Douglas D. Brunelle, Pro Per Renee C. Brunelle, Pro Per 2 8535 Paradise Valley Road Unit #29 3 Spring Valley, California 91977 Tel 619-871-2991 4 5 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN DIEGO 10 EAST COUNTY REGIONAL CENTER 11 12 13 FEDERAL NATIONAL MORTGAGE Case No.: 37-2012-00034472-CL-UD-EC 14 ASSOCIATION, 15 16 Plaintiff, VS. DEFENDANT'S TRIAL BRIEF IMAGED FILE 17 DOUGLAS D. BRUNELLE, RENEE C. 18 BRUNELLE and Does 1-50, inclusive, Trial Date: July 11, 2012 Trial Time: 8:30am Defendants. Trial Dept: E-14 19 20 21 22 23 24 Dated: July 4, 2012 25 26 27 28 [DEFENDANT'S TRIAL BRIEF]
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Douglas D. Brunelle, Pro Per Renee C. Brunelle, Pro Per
2 8535 Paradise Valley Road Unit #29
3 Spring Valley, California 91977 Tel 619-871-2991
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8SUPERIOR COURT OF THE STATE OF CALIFORNIA
9COUNTY OF SAN DIEGO
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EAST COUNTY REGIONAL CENTER 11
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13FEDERAL NATIONAL MORTGAGE Case No.: 37-2012-00034472-CL-UD-EC
14 ASSOCIATION,
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Plaintiff,
VS.
DEFENDANT'S TRIAL BRIEF
IMAGED FILE
17 DOUGLAS D. BRUNELLE, RENEE C.
18BRUNELLE and Does 1-50, inclusive, Trial Date: July 11, 2012
Trial Time: 8:30am Defendants. Trial Dept: E-14
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24 Dated: July 4, 2012
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[DEFENDANT'S TRIAL BRIEF]
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TABLE OF CONTENTS
4 INTRODUCTION 4
I. SUMMARY OF ARGUMENT 6
7 A) Attorney Verification Loses Rebuttable Presumption 5
8 B) Trustee Deed Upon Sale violates CCC § 2924b(b)(2) 9
This litigation is between a plaintiff-lender and a defendant-homeowner, rather
than between landlord and tenant, and title is at issue. Mehr v Superior Court
(1983) 139 CA3d 1044, 1049, 189 CR 138 (because of summary nature of
unlawful detainer proceedings, it is unsuitable forum to try complicated ownership
issues) .' Asuncion v Superior Court (1980) 108 CA3d 141, 145-146, 166 CR 306 -
(eviction of homeowners following foreclosure raises due process issues and must
be heard in superior court).
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale. His or her right to obtain possession is based
upon the presumption that the property has been "duly sold" by foreclosure
proceedings, CCC § 1161 a (b) (3) and therefore it is necessary that the plaintiff
prove each of the statutory procedures has been complied with as a condition for
seeking possession of the property.
In an unlawful detainer action, the Plaintiff must prove that it has duly
complied with each of the statutory requirements for foreclosure, and the trustor
can put these questions in issue in the unlawful detainer proceeding. Miller and
Star 3 rd 10:220.
[DEFENDANT'S TRIAL BRIEF I
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Plaintiff relies on one key element in its Unlawful Detainer — the Trustee
Deed Upon Sale, which inaccurately reflects "FEDERAL NATIONAL
MORTGAGE ASSOCIATION (a/k/a "Fannie Mae") as the "foreclosing
beneficiary" entitled to purchase the property through a credit bid which is in
violation of CCC § 2924. Defendant's allegations demonstrate that the Trustee
Deed Upon Sale fraudulently names Federal National Mortgage Association as the
beneficiary. Defendant herein alleges that CCC § 1161a(b)(3), which mandates
that the Plaintiff comply with CCC § 2924 and duly perfect title, has been violated
in that the Trustee Sale violated CCC § 2924 and will not support an Unlawful
Detainer action.
1. SUMMARY OF ARGUMENT
A. ATTORNEY VERIFICATION LOSES REBUTTABLE PRESUMPTION
When an attorney verifies the complaint, CCC § 446 is clear that the
pleadings "shall not otherwise be considered as an affidavit or declaration
establishing the facts therein alleged". Case law is clear that attorney verification
is to be discouraged and should receive a strict construction, and even when that
strict construction is applied, no facts are established within the Complaint.
Getting verification from a party that resides in the next county is no longer a
significant challenge. The Court, in Decamp v Kensington Corp., (1978) 83 Cal.
App.3d 268, 275 clearly recognized the progression of our ability to communicate
quickly and that the problems of distance no longer presented the impossibility of
client verification, so much so that the Court proclaimed, "if the client can be
[DEFENDANT'S TRIAL BRIEF]
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The attorney points out in his/her verification (s)he "read the foregoing
document and know its contents" and "I am in./brined and believe" and on that
ground alleges that matters stated herein are true. His/Her verification is based on
"informed and believe" — not personal knowledge. One can almost read into this
that the attorney is standing in the shoes of the Plaintiff and acting as a witness to
the allegations of the Unlawful Detainer Complaint, and as such, at the minimum
there should be a written authorization by the Plaintiff allowing the attorney to
stand in their shoes and act as their "witness" (See California Rules of
Professional Conduct 5-2100)
"The object of the verification is to insure good faith in the averments of the
(Bittleston Law etc. Agency v. Howard (1916) 172 Cal. 357, 360 [156 P.
