decision before submission of the case and during

trial as stated on Page 10 lines 7-16 of the Reporter's Transcript from trial which ends with the

following: THE COURT: -- "I'LL TAKE IT UNDER ADVISEMENT THAT YOU'RE

REQUESTING A STATEMENT OF DECISION". Also written Request for Statement of

Decision submitted during trial.

"Time of trial" as used in the provision ofCode Civ. Proc., 632, that in "municipal and

justice courts, findings and conclusions shall be deemed waived unless expressly requested by

one or more of the parties at the time of trial," means that period of time, in the court room,

during which the trial itself is taking place. It does not mean any time before judgment. The

legislative intent that the term be interpreted in its literal sense is shown by the statute's

companion provision for requesting findings in superior court "after" the court's announcement

of its intended decision. Moreover, the Judicial Council, which is charged with adopting rules

not inconsistent with statute to improve the administration of justice (Cal. Const., art. VI, 6),

has, in Cal. Rules of Court, rule 520, interpreted the statute, consistently with its language, as

requiring that findings in a municipal court action be requested at the "trial" in the literal sense of

that term.Zenker-Felt Imports v. Malloy (1981, Cal App 1st Dist) 115 Cal App 3d 713, 171 Cal

Rptr 482, 1981 Cal App LEXIS 1388.

C. LACK OF FINDING AMOUNTS TO REVERSIBLE ERROR

Lack of Finding on Material Issues Amounts to Reversible Error. If the trial court

fails to make findings on material issues that would fairly disclose a determination of the basis

for the trial court's judgment, the failure amounts to reversible error ( Employers Casualty Co.

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v. Northwestern Nat. Ins. Group (1980) 109 Cal. App. 3d 462, 474, 167 Cal. Rptr. 296 ; Vale v.

Union Bank (1979) 88 Cal. App. 3d 330, 340, 151 Cal. Rptr. 784 ).

Statute devolves on trial court the duty of finding facts and as such trial court cannot turn

over to appellate court or to any other tribunal or person the duty of providing a Statement of

Decision. Kaiser v. Mansfield (1956, Cal App 4th Dist) 141 Cal App 2d 428, 297 P2d 98, 1956

Cal App LEXIS 1864. The right to findings is a substantial right, guaranteed by statute for the

benefit of the court and the parties.Davis v. Monte (1927, Cal App) 81 Cal App 164, 253 P 352,

1927 Cal App LEXIS 785.

In an unlawful detainer action such as the case at hand, trial court erred in refusing to

issue a statement of decision when properly requested by the tenants. Espinoza v. Calva (2008,

4th Dist) 2008 Cal App LEXIS 2496. CCP 632 requires the court, upon request, to issue a

statement of decision explaining the factual and legal basis for its decision as to each of the

principal controverted issues at trial. Failure to determine a material issue in a statement of

decision can, in some circumstances, be reversible error if there is evidence that would support a

finding in the opposing party's favor. Triple A Management Co. v. Frisone (1999, Cal App 5th

Dist) 69 Cal App 4th 520, 81 Cal Rptr 2d 669, 1999 Cal App LEXIS 55.

D. A WRIT OF MANDATE IS PROPER WHEN DIRECT APPEAL IS NOT

AN ADEQUATE LEGAL REMEDY.

Mandate Proper When Direct Appeal Is Inadequate Legal Remedy. While a direct

appeal is generally an adequate remedy at law, it must be both adequate and "speedy" (seeCode

Civ. Proc. 1086). If direct appeal is not speedy, a writ of mandate may issue ( Kawasaki

Motors Corp. v. Superior Court (2000) 85 Cal. App. 4th 200, 205-206, 101 Cal. Rptr. 2d 863 ).

In a nonjury trial, an appellant preserves the record by requesting and obtaining from the

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trial court a statement of decision pursuant to Code Civ. Proc., 632. The statement of decision

provides the trial court's reasoning on disputed issues and is the appellate court's touchstone to

determine whether or not the trial court's decision is supported by the facts and the law. Slavin v.

Borinstein (1994, Cal App 2d Dist) 25 Cal App 4th 713, 30 Cal Rptr 2d 745, 1994 Cal App

LEXIS 564, review denied (1994, Cal) 1994 Cal LEXIS 4674.

In Kawasaki Motors Corp. v. Superior Court (2000) 85 Cal. App. 4th 200, 101 Cal.

Rptr. 2d 863 , plaintiff entered into a dealer sales and service agreement with an automotive

dealer. Plaintiff later terminated the agreement, alleging the defendant dealer had breached the

contract. The defendant filed a protest with the New Motor Vehicle Board, which found that the

contract termination was justified. The defendant then filed a petition for a writ of mandate in the

superior court. Applying an independent judgment standard, the superior court granted the

petition and issued a writ directing the New Motor Vehicle Board to vacate its decision and

adopt a different decision. Plaintiff petitioned the court of appeal for a writ of mandate.

The court of appeal granted plaintiff's petition. Concluding that the trial court erroneously

applied an independent judgment standard rather than a substantial evidence standard, the court

of appeal issued a writ of mandate directing the superior court to vacate its decision and deny the

defendant dealer's petition ( 85 Cal. App. 4th 200, 203-206) . In response to an argument by

defendant that plaintiff's petition was improper in that a direct appeal was an adequate legal

remedy, the court of appeal determined that it would be intolerable to force plaintiff to maintain

its relationship with defendant, after the latter had breached its contract, for another two or more

years, the time it would require to complete an appeal. Accordingly, it found that, pursuant to

Code Civ. Proc. 1086, the legal remedy was not sufficiently speedy and a writ could issue ( 85

Cal. App. 4th 200, 205-206) .

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Whenever findings are required the judgment is not "rendered" until they are signed and

filed, but whenever they are waived or not required the judgment is rendered when it is entered

in the minutes.Aspegren & Co. v. Sherwood, Swan & Co. (1926) 199 Cal 532, 250 P 400, 1926

Cal LEXIS 301. Where findings are required and not waived a judgment cannot be entered until

they are made and filed with the clerk.Estate of Rosland (1946, Cal App) 76 Cal App 2d 709,

173 P2d 830, 1946 Cal App LEXIS 772. Therefore, Defendant cannot file for an appeal from a

judgment deemed not rendered and requiring Defendant to file an appeal which could take

months if not years is not an appropriate remedy when right to possession real property is at

issue and the ultimate outcome from the appeal will be remand.

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

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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 beenfinalized.

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 beencreated 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.

