PETTITION FOR REVIEW

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PETITION FOR REHEARING AFTER APPEAL

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THE SUPERIOR COURT OF CALIFORNIA

FOR THE COUNTY OF SANTA CLARA

APPELLATE COURT

WILLIAM J. CUTLIP Defendant/ Appellant vs.

DOWNEY SAVINGS, DEUTSCHE BANK

NATIONAL TRUST COMPANYAS

TRUSTEE FOR HARBORVIEW

MORTGAGE LOAN TRUST MORTGAGE

PASS THROUGH CERTIFICATES 2007-

Plaintiff /Respondent

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

No_113AP001530 Santa Clara County Superior Court Case No 112CV230319

APPELLANTS PETITION FOR REHEARING

ON APPEAL FROM A JUDGEMENT OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SANTA CLARA

HONORABLE MARY J. GREENWOOD JUDGE PRESIDING William J. Cutlip 619 Union Ave Campbell, CA, 95008 Phone Number: 408-614-1248 E-mail Address: [email protected] Self Represented

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TABLE OF CONTENTS I-II

TABLE OF CASES III

TABLE OF CODES IV

OTHER AUTHORITIES IV

REFERENCES TO THE COURT TRANSCRIPT V

I - FACTUAL AND PROCEDURAL BACKGROUND 1

II- THE RECORD SHOWS ON ITS FACE THAT THE

COURT ORDER IS VOID. 1

IT WAS AN ERROR OF LAW FOR THE TRIAL COURT

TO DETERMINE THAT PLAINTIFFS LACK OF TITLE AND

LACK OF STANDING WERE NOT ALLOWABLE DEFENSES

IN AN UNLAWFUL DETAINER BROUGHT

AFTER FORECLOSURE 1

III- REASONS FOR GRANTING REVIEW 3

(A) THE COURT ADMITS IT DID NOT CONSIDER

CUTLIPS LEGAL AND EQUITABLE DEFENSES

PRIOR TO ISSUING A WRIT OF POSSESSION

ON JANUARY 31, 2013 3

IV- STATEMENT OF THE CASE AND FACTS 4

V- PLAINTIFF HAD THE BURDEN OF PROOF 4

VI- FAILURE TO PROVE COMPLIANCE C.C.P. SECTION 2924 5

(A) THE COURT FAILED TO APPLY AND FOLLOW

CONTROLLING STATUTE 5

(B) PLAINTIFFS FAILURE TO SUBMIT EVIDENCE OR PLEAD

FACTS THAT WOULD ALLOW THE COURT TO REACH A

PLAUSIBLE INFERENCE 5

VII- FIRST QUESTIONS & ISSUES OF LAW 7

(A) THE DECISION IS BASED UPON OMMISSIONS

OF MATERIAL FACT AND THE OMMISSION OF THE

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CONTROLLING DOCUMENTS OF THE CASE

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(B) The ACO held certified to be true and exact copies of Cutlips originals Deed of Trust and Promissory Note that came with a letters of attestation and were certified by

the Vice president of compliance for U.S. Bank qualified as hearsay

IIX- THE ACO CONFIRMS THE NOTICE OF DEFALT WAS DEFECTIVE 8

IX- CUTLIP PLED PREJUDICE AND TENDERED 9

X- THIS PETITION SHOWS THE COURT OF APPEALS ERROR IN

REACHING ITS DECISION. SEE, E.G., 1ST APP DIST IOPP B.5. 9

(A) THE COURT ERRED IN TAKING JUDICIAL NOTICE OF

THE DISPUTED FACTS CONTAINED WITHIN THE

RECORDED DOCUMENTS 9

XI- LEGAL ARGUMENT 11

XII- A PROPER REVIEW OF THE JUDGMENT IS WHETHER A

RATIONAL TRIER OF FACT COULD HAVE FOUND THAT THE

PLAINTIFF SUSTAINED ITS BURDEN OF PROVING

THE ELEMENTS OF ITS CAUSE OF ACTION BEYOND

A REASONABLE DOUBT 11

XIIV- CONCLUSION 12

XIV- PRAYER 13

XV- VERIFICATION 13

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Abelleira v. Dist. Ct. of Appeal (1941). 10

Altman v. McCullum (1951) 11,8

America v La Jolla Group II (2005) 10

Asuncion v Superior Court

(1980) 108 CA3d 141, 145146, 166 CR 306 9

Bledsoe v. Pacific Ready Cut Homes (1928) 8

Cheney v. Trauzettel (1937) 4,12

Crummer v. Whitehead, 1964 7

Cockerell v. Title Ins. & Trust Co. (1954), 42 Cal.2d 284

Delpy v. Ono (1937 4

[Heesy v. Vaughn (1948) 5

Hewitt v. Justice's Court, 131 Cal.App. 439 12

Horacek v. Smith (1948)

Lay v. Superior Court, 11Cal.App.

558, 560 [105 P. 775].) [1 4,7

McCall v. PacifiCare of Cal., Inc. (2001) 11

Memphis Light, Gas & Water (1978) 1

Parker v. City of Fountain Valley (1981) 5

Pennoyer v. Neff, 95 U.S. 714, 732-733 (1878). 3

People V. Azevedo, 2011 12

People v. Scott (1994 11

Poseidon Development, Inc. v. Wodland Lane Estates 2007 10

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Seidell v. Anglo-California Trust Co. (1942, 4

State v. Reynolds, 209 Mo. 16 13

Stephens v. Hollis ( 1987) 4,6

(Svistunoff v. Svistunoff (1952) 1

08 C.A. 2d 638, 641, 239 P.2d 650.) 9

Thomas v. Mallett, 2005 3

Vella v. Hudgins (1977) 20 C3d 251, 255, 142 4

Weintraub v. Superior Court, 91 Cal.App. 763, 769 [267 P. 733] 5

Wells Fargo Bank, N.A. v. Detelder - Collins, 2012 5

Willis v. City of Rialto, 2012 4

California civil code of procedure 410.10 1

California civil code of procedure 1161a (b) (3) 3,4,5,6

California civil code of procedure 2924(a) (1) - (6) 2) 3,7,6

California civil code of procedure 2924 (c) 3,4,6

California civil code of procedure 2924 (1)(c)(6)) 4,8

California Evidence Code 500 (2011) 5

California Evidence Code 1450-1454 8, 10

United States Constitutions Fifth and Fourteenth amendments 1, 3

California State Constitution Article One Section Seven 1

CAL. R. CT.8.500 (c)

California Evidence code, 450.p12

California Evidence code 450.)