515].) According to CCP § 446 "When the verification is made by the
attorney ....in those cases the pleadings shall not otherwise be considered as an
affidavit or declaration establishing the facts therein alleged." (Emphasis
added)
Nowhere in the Plaintiff's pleadings is there a single declaration or affidavit
by the Plaintiff on any of the alleged "facts". Every document completed is by
some individual that is swearing under penalty of perjury, "upon information and
belief", not of personal knowledge. Unlawful Detainers, like foreclosures, are a
*aconian and drastic measure whose serious nature should warrant more than
ILy
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reached by mail, no such possibility exists... and the attorney verification is not
allowed."
[DEFENDANT'S TRIAL BRIEF]
a signature based on hearsay evidence', and every homeowner should be given
the opportunity to either present competent evidence or cross examine the
individuals who are "claiming the truthfulness" of recitals and "information and
belief".
The very nature of a "prima facie" case is such that a legal proceeding
should commence in which the "prima facie" evidence is tested before a court
ruling is made. By virtue of the attorney verification, Plaintiff willingly forgoes
any "presumptions" and must therefore prove each "element" and "fact" that the
recitals in the Trustee Deed Upon Sale is based on.
California Codes (evidence, civil and procedure) clearly state that business
re ords are nothing more than hearsay unless and if they are supported by
co npetent testimony, that rebuttable presumption is lost upon contest from the
opposing party, that a party to the matter choosing to verify through their attorney
foregoes establishing the facts.
California Evidence Code § 500 states: Except as otherwise provided by
law, a party has the burden of proof as to each fact the existence or nonexistence
of which is essential to the claim for relief or defense that he is asserting."
California Evidence Code § 1530(a)(2) requires that a purported copy of a writing
in the custody of a public entity either "be attested to or a certified as a correct
copy" — however all the recording of the TDUS proves is it was recorded;
iWebster definition of Hearsay evidence: evidence based not on a witness's personal knowledge but on another's statement not made under oath
[DEFENDANT'S TRIAL BRIEF I
according to California Evidence Codes §§ 403 2 and 1271 3 , the recording of the
TDUS does not establish the proof of the preliminary facts nor does it overcome
the hearsay rule of the recitals in the document unless and only if, there is
competent testimony to support the facts asserted within the document. Neither an
attorney nor a realtor can attest to and testify as to the validity and truthfulness of
the contents and recitals of the documents.
California Evidence Code § 1561 requires Plaintiff to provide evidence
about the source of information and how the TDUS was prepared; it is clear that
the document was not prepared by Plaintiff but rather the improper Trustee
cl4iming to have conducted the Trustee Sale. Defendant has the right to question
the preparation and validity of the contents of the document.
Defendant hereby objects to the Trustee Deed Upon Sale being entered into
evidence, as Defendants affirmative defense challenges the contents of the
ddcuments as hearsay.
2alifornia Evidence Code 403 (a) states "The proponent of the proffered evidence has the burden of producing
evidence as to the existence of the preliminary fact. and the proffered evidence is inadmissible unless the court
finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact. when:
(I) The relevance of the proffered evidence depends on the existence of the preliminary fact: (2) The preliminary fact is the personal knowledge of a witness concerning the subject matter of his testimony: (3) The preliminary fact is the authenticity of a writing; or (4) The proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself.
3California Evidence Code§ 1271: Evidence of a writing made as a record of an act. condition, or event is not made inadmissible by the hearsay rule when offered to prove the act. condition. or event if:
(a) The writing was made in the regular course of a business: (b) The writing was made at or near the time of the act. condition. or event: (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation: and (d) The sources of information and method and time of preparation were such as to indicate its
trustworthiness.
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B. TRUSTEE DEED UPON SALE VIOLATES CCC § 2924(B)(2)
In Bank of America v. LaJolla Group II, 129 Cal.App. 4th 706, 710,717 (5th
Dist. 2005) the Court found, "No statute creates a presumption — conclusive or
otherwise for any purchaser bona tide or otherwise — that any recitals in a
trustee's deed render effective a sale that had no contractual basis."
In this matter Defendant's Deed of Trust (Certified copy of pages 1 and 2,
and the signature page of the Deed of Trust, Instrument Number 2005-0984778,
attached as "Exhibit A") reflects that the Lender is First National Bank of
Arizona, MFRS is the "nominee" of the Lender and its successor and/or assigns,
and the Trustee is First American Title Company.
In this matter Plaintiff relies on the recitals and "statutory presumption" of
the Trustee Deed Upon Sale and Unlawful Detainer. "Statutory presumption" is
afforded only to those Plaintiffs who verify the , complaint, not to attorney
verifications; and there is no evidence that First National Bank of Arizona or
WRS has assigned the Note or Deed of Trust to Federal National Mortgage
Msociation.
(2) to require the last and highest bidder to deposit. if not deposited previously, the full amount of the bidder's final bid in cash, a cashier's check drawn on a state or national bank. a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state. or a cash equivalent which has been designated in the notice of sale as acceptable to the trustee. immediately prior to the completion of the sale. the completion of the sale being so announced by the fall of the hammer or in another customary manner. The present beneficiary of the deed of trust under foreclosure shall have the right to offset his or her bid or bids only to the extent of the total amount due the beneficiary including the trustee's fees and expenses.
9 'DEFENDANT'S TRIAL BRIEF]
"Under such unlawful detainer statutes it has been held that title, to the
extent required by section 1161a, 'not only may, but must, be tried in such actions
if the provisions of the statutes extending the remedy beyond the cases where the
conventional relation of landlord and tenant exists are not to be judicially