E. STAY IS NECESSARY SO DEFENDANT DOES NOT LOSE HIS HOME

If this stay and writ are not issued, Defendants may lose possession of their home and the

statement of decision would be moot once they are thrown out of their home. In addition, when

Defendant asked the Clerk in Department 12 for a date to request a stay of judgment, he was told

they only hear trials even after Defendant informed the clerk that the stay motion must be heard

by the original trial judge. The clerk from Department 12 , when asked for a copy of the

Statement of Decision stated that she did not enter the decision for this case and therefore had no

access to the contents of any such determination.

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III. CONCLUSION

Plaintiff is not entitled to possession of the property because Plaintiff cannot 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.

Defendant has a right to request a new trial and/or to request that the court set aside the

judgment and enter a new and different judgment based on the statement of decision of the court.

Defendant would be prejudice and the resources of the appellate court wasted if Defendant is

required to file an appeal just to have the court remand back to the superior court to issue the

statement of decision.

If a stay and writ are not issued, Defendants may lose possession of their home and the

statement of decision would be moot once they are thrown out of their home. In addition,

because of the irregularity of the mailing date and actual receipt of the judgment, the 15 day

deadline to request a new trial has been substantially shortened. The minute order was issued on

July 6, 2009. The Judgment was issued on July 8, 2009, but the postmark states that it was

mailed on July 14, 2009.

The trial court should be ordered to issue a Statement of Decision as required by statute.

The statement of decision should resolve the controverted issues that Defendant asked be

resolved in both the Trial Brief and the Request for a Statement of Decision which are stated

below:

1. Whether Plaintiff duly perfected title to Defendants home after the nonjudicial foreclosure sale.

2. Whether Plaintiff could have perfected title to Defendants home without

compliance with Civil Code 2923.5.

3. Whether the Recorded Notice of Intention to Preserve Interest in RealProperty 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.

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This court should order the trial court not to issue the writ of possession until the

Statement of Decision is made and Defendant is given the full 15 days allowed by statute to

request a new trial or move to set aside the judgment and enter a new and different judgment

whenever court draws incorrect legal conclusion or render erroneous judgment upon facts found

by it to exist.

Respectfully submitted,

Dated: July 16, 2009

By: ________________________


VERIFICATION

I, Salvatore B. DAnna, declare that I am the defendant in the above entitled action; I have readthe foregoing writ of mandate and know the contents thereof. The same is true of my ownknowledge, except as to those matters which are therein stated on information and belief, and, asto those matters, I believe it to be true. I declare under penalty of perjury under the laws of theState of California that the foregoing is true and correct.

Dated: July 16, 2009

By: _____________________


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EXHIBIT A

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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGOEast County250 East Main StreetEI Cajon,CA 92020

SHORT TITLE: Greenpoint Mortgage Funding Inc vs. D'Anna

CLERK'S CERTIFICATE OF SERVICE BY MAIL CASE NUMBER:37 -2009-00033936-CL-UD-EC

I certify that I am not a party to this cause. I certify that a true copy of the NOTICE OF ENTRY OF JUDGMENTwas mailed following standard court practices in a sealed envelope with postage fully prepaid, addressed asindicated below. The mailing and this certification occurred at EI Cajon, California, on 07/09/2009.

Clerk of the Court, by: Y Brennan , DeputySalvatore B D'Anna Brian H Tran3941 3/4 Kenwood Drive Miles, Bauer, Bergstrom & Winters LLPSpring Valley, CA 91977 1665 Scenic Avenue # 200Costa Mesa, CA 92626

Frank D'Anna3941 3/4 Kenwood DriveSpring Valley, CA 91977

Pag.: 2CLERK'S CERTIFICATE OF SERVICE BY MAILV3 1013a (June 2004) Code of Civil Procedure. CCP1013(a)

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SUPERIOR COURT OF CALIFORNIA,COUNTY OF SAN DIEGOEAST COUNTYMINUTE ORDER

Date: 07/06/2009 Time: 10:00:00 AM Dept: E-12Judicial Officer Presiding: Judge Allan J. PreckelClerk: Angela Narducci,Yolanda BrennanBailifflCourt Attendant: R. DesorosiersERM: Not Recorded

Case Init. Date: 04/22/2009Case No: 37-2009-00033936-CL-UD-EC Case Title: Greenpoint Mortgage Funding Inc vs. D'AnnaCase Category: Civil - Limited Case Type: Unlawful Detainer - ResidentialEvent Type: Unlawful Detainer Court TrialMoving Party: Greenpoint Mortgage Funding IncCausal Document & Date Filed:Request to Set Case for Trial (At Issue Memorandum), 06/08/2009Appearances: Greenpoint Mortgage Funding Inc is present as Plaintiff

The Court, having taken the above-entitled matter under submission on 06/24/2009 and having fullyconsidered the arguments of all parties, both written and oral, as well as the evidence presented, nowrules as follows:The Court finds judgment for Greenpoint Mortgage Funding Inc against Frank D'Anna in the amount of:$00.00 past due rent, $00.00 hold over damages, $365.00 pre judgment costs and $00.00 attorney fees.Possession of the premises is awarded. All unknown occupants are included in the judgment. Plaintiffhas waived all monetary damages

Date: 07/06/2009 MINUTE ORDER Page: 1 Dept: E-12 Calendar No.:

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iSUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FOR COURTUSE ONL YSTREET ADClRESS; 250 East Main Street MAILING ADDRESS; 250 East Main Street CITY AND Z:PCCDE; EI Cajon,CA 92020 8 q ; . , \ > : ~ ~ , " : ' \.':=' ::ast C:::ur'ty

--.;:, ~ , ~ - == 3'"'38;":':"": \fc:i;!sge =:... ... _"-;: '- II I Jui 08, 2009DEFENDANT: "'rank D'Anna eLal.SHORT TITLE: Greenpoint Mortgage Funding Inc vs. D'Anna

CASE Nur':3::::::.NOTICE OF ENTRY OF JUDGMENT j37-2009-C::;:33336-CL-UD-EC

You and each of you will please take notice: That on 07/06/2009 the attached Judgment IIvas entered, Pursuant to Code of Civil Procedure Section 1952 exhibits wii' be destroyed 60 days after final determinatior of the case, unless you re:JUest them returned.

CLERK OF THE SUPERIOR COURT

Date: 071'. 8/2009 By: y Y. Br.,na" ,Deputy

Page: 1NOTICE OF ENTRY OF JUDGMENT

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EXHIBIT B

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1 INDEX OF EXHIBITS IDENTIFIED

2 JUNE 24, 2009

3 GREENPOINT MORTGAGE VS. D'ANNA, CASE NO. 2009 000 33936

4 PLAINTIFF'S EXHIBITS PAGE

5 1 2NOTICE OF TRIAL . . . . . . . .