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California Evidence code 624; 5.45-1

Cal.Civ.Pro.Code p9 1161a-2

Cal.Civ.Pro.Code 409(a).-3,14

Section 547(e) (1) (A) P7 ,1516

California civil code 1213 9,10

Collier on Bankruptcy Sec. 547.47, at 547-148. P8

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TO THE HONORABLE PRESIDING JUSTICE AND ASSOCIATE

JUSTICES OF THE SUPERIOR COURT OF THE STATE OF

CALIFORNIA FOR THE COUNTY OF SANTA CLARA APPELLATE

DIVISION;

Petitioner William Cutlip Respectfully Submits his petition for rehearing for

reconsideration on the merits of the legal theory should be persuasive in the court determination

that true controversies exits and a rehearing is needed to resolve the question of law that remain

unanswered..

ISSUES PRESENTED FOR REVIEW

William Cutlip was denied procedural due process as guaranteed by article I, section

7 of the California Constitution and the Fifth and Fourteenth Amendments of the United

States Constitution when the court denied Cutlip his equitable and legal defenses that if

proven would have retained the possession of his real property and thereafter issued a writ of

possession depriving Cutlip of his real property. (AOB p37-38)

THE DECISION IS BASED UPON OMMISSIONS OF MATERIAL FACT AND THE

OMMISSION OF THE CONTROLLING DOCUMENTS OF THE CASE.

The ACO omits Cutlips vital testimony and Omits that defendants certified and

attested copies of his Deed of trust and promissory Note, which established plaintiffs, lacks

of a secured interest or right to possession of Cutlips property

I -Factual and Procedural Background

The ACO omits Cutlips argument that the reporters transcript from the hearing on Cutlips

motion for new trial conclusively shows the trial court violated Cutlips due process.

The Court violated Cutlip Due processes of law when it refused to consider his

equitable and legal defenses prior to issuing a writ of possession in favor of a plaintiff who

had established no cognizable connection to the property. (AOB-39:4-13)

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The statute of limitations does not apply to a suit in equity to vacate a void judgment.

(Cadenasso v. Bank of Italy, supra, p. 569; Estate of Pusey, 180 Cal. 368, 374 [181 P. 648].)

This rule holds as to all void judgments, in two other cases, People v. Massengale and In re

Sandel, the courts hearing the respective appeals confirmed the judicial power and responsibility

to correct void judgments (in excess of jurisdiction).

II-THE RECORD SHOWS ON ITS FACE THAT THE COURT ORDER IS VOID.

The straight forwards language of Judge Greenwood as provided in the court

reporters transcript form the hearing on Cutlips motion for New trial held on February 13,

2013, leaves no room for interpretation and it is clear as day that William Cutlip was denied

procedural due process as guaranteed by article I, section 7 of the California Constitution and

the Fifth and Fourteenth Amendments of the United States Constitution when the court

denied Cutlip his equitable and legal defenses that if proven would have retained the

possession of his real property and thereafter issued a writ of possession depriving Cutlip of

his real property. (AOB p37-38)

The Supreme Court of the United States (the core requirement of the due process

clause is that an individual be provided an opportunity for a full fair hearing prior to being

deprived of any significant liberty interest or property); see also Memphis Light, Gas &

Water Div. v. Craft, 436 U.S. 1, 19, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978) (AOB -13:3-6)

(A)-It Was an Error of Law for the Trial Court to Determine That Plaintiffs Lack of

Title and Lack of Standing Were Not Allowable Defenses in an Unlawful Detainer

Brought after Foreclosure.

(A) It was a prejudicial error of law of law for the Appellate Division of the Superior

Court to deny Cutlips request for judicial notice of the court reporters transcript from

the hearing on Cutlips motion for New trial held on February 13, 2013,. (ACO-11:6-

11) Calif. Evid. Code Sect. 450-459. Judicial notice of courts own records.

The AC denied Cutlip RJN of the reporters transcript that detailed the trial

court violation of Cutlips Due process of law. (RJN endorsed and filed Oct. 30, 2013

THE COURT: Deutsche Bank could not act as -- as the actor in this procedure because they

did not have a valid title as I understand the law is not something that I can consider in this

context. (RT- FEB. 13, 2013 - p 3:20 -28 Cont. p 4:1-4)

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THE COURT: There may have been problems with what happened before the sale. There

may have been problems with it, but the issues raised related to the standing of Deutsche

bank were not issues that this court could consider in the context of the trial. (RT- FEB. 13,

2013 P 26: 1-7)

The ACO omits the fact that plaintiff did not have an assignment of the beneficiary

interest nor acted on such authority recorded or unrecorded,

The ACO used the substitution of trustee that Cutlip introduced into evidence to show

that the servicer of the loan purported to substitute the trustee using a power of attorney dated

August 2005, when the SEC website shows that the trust was not created until September

2007. The trust would have had to authorize the power of attorney but had not been created

when the POA was purported to have been authorized by the trust. Deutsche as trustee for the

Harborview mortgage back trust 2007 was not an entity Deutsche had not been created by

the pooling and service agreement that gave Deutsche its power and controls the trust if the

trust did not exist a power of attorney could not be possible and was shown to be a legally

impossible document.

