1 Frank D’Anna, Pro Per

Salvatore B. D’Anna, Pro Per

2 3941 ¾ Kenwood Dr.
3 Spring Valley, CA 91977
4 Telephone: (619) 602-6647
5 Fax: (619) 374-2268
Email: saldanna@gmail.com
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8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO
EAST COUNTY DIVISION
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10
11
12 Greenpoint Mortgage Funding, Inc., ) Case No.: 37-2009-00033936
13 )
Plaintiff, ) DEFENDANT’S TRIAL BRIEF
14 vs. )
15 ) Trial Date: June 24, 2009
Frank D’Anna, Salvatore B. D’Anna )
16 Defendant )
17 )
)
18 )
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 1 Table of Contents
2
I. INTRODUCTION .................................................................................................................................... 1
3

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

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

C. Issues to be decided .................................................................................................................. 3
6

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

8
A. NON COMPLIANCE CALIFORNIA CIVIL CODE 2923.5.................................................. 3
9
B. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS ………... 6
10 C. NON JUDICIAL FORECLOSURE SALE IS VOID, NOT VOIDABLE ….………….….. 11

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

12
III. CONCLUSION ................................................................................................................................. 14
13

14 EXHIBIT A ……………………………………………………………………………………………. 16
EXHIBIT B ……………………………………………………………………………………………. 22
15
EXHIBIT C ……………………………………………………………………………………………. 36
16

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28
 1 Table of Authorities
2 Cases
3 Vella v. Hudgins (1977) 20 C3d 251, 255, 142 CR 414, 572 P2d 28 ................................ 1,4
Cheney v. Trauzettel (1937) 9 C2d 158, 159, 69 P2d 832 ................................................ 1,4
4
Kessler v. Bridge (1958, Cal App Dep't Super Ct)
5
161 Cal App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814 ............................... 4
6 Pierson v. Fischer (1955) 131 Cal.App.2d 208 [280 P.2d 491] .................................... 11,12
7 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
8
United Bank & Trust Co. v. Brown (1928) 203 Cal. 359 [264 P. 482], ............................ 11
9
Scott v. Security Title Ins. & Guar. Co. (1937) 9 Cal.2d 606 [72 P.2d 143] ...................... 11
10 Standley v. Knapp (1931) 113 Cal.App. 91 [298 P. 109] .................................................... 11
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
12
Wolfe v. Lipsy (1985) 163 Cal.App.3d 633, 639-640 [209 Cal.Rptr. 801] ...................... 12
13
Sorensen v. Hall (1934) 219 Cal. 680, 682-683 [28 P.2d 667 ......................................... 12
14 Garfinkel v. Superior Court (1978) 21 Cal.3d 268, 279, fn. 16
15 [146 Cal.Rptr. 208, 578 P.2d 925]; ............................................................................... 12
In re GANICE MORGAN-AUSTIN, DARREN AUSTIN, Debtors. GANICE MORGAN-
16
AUSTIN, DARREN AUSTIN, Plaintiff, vs. PATELCO CREDIT UNION, Defendant. . 13
17
Statutes
18
CCP § 1161a .................................................................................................................... 1,3,4
19
Evid Code § 624................................................................................................................ 1,3
20 Civ. Code § 2924 ..................................................................................................... 1,2,8,9,12

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

Civ. Code § 2924.8 .............................................................................................................. 11
22

23
Other Authorities
24
55 American Jurisprudence Second .................................................................................. 11
25

26

27
ii

28
 1 I. INTRODUCTION
2
A. Nature of case.
3
At issue is the right of possession to the property located at 644 Hillsview Rd. El Cajon, CA
4
92020 after a non judicial foreclosure sale under CCP § 1161a. A qualified exception to the rule
5
that title cannot be tried in an unlawful detainer proceeding [see Evid Code § 624; 5.45[1][c]] is
6
contained in CCP § 1161a. By extending the summary eviction remedy beyond the conventional
7
landlord-tenant relationship to include purchasers of the occupied property, the statute provides
8
9 for a narrow and sharply focused examination of title. A purchaser of the property as described

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

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

12 perfected" the title [CCP § 1161a; Vella v. Hudgins (1977) 20 C3d 251, 255, 142 CR 414, 572
13 P2d 28 ]. To this limited extent, as provided by the statute, title may be litigated in the unlawful
14 detainer proceeding [ Cheney v. Trauzettel (1937) 9 C2d 158, 159, 69 P2d 832 ].
15
16
B. Factual summary.
17 The evidence at trial will establish the following facts which are dispositive of the issues
18 to be decided:
19
1. In July 2008, the Governor of California signed into law SB 1137, intended to ameliorate
20
the deleterious effects on the state economy and local economies and the California
21
housing market resulting from the foreclosures of residential properties in unprecedented
22
numbers resulting from subprime lending practices.n1 In SB 1137, the Legislature found
23
and declared (1) that residential property foreclosures increased sevenfold from 2006 to
24
2007; (2) that more than 84,375 properties were lost to foreclosure in California in 2007;
25
and (3) that 254,824 loans went into default, the first step in the foreclosure process.
26
2. SB 1137 modified the foreclosure process to require mortgagees, beneficiaries, or
27
authorized agents to provide notice to borrowers and explore options that could avoid
28
foreclosure.
29
3. Effective September 6, 2008, a mortgagee, trustee, beneficiary, or authorized agent may
30
not file a notice of default pursuant to Civ. Code § 2924 until 30 days after the
31
mortgagee, beneficiary, or authorized agent has contacted the borrower in person or by
32