6 2 3TRUSTEE'S DEED UPON SALE . . .

7 3 6NOTICE TO QUIT AND PROOFS . . .OF SERVICE

84 15NOTICE OF TRUSTEE SALE, . . . .

9 ASSIGNMENT OF DEED OFTRUST, SUBSTITUTION OF

10 TRUSTEE, AND DEED OF TRUST

11

12

13 DEFENSE EXHIBITS PAGE

14 A 43/17/09 FAX TO MR. MAY . . . .

15 B 4MR. MAY'S RESPONSE TO . . . . .3/17/09 FAX

16C 4MOVE-OUT AGREEMENT . . . . . .

17

E 8NOTICE OF DEFAULT . . . . . . .18

F 8CERTIFIED LETTER OF NON . . . .19 COMPLIANCE

20 G 9PLAINTIFF'S RESPONSE TO . . . .INTERROGATORIES

21H 9PLAINTIFF'S RESPONSE FOR . . .

22 PRODUCTION OF DOCUMENTS

23 I 10RENTAL RATES FOR A . . . . . .

THREE-BEDROOM24 ////

25 ////

26 ////

27 ////

28 ////

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1 INDEX OF EXHIBITS RECEIVED

2 JUNE 24, 2009

3 GREENPOINT MORTGAGE VS. D'ANNA, CASE NO. 2009 000 33936

4

5 PLAINTIFF'S EXHIBITS PAGE

6 1 AND 2 5. . . . . . . . . . . . . . . . . .

7 4 16. . . . . . . . . . . . . . . . . . .

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11 DEFENSE EXHIBITS PAGE

12 A, B, AND C 5. . . . . . . . . . . . . . . .

13 E 8. . . . . . . . . . . . . . . . . . . .

14 F 8. . . . . . . . . . . . . . . . . . . .

15 G AND H 9. . . . . . . . . . . . . . . . . .

16 I 10. . . . . . . . . . . . . . . . . . .

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1 EL CAJON, CA WEDNESDAY, JUNE 24, 2009 11:30 A.M.

2

3 --OOO--

4 (ALL PARTIES AND WITNESSES WERE DULY SWORN.)

5 THE BAILIFF: REMAIN SEATED. COME TO ORDER.

6 THIS COURT IS NOW IN SESSION.

7 THE COURT: LADIES AND GENTLEMEN, GOOD MORNING,

8 AND THANK YOU FOR YOUR PATIENCE. WE'RE ON THE RECORD IN

9 THE CASE OF GREENPOINT MORTGAGE FUNDING VERSUS D'ANNA,

10 CASE ENDING NO. 33936. THE DELAY HAS BEEN OCCASIONED BY

11 MY DESIRE TO REVIEW THE FILE TO THE EXTENT THAT TIME

12 PERMITTED ME TO DO SO.

13 I HAVE REVIEWED PERTINENT PORTIONS OF THE

14 FILE, INCLUDING THE COMPLAINT, THE ANSWER THERETO, THE

15 DEFENDANTS' TRIAL BRIEF, AND VARIOUS AND SUNDRY OTHER

16 FILINGS OR PORTIONS OF THE SOMEWHAT VOLUMINOUS COURT FILE.

17 AND THE GENTLEMAN ON MY LEFT, IF YOU WOULD

18 STATE YOUR APPEARANCE, COUNSEL, FIRST OF ALL.

19 MR. STOCKING: GOOD MORNING. RYAN STOCKING FOR

20 THE PLAINTIFF, GREENPOINT MORTGAGE.

21 THE COURT: AND THE GENTLEMAN WITH YOU.

22 MR. STOCKING: THIS IS MY WITNESS, MY FIRST

23 WITNESS.

24 THE COURT: WHO IS?

25 MR. STOCKING: JAKE MAY.

26 THE COURT: ALL RIGHT. AND AT DEFENSE COUNSEL

27 TABLE, WE HAVE?

28 MR. SALVATORE D'ANNA: SALVATORE D'ANNA AND

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2

1 FRANK D'ANNA, PRO PER.

2 THE COURT: I'M SORRY. THE GENTLEMAN WITH YOU

3 IS WHO?

4 MR. SALVATORE D'ANNA: FRANK D'ANNA.

5 THE COURT: HE'S YOUR BROTHER?

6 MR. SALVATORE D'ANNA: YES.

7 THE COURT: AND THEN WE HAVE ONE OTHER

8 PROSPECTIVE WITNESS FOR THE PLAINTIFF. THAT'S MR. HOWELL?

9 MR. STOCKING: YES, YOUR HONOR.

10 THE COURT: THEN, MR. STOCKING, ON BEHALF OF THE

11 PLAINTIFF, YOU MAY PROCEED.

12 MR. STOCKING: THANK YOU, YOUR HONOR. YOUR

13 HONOR, THIS IS A POST-FORECLOSURE EVICTION --

14 (COURT REPORTER INTERRUPTION.)