The ACO confirms the deed of trust gives the lenders exclusive right to substitute the

trustee. The ACO confirmed plaintiff is not the lender beneficiary or trustee under the deed

of trust. Bank Of New York Mellon v. Presadio Taught us that a Trustees Deed is not proof

the foreclosure sale was conducted by the substituted trustee without the foundational

evidence to support the entity foreclosing was properly substituted , What Poseidon and

Herrera held is that a substitution of trustee without an assignment actually giving the party

substituting the trust authority to do so is not proof the trustee was properly substituted.

A substitution of trustee is not proof of the parties authority to assign the trustee. The

ACO omitted the factual evidence supporting the allegation by defendant that the substitution

of trustee was void.

The trustees deed names plaintiff as foreclosing beneficiary and grantee

(CT-5) given these omitted fact it can been seen the ACO demonstrates the

complaint fails to alleges facts sufficient to state a cause of action under any legal theory The

ACO does not cite a fact or an allegation made by plaintiff that would state a cause of action

The ACO does not list a single fact to affirm the trial courts judgment based on substantial

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evidence. When there is not an allegation or evidence to support the judgment there is

nowhere to reach for a plausible inference.

The trustees deed named plaintiff as the foreclosing beneficiary Grantee was not

supported by but are bellied by the lack of evidence of the case to draw a conclusion of fact.

There are no allegations or evidence determine who the real lender benifivary are and it was

plaintiff burden not defendant burden to vet out who the real party or the HDC and the court

has no allegation or evidence to determine if the party bring this action even has the legal

capacity to do so [a]n action must be prosecuted in the name of the real party in interest.

See also, In re Jacobson, 402 B.R. 359, 365-66 (Bankr. W.D. Wash. 2009); In re Hwang, 396

B.R. 757, 766-67 (Bankr. C.D. Cal. 2008).

The court did not consider plaintiff lack of standing or lack of title and thereafter

violated Cutlips due process when the court issued a writ of possession, granting relief in

excess if its jurisdiction.

California civil code of procedure 410.10 provides that a court of this state may exercise

jurisdiction on any basis not inconsistent with the Constitution of this state or of the United

State.

It is conclusively shown the trial court acted inconsistent with the United States

Constitution and in contradiction of its controlling statutes. Well settled law tell us the trial

court exceeded its jurisdiction. A judgment is void on its face if the trial court exceeded its

jurisdiction by granting relief that it had no power to grant.Jurisdiction cannot be

conferred on a trial court by the consent of the parties. (Summers v. Superior Court (1959)

53 Cal. 2d 295, 298 [1 Cal. Rptr. 324, 347 P.2d 668]; Roberts v. Roberts (1966) 241 Cal.

App. 2d 93, 101 [50 Cal. Rptr. 408].)

(1)-THE COURT: After reading your very extensive papers thats the problem I have with

the presentation that I received in your papers because when everything is said and done , no

matter how the issueno matter how the documents are presented or the information given

to the court is was presented by you, what it went back to was your opinion that Deutsche

Bank could not act as -- as the actor in this procedure because they did not have a valid title

and that as I understand the law is not something that I can consider in this context. (RT-

New Trial Feb. 13, 2013 page 3 lines 20 -28 page 4 lines

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(2)-THE COURT; Fundamentally your position is the Deutsche bank would not have

standing and thats the position you took at trial as well that Deutsche Bank would not have

standing to be able to participate in the sale in the first place right. (RT-New Trial Feb. 13,

2013 page 11 lines 1-4)

(3)-THE COURT: So your position is that Deutsche bank did not own the property therefore

did not have Standing to participate in the sale (RT-New Trial Feb. 13, 2013 page 11 lines

16-18)

(4)-THE COURT: ok do let make sure I understand you the argument that was presented at

trial and in the very extensive papers that you provided in support of your position for trial

was that there was fraud prior to the sale basically in the transfer of the deed of trust from

one entity to another such that Deutsche bank did not have standing right. (;RT-New Trial

Feb. 13, 2013 page 10 : 18-24)) Cutlips factual claim is there was no assignment (AOB:4-6)

(5)-THE COURT; `The part the court disagrees with is what the court can consider in the

context of reviewing a 2924 sale in an unlawful detainer action when the court looks at all

the arguments that you are making fundamentally it comes down to the question of whether

Deutsche had the right come into court and seek the eviction in the first place, the courts

understanding of the case law is that there might very well have been issues. That is not

before me that is not something I am considering (RT- February 13, 2013 p 25:1-7)

The court recognized that there were problems with Deutsche standing to sue and

refused to consider Cutlips defenses that if proven would have retained his possession of

said his real property located at 619 Union Avenue Campbell Ca. 95008 (Subject property.)

The trial court disregards equal protection the Constitution of This State and The United

States due process clauses proceeded to issue a writ of possession to deprive Cutlip of his

real property without due process. It makes it no less a taking without due process to confer

that someday he may be able to recover his property, this is wrong and the court should

remedy this.

On February 12, 2013 Cutlip called the trial court attention to the fact it was violating

his constitutionally guaranteed rights four times to no avail. The court violated my due

process guarantee of law afforded every citizen in the United States Constitutions Fifth and

Fourteenth amendments

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(a)-CUTLIP: (RT- Feb. 13, 2013 p 9: 19-23) (c)-CUTLIP; (b) (RT- Feb. 13, 2013 p 22: 16-

27) (d)-CUTLIP :.( RT- Feb. 13, 2013 p 26: 13-20) (e)-CUTLIP: (RT- Feb. 13, 2013 p 27: 1-

4)

Where a person has been deprived of property in a manner contrary to the most basic

tenets of due process, it is no answer to say that in his particular case due process of law

would have led to the same result because he had no adequate defense upon the merits.

Peralta v. Heights Medical Center, Inc. (1988) 485 US 80, 8687, 108 S. Ct. 896, 900

(CUTLIP disputes whether they have any rights under the loan at all they were not a party to

the deed of trust there is a promissory note and deed of trust they have no recorded Interest in

the recorders office and they presented no evidence that they ever had ever received an

assignment of the note or had authority under the deed of trust from the beneficiary RT-Feb.