Defendant’s Trial Brief -1

 1 telephone in order to assess the borrower's financial situation and explore options for the
2 borrower to avoid foreclosure.
3 4. A notice of default filed pursuant to Civ. Code § 2924 must include a declaration from
4 the mortgagee, beneficiary, or authorized agent that it has contacted the borrower, tried
5 with due diligence to contact the borrower, or the borrower has surrendered the property
6 to the mortgagee, trustee, beneficiary, or authorized agent.
7 5. On October 16, 2008 Plaintiff had a Notice of Default recorded in the San Diego County
8 Recorder’s Office which is attached to this Trial Brief as Exhibit A and made a part
9 hereof.
10 6. The Declaration of compliance with newly enacted Civil Code 2923.5 was attached to the
11 Notice of Default and stated that the Plaintiff contacted Defendant on July 11, 2006 to
12 discuss his financial situation to avoid foreclosure which is a false statement.
13 7. On February 2, 2009 Defendant had a Notice of Intention to Preserve Interest in Real
14 Property recorded in the San Diego County Recorder’s Office due to Plaintiff’s non
15 compliance with Civil Code 2923.5.
16 8. On February 6, 2009 Defendant sent a Notice of Non Compliance which included a copy
17 of the recorded Notice of Intention to Preserve Interest recorded on February 2, 2009 to
18 all parties involved in this matter including two Certified Letters to Plaintiff and two
19 Certified Letters as well as a fax to the Trustee conducting the non judicial foreclosure
20 sale. A copy of the recorded notice from the San Diego County Recorder’s Office is
21 included with the Certified Letter of Non Compliance attached hereto as Exhibit B and
22 made a part hereof.
23 9. All parties sent Notice of Non Compliance ignored it and proceeded to sell Defendant’s
24 property on February 25, 2009 where Plaintiff purchased the property with a credit bid of
25 $204,750.00.
26 10. On or about March 17, 2009 Defendant was contacted by someone named Jake May who
27 informed Defendant that he represented the bank that now owned the property and was
28 authorized to offer to Defendant close to $5,000 in exchange for the keys to the house.
29 11. Defendants informed Jake May that they have been trying to either receive consideration
30 for a loan modification or to purchase the property outright from Plaintiff’s with the
31 assistance of Defendant’s parents who own several properties throughout San Diego
32 County.

Defendant’s Trial Brief -2

 1 12. Jake May insisted that an unlawful detainer action had already been filed and that if
2 Defendants vacated the premises, he would make sure that they had the first right to
3 purchase the property before it was put on the market. He stated that Defendant would
4 be back in his home in about 3 weeks.
5 13. On March 17, 2009 Jake May faxed a copy of the Move Out Agreement which was
6 between Defendant and Countrywide Home Loan Servicing, LP and not Plaintiff
7 Greenpoint Mortgage Funding Inc. The contract stated that Countrywide had purchased
8 the home at 644 Hillsview Rd at the non judicial foreclosure sale and was now the owner
9 and had already commenced eviction proceedings against Defendant. The move out
10 agreement as well as all correspondence between Defendant and Jake May are attached
11 hereto as Exhibit C and made a part hereof.
12 14. Defendants refused to sign the contract and filed a lawsuit against Greenpoint,
13 Countrywide, MERS, and Old Republic on April 3, 2009.
14 15. Plaintiff’s filed this Unlawful Detainer lawsuit on April 23, 2009.
15 C. Issues to be decided.
16
1. Whether Plaintiff duly perfected title to Defendant’s home after the non
17 judicial foreclosure sale.
18 2. Whether Plaintiff could have perfected title to Defendant’s home without
compliance with Civil Code 2923.5.
19 3. Whether the Recorded Notice of Intention to Preserve Interest in Real
20 Property due to non compliance with Civil Code 2923.5 which attaches to any
sale of the property is proof that Plaintiff could not have perfected title.
21
22 II. LEGAL AUTHORITY
23
24 A. NON COMPLIANCE CALIFORNIA CIVIL CODE 2923.5
25
26 A qualified exception to the rule that title cannot be tried in an unlawful detainer

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

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

29 purchasers of the occupied property, the statute provides for a narrow and sharply focused
30 examination of title. A purchaser of the property as described in the statute, who starts an
31 unlawful detainer proceeding to evict an occupant in possession, must show that he or she
32 acquired the property at a regularly conducted sale and thereafter "duly perfected" the title [CCP

Defendant’s Trial Brief -3

 1 § 1161a; Vella v. Hudgins (1977) 20 C3d 251, 255, 142 CR 414, 572 P2d 28 ]. To this limited
2 extent, as provided by the statute, title may be litigated in the unlawful detainer proceeding [
3 Cheney v. Trauzettel (1937) 9 C2d 158, 159, 69 P2d 832 ].
4
5 Under CCP § 1161, in general; Words and Phrases Term "duly" implies that all of those

6 elements necessary to valid sale exist. Kessler v. Bridge (1958, Cal App Dep't Super Ct) 161 Cal
7 App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814. Title that is "duly perfected"
8 includes good record title, but is not limited to good record title. Kessler v. Bridge (1958, Cal
9 App Dep't Super Ct) 161 Cal App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814. Title is
10 "duly perfected" when all steps have been taken to make it perfect, that is, to convey to purchaser
11 that which he has purchased, valid and good beyond all reasonable doubt. Kessler v. Bridge
12 (1958, Cal App Dep't Super Ct) 161 Cal App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS
13 1814.
14 Defendant sent notice on February 6, 2009 to Greenpoint and to all others involved with
15
his loan informing them of their non compliance with Civil Code Section 2923.5. Not only did
16
17 Defendant give all of them written notice by certified mail, Defendant had no other remedy at his
18 disposal other than also having Plaintiff’s non compliance recorded in the San Diego County
19
Recorder’s Office. The first page of the notice shows that it was addressed and sent by Certified
20
21 Mail to 8 separate addresses including Plaintiff and the substituted Trustee who also received it
22
by fax. The notice states in relevant parts:
23
24 Re: NOTICE OF NON COMPLIANCE CALIFORNIA CIVIL CODE § 2923.5
25
26 Dear All:

27
28 Notice is once again given that the LENDERS AND OR TRUSTEES LISTED
29 ABOVE has not complied with California civil code 2923.5. As such all notices of
30 default and or trustee sales and such other recordings and actions are void as a
31 matter of law….
32

Defendant’s Trial Brief -4

 1
2 I have in good faith attempted to mediate the loan and the true beneficiary has
3 refused to negotiate in good faith. They have not complied with the provisions in
4 which they were to meet with me in person or by telephone in order to assess the
5 borrower’s financial situation and explore options for the borrower to avoid
6 foreclosure. During the initial contact, the mortgagee, Beneficiary, or authorized
7 agent shall advise the borrower that he or she has the right to request a
8 subsequent meeting and, if requested, the mortgagee, beneficiary, or authorized
9 agent shall schedule the meeting to occur within 14 days. The assessment of the
10 borrower’s financial situation and discussion of options may occur during the
11 first contact, or at the subsequent meeting scheduled for that purpose.
12
13 I am unhappy to find that out of the numerous entities involved in this matter, not
14 one has even attempted to comply with California Civil Code 2923.5….
15
16 For the reasons stated above, the attached Notice of Intention to Preserve Interest
17 in Property was recorded with the San Diego County Recorder on February 2,
18 2009. My decision to record and thereby preserve my interest came only after
19 several months of my repeated attempts to negotiate with an undisclosed
20 beneficiary. Your continuing lack of cooperation left me no choice but to turn this
21 matter over to the county recorder office for future resolution by putting the world
22 on notice of my continued interest in my property.
23
24 If we had met as required by California Civil Code § 2923.5 the property would
25 have reflected a value of approximately $200,000. I am willing to pay an interest
26 rate of 6.25 % and I will be able to make monthly payments of $1,246.00. The
27 principal balance of my loan should be reduced the present market value of
28 $200,000. As an alternative, I am willing to pay an interest rate of 1.75% and am
29 able to make monthly payments of $1,246.00 with the principal balance of my
30 loan remaining at $352,000.
31
32

Defendant’s Trial Brief -5

 1 Please be advised that you are all on Notice that if you continue to pursue the sale
2 of my property by recording the date it is to be sold, you will do so knowing that
3 any subsequent buyer will take title with Notice of my interest in my property due
4 to your intentional tortuous violations of the law and you will be held liable for
5 the consequences of your actions.
6
7 I write this letter with the hope that out of the ever growing list of entities involved, one of
8 you will discuss this matter further and give it the attention it deserves. Please call me at
9 619-602-6647 and/or send a fax to 619-374-2268.
10
11
Plaintiff , and including the Trustee who was served this notice twice by Certified Mail
12
13 and once by Fax, cannot say that they were unaware of their non compliance with California

14 Civil Code § 2923.5. Compliance with Civil Code § 2923.5 is a prerequisite to the entire non
15
judicial foreclosure process and the Notice of Default cannot be recorded until it has been met. It
16
17 is not only improbable, but impossible that Defendant complied with section 2923.5 on July 11,
18 2006 as stated in the Notice of Default. In Addition, Defendant was supposed to be given a
19
subsequent meeting and information on how to contact a HUD Hope representative for
20
21 assistance which never occurred. The requirements of 2923.5 are state below.
22
B. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
23
SECTION 1. The Legislature finds and declares all of the following:
24
(a) California is facing an unprecedented threat to its state economy and local economies because of
25
skyrocketing residential property foreclosure rates in California. Residential property foreclosures
26
increased sevenfold from 2006 to 2007. In 2007, more than 84,375 properties were lost to foreclosure in
27
California, and 254,824 loans went into default, the first step in the foreclosure process.
28
29
(b) High foreclosure rates have adversely affected property values in California, and will have even
30
greater adverse consequences as foreclosure rates continue to rise. According to statistics released by the
31
HOPE NOW Alliance, the number of completed California foreclosure sales in 2007 increased almost
32
threefold from 1,902 in the first quarter to 5,574 in the fourth quarter of that year. Those same statistics

Defendant’s Trial Brief -6

 1 report that 10,556 foreclosure sales, almost double the number for the prior quarter, were completed just
2 in the month of January 2008. More foreclosures mean less money for schools, public safety, and other
3 key services.
4
5 (c) Under specified circumstances, mortgage lenders and servicers are authorized under their pooling
6 and servicing agreements to modify mortgage loans when the modification is in the best interest of
7 investors. Generally, that modification may be deemed to be in the best interest of investors when the net
8 present value of the income stream of the modified loan is greater than the amount that would be
9 recovered
10 through the disposition of the real property security through a foreclosure sale.
11
12 (d) It is essential to the economic health of California for the state to ameliorate the deleterious effects on
13 the state economy and local economies and the California housing market that will result from the
14 continued foreclosures of residential properties in unprecedented numbers by modifying the foreclosure
15 process to require mortgagees, beneficiaries, or authorized agents to contact borrowers and explore
16 options that could avoid foreclosure. These changes in accessing the state's foreclosure process are
17 essential to ensure that the process does not exacerbate the current crisis by adding more foreclosures to
18 the glut of foreclosed properties already on the market when a foreclosure could have been avoided.
19 Those additional foreclosures will further destabilize the housing market with significant, corresponding
20 deleterious effects on the local and state economy.
21
22 (e) According to a survey released by the Federal Home Loan Mortgage Corporation (Freddie Mac) on
23 January 31, 2008, 57 percent of the nation's late-paying borrowers do not know their lenders may offer
24 alternatives to help them avoid foreclosure.
25
26 (f) As reflected in recent government and industry-led efforts to help troubled borrowers, the mortgage
27 foreclosure crisis impacts borrowers not only in nontraditional loans, but also many borrowers in
28 conventional loans.
29 (g) This act is necessary to avoid unnecessary foreclosures of residential properties and thereby provide
30 stability to California's statewide and regional economies and housing market by requiring early contact
31 and communications between mortgagees, beneficiaries, or authorized agents and specified borrowers to
32