15 MR. STOCKING: YOUR HONOR, THIS IS A

16 POST-FORECLOSURE EVICTION. AND TO BEGIN ITS CASE, THE

17 PLAINTIFF WOULD FIRST LIKE TO INTRODUCE BY REFERENCE TO

18 THE COURT'S FILE THE NOTICE OF TRIAL AS PLAINTIFF'S

19 EXHIBIT 1.

20 THE COURT: AGREED.

21 (WHEREUPON, PLAINTIFF'S EXHIBIT NO. 1,

22 NOTICE OF TRIAL, WAS MARKED FOR

23 IDENTIFICATION.)

24 MR. STOCKING: NEXT, I WOULD LIKE TO ADMIT AS

25 PLAINTIFF'S EXHIBIT NO. 2 THE CERTIFIED COPY OF THE

26 TRUSTEE'S DEED UPON SALE CORRESPONDING TO THE PROPERTY AT

27 644 HILLSVIEW ROAD, EL CAJON, CALIFORNIA, 92020, WHICH WAS

28 RECORDED MARCH 6, 2009, WITH THE COUNTY OF SAN DIEGO.

26


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3

1 THE COURT: ALL RIGHT. IT WILL BE SO MARKED.


3 TRUSTEE'S DEED UPON SALE, WAS MARKED FOR

4 IDENTIFICATION.)

5 MR. STOCKING: NEXT, YOUR HONOR, THE PLAINTIFF

6 WOULD LIKE TO CALL THE PROPERTY MANAGER, JAKE MAY.

7 THE COURT: VERY WELL.

8

9 DIRECT EXAMINATION

10 BY MR. STOCKING:

11 Q. MR. MAY, WERE YOU HIRED BY THE PLAINTIFF TO

12 MANAGE THE PROPERTY LOCATED AT 644 HILLSVIEW ROAD, EL

13 CAJON, CALIFORNIA, 92020?

14 A. I WAS.

15 Q. IS THE PROPERTY STILL OCCUPIED?

16 A. IT IS.

17 Q. DO THE OCCUPANTS CONTINUE TO BE IN POSSESSION

18 WITHOUT YOUR PERMISSION?

19 A. THAT'S CORRECT.

20 Q. IS IT CORRECT THE PLAINTIFF IS WAIVING ALL

21 MONETARY DAMAGES?

22 A. CORRECT.

23 Q. ARE YOU REQUESTING THAT THIS COURT RESTORE

24 POSSESSION OF THE PREMISES TO THE PLAINTIFF?

25 A. PLEASE.

26 Q. THANK YOU, MR. MAY.

27 MR. STOCKING: YOUR HONOR, I HAVE NO FURTHER

28 QUESTIONS FOR THIS WITNESS.

27


31/96

4

1 THE COURT: MR. D'ANNA, DO YOU HAVE QUESTIONS OF

2 MR. MAY?

3 MR. SALVATORE D'ANNA: ONLY A FEW DOCUMENTS,

4 YOUR HONOR, JUST TO SUBMIT THAT WERE CORRESPONDENCE

5 BETWEEN THE DEFENDANTS AND MR. MAY, INCLUDING A -- AS

6 EXHIBIT A, A FAX THAT WAS SENT TO MR. MAY ON MARCH 17TH,

7 WHICH WAS AN OFFER TO VACATE AND RIGHT TO REPURCHASE.

8 (WHEREUPON, DEFENSE EXHIBIT A, 3/17/09

9 FAX TO MR. MAY, WAS MARKED FOR

10 IDENTIFICATION.)

11 MR. SALVATORE D'ANNA: AND EXHIBIT B IS A

12 RESPONSE FROM MR. MAY REGARDING SAID LETTER.

13 (WHEREUPON, DEFENSE EXHIBIT B, MR. MAY'S

14 RESPONSE TO 3/17/09 FAX, WAS MARKED FOR

15 IDENTIFICATION.)

16 MR. SALVATORE D'ANNA: EXHIBIT C IS A MOVE-OUT

17 AGREEMENT THAT WAS ACTUALLY BETWEEN COUNTRYWIDE AND TO US,

18 THE DEFENDANT, NOT GREENPOINT. AND THE -- THOSE ARE THE

19 THREE DOCUMENTS THAT I WOULD JUST LIKE TO -- TO VERIFY

20 THAT HE RECEIVED THOSE AND SUBMIT THEM TO THE COURT.

21 (WHEREUPON, DEFENSE EXHIBIT C, MOVE-OUT

22 AGREEMENT, WAS MARKED FOR

23 IDENTIFICATION.)

24 THE COURT: MR. STOCKING, DO YOU HAVE ANY

25 QUARREL WITH THE COURT'S RECEIPT OF THOSE EXHIBITS?

26 MR. STOCKING: NOT ESPECIALLY. THEY SEEM TO BE

27 OUTSIDE THE UNLAWFUL DETAINER, THE SCOPE OF THE UNLAWFUL

28 DETAINER; SO --

28


32/96

5

1 THE COURT: WELL, I'M NOT GOING TO GENERATE A

2 DECISION THIS MORNING -- AT LEAST I DON'T EXPECT TO -- BUT

3 RATHER TAKE THE MATTER UNDER SUBMISSION SO THAT I CAN MORE

4 FULLY REVIEW THE FILE AND EXHIBITS AND CONSIDER THE

5 TESTIMONY OFFERED AT THIS TRIAL.

6 SO WITH THAT IN MIND, A, B, AND C WILL BE

7 RECEIVED AS WELL AS PLAINTIFF'S 1 AND 2.

8 (WHEREUPON, DEFENSE EXHIBITS A, B, AND C

9 WERE RECEIVED IN EVIDENCE.)

10 (WHEREUPON, PLAINTIFF'S EXHIBIT NOS. 1

11 AND 2 WERE RECEIVED IN EVIDENCE.)

12 THE COURT: MR. STOCKING, ANYTHING FURTHER WITH

13 RESPECT TO MR. MAY'S TESTIMONY?

14 MR. STOCKING: NO, I'M THROUGH WITH MR. MAY FOR

15 NOW.

16 THE COURT: ALL RIGHT. YOU MAY PROCEED.

17 MR. STOCKING: NEXT, YOUR HONOR, THE PLAINTIFF

18 WOULD LIKE TO CALL RAYMOND HOWELL.

19 THE COURT: GIVE ME JUST A MOMENT BEFORE YOU

20 PROCEED.

21 MR. STOCKING: NO PROBLEM.

22 (PAUSE IN THE PROCEEDINGS.)

23 THE COURT: THANK YOU. GO AHEAD, MR. STOCKING.

24

25 DIRECT EXAMINATION

26 BY MR. STOCKING:

27 Q. MR. HOWELL, ARE YOU A REGISTERED PROCESS SERVER?

28 A. YES.

29


33/96

6

1 Q. WERE YOU EMPLOYED BY THE LAW FIRM OF MILES,

2 BAUER, BERGSTROM, AND WINTERS TO SERVE LEGAL PAPERS ON THE

3 PROPERTY AT 644 HILLSVIEW ROAD, EL CAJON, CALIFORNIA,

4 92020?