13, 2013 p 20:5-25)

A judgment rendered in violation of due process is void in the rendering State and is

not entitled to full faith and credit elsewhere. Pennoyer v. Neff, 95 U.S. 714, 732-733

(1878).

(The due process clause "restrains state action, whether legislative, executive, or

judicial, within bounds that are consistent with the fundamentals of individual liberty and

private property, including the right to be heard where liberty or property is at stake in

judicial proceedings this was extremely prejudicial and callus to be removed without

authority.- in Thomas v. Mallett, 2005) .

The reporter transcript of February 13, 2013 conclusively shows that the court

violated Cutlip due process.

Due Process Would Suggest the Petition for Rehearing Should Be Granted

III- REASONS FOR GRANTING REVIEW

THE TRIAL COURT ADMITTED THAT IT DID NOT CONSIDER CUTLIPS LEGAL

AND EQUITABLE DEFENSES PRIOR TO ISSUING A WRIT OF POSSESSION ON

JANUARY 31, 2013 (AOB-20-26))

The ACO omits Cutlips argument that the trial court violated Cutlips due process.

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THE COURT: What I did consider in the context of this trial is whether there was

compliance with the 2924 provision of the sale and a dually recorded trustees deed of sale

and the court found there was and let me just put in a very shorthand tilted way . By the

time it gets to me in an unlawful detainer action there is virtually nothing Im looking at

except a very narrow window , a very narrow window of possibilities thats the legal process

I understand.(RT-Feb. 13, 2013-P25:14-27)

The trial court and now the court of appeals have violated Cutlips Constitutional rights

guaranteed under the United States Constitution Fifth and Fourteenth amendment to the

extreme prejudice to Cutlip who lost hundreds of thousands of dollars in his homes equity

when his home was unlawfully foreclosed on and sold for half market value. AOB

The ACO Is In Conflict With Existing Decision Of Its Own Appellate Court And Others On

The Same Issue Of Which Review Is Sought. See in case of Asuncion v. Superior Court (1980)

108 Cal. App.3d 141 [166 Cal. Rptr. 306], This case squares with the opinion, where the Court

of Appeal held that, consistent with due process guarantees, homeowners cannot be evicted

without being permitted to raise affirmative defenses which, if proved, would maintain their

possession and ownership. The court concluded that title to the property was in issue and that the

unlawful detainer action exceeded the municipal court's jurisdiction. (Bank of NY Melon v

Prasadio, 2013) (ordered published by Supreme Ct. 3/19/14)

IV- STATEMENT OF THE CASE AND FACTS, (AOB-p41-42)

Even assuming the truth of all material facts that have been properly pleaded [and] of

material facts that may reasonably be inferred from those expressly pleaded- in Willis v. City

of Rialto, 2012 there is no basis to draw a conclusion of law that plaintiff held any interest

in Cutlips deed of trust to take action on the sales clause in the deed of trust., Plaintiff

makes no averment that it ever held an interest in the Deed or Note .(or that it was acting on

the authority that had a legal interest in Cutlips Deed or note without an allegation or

evidence that plaintiff had alleging the party that sold the property to plaintiff had authority

to do so interest in Cutlips mortgage plaintiff cant not comply with the deed of trust that

gives the exclusive right to the beneficiary to declare a default and substitute the trustee

V- PLAINTIFF HAD THE BURDEN OF PROOF

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The ACO did not act impartial and prejudiced Cutlip when it failed to make a single

inquiry into the adequacy of plaintiff pleading to state a cause of action, this convoluted the

findings skewing the opinion because the plaintiff has the burden of proof to prove each

element of its cause of action not the defendants. Had the ACO reviewed plaintiff pleadings

to state a cause of action it would have shown that plaintiff in this case failed to produce

evidence and the ACO was to make a finding against plaintiff, without plaintiff introducing

evidence or pleading factual allegations sufficient to constitute a cause of action the court

lacked jurisdiction over the subject-matter of the action. The case cited below by the ACO

prove that it was plaintiff burden.

The title of a purchaser at a sale under a trust deed is involved in an action in

unlawful detainer brought by him to the limited extent that he must prove his acquisition of

title by purchase at the sale, and the defendant may attack the sufficiency of the sale. Cheney

v. Trauzettel (1937) 9 Cal 2d 158, 69 P2d 832, 1937 Cal LEXIS 372; Delpy v. Ono (1937,

Cal App) 22 Cal App 2d 301, 70 P2d 960, 1937 Cal App LEXIS 116; Seidell v. Anglo-

California Trust Co. (1942, Cal App) 55 Cal App 2d 913, 132 P2d 12, 1942 Cal App LEXIS

146.

(ACO 13:6-11) a purchaser at a foreclosure sale must prove in a later unlawful detainer

action that the sale complied with Civil Code section 2924, and that title under such sale was

duly perfected "Title is duly perfected when all steps have been taken to make it perfect, i.e.,

to convey to the purchaser that which he has purchased, valid and good beyond all reasonable

doubt, which includes good record title."( Stephens v. Hollis ( 1987) 196 Cal.App.3

Plaintiff has the burden of proof to prove the elements of it cause of action

Under California Civil code 2924 (c) See CAL .EVID.CODE 500 (2011) ([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.); Wells Fargo Bank, N.A. v. Detelder -

Collins, 2012 WL 4482587, at *7 (Cal. App. Div. Super. Ct. Mar. 28, 2012) (citing 500 and

putting the evidentiary burden on the UD Plaintiff).3 Including specific foreclosure (not UD)

notice and recording requirements, and 1) requiring the foreclosing entity to have the proper

authority to foreclose. CAL .CIV.CODE 2924(a) (1) - (6) 2) perfected title ;)

A condition precedent to acquiring jurisdiction for to act without the condition met is

in excess of jurisdiction (See, also, Weintraub v. Superior Court, 91 Cal.App. 763, 769 [267

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P. 733]; State v. Reynolds, 209 Mo. 161 [107 S.W. 487, 491, 123 Am.St.Rep. 468, 14 Ann.