Defendant’s Trial Brief -7

 1 explore options that could avoid foreclosure and by facilitating the modification or restructuring of loans
2 in appropriate circumstances.
3
4 SEC. 2. Section 2923.5 is added to the Civil Code, to read:
5 2923.5. (a) (1) A mortgagee, trustee, beneficiary, or authorized agent may not file a notice of default
6 pursuant to Section 2924 until 30 days after contact is made as required by paragraph (2) or 30 days
7 after satisfying the due diligence requirements as described in subdivision (g).
8
9 (2) A mortgagee, beneficiary, or authorized agent shall contact the borrower in person or by telephone in
10 order to assess the borrower's financial situation and explore options for the borrower to avoid
11 foreclosure. During the initial contact, the mortgagee, beneficiary, or authorized agent shall advise the
12 borrower that he or she has the right to request a subsequent meeting and, if requested, the mortgagee,
13 beneficiary, or authorized agent shall schedule the meeting to occur within 14 days. The assessment of
14 the borrower's financial situation and discussion of options may occur during the first contact, or at the
15 subsequent meeting scheduled for that purpose. In either case, the borrower shall be provided the toll-
16 free telephone number made available by the United States Department of Housing and Urban
17 Development (HUD) to find a HUD-certified housing counseling agency. Any meeting may occur
18 telephonically.
19
20 (b) A notice of default filed pursuant to Section 2924 shall include a declaration from the mortgagee,
21 beneficiary, or authorized agent that it has contacted the borrower, tried with due diligence to contact the
22 borrower as required by this section, or the borrower has surrendered the property to the mortgagee,
23 trustee, beneficiary, or authorized agent.
24 (c) If a mortgagee, trustee, beneficiary, or authorized agent had already filed the notice of default prior to
25 the enactment of this section and did not subsequently file a notice of rescission, then the mortgagee,
26 trustee, beneficiary, or authorized agent shall, as part of the notice of sale filed pursuant to Section 2924f,
27 include a declaration that either:
28
29 (1) States that the borrower was contacted to assess the borrower' s financial situation and to explore
30 options for the borrower to avoid foreclosure.
31 (2) Lists the efforts made, if any, to contact the borrower in the event no contact was made.
32

Defendant’s Trial Brief -8

 1 (d) A mortgagee's, beneficiaries, or authorized agent's loss mitigation personnel may participate by
2 telephone during any contact required by this section.
3 (e) For purposes of this section, a "borrower" shall include a mortgagor or trustor.
4 (f) A borrower may designate a HUD-certified housing counseling agency, attorney, or other advisor to
5 discuss with the mortgagee, beneficiary, or authorized agent, on the borrower's behalf, options for the
6 borrower to avoid foreclosure. That contact made at the direction of the borrower shall satisfy the
7 contact requirements of paragraph (2) of subdivision (a). Any loan modification or workout plan offered
8 at the meeting by the mortgagee, beneficiary, or authorized agent is subject to approval by the borrower.
9 (g) A notice of default may be filed pursuant to Section 2924 when a mortgagee, beneficiary, or
10 authorized agent has not contacted a borrower as required by paragraph (2) of subdivision (a) provided
11 that the failure to contact the borrower occurred despite the due diligence of the mortgagee, beneficiary,
12 or authorized agent. For purposes of this section, "due diligence" shall require and mean all of the
13 following:
14
15 (1) A mortgagee, beneficiary, or authorized agent shall first attempt to contact a borrower by sending a
16 first-class letter that includes the toll-free telephone number made available by HUD to find a HUD-
17 certified housing counseling agency.
18
19 (2) (A) after the letter has been sent, the mortgagee, beneficiary, or authorized agent shall attempt to
20 contact the borrower by telephone at least three times at different hours and on different days. Telephone
21 calls shall be made to the primary telephone number on file.
22 (B) A mortgagee, beneficiary, or authorized agent may attempt to contact a borrower using an automated
23 system to dial borrowers, provided that, if the telephone call is answered, the call is connected to a live
24 representative of the mortgagee, beneficiary, or authorized agent.
25 (C) A mortgagee, beneficiary, or authorized agent satisfies the telephone contact requirements of this
26 paragraph if it determines, after attempting contact pursuant to this paragraph, that the borrower's
27 primary telephone number and secondary telephone number or numbers on file, if any, have been
28 disconnected.
29 (3) If the borrower does not respond within two weeks after the telephone call requirements of paragraph
30 (2) have been satisfied, the mortgagee, beneficiary, or authorized agent shall then send a certified letter,
31 with return receipt requested.
32