5 A. YES.

6 Q. I'M HANDING YOU A DOCUMENT ENTITLED NOTICE TO

7 QUIT. DO YOU RECOGNIZE THIS DOCUMENT?

8 A. YES.

9 Q. ATTACHED TO THE NOTICE TO QUIT ARE TWO

10 DOCUMENTS, EACH ENTITLED PROOFS OF SERVICE. DO THESE

11 PROOFS OF SERVICE CORRECTLY REFLECT THE DATE, TIME,

12 LOCATION, AND MANNER OF SERVICE OF THE NOTICE TO QUIT?

13 A. YES.

14 MR. STOCKING: YOUR HONOR, NEXT, PLAINTIFF WOULD

15 LIKE TO INTRODUCE THE NOTICE TO QUIT AND ATTACHED PROOFS

16 OF SERVICE AS PLAINTIFFS EXHIBIT NO. 3, COLLECTIVELY.

17 THE COURT: AGREED.


19 NOTICE TO QUIT AND PROOFS OF SERVICE,

20 WAS MARKED FOR IDENTIFICATION.)

21 MR. STOCKING: I HAVE NO FURTHER QUESTIONS FOR

22 THIS WITNESS, YOUR HONOR.

23 THE COURT: DO YOU HAVE ANY QUESTIONS OF

24 MR. HOWELL, MR. D'ANNA?

25 MR. SALVATORE D'ANNA: NO, YOUR HONOR.

26 THE COURT: ALL RIGHT. THANK YOU.

27 MR. STOCKING?

28 MR. STOCKING: YOUR HONOR, IN CLOSING, PLAINTIFF

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34/96

7

1 WOULD LIKE TO REQUEST THE COURT ENTER A JUDGMENT IN FAVOR

2 OF THE PLAINTIFF FOR POSSESSION OF THE PREMISES AGAINST

3 ALL NAMED DEFENDANTS AND ALL OTHER OCCUPANTS PURSUANT TO

4 C.C.P. 415.46.

5 THE COURT: ALL RIGHT. SO WITH THAT, PLAINTIFF

6 RESTS?

7 MR. STOCKING: YES, YOUR HONOR.

8 THE COURT: ALL RIGHT. MR. D'ANNA, EVIDENCE

9 THAT YOU WISH TO PRESENT BEYOND THE EXHIBITS THAT HAVE

10 ALREADY BEEN RECEIVED?

11 MR. SALVATORE D'ANNA: YES, YOUR HONOR. AS

12 EXHIBIT -- I GUESS IT WOULD BE -- E, THESE ARE NOTES --

13 THE NOTICE OF DEFAULT THAT WAS RECORDED WITH THE COUNTY

14 RECORDER FOR THIS CASE AS WELL AS SEVERAL OTHER CASES AT

15 ALL STAGES THAT COMPLIANCE WITH SECTION 2923.5 OF THE

16 CIVIL CODE WAS ACTUALLY COMPLETED IN THE YEAR 2006. THESE

17 ARE ALL -- I GUESS YOU CAN TAKE JUDICIAL NOTICE ON THESE.

18 THEY'RE ALL COUNTY-RECORDED DOCUMENTS.

19 THE COURT: WELL, THEY'RE RECORDED DOCUMENTS IN

20 CONJUNCTION WITH THE PARCEL OF PROPERTY AT ISSUE HERE?

21 MR. SALVATORE D'ANNA: ONE OF THEM IS, YES. THE

22 REST OF THEM ARE FILED BY THE SAME -- THE SAME PARTIES,

23 BUT ALSO REFLECT THAT THE YEAR 2006 AS IN COMPLIANCE WITH

24 2923.5. JUST TO SHOW A PATTERN OF NONCOMPLIANCE, YOUR

25 HONOR.

26 THE COURT: WELL, I'M FOCUSED UPON YOUR PARCEL,

27 NOT NECESSARILY THE PRACTICE OF PLAINTIFF OR AN ASSOCIATED

28 ENTITY RELATIVE TO OTHER PARCELS. I UNDERSTAND YOUR

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35/96

8

1 CONTENTION THAT YOU DISPUTE THAT FACTUALLY ON OR ABOUT

2 JULY 11TH, 2006, OR DURING THAT TIME FRAME, YOU DISPUTE

3 THAT THERE WAS ANY EFFORT BY THE PLAINTIFF TO NEGOTIATE OR

4 RE-NEGOTIATE THE TERMS OF THE MORTGAGE IN COMPLIANCE WITH

5 CIVIL CODE 2923.5.

6 MR. SALVATORE D'ANNA: CORRECT, YOUR HONOR.

7 DURING 2006, WE WERE NOT IN DEFAULT.

8 THE COURT: ALL RIGHT. AGAIN, I'LL RECEIVE THE

9 DOCUMENTS THAT YOU'VE DESCRIBED, BUT MY FOCUS IS GOING TO

10 BE UPON WHATEVER DOCUMENT OR DOCUMENTS SPECIFICALLY

11 RELATED TO THE PARCEL AT ISSUE HERE.

12 (WHEREUPON, DEFENSE EXHIBIT E, NOTICE OF

13 DEFAULT, WAS MARKED FOR IDENTIFICATION.)

14 (WHEREUPON, DEFENSE EXHIBIT E

15 WAS RECEIVED IN EVIDENCE.)

16 MR. SALVATORE D'ANNA: OKAY. THE NEXT EXHIBIT

17 IS JUST A CERTIFIED LETTER OF NONCOMPLIANCE THAT WAS SENT

18 TO THE PLAINTIFF, ALONG WITH THE RECORDED DOCUMENT THAT

19 WAS RECORDED AT THE SAN DIEGO COUNTY RECORDER'S OFFICE,

20 WHICH WAS THE NOTICE OF ATTACHED OBSERVED INTEREST, WHICH

21 ALSO PUBLISHED THE NONCOMPLIANCE WITH SECTION 2923.5.

22 THE COURT: ALL RIGHT. IT WILL BE SO MARKED AND

23 RECEIVED.

24 (WHEREUPON, DEFENSE EXHIBIT F, CERTIFIED

25 LETTER OF NONCOMPLIANCE, WAS MARKED FOR

26 IDENTIFICATION.)

27 (WHEREUPON, DEFENSE EXHIBIT F


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36/96

9

1 MR. SALVATORE D'ANNA: AS THE NEXT EXHIBIT, THE

2 PLAINTIFF'S RESPONSES TO INTERROGATORIES AND TO PRODUCTION

3 OF DOCUMENTS WHERE THEY CLAIM THAT THEY HAVE NO -- THAT

4 THE CLIENT -- THAT THE DOCUMENTS THAT THEY HAVE THAT SHOWS

5 THEY COMPLIED WITH 2923.5 ARE PRIVILEGED DOCUMENTS, THAT

6 WE DID NOT RECEIVE THEM BECAUSE THEY'RE PRIVILEGED FOR

7 SOME REASON.

8 THE COURT: THAT'S WHOSE CONTENTION?

9 MR. SALVATORE D'ANNA: PLAINTIFF'S CONTENTION IN

10 THEIR RESPONSES TO INTERROGATORIES UNDER THE REQUEST FOR

11 PRODUCTION OF DOCUMENTS.

12 THE COURT: ALL RIGHT. GO AHEAD. THAT EXHIBIT

13 LETTER IS WHAT?

14 MR. SALVATORE D'ANNA: THAT'S G AND H. I HAVE A

15 COVER PAGE, TOO, THAT I WILL SUBMIT.

16 (WHEREUPON, DEFENSE EXHIBIT G,

17 PLAINTIFF'S RESPONSE TO INTERROGATORIES,

18 WAS MARKED FOR IDENTIFICATION.)

19 (WHEREUPON, DEFENSE EXHIBIT H,

20 PLAINTIFF'S RESPONSE FOR PRODUCTION OF

21 DOCUMENTS, WAS MARKED FOR

22 IDENTIFICATION.)