Cas. 198, 15 L.R.A. (N. S.) 963]

The complaint failed to state facts sufficient to constitute a cause of action. Dictum:

the court lacked jurisdiction over the subject-matter of the action.

These grounds for demurrer are not waivable and may even be asserted for the first

time on appeal. (Code Civ. Proc., 434; see Horacek v. Smith (1948) 33 Cal.2d 186, 191

[199 P.2d 929]; Griffin v. Griffin (1953) 122 Cal. App.2d 92, 101 [264 P.2d 167]; 3 Witkin,

Cal. Procedure (2d ed. 1971) Pleading, 819, p. 2427.) Since these objections can be raised

at any time at the trial or on appeal (3 Witkin, op. cit.The obligation of a party to sustain the

burden of proof requires the production of evidence for that purpose. [Parker v. City of

Fountain Valley (1981) 127 Cal.App.3d 99, 113]Where no evidence is introduced upon an

issue, a finding thereon should be against the party having the burden of proof. [Heesy v.

Vaughn (1948) 31 Cal.2d

701, 708-709]

VI- FAILURE TO PROVE COMPLIANCE C.C.P. SECTION 2924

(A) ` The Court Failed To Apply And Follow Controlling Statute Under California

Civil Code 1161a (B) (3) Requiring Proof Of Compliance With The Deed Of

Trust and Proof That The Sale Was Held In Accordance To California Civil

Code Section 2924 and Proof Of Perfection Of Title.

Compliance with section 2924 would require the authentication of the beneficiary

A plaintiff filing an action under 1161a is required to prove a foreclosure sale in

compliance with California Civil Code of Procedure section 2924 these subdivision below

would require the legal identity of the lender beneficiary trustee to be authenticated in order

to state a cause of action under 1161a. Proving a sale in compliance to California civil, code

2924 is a prerequisite mandated by statute prior to filing an action under 1161a (b) (3)

Plaintiff must prove compliance with section 2924a (C) (6) requiring the

beneficiary to declare the default and the deed of trust requiring the lender to substitute the

trustee both requirement to initiate foreclosure plaintiff would need to establish the trustee

was authorized to conduct the foreclosure when the party substituting a trustee would need

to prove it had authority to substitute the trustee and the real party in interest must be named

in the suite proper authentication of the beneficiary is required.

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2924 (a)(c ) (6) No entity shall record or cause a notice of default to be recorded or

otherwise initiate the foreclosure process unless it is the holder of the beneficial interest

2924 (1)(c)(6)) A statement setting forth the nature of each breach actually known to

the beneficiary and of his or her election to sell or cause to be sold the property to

satisfy that obligation and any other obligation secured by the deed of trust or

mortgage that is in default.

(B) PLAINTIFFS FAILURE TO SUBMIT EVIDENCE OR PLEAD FACTS THAT

WOULD ALLOW THE COURT TO REACH A PLAUSIBLE INFERENCE.

To establish compliance with applicable subdivision under 2924 required by statute

the identification and verification of the beneficiary is necessary. Plaintiff failure to properly

identify with authenticating evidence the beneficiary under the deed of trust fails to state a

cause of action California civil code 1161a (b) (3) Plaintiff failed to prove perfection of title

The ACO shows that plaintiff must prove good title including good record title but omits the

fact that plaintiff has no title instrument and has not alleged a title instrument plaintiff

continues to profess it received perfection of title in the trustee deed. When a plaintiff

professes to be the foreclosing party and did not allege a perfected title prior to the trustees

deed would be without foundational pleading and evidentiary support and substantial

evidence to show an unlawful foreclosure.

ACO-p- 13:6-11) a purchaser at a foreclosure sale must prove in a later unlawful detainer

action that the sale complied with Civil Code section 2924, and that title under such sale was

duly perfected "Title is duly perfected when all steps have been taken to make it perfect, i.e.,

to convey to the purchaser that which he has purchased, valid and good beyond all reasonable

doubt, which includes good record title."(Stephens v. Hollis ( 1987) 196 Cal.App.3d 948,

952-953 The ACO is in conflict with Crummer v. Whitehead, 1964 that held an action in

unlawful detainer, brought pursuant to Code of Civil Procedure section 1161a, subdivision 3,

appellant was entitled to dispute the validity of the trustee's sale and to place respondent's

title in issue- in.)

There is no proof recorded or unrecorded that plaintiff is the real party in interest

therefore plaintiff lacks standing. Plaintiff failed to show an injury in fact to a legally protected

interest,

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The requirements for the exercise of equitable powers were not satisfied and the trial court

lacked jurisdiction.

The ACO upheld the trial court opinion that standing to sue was not a consideration of

the trial court. This opinion is in direct conflict with U.S. CONST. art. III, 2; see Association of

Data Processing Serv. Organizations, Inc. v. Camp, 397 U.S. 150, 151-52 (1970). Plaintiff had

not shown any rights to assert jus tertii as it had not alleged or shown any facts to reach a conclusion

of law that it acted for a party that had acquired a legal interest in the subject property. Plaintiff

has no title instrument or proof of authority.

Plaintiff did not prove the foreclosure sale complied with the deed of trust or California

Civil Code 2924 and did not prove perfection of title therefore plaintiff failed to state a cause of

action and the court lacked jurisdiction to grant relief.

Legislation knew what it was doing including foreclosures of real property part of

action in unlawful detainers and set safe guards. Without plaintiff proving the foreclosing

parties authority to do so the party cannot prove the foreclosure sale complied with the deed

of trust or California Civil Code 2924 and did not prove perfection of title and failed to state

a cause of action and did not prove it was the real party in interest to bring this action.