Defendant’s Trial Brief -9

 1 (4) The mortgagee, beneficiary, or authorized agent shall provide a means for the borrower to contact it
2 in a timely manner, including a toll-free telephone number that will provide access to a live
3 representative during business hours.
4 (5) The mortgagee, beneficiary, or authorized agent has posted a prominent link on the homepage of its
5 Internet Web site, if any, to the following information:
6 (A) Options that may be available to borrowers who are unable to afford their mortgage payments and
7 who wish to avoid foreclosure, and instructions to borrowers advising them on steps to take to explore
8 those options.
9 (B) A list of financial documents borrowers should collect and be prepared to present to the mortgagee,
10 beneficiary, or authorized agent when discussing options for avoiding foreclosure.
11 (C) A toll-free telephone number for borrowers who wish to discuss options for avoiding foreclosure with
12 their mortgagee, beneficiary, or authorized agent.
13 (D) The toll-free telephone number made available by HUD to find a HUD-certified housing counseling
14 agency.
15 (h) Subdivisions (a), (c), and (g) shall not apply if any of the following occurs:
16
17 (1) The borrower has surrendered the property as evidenced by either a letter confirming the surrender
18 or delivery of the keys to the property to the mortgagee, trustee, beneficiary, or authorized agent.
19 (2) The borrower has contracted with an organization, person, or entity whose primary business is
20 advising people who have decided to leave their homes on how to extend the foreclosure process and
21 avoid their contractual obligations to mortgagees or beneficiaries.
22 (3) The borrower has filed for bankruptcy, and the proceedings have not been finalized.
23
24 (i) This section shall apply only to loans made from January 1, 2003, to December 31, 2007, inclusive
25 that are secured by residential real property and are for owner-occupied residences. For purposes of this
26 subdivision, "owner-occupied" means that the residence is the principal residence of the borrower.
27 (j) This section shall remain in effect only until January 1, 2013, and as of that date is repealed, unless a
28 later enacted statute, that is enacted before January 1, 2013, deletes or extends that date.
29
30 In order to stabilize and protect the state and local economies and housing market at the
31 earliest possible time, it is necessary for this act to take effect immediately. However, the
32 provisions of Section 2 of this act, which adds Section 2923.5 to the Civil Code, and Section 4 of

Defendant’s Trial Brief - 10

 1 this act, which adds Section 2924.8 to the Civil Code, shall become operative 60 days after the
2 effective date of this act. The Act was signed and became effective July 8, 2008 and Section
3 2923.5 did not become operative until September 6, 2008.
4
5 C. NON JUDICIAL FORECLOSURE SALE IS VOID, NOT VOIDABLE
6
The general rule in the United States on voidness or voidability of sale is set out in 55
7
8 American Jurisprudence Second: "[Defects] and irregularities in a sale under a power render it

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

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

11 mandatory . . . ." (55 Am.Jur.2d, Mortgages, § 746, p. 673.) "A sale under a power in a
12 mortgage without reasonable notice will be set aside." (Id., § 775, p. 691.)
13 Research as to the circumstances in which California courts have determined sales under a
14 deed of trust to be either void or voidable for notice defects, we have found no case which
15 presents our precise factual pattern. No case draws a bright line between a major and a minor
16 notice defect so as to dictate a certain result. A full range of notice defects is alleged in both
17 lines of cases, from no notice of any kind of the ultimate sale date ( Pierson v. Fischer (1955)
18 131 Cal.App.2d 208 [280 P.2d 491], "voidable"; Holland v. Pendleton Mtge. Co. (1943) 61
19 Cal.App.2d 570 [143 P.2d 493], "void") to inadequate posting on the property to be sold (
20 Leonard v. Bank of America etc. Assn. (1936) 16 Cal.App.2d 341 [60 P.2d 325], "voidable";
21 United Bank & Trust Co. v. Brown (1928) 203 Cal. 359 [264 P. 482], "void").
22
Although the extent of the defect is not determinative, what seems to be determinative is the
23
existence and effect of a conclusive presumption of regularity of the sale. A deed of trust, which
24
binds the trustor, may direct the trustee to include in the deed to the property recitals that notice
25
was given as required under the deed of trust and state that such recitals shall be conclusive proof
26
of the truthfulness and regularity thereof.
27
28 Where there has been a notice defect and no conclusive presumption language in the deed,
29 the sale has been held void. ( Scott v. Security Title Ins. & Guar. Co. (1937) 9 Cal.2d 606 [72
30 P.2d 143]; United Bank & Trust Co. v. Brown, supra, 203 Cal. 359; Standley v. Knapp (1931)
31 113 Cal.App. 91 [298 P. 109]; Seccombe v. Roe, supra, 22 Cal.App. 139.)
32

Defendant’s Trial Brief - 11

 1 Where there has been a notice defect and conclusive presumption language in the deed,
2 courts have characterized the sales as "voidable." (Lancaster Security Inv. Corp. v. Kessler
3 (1958) 159 Cal.App.2d 649 [324 P.2d 634]; Pierson v. Fischer, supra, 131 Cal.App.2d 208;
4 Mack v. Golino, supra, 95 Cal.App.2d 731; Leonard v. Bank of America etc. Assn., supra, 16
5 Cal.App.2d 341.) The trustor wishing to set aside a "voidable" sale must prove to the trial court
6 that the conclusive presumption language does not apply to the sale either because there are
7 grounds for equitable relief, such as fraud related to the provision, or because the conclusive
8 presumption does not apply to the buyer, often on the basis that the buyer is not a bona fide
9 purchaser for value. The trustor may then attempt to prove defective notice. ( Wolfe v. Lipsy
10 (1985) 163 Cal.App.3d 633, 639-640 [209 Cal.Rptr. 801]; Lancaster Security Inv. Corp. v.
11 Kessler, supra, 159 Cal.App.2d 649, 655.)1
12 In the case at hand, the deed of trust, which binds the trustor, directs the trustee to include in
13 the deed to the property recitals that notice was given as required under the deed of trust and
14
state that such recitals shall be conclusive proof of the truthfulness and regularity thereof. The
15
Trustee Deed upon Sale includes the following recitals:
16
17
This conveyance is made pursuant to the powers conferred upon Trustee by that
18 certain Deed of Trust dated 05/05/2005 and executed by FRANK D'ANNA, A MARRIED
19 MAN, as Trustor, and Recorded on 05/09/05 AS DOC#2005-0391304 of official records
of San Diego County, California, and after fulfillment of the conditions specified in said
20
Deed of Trust authorizing this conveyance.
21
Default occurred as set forth in a Notice of Default and Election to Sell which was
22 recorded in the Office of the Recorder of said County, and such default still existed at the
23 time of sale.