23 (WHEREUPON, DEFENSE EXHIBITS G AND H

24 WERE RECEIVED IN EVIDENCE.)

25 MR. SALVATORE D'ANNA: AND THEN THE LAST ONE IS

26 JUST THE RENTAL RATES FOR -- IN THE AREA FOR 3-BEDROOM

27 HOUSES IN CASE THE JUDGMENT NEEDS TO GO TOWARD WHATEVER

28 THE CURRENT RENTAL RATE IS IN THE AREA.

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37/96

10

1 (WHEREUPON, DEFENSE EXHIBIT I, RENTAL

2 RATES FOR A THREE-BEDROOM, WAS MARKED

3 FOR IDENTIFICATION.)

4 (WHEREUPON, DEFENSE EXHIBIT I


6 THE COURT: ALL RIGHT. GO AHEAD.

7 MR. SALVATORE D'ANNA: AND THE LAST THING, YOUR

8 HONOR, IS THE REQUEST FOR A STATEMENT OF DECISION. IS

9 THAT NECESSARY?

10 THE COURT: NO. AND YOU MAY GET ONE; YOU MAY

11 NOT. I'LL DO WHAT I HAVE TO DO, BUT RIGHT NOW I'M NOT

12 CLEAR AS TO HOW I'M GOING TO ADJUDICATE THIS MATTER OR IN

13 WHAT FORM. SO I'LL --

14 MR. SALVATORE D'ANNA: OKAY.

15 THE COURT: -- I'LL TAKE IT UNDER ADVISEMENT

16 THAT YOU'RE REQUESTING A STATEMENT OF DECISION.

17 MR. SALVATORE D'ANNA: THANK YOU, YOUR HONOR.

18 THE DEFENSE HAS NO OTHER --

19 THE COURT: OKAY. WHEN --

20 I WANT A LITTLE BACKGROUND. HOW LONG DID

21 YOU OWN THIS PROPERTY? WHEN DID YOU PURCHASE IT?

22 MR. SALVATORE D'ANNA: IT WAS PURCHASED IN MAY

23 OF 2005, I BELIEVE.

24 THE COURT: AND IN WHOSE NAME OR NAMES WAS IT

25 RECORDED? YOURS --

26 MR. SALVATORE D'ANNA: UNDER MY BROTHER FRANK

27 D'ANNA'S NAME.

28 THE COURT: UNDER YOUR BROTHER'S NAME?

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38/96

11

1 MR. SALVATORE D'ANNA: CORRECT.

2 THE COURT: WHAT IS OR WAS YOUR INTEREST IN THE

3 PROPERTY?

4 MR. SALVATORE D'ANNA: WELL, AFTER HE WAS HAVING

5 TROUBLE WITH THE ACTUAL -- MAKING HIS PAYMENTS, I GAVE HIM

6 A LOAN AND RECEIVED A PROMISSORY NOTE ON THE PROPERTY FOR,

7 I BELIEVE IT WAS, $10,000. THIS WAS BEFORE THE

8 FORECLOSURE TOOK PLACE. ALSO, I LIVE ON THE PROPERTY AND

9 PAY RENT TO HIM FOR THE PRIVILEGE OF LIVING THERE.

10 THE COURT: AND WAS THAT NOTE OR ANY OF THE

11 ASSOCIATED AGREEMENTS, WERE THOSE RECORDED?

12 MR. SALVATORE D'ANNA: I'M SORRY?

13 THE COURT: WERE THOSE EVER RECORDED?

14 MR. SALVATORE D'ANNA: THE PROMISSORY NOTE?

15 THE COURT: YES.

16 MR. SALVATORE D'ANNA: NO.

17 THE COURT: SO WHEN DID PAYMENTS FIRST FAIL TO

18 BE MADE IN COMPLIANCE WITH THE TERMS OF THE MORTGAGE ON

19 THE PROPERTY?

20 MR. SALVATORE D'ANNA: THE FIRST PAYMENT THAT

21 WAS MISSED WAS IN JUNE OF 2008.

22 THE COURT: YOU EXECUTED THIS PROMISSORY NOTE --

23 OR, RATHER, YOUR BROTHER EXECUTED THE PROMISSORY NOTE

24 WHEN?

25 MR. SALVATORE D'ANNA: IN, I BELIEVE,

26 FEBRUARY -- JANUARY OR FEBRUARY OF 2008. THESE DOCUMENTS

27 HAVE BEEN SUBMITTED IN THE CIVIL CASE THAT WE FILED ON

28 APRIL 3RD OF THIS YEAR.

35


39/96

12

1 THE COURT: ALL RIGHT. I RECOGNIZE THAT. I

2 RECOGNIZE THAT SOME OF MY QUESTIONS MAY FALL OUTSIDE THE

3 AMBIT OF A TYPICAL UNLAWFUL-DETAINER-TYPE ACTION, BUT

4 DEPENDING UPON HOW YOU VIEW IT, THIS IS OR IS NOT A

5 TYPICAL OR ATYPICAL UNLAWFUL DETAINER ACTION.

6 BOTTOM LINE, YOUR CONTENTION IS THAT TITLE

7 TO THE PROPERTY WAS NOT AND HAS NOT BEEN PERFECTED IN

8 COMPLIANCE WITH C.C. 2923.5; IS THAT CORRECT?

9 MR. SALVATORE D'ANNA: YES, YOUR HONOR.

10 THE COURT: ALL RIGHT. WELL, LET ME ASK YOUR

11 BROTHER THEN DIRECTLY THE QUESTION THAT I HAD ASKED YOU,

12 MR. D'ANNA, AND INASMUCH AS YOU SAY THAT A PROMISSORY NOTE

13 WASN'T EXECUTED UNTIL '08, MY QUESTION TO YOUR BROTHER

14 FRANK D'ANNA IS THIS: MR. FRANK D'ANNA, WERE YOU LIVING

15 ON THE PROPERTY IN '06?

16 MR. FRANK D'ANNA: YES.

17 THE COURT: AND YOU HAD PURCHASED IT IN '05?

18 MR. FRANK D'ANNA: YES.

19 THE COURT: AND DID YOU HAVE ANY CONTACTS WITH

20 YOUR LENDER, OR DID YOUR LENDER HAVE ANY CONTACTS WITH

21 YOU, BY ANY FORM OF COMMUNICATION IN 2006 RELATIVE TO

22 MEETING THE TERMS OF THE MORTGAGE AND/OR RE-NEGOTIATING

23 THOSE TERMS?

24 MR. FRANK D'ANNA: NO.

25 THE COURT: WAS THAT, FROM YOUR PERSPECTIVE,

26 EVER AN ISSUE DURING 2006?

27 MR. FRANK D'ANNA: YEAH. WHAT HAPPENED WAS,

28 THEY TOLD ME IF I MISSED THREE PAYMENTS, THEY WOULD

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40/96

13

1 NEGOTIATE WITH ME. I DID MISS THREE PAYMENTS, AND THEY

2 WOULDN'T NEGOTIATE.

3 THE COURT: WHO TOLD YOU THAT?

4 MR. FRANK D'ANNA: IT WAS GREENPOINT MORTGAGE.

5 THAT WAS 2008.

6 THE COURT: I'M TALKING ABOUT 2006. ANYTHING OF

7 THAT SORT TAKE PLACE DURING THAT CALENDAR YEAR?

8 MR. FRANK D'ANNA: OH, YEAH. THERE WAS NO

9 PROBLEMS. I ALWAYS MADE MY PAYMENTS ON TIME AT THAT TIME.

10 THE COURT: WHAT ABOUT 2007?

11 MR. FRANK D'ANNA: ALL MY PAYMENTS WERE ON TIME.

12 THE COURT: WHEN DID YOU FIRST START RUNNING

13 INTO PROBLEMS MAKING PAYMENTS SUCH THAT YOU SOUGHT YOUR

