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Carlos Aguirre 38587 154th Street East Palmdale, California 93591 (661) 414-2866 Cell (661) 367-5252 Fax Prosper4less@hotmail.com In Pro Se
Superior Court of California, County of Los Angeles North Valley District, Santa Clarita Courthouse - LIMITED CIVIL WELLS FARGO BANK, NA, Successor by Merger with Wachovia Mortgage, FSB (formerly World Savings Bank, FSB) Plaintiff, v. Carlos Aguirre, Defendant. HEARING DATE: TIME: ROOM:
CASE NO: 10U01341
DEFENDANTS NOTICE AND MOTION TO SET-ASIDEAND VACATE AN UNLAWFUL DETAINER JUDGEMENT AS VOID FOR A FRAUD UPON THE COURT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF CARLOS AGUIRRE.
NOTICE AND MOTION The undersigned Carlos Aguirre (hereinafter,Defendant) under penalty of perjury, whom within his knowledge, information and belief, respectfully submits his: DEFENDANTS NOTICE AND MOTION TO SET-ASIDE AND VACATE AN UNLAWFUL DETAINER JUDGEMENT AS VOID FOR FRAUD UPON THE COURT.
1 DEFENDANTS NOTICE AND MOTION TO SET-ASIDE AND VACATE AN UNLAWFUL DETAINER JUDGEMENT
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Plaintiff is proceeding pro se. Therefore, this Court must construe this claim liberally and hold it to a less stringent standard than the Court would apply to a pleading drafted by a lawyer. Please see: Platsky v. Central Intelligence Agency, 953 F.2d 26 (2nd Cir. 1991)---Deciding that: In order to justify the dismissal of a pro se complaint, it must be " 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " Haines v. Kerner, 404 U.S. at 521, 92 S.Ct. at 594 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). DATED: July 13, 2012 Respectfully submitted By: Carlos Aguirre______________UCC 1-308 Attorney In Pro Se
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1.
MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF MOTION TO SET-ASIDE AND VACATE AN UNLAWFUL DETAINER JUDGEMENT The superior court, as a court of record and general jurisdiction, is
presumed to have jurisdiction over a particular cause. It is not necessary to plead affirmatively the facts showing jurisdiction. (See Schwartz, Inc., v. Burnett Pharmacy, 112 Cal.App. Supp. 781 [295 P. 508];Ashton v. Heydenfeldt, 124 Cal. 14 [56 P. 624].) 2. Defendant in this case--brings newly discovered evidence.
The court is authorized to permit production of newly discovered evidence if its nature makes a different judgment probable. [Ulwelling v. Crown Coach Corp., 1962]
3.
Federal Rule of Civil Procedure 17(a)(1) which requires that [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). Whereas, here, Wells Fargo Bank, NA. was not the real party in interest. 4. Carlos Aguirre, requests that this Honorable Court sets-aside and vacates
a) Wells Fargo Bank, NA. was not the foreclosing beneficiary [see: Exhibit A]
b)
Wells Fargo Bank, NA. perpetrated fraud upon the Court by initiating an unlawful detainer without right to do so and was not a Real Party in Interest. The purported purchaser [Wells Fargo] is not a Bona Fide purchaser. Title was never perfected due to fraud. The sale was not in compliance with CC 2924.
[The plaintiff-purchaser need prove only that the sale was in compliance with CC 2924 and that he or she has thereafter duly perfected title. Stephens, Partain & Cunningham v Hollis (1987) 196 CA3d 948, 952, 242 CR 251].
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d) e)
DEFENDANTS NOTICE AND MOTION TO SET-ASIDE AND VACATE AN UNLAWFUL DETAINER JUDGEMENT
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5.
Carlos Aguirre would like the opportunity to have this issue decided with
the courts assistance. WHEREFORE, Carlos Aguirre prays that this honorable court sets-aside and vacates the unlawful detainer judgment as void. DATED: July 13, 2012 Respectfully submitted By: Carlos Aguirre______________UCC 1-308 Attorney In Pro Se
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