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

publication of a copy of the Notice of Default or the personal delivery of the copy of the
25 Notice of Default and the posting and publication of copies of the Notice of a Sale have
26 been complied with. EMPHASIS ADDED.

27
28 1
Many notice defect cases do not even address the question of whether the sale was void or voidable. In
29 these cases the trustor was precluded from challenging the sale by conclusive presumption language as to the
regularity of notice in the executed and delivered deed. ( Sorensen v. Hall (1934) 219 Cal. 680, 682-683 [28
30 P.2d 667]; Pierson v. Fischer, supra, 131 Cal.App.2d 208, 217; but see Garfinkel v. Superior Court (1978)
21 Cal.3d 268, 279, fn. 16 [146 Cal.Rptr. 208, 578 P.2d 925]; and see also Civ. Code, § 2924, which
31 provides that notice recitals in deeds shall constitute prima facie evidence of compliance and conclusive
32 evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice.)

Defendant’s Trial Brief - 12

 1 The Trustee recital above is not conclusive proof of Compliance with Civil Code Section
2 2923.5 which is not mentioned in the above recital. The above recital is only conclusive
3 evidence that mailing, posting, and publication of Notices were done as required by law. It does
4 not state that the Declaration required by Civil Code 2923.5 was attached to the Notice of
5 Default as required by law or that the requirements of Civil Code 2923.5 were made as required
6 and since no such recital was made, the foreclosure is completely void, not voidable which
7 relieves Defendant of the requirement to do equity before the Sale will be set aside because
8 no valid sale ever took place to set aside as it was void ab initio.
9 D. Matter of First Impression in the Superior Court
10
This case is a matter of first impression in the Superior Court and no appellate decisions
11
have been decided on the consequences of non compliance with Civil Code 2923.5. The
12
Legislature was quite clear when they enacted the statute and specifically made compliance with
13
Civil Code 2923.5 a requirement before the Notice of Default could be recorded. The only case
14
that has been decided involving Civil Code 2923.5 is from the Bankruptcy Court [In re GANICE
15
MORGAN-AUSTIN, DARREN AUSTIN, Debtors. GANICE MORGAN-AUSTIN, DARREN AUSTIN, Plaintiff, vs.
16
PATELCO CREDIT UNION, Defendant.] decided on February 14, 2009. The decision states the
17
following:
18
Because of the national epidemic of foreclosures on home mortgages, in July
19 2008, the California legislature enacted emergency legislation, requiring lenders
20 to attempt to negotiate workout agreements on loan defaults before commencing
or continuing foreclosure proceedings. See Cal. Civ. Code §§ 2923.5, 2923.6,
21 2924.8, and 2929.3. The legislation was effective immediately. The legislation did
22 not require lenders such as Patelco, who had already recorded notices of default,
to re-record those notices after attempting to negotiate.
23
However, it did require such lenders, who had not yet recorded notices of sale, to
24 attempt to negotiate before recording a notice of sale. There is no dispute that
25 Patelco made no attempt to negotiate with the Debtors before recording Notice of
Sale on January 14, 2009.
26
27 Patelco contends that the legislation exempted them from any obligation to
negotiate with the Debtors before recording a Notice of Sale because the Debtors
28 were at that time still debtors in a bankruptcy case. The specific provision upon
29 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:
30 ....
31 ....
(3) The borrower has filed for bankruptcy, and the proceedings have not been
32
finalized.

Defendant’s Trial Brief - 13

 1
It is undisputed that the Debtors' bankruptcy case was still pending at the time
2
Patelco recorded the Notice of
3 Sale. The Debtors contend that the exemption did not apply because the
4 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.
5 Patelco contends that the phrase is clear and exempts it from compliance unless
6 the bankruptcy case has been dismissed.
7 There is some appeal to the Debtors' argument. The exemption may have been
8 created in recognition of the difficulty created by the automatic stay with respect
communications between creditors and debtors. Once the automatic stay has been
9 vacated, the Debtors contend, the exemption no longer serves any purpose. On
10 the other hand, Patelco argues instead that the exemption reflects the legislature's
recognition that the bankruptcy process provides an adequate opportunity for
11
negotiation.
12
13 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
14 so, the Court finds Patelco's construction of the language more plausible.
15 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
16 with the Debtors.
17
18
III. CONCLUSION

19 Plaintiff is not entitled to possession of the property because Plaintiff can not prove that
20 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
21 judicial foreclosure void an initio.
22
23 Respectfully submitted,
24
25 Dated: June 24, 2009
26
27
By:____________________ By: ________________________
28
Frank D’Anna, Pro Per Salvatore B. D’Anna, Pro Per
29
30
31
32