14 BROTHER'S INTERVENTION OR ASSISTANCE?

15 MR. FRANK D'ANNA: IT WAS IN 2008.

16 THE COURT: AND WHAT HAPPENED TO OCCASION THAT?

17 HOW DID THAT COME ABOUT?

18 MR. FRANK D'ANNA: WELL, WHAT HAPPENED WAS I

19 STARTED GETTING BEHIND. AND MY BUSINESS WAS GETTING

20 SLOWER. I HAVE A RESTAURANT BUSINESS. AND MY PAYMENTS

21 WERE REALLY HIGH, AND I JUST COULDN'T MAKE IT, AND SO I

22 NEEDED TO BORROW MONEY.

23 THE COURT: ALL RIGHT. AND THEN YOU STARTED TO

24 FALL BEHIND IN THE PAYMENTS BEGINNING WHAT MONTH?

25 MR. FRANK D'ANNA: IT WAS IN JUNE, AND THE

26 REASON WHY I WENT -- I MEAN, I STARTED BORROWING MONEY TO

27 KEEP MAKING MY PAYMENTS BEFORE THAT. AND THEN I CALLED

28 THE LENDERS, AND THEY SAID, "WELL, WE CAN'T EVEN SPEAK TO

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41/96

14

1 YOU UNLESS YOU FALL THREE MONTHS BEHIND."

2 THE COURT: AND WHEN DID YOU HAVE THAT

3 CONVERSATION?

4 MR. FRANK D'ANNA: IT WAS PROBABLY IN ABOUT -- I

5 THINK IT WAS APRIL OR MAY OF 2008. ACTUALLY -- YEAH,

6 ABOUT APRIL, I THINK IT WAS.

7 THE COURT: DID YOU HAVE ANY FURTHER CONTACTS

8 WITH YOUR LENDER THEREAFTER OR YOUR LENDER WITH YOU

9 OUTSIDE OF THE FORECLOSURE PROCEEDINGS?

10 MR. FRANK D'ANNA: NO.

11 OH, YES. THEY OFFERED ME $5000 TO WALK

12 AWAY.

13 MR. SALVATORE D'ANNA: THAT WAS AFTER THE

14 FORECLOSURE.

15 MR. FRANK D'ANNA: THAT WAS AFTER THE

16 FORECLOSURE.

17 THE COURT: ALL RIGHT. MR. STOCKING, DO YOU

18 HAVE QUESTIONS OF MR. FRANK D'ANNA OR, FOR THAT MATTER,

19 MR. SALVATORE D'ANNA?

20 MR. STOCKING: NO, NOT NECESSARILY. AS FAR AS

21 THE RENTAL VALUE BEING EXCESSIVE, I KNOW THEY SUBMITTED AN

22 EXHIBIT ON THAT. THE RENTAL VALUE IS BASED ON WHAT THE

23 PREVIOUS MORTGAGE PAYMENTS WERE, AND IT TAKES INTO ACCOUNT

24 ANY PENALTIES AND STUFF LIKE THAT. SO THAT'S WHY THAT

25 NUMBER IS WHAT IT IS.

26 AS FAR AS SATISFYING C.C.P. 2923.5, THAT'S

27 ALL PRE-FORECLOSURE ISSUES. AND ONCE WE RECORD THE

28 TRUSTEE'S DEED UPON SALE, IT'S A CERTIFIED DOCUMENT

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42/96

15

1 SELF-AUTHENTICATING, SAYING THAT WE COMPLIED WITH ALL OF

2 THOSE. THESE ISSUES SHOULDN'T BE HANDLED IN AN UNLAWFUL

3 DETAINER. THEY SHOULD BE HANDLED IN A WRONGFUL

4 FORECLOSURE QUIET TITLE ACTION.

5 THE COURT: ALL RIGHT. I UNDERSTAND YOUR

6 POSITION. I'M NOT SAYING THAT I NECESSARILY AGREE WITH

7 IT. FRANKLY, I WANT TO DO A LITTLE MORE RESEARCH.

8 PRESENTLY, IS THERE ANY FURTHER EVIDENCE TO

9 BE OFFERED BY EITHER PARTY IN THE CONTEXT OF THIS UNLAWFUL

10 DETAINER TRIAL?


12 THE COURT: MR. STOCKING?

13 MR. STOCKING: NO.

14 YOUR HONOR, I HAVE A NUMBER OF CERTIFIED

15 DOCUMENTS, BUT THEY'RE ALL PRE-FORECLOSURE DOCUMENTS; SO I

16 DON'T REALLY THINK THEY'RE NECESSARY. I CAN SUBMIT THEM

17 JUST COLLECTIVELY AS EXHIBIT -- PLAINTIFF'S EXHIBIT NO. 4,

18 JUST TO SHOW THAT WE RECORDED ALL THESE DOCUMENTS PRIOR TO

19 THE FORECLOSURE.

20 THE COURT: WHY DON'T YOU DO THAT.

21 MR. STOCKING: OKAY. IT'S GOING TO BE NOTICE OF

22 TRUSTEE SALE, ASSIGNMENT OF THE DEED OF TRUST,

23 SUBSTITUTION OF TRUSTEE; AND THEN THERE'S A COPY OF THE

24 DEED OF TRUST.

25 THE COURT: ALL RIGHT. COLLECTIVELY, THOSE WILL

26 BE PLAINTIFF'S NO. 4.

27 ////

28 ////

39


43/96

16


2 NOTICE OF TRUSTEE SALE, ASSIGNMENT OF

3 DEED OF TRUST, SUBSTITUTION OF TRUSTEE,

4 AND DEED OF TRUST WAS MARKED FOR

5 IDENTIFICATION.)

6 (WHEREUPON, PLAINTIFF'S EXHIBIT NO. 4


8 THE COURT: ALL RIGHT. THEN, MR. D'ANNA,

9 SALVATORE OR FRANK D'ANNA, IS THERE ANYTHING FURTHER YOU

10 WISH ME TO KNOW OR HAVE RECEIVED AS PART OF THIS PRESENT

11 TRIAL PROCEEDING?


13 THE COURT: ALL RIGHT. THANK YOU.

14 THEN, GENTLEMEN, THE MATTER WILL BE TAKEN

15 UNDER SUBMISSION. AND AT MY EARLIEST CONVENIENCE, A

16 DECISION WILL BE FORTHCOMING. AND I DON'T INTEND TO LET

17 THIS LANGUISH. SO YOU'LL BE HEARING FROM US IN THE VERY

18 NEAR FUTURE. OKAY? THANK YOU VERY MUCH FOR YOUR

19 COOPERATION.

20 MR. STOCKING: THANK YOU, YOUR HONOR.

21 MR. SALVATORE D'ANNA: THANK YOU, YOUR HONOR.

22 THE COURT: WE'LL BE IN RECESS.

23 (PROCEEDINGS CONCLUDED.)

24 --000--

25

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44/96

1 REPORTER'S CERTIFICATE

2

3 STATE OF CALIFORNIA)) SS:

4 COUNTY OF SAN DIEGO)

5

6 I, CYNTHIA DEPWEG, CERTIFIED SHORTHAND REPORTER,

7 CERTIFICATE NO. 3280, AN OFFICIAL COURT REPORTER OF THE

8 SUPERIOR COURT OF THE COUNTY OF SAN DIEGO, STATE OF

9 CALIFORNIA, DO HEREBY CERTIFY:

10 THAT I REPORTED IN MACHINE SHORTHAND THE

11 PROCEEDINGS HELD IN THE FOREGOING CASE;

12 THAT MY NOTES WERE TRANSCRIBED INTO TYPEWRITING

13 UNDER MY DIRECTION;

14 AND THAT THE FOREGOING AND ATTACHED TRANSCRIPT

15 IS AN UNCERTIFIED ELECTRONIC TRANSMISSION OF THE RECORD OF