Defendant contends that if the Legislature had intended to work so monstrous a result,

in the unlawful detainer statute as to deprive California homeowners of their due process

guarantee it surely ought to have said so by language specifically declaring such intent. It did

not do so.

VII- QUESTIONS & ISSUES OF LAW

(A) THE DECISION IS BASED UPON OMMISSIONS OF MATERIAL FACT

AND THE OMMISSION OF THE CONTROLLING DOCUMENTS OF THE CASE.

The ACO omits Cutlips vital testimony and Omits that his certified and attested

copies of his Deed of trust and promissory Note, which established plaintiffs, lacks of a

secured interest

Cutlips loans originator was Downey Savings who was seized and sold by the Federal Deposit Insurance Corporation (FDIC) to U.S. Bank.

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Cutlip sent U, S Bank a qualified written request (QWR) for debt verification pursuant to

California civil Code of Procedure 2943 that requires the beneficiary within 21 day after the

receipt of a QWR to send certified complete copies of the Deed of trust (Deed) and

promissory Note (Note) showing any signs of modification.

In January 2010 The V.P. of compliance For U.S. Bank sent complete copies of Cutlips Deed and Note certified to be to be true and exact copies of the originals. The certified

copies of Cutlip original Deed and Note came with a letter of authenticity stating the loan

was valid and enforceable to U, S. Bank.

US Bank had a loss share agreement with the FDIC to modify the qualified mortgaged of

its Downey Savings customers. Cutlip contacted The FDIC to find out whom if anyone

could get U.S. Bank to modify his loan per the loss share agreement.

In May 2010 the senior ombudsman specialist For the FDIC sent Cutlip an email and

stating in pertinent Downey Savings sold Cutlips loan to an investor that was not plaintiff or U.S. Bank prior to its failure in 2008, further US Bank is not Servicing your loan and has no

interest in the loan because it was not part of the purchase and assumption agreement

between U.S. Bank and the FDIC has no ownership interest in your loan and your

The Same issues was argued at trial, in the motion for new trial and throughout AOB

ARB

CUTLIP- RT-Nov.16, 2012 page 23: 7):

CUTLIP RT- Nov. 16, 2012 page 25: 8-18):

CUTLIP- RT-Nov.16, 2012 page 23: 7):

( RT-New Trial Feb. 13, 2013 page10;3-7)

(RT-New Trial Feb. 13, 2013 page10;10-16)

(RT-New Trial Feb. 13, 2013 page10;25-26)

Plaintiff clearly had no right to possession of Cutlips property. The certified

documents are supported by a letter from the Vice President of compliance for U.S. Bank

attesting to the document authenticity and an email from The Federal Deposit Insurance

Corporation (FDIC) establishing plaintiff lack of a secured legal interest in Cutlips property.

Cutlip requested judicial notice of the certified documents in the trial court and the

appellant court. The trial court confirm the document to be considered part of Cutlip case

(RT- Trial page 9:23-24 page-10:1-7) The ONLY certified documents in the case. RJN in the

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trial court on Nov. 13. 2012 Exhibit (d) certified Deed of Trust and Promissory Note -CT-

194-214) (FDIC EMAIL CT-120-121) (U.S. Bank Letter of Attestation (CT-415,& CT-125)

There are grounds for rehearing when error impacts the disposition of the case. CAL. R. CT.

8.500 (c) (2) Thus, a rehearing is required since this court has failed to address Scott (1994)

9 cal.4th 331. 1The appellant Court opinion, (ACO) discusses the letter of January 2010 sent

from U.S. Bank to defendant. The opinion recognized that U.S. Bank is the successor in

interest to the loans failed originator Downey Savings. The letter is attesting to the

authenticity of the certified true and exact copies of defendants Deed of trust and Promissory

Note sent by U.S. Bank to Cutlip as evidence of Cutlips debt to US Bank. There are no

endorsements or assignments on the certified copies of the Deed and Note sent by US Bank

to defendant. California Evidence Code 1450-1454 considerers certified and attested

documents from a public entity prima facie evidence for establishing a fact. Regardless that

US Bank later realizes it has no ownership interest in the loan, US Bank has already

confirmed its possession of Cutlips original Note and Deed. (ACO. pge-2:23-24) the opinion

paraphrases this as U.S. Bank appeared to initially confirm the validity and enforceability of

the debt to it As will be discussed below this is an omission of a material facts and evidence

of the case. The ACO describes the certified and attested copies of Cutlips original note and

Deed of trust. ACO pge-11:25-27) Exhibits 9 through 11 appear to be documents relating to

the underlying note, deed of trust and trust sale the documents lack foundation and constitute

hearsay. The ACO states the Certified Deed And Note are hearsay and then cite the contents

of the documents in its case against Cutlip.

The ACO has exceeded its jurisdiction, the certified and attested document are gives

evidentiary weight by statute it is in excess of the courts jurisdiction to legislate from the

bench and determine that legislation is incorrect. Certified and attested documents by statue

1450-1454 are given self authenticating prima facie evidentiary weight for determining the

facts under certification. AOC determination that the documents are hearsay and lack

foundation considering the letter of attestation and the confirmation from the Federal Deposit

1 OPINION page 2 the court acknowledged January 2010 U.S. Bank initially confirms the validity and

enforceability of Cutlips debt.

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Insurance Corporation these certified documents could not reasonably be disputed; this is a

prejudicial error of law.

IIX- THE ACO CONFIRMS THE NOTICE OF DEFALT WAS DEFECTIVE.

ACO p 14:1-17 Cutlip attacked the substitution of trustee as defective based on his additional

challenges to the validity of the underlying transfer of the beneficiarys interest in the note

and deed of trust. (AOB-38-39)

ACO p15:1-2The substitution of trustee was executed after the notice of default was recorded

Cutlip argued this precise point at trial and pled prejudice.