Defendant’s Trial Brief - 14

 1 VERIFICATION

2
I, Frank D’Anna, declare that I am the defendant in the above entitled action; I have read
3
the foregoing trial brief and know the contents thereof. The same is true of my own
4 knowledge, except as to those matters which are therein stated on information and belief,
and, as to those matters, I believe it to be true. I declare under penalty of perjury under the
5 laws of the State of California that the foregoing is true and correct.
6
7 Dated: June 24, 2009
8
9 By: __________________
Frank D’Anna, Pro Per
10
11
12 VERIFICATION

13
I, Salvatore B. D’Anna, declare that I am the defendant in the above entitled action; I have
14
read the foregoing trial brief and know the contents thereof. The same is true of my own
15 knowledge, except as to those matters which are therein stated on information and belief,
and, as to those matters, I believe it to be true. I declare under penalty of perjury under the
16 laws of the State of California that the foregoing is true and correct.
17
18 Dated: June 24, 2009
19
20 By: _____________________
Salvatore B. D’Anna, Pro Per
21
22
23
24
25
26
27
28
29
30
31
32

Defendant’s Trial Brief - 15

EXHIBIT A
EXHIBIT B
BY SALVATORE B. D’ANNA, ATTORNEY-IN-FACT FOR
FRANK D’ANNA

FACSIMILE TRANSMITTAL SHEET

TO: FROM:

Debbie Jackson Frank D’Anna

COMPANY: DATE:

Old Republic Title Company - 2/6/2009

Trustee Services Division
FAX NUMBER: TOTAL NO. OF PAGES, INCLUDING COVER:

925-798-3283 6
PHONE NUMBER: SENDER’S FAX NUMBER:

925-363-2239 619-374-2268
RE: TRUSTEE SALE NO. 08-16402

X URGENT  FOR REVIEW  PLEASE COMMENT  PLEASE REPLY  PLEASE RECYCLE

NOTES/COMMENTS:

See attached
Salvatore B. D’Anna, Attorney-in-fact SENT VIA CERTIFIED MAIL
For Frank D’Anna, Principal
3941 ¾ Kenwood Dr.
Spring Valley, CA 91977

Property Address
644 Hillsview Rd
El Cajon, CA 92020

February 6, 2009

Countrywide Home Loans Servicing LP

Customer Service Correspondence, SV3-14B
Purported Loan# 22150300
P.O. BOX 1140
Simi Valley, CA 93062-1140

Old Republic Title Company - Trustee Services Division

c/o Debbie Jackson
1000 Burnett Avenue, Suite 400
Concord, CA 94520

Old Republic National Title Insurance Company

Purported New Trustee For Loan # 0086769734
500 City Parkway West, Suite 200
Orange, CA 92868-2913

Marin Conveyancing Corporation

Purported Trustee For Loan # 0086769734
275 Broadhollow Rd.
Melville, NY 11747

Marin Conveyancing Corporation

Purported Trustee For Loan # 0086769734
2730 GATEWAY OAKS DR STE 100
SACRAMENTO, CA 95833

Greenpoint Mortgage
Purported Servicer
P.O. Box 84013
Columbus, GA 31908-4013

Greenpoint Mortgage Funding, Inc

Purported Lender
100 Wood Hollow Dr.
Novato, CA 94945

Mortgage Electronic Registration Systems, Inc.

Purported Beneficiary
P.O. Box 2026
Flint, MI 48501-2026

1 of 3
Re: NOTICE OF NON COMPLIANCE CALIFORNIA CIVIL CODE § 2923.5

Dear All:

Notice is once again given that the LENDERS AND OR TRUSTEES LISTED ABOVE has not
complied with California civil code 2923.5. As such all notices of default and or trustee sales and
such other recordings and actions are void as a matter of law.

In California, a Lender is allowed to foreclose on real property without a judicial process, but
only if they follow the strict statutory requirements. Nonjudicial foreclosure is deemed to be a
harsh remedy subject to careful scrutiny by the courts [see System Inv. Corp. v. Union Bank
(1971) 21 Cal. App. 3d 137, 153, 98 Cal. Rptr. 735] , which is why a private sale must strictly
comply with the terms of the power-of-sale provision [ Hill v. Gibraltar Sav. & Loan Assn.
(1967) 254 Cal. App. 2d 241, 243, 62 Cal. Rptr. 188] and any applicable statutory requirements [
Whitman v. Transtate Title Co. (1985) 165 Cal. App. 3d 312, 322, 211 Cal. Rptr. 582] . The
trustee also has a duty to conduct the sale fairly and openly, with diligence, discretion, and
integrity, so as to protect the rights of all interested persons and obtain a reasonable price [
System Inv. Corp. v. Union Bank (1971) 21 Cal. App. 3d 137, 153, 98 Cal. Rptr. 735 ; Hill v.
Gibraltar Sav. & Loan Assn. (1967) 254 Cal. App. 2d 241, 243, 62 Cal. Rptr. 188]. However, all
aspects of the nonjudicial foreclosure process including civil code 2923.5 are also regulated in
detail by a comprehensive statutory scheme [see Civ. Code § 2920 et seq.] that is designed to
protect the trustor against unreasonable forfeiture [ Garfinkle v. Superior Court of Contra Costa
County (1978) 21 Cal. 3d 268, 278, 146 Cal. Rptr. 208, 578 P.2d 925].
I have in good faith attempted to mediate the loan and the true beneficiary has refused to
negotiate in good faith. They have not complied with the provisions in which they were to
meet with me in person or by telephone in order to assess the borrower’s financial situation
and explore options for the borrower to avoid foreclosure. During the initial contact, the
mortgagee, Beneficiary, or authorized agent shall advise the borrower that he or she has the
right to request a subsequent meeting and, if requested, the mortgagee, beneficiary, or
authorized agent shall schedule the meeting to occur within 14 days. The assessment of the
borrower’s financial situation and discussion of options may occur during the first contact,
or at the subsequent meeting scheduled for that purpose.
I am unhappy to find that out of the numerous entities involved in this matter, not one has even
attempted to comply with California Civil Code 2923.5. Proof of this can be found at the
website of Old Republic, the now supposed Trustee of the Deed of Trust and in particular, a
document titled “RevisedDeclarationDefaultIndividual.pdf” which is required to be submitted
before they will initiate a foreclosure. The document as described by the title was recently
revised in December 2008 and yet fails to ask for the Civil Code 2923.5 required
information. One could conclude that the Civil Code 2923.5 information on any Old Republic
recorded document does not reflect the actual knowledge of compliance and/or that the
information is produced out of thin air!!
For the reasons stated above, the attached Notice of Intention To Preserve Interest in Property
was recorded with the San Diego County Recorder on February 2, 2009. My decision to record
and thereby preserve my interest came only after several months of my repeated attempts to
negotiate with an undisclosed beneficiary. Your continuing lack of cooperation left me no choice
but to turn this matter over to the county recorder office for future resolution by putting the world
on notice of my continued interest in my property.