16 THE FOREGOING PROCEEDINGS. ONLY A HARD COPY WITH THE

17 REPORTER'S ORIGINAL SIGNATURE PAGE CONSTITUTES A CERTIFIED

18 RECORD OF THE ORAL PROCEEDINGS HAD ON SAID DATE.

19

20 DATED THIS ________DAY OF___________________,

21 200__.

22

23 _____________________________________________

CYNTHIA DEPWEG, CSR NO. 3280, R.P.R., C.R.R.24 OFFICIAL COURT REPORTER SAN DIEGO SUPERIOR COURT

25(GOVERNMENT CODE 69954(D): ANY COURT, PARTY, OR PERSON WHO

26 HAS PURCHASED A TRANSCRIPT MAY, WITHOUT PAYING A FURTHERFEE TO THE REPORTER, REPRODUCE A COPY OR PORTION THEREOF

27 AS AN EXHIBIT PURSUANT TO COURT ORDER OR RULE, OR FORINTERNAL USE, BUT SHALL NOT OTHERWISE PROVIDE OR SELL A

28 COPY OR COPIES TO ANY OTHER PARTY OR PERSON.)

41


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46/96

REQUEST FOR STATEMENT OF DECISION - 1

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Frank DAnna, Pro Per

Salvatore B. DAnna, Pro Per3941 Kenwood Dr.


Telephone: (619) 602-6647Fax: (619) 374-2268



EAST COUNTY DIVISION

Greenpoint Mortgage Funding, Inc.,

Plaintiffs,vs.

Frank DAnna and Salvatore B. DAnna

Defendants

))))))))))))))

Case No.: 37-2009-00033936

REQUEST FOR STATEMENT

OF DECISION

Trial Date: June 24, 2009

Defendants Frank DAnna and Salvatore B. DAnna, who appeared at the trial of the above

entitled action, hereby requests that the court issue a statement of decision explaining the factual

and legal bases for its decision regarding the following controverted issues:

1. Whether or not Plaintiff has proven that he/she perfected title to the property which is a

requirement to obtain possession.

2. Whether Plaintiff has complied with newly enacted Civil Code 2923.5 which is a requirement

before the Notice of Default can be recorded.

Dated: June 24, 2009

Respectfully submitted,

By _____________________________ By __________________________

Frank DAnna, Pro Per Salvatore B. DAnna, Pro Per

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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.... 11D. 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................................................ 1,4Kessler 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

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Defendants 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 underCCP 1161a. A qualified exception to the rulethat 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 issuesto be decided:

1. In July 2008, the Governor of California signed into law SB 1137, intended to amelioratethe 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, orauthorized agents to provide notice to borrowers and explore options that could avoidforeclosure.

3. Effective September 6, 2008, a mortgagee, trustee, beneficiary, or authorized agent maynot 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 fromthe 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 CountyRecorders 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 theNotice 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 RealProperty recorded in the San Diego County Recorders Office due to Plaintiffs non

compliance with Civil Code 2923.5.

8. On February 6, 2009 Defendant sent a Notice of Non Compliance which included a copyof 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 Recorders 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 Defendantsproperty 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 whoinformed 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 considerationfor a loan modification or to purchase the property outright from Plaintiffs with the

assistance of Defendants 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 ifDefendants 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 wasbetween 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.Plaintiffs filed this Unlawful Detainer lawsuit on April 23, 2009.C. Issues to be decided.

1. Whether Plaintiff duly perfected title to Defendants home after the nonjudicial foreclosure sale.

2. Whether Plaintiff could have perfected title to Defendants home withoutcompliance with Civil Code 2923.5.

3. Whether the Recorded Notice of Intention to Preserve Interest in RealProperty due to non compliance with Civil Code 2923.5 which attaches to anysale 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 LEXIS1814.

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 Plaintiffs non compliance recorded in the San Diego County

Recorders 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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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

Statement of Decision Writ

Documents

Transcript of Statement of Decision Writ