This case is in conflict with published opinions that a defendant may attack a

defective notice of default and defective notice of the foreclosure sale. (Altman v.

McCollum (1951) 107 CA2d Supp. 847 854-855) (Altman v. McCollum (1951) 107 CA2d

Supp. 847 854-855) A plaintiff foreclosing on a parcel of real property must follow certain

strict procedures regarding notice of default and notice. (Altman, 107 Cal. App. 2d Supp. at

854; Bledsoe v. Pacific Ready Cut Homes (1928) 92 CA 641.

IX CUTLIP PLED PREJUDICE

The opinion states that Cutlip was not prejudice by plaintiffs unlawful recording of the

notice of default. (NOD) (Opinion page 15:1-8) Cutlip showed no substantial procedural

prejudice because the party recording NOD had no legal capacity to do so and was not the

effected or recorded trustee and there are no facts recorded or unrecorded to prove western

was acting as an agent or facts in the record to show it has ever been properly substitutes as

the legal trustee recorded or unrecorded on any manner. The ACO continues to omit Cutlips

vital factual pleadings, this is wrong. The ACO admits the notice of default was in violation

California civil code and in violation of the deed of trust and falsely claimed Cutlip did not

plead prejudice this is false as Cutlip pled prejudice but more importantly and what the

ACO side steps that in addition to the notice of default recoded by an unauthorized

unrecorded agent of another unauthorized unrecorded entity that were not connected to the

Deed of trust is plaintiffs purporting to substitute the trustee without authority plaintiff is not

the lender recorded or unrecorded as required by the deed of trust. (AOB-11:14-19) Tender

(CT-41-43-44-45) (AOB-19:4-18)

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(ACO- 2:10-19) (Def. Motion in Limine to preclude TD CT-387-396)

(ACO, 2:11-13) The deed of trust provided that the lender at its option may from time

to time appoint a Successor trustee to any Trustee appointed hereunder by an instrument

executed and Acknowledged by Lender and recorded this procedure for substitution of

trustee shall govern to the exclusion of any other Provisions for substitution. It is the

Exclusive right of the lender to substitute the trustee. The initiation of foreclose (ACO- 2:5-

6) 2the original lender and beneficiary under the deed of trust was Downey Savings and Loan

Association. The trustee was identified in the deed of trust as DSL Service. Cutlip pled he

was prejudiced by the unlawful recording of the NOD.

The initiation of foreclosure by parties not of record and who fail to demonstrate its

authority under the deed of trust was prejudicial because it caused Cutlips financing to be

canceled.(ARB p 6) (CT-182:22-26)(CT-183:1-10) RT-Feb. 13, 2013 -p 11:19-28) Cutlip was

refinancing when the unauthorized notice of default caused Alta Insurance to cancel the title

insurance and forced Neighborhood Assistance Corporation of America (NACA) to pull Cutlips

financing. The unlawful and unauthorized recording of the notice of default was not only

unlawful it caused extreme prejudice to Cutlip. What the ACO fails to show is the complaint is

absent any facts or evidence or factual allegation that would enable the court to reach a

conclusion of law that Western was legally authorized to conduct the foreclosure sale against

Cutlips property. See in (Herrera v Deutsche, 2011), (Bank of NY Melon v Prasadio, 2013)

(Ordered published by Supreme Ct. 3/19/14)

X- THIS PETITION SHOWS THE COURT OF APPEALS ERROR IN

REACHING ITS DECISION. SEE, E.G., 1ST APP DIST IOPP B.5.

(B) the court erred in taking judicial notice of the disputed facts contained within

the recorded documents

2The ACO acknowledges that under the Deed of trust only the lender may substitute the

trustee of record, and the ACO notices that Downey savings is the beneficiary lender under the

2 ACO, 2:11-13) the Deed of trust provided that the lender at its option may from time to time appoint a

successor trustee to any trustee appointed hereunder by an instrument executed and acknowledged by lender and

recorded (ACO , 2 :5-10) the lender beneficiary under the deed of trust is Downey savings

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recorded Deed of trust.3The ACO improperly reached a conclusion of law by way of the

disputed substitution of trustee to show that Deutsche was the proper lender to legally substitute

Western as the trustee. It is well settled law that it is improper to notice a fact inside a document

where there is no foundational evidence to support that finding. The substitution of trustee

lacking the foundational evidence to support the court opinion and does not support a finding

by the appellate court that Deutsche held the status of lender under the Deed of trust to legally

substitution the trustee of record. ( Poseidon Development, Inc. v. Wodland Lane Estates, LLC

(2007) 152 Cal.App.4th 1106, 1117 in (Herrera v. Deutsche Bank National Trust Co., 2011)

There is no proof in the record Western was legally substituted by the lender in

accordance with Cutlips deed of trust .therefore Deutsche failed to state a cause of action

under unlawful detainer statute 1161a(b)(3) its plaintiff burden of proof to prove every fact

demanded by statute and have failed (AOB-39:1-25)

There is no legal theory that would enable the appellate court to conclude the party

conducting the foreclosure sale was in fact authorized by the lender it is required by statute

1161a (b) (3). That the foreclosure is in compliance with the deed of trust. The substitution of

trustee naming Deutsche as beneficiary is hearsay and disputed. The appellate court erred in

omitting the fact there is no assignment to plaintiff.

The substitution of trustee is not a self authenticating document. Deutsche status as lender

does not exist in any document. There is no evidence to support a finding of substantial

evidence.

XI- LEGAL ARGUMENT

The trustees deed (TD) (CT-5) naming plaintiff as foreclosing beneficiary and grantee

is unsupported by the complaint and the evidence, thus the ACO conclusion of law based on

this theory is an abuse of discretion. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th

3 ACO, 3: 25-28) on June 13, 2012 a substitution of trustee under the deed of trust was recorded it correctly

identified the Cutlips as the original trustors Dsl service as the original trustee and Downey savings and loan

association as the original beneficiary under the deed of trust, the then beneficiary under the deed of trust was

identified as Deutsche Bank.