2 of 3
If we had met as required by California Civil Code § 2923.5 the property would have reflected a
value of approximately $200,000. I am willing to pay an interest rate of 6.25 % and I will be able
to make monthly payments of $1,246.00. The principal balance of my loan should be reduced the
present market value of $200,000. As an alternative, I am willing to pay an interest rate of 1.75%
and am able to make monthly payments of $1,246.00 with the principal balance of my loan
remaining at $352,000.

Please be advised that you are all on Notice that if you continue to pursue the sale of my
property by recording the date it is to be sold, you will do so knowing that any subsequent
buyer will take title with Notice of my interest in my property due to your intentional
tortuous violations of the law and you will be held liable for the consequences of your
actions.

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

Sincerely,

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

3 of 3
Date Produced: 02/16/2009

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EXHIBIT C
Salvatore B. D’Anna, Attorney-In-Fact SENT VIA EFAX
For Frank D’Anna, Principal
3941 ¾ Kenwood Dr.
Spring Valley, CA 91977
V: (619) 602-6647
F: (619) 374-2268

Property Address
644 Hillsview Rd
El Cajon, CA 92020
March 17, 2009

The Jake May Team

Jake May
2335 8th Street
Encinitas, CA 92024

Countrywide Home Loans

Loan # 22150300
400 Countrywide Way
Simi Valley, CA 93065

Re: Offer to Vacate and First Right to Re-Purchase Property

Dear Jake May:

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

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

Here’s the promised summary of where we are on the issues we discussed. If you
disagree with anything I’ve written, let me know in writing by sending a fax to
619-374-2268 as soon as possible. Otherwise, I’ll move ahead based on these
assumptions.
Jake May
March 17, 2009
Page 2

Payment to vacate in lieu of eviction.

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

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

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

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

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

6. You will notify us of the purchase price as soon as it is determined conclusively

so that we may have the funds available as soon as the property becomes
available.

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

As you are aware, we would rather not vacate the premises, but proceed directly to a
purchase of the property as soon as a sale price can be determined. In order for the
unlawful detainer procedure to apply in foreclosure cases, the Plaintiff must show that
they have perfected title. In this case, the Notice of Intent to Preserve Interest recorded
on February 2, 2009 put any buyer on notice of our claim to the property. It also shows
non-compliance with the foreclosure statutes which is a requirement to perfect title and
initiate the unlawful detainer.

That being said, Frank D’Anna will vacate his home based on your request and assertions
mentioned above that we will be given the opportunity to repurchase the home. By
vacating the premises, Frank D’Anna is in no way relinquishing his current rights to
either the loan modification or to purchase back his own home. He reserves his right to
file a lawsuit based on those claims and all others deemed appropriate should it become
necessary.

Sincerely,

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

2
Salvatore B. D’Anna, Attorney-In-Fact SENT VIA EFAX
For Frank D’Anna, Principal
3941 ¾ Kenwood Dr.
Spring Valley, CA 91977
V: (619) 602-6647
F: (619) 374-2268

Property Address
644 Hillsview Rd
El Cajon, CA 92020

March 17, 2009

The Jake May Team

Jake May
2335 8th Street
Encinitas, CA 92024

Countrywide Home Loans

Loan # 22150300
400 Countrywide Way
Simi Valley, CA 93065

Re: MOVE OUT AGREEMENT

Dear Jake May:

This is to inform you that we cannot accept the terms as written in the Move Out
Agreement you recently faxed over to us. In particular, we will not and cannot agree
with Sections 7, 8, and 10.

SECTION 7
While this section states that we will not be locked out or removed from the property at
any time before the Move Out Date, it nevertheless allows Countrywide to start and/or
continue the eviction process before the Move Out Date. Such a clause would inhibit our
rights in the court by not being able to present a defense to the action.

SECTION 8
In this section, we are giving up any and all claims that we may have or may continue to
have against Countrywide or any other entity involved in any way with the subject
property. Basically, once the agreement is signed, we have no right moving forward to
any claim ever.
Jake May
March 17, 2009
Page 2

SECTION 10
This section states that we are voluntarily signing this agreement and have not received
any inducements or promises other than what is in the agreement. It also says that we
have had the opportunity to have the document reviewed by an attorney before signing it.
Both statements would be false if we signed this agreement because we have been
inducted into this agreement and have clearly stated our reasoning including the not
vacating the premises and requesting to purchase the property immediately.

Since I will assume that these three provisions will not be removed by Countrywide, we
hereby refuse to accept the terms mentioned above and reject the Move Out Agreement
as written.

Sincerely,

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