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412, 415.) Even assuming the truth of all material facts properly pleaded, as well as facts

that may be implied or inferred from those. The trustees deed and the substitution of trustees

naming plaintiff as the purported foreclosing beneficiary are lacking any pleadings or

foundational evidence to support them and are hearsay. There is no substantial evidence

either pled or introduces that the ACO could determine that plaintiff has persuaded the trial

court into a factual determination that plaintiff had any right title or interest in Cutlips deed

of trust, because plaintiff lacks evidentiary support and lacks any factual pleading that would

enable the court to make a factual determination that the Deed of trust was complied with or

that the trustee was properly and legally substituted by the lenders and authorized to conduct

the foreclosure sale or that plaintiff held an interest in the deed of trust to exercise the power

of sale ,substitute the trustee and foreclose on Cutlips home, The sale was improper because

the plaintiff had no right to exercise the power of sale. No statute creates a presumption-

conclusive or otherwise-for any purchaser-bona fide or otherwisethat any recitals in a

trustees deed render effective a sale that had no contractual basis."A void sale creates no

presumptions in favor of the purchaser at a trustees sale. And recitals in a trustees deed

regarding notices are irrelevant when the sale is void. See, Bank of America v La Jolla Group

II (2005) 129 CA4th 706, 28 CR3d 825 which found that in a void sale there are no

presumptions granted.. The ACO improperly granted resumptions when plaintiff did not

submit evidence or allegation that could allow a court of law to reach a conclusion of law

that plaintiff had any right title or interest under the deed of trust or note recorded or

unrecorded disclosed or undisclosed.

XII- A PROPER REVIEW OF THE JUDGMENT IS WHETHER A RATIONAL

TRIER OF FACT COULD HAVE FOUND THAT THE PLAINTIFF

SUSTAINED ITS BURDEN OF PROVING THE ELEMENTS OF ITS CAUSE

OF ACTION BEYOND A REASONABLE DOUBT

- In People V. Azevedo, 2011

Plaintiff was required by statute to prove it acquired a perfected title. Plaintiff

submitted two pieces of evidence a three day notice and a trustees deed after sale. Neither of

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which proved plaintiffs title was perfected. 4The trustees deed after sale as shown by The

ACO was materially perjured what the ACO didnt show is that it was not in fact certified by

the Santa Clara Recorders Office it contained no certifying signature, the document was

disputed...The trustees deed After Sale names plaintiff as the foreclosing beneficiary grantee.

The ACO shows that plaintiff was not named in the Deed of trust and has not presented a title

instrument prior to purporting to self assign the trustee Deed and cannot reasonably affirm

the judgment using presumption of correctness when there are failures in the chain of title.

Conclusion

A rehearing should be granted in the interest of justice, with directions to transfer the

cause to the justice's court to be tried and determined in accordance with the law as laid down

in the Hewitt and Cheney cases. In the cases of (Hewitt v. Justice's Court, 131 Cal.App. 439

[21 P.2d 641]; Cheney v. Trauzettel, 9 Cal.2d 158 [69 P.2d 832].) in an unlawful detainer

proceeding, an issue of title may be tried to the limited extent stated in those two cases. In

this regard the court in the Hewitt case said: "It is clear, of course, that questions of title

cannot generally be litigated in an unlawful detainer action. But to the limited extent of

proving deraignment of title in the manner expressly provided for in the unlawful detainer

statutes themselves the question of title 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 nullified." The decision in that

case received the approval of the Supreme Court in Berkeley G. B. & L. Assn. v.

Cunnyngham, 218 Cal. 714 [24 P.2d 782].

XIIV- CONCLUSION

. Summary unlawful detainer procedures are constitutionally acceptable when applied to

straightforward issues of possession and incidental damages.

4 (ACO pge 4:16-21) the trustee deed further stated that the trustee had complied will all applicable statutory

requirements of the state of California and performed all duties required by the deed of trust including sending the

notice of default and election to sell ten days after its recording.

(ACO pge 3:10-15) On February 21, 2012, an entity identified as "Western Progressive, LLC, as agent for

Beneficiary" executed and caused to be recorded a notice of default and election to sell, which initiated foreclosure

proceedings.

The record clearly shows Cutlip objected (CT-350:1) final judgment, Cutlip objected to the introduction of the

trustees dead-on hearsay and relevance grounds.

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With only one entity involved the logical question would be Deutsche right to sell the

property to them. The evidence and the facts have demonstrated plaintiff's claims to be without

factual foundation.

XIV PRAYER

Defendant prays for the a determination that his procedural due process as guaranteed by

article I, section 7 of the California Constitution and the Fifth and Fourteenth Amendments of the

United States Constitution was denied and that there is no dispute that plaintiff has no title

instrument and failed to state a cause of action and under the circumstances this request be

properly before this court as the evidence and the facts cannot reasonably be denied there is a

preponderance of evidence that a reasonably smart person could come to no other conclusion

other than there is a miscarriage of justice and the law has not been upheld.

Respectfully Submitted,

William J. Cutlip Pro se

XV- VERIFICATION DATED: _7-9-14

I, William J. Cutlip, defendant in the above-entitled action I have read the foregoing and know

the contents thereof. The same is true of my own knowledge, except as to those matters, which

are therein alleged on information and belief, and as to those matters, I believe it to be true. I

declare under penalty of perjury that the foregoing is true and correct and that this declaration

was executed at San Jose, California. William J. Cutlip Date

CERTIFICATE OF WORD COUNT

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WILLIAM J. Cutlip certifies this document to 4931 word count per the Microsoft word

count program

Executed7/9/14 in Jose California

William J Cutlip

PETTITION FOR REVIEW

Documents

trial court

court order

superior court of california

court transcript v

court of appeals error

b plaintiffs failure

plaintiff respondent

cutlips legal