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Martin S. Friedlander (Bar # 36828) 10350 Wilshire Blvd.

Suite 603 Los Angeles, California 90024

Tel. (310) 435-1519 Fax (310) 278-7330

Attorneys for Defendant Anthony Grossman

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

PRO VALUE PROPERTIES, INC., et al

vs.

Plaintiff,

ANTHONY GROSSMAN; DOES 1 TO 10

Defendants.

INTRODUCTION

CASE NO. 10B01962

GROSSMAN’S PROPOSED STATEMENT ON APPEAL.

JUDGE: Christine Ewell

The Court’s statement of decision must explain the legal and factual basis of the

decision “as to each of the principal controverted issues” at trial as “listed in the Request”.

CCP Sec. 632. As shall be demonstrated below the Court failed in its duties. A “principal”

or material issue is one “which is relevant and essential to the judgment and closely and

directly related to the trial court’s determination of the ultimate issues in the case. Kuffel v.

Seaside Oil Co. 69 Cal. App. 3

ultimate facts rather than evidentiary facts. Lynch v. Cook 148 Cal. App. 3

should provide a narrative explanation of the judge’s reasoning. People v. Casa Blanca

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555, 565 (1977) A statement of decision should set forth

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1072 (1983). It

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Convalescent Homes, Inc., 159 Cal. App. 3

so “ultimate” that they are simply legal conclusions. E.g., findings that a “contract existed”

between the parties; or that “coverage existed” under an insurance policy. Such findings

“make it extremely difficult if not impossible for the reviewing court to ascertain the basis

for the trial court’s conclusion that “coverage existed”. Employers Cas. Co. V.

Northwestern Nat’l Ins. Group, Cal. App. 3

where a statement of decision “fails to make findings on a material issue which would fairly

disclose the trial court’s determination”. Sperber v. Robinson, 26 Cal. App. 4

(1994). Grossman’s objections should be “specific”. Ripani v. Liberty Loan Corp, 95 Cal.

App. 3

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509,524 (1984). The findings should not be

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462, 473 (1980). Reversible error results

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736, 745

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603, 615 (1979)

The undersigned contends that what this court conducted, calling it a “trial” was a

farce and certainly did not meet the minimum expectations of “Due Process of Law”

required by the 14

witnesses take the witness stand as is required in every court that this writer attended over

his 40 year career and certainly every Federal Trial the Trial Court attended as a Chief

Prosecutor for the US Attorney’s office for the Central District of California, major crimes

division. This Court required both witnesses and attorneys to question the witness from the

counsel table, which demeaned the court process as we all have known it throughout

history. That irregular process prejudiced defense counsel since he had difficulty in

hearing the questions and answers, which proceeded in “machine gun” style, partially

precluding Evidence Code objections to be raised. This court arbitrarily denied Grossman

a jury trial as timely requested by Grossman, arbitrarily denied Grossman’s statutory and

constitutional right to enforce validly served Subpoenas to extremely important and

relevant witnesses who had first hand knowledge of the “irregularities” in the foreclosure

procedure leading to the illegal sale to Pro Value. The documents and testimony of the

Trustee who issued the NOS, NOD, and allegedly conducted the “sale” “rigged” in favor of

Pro Value would have defeated Pro Value’s case.

This Court “stifled” Grossman’s counsel from posing relevant questions to the

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Amendment. This Court overruled Grossman’s request that all

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witnesses, including his narrative, by admonishing counsel to “shoosh” as a polite way of

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refusing to adhere to the Evidence Code and the Constitution. Friedlander was duly

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“shooshed” under pain of contempt. This Court abused it power by stifling Defense

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counsel. It appeared to defense counsel that this Court used “time constraints” to

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“trump” justice and “due process”. No reasonable bench trial could have been

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conducted in three 45 minute segments, especially one that required documentary

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evidence that needed foundation and relevance. Friedlander thus made an offer of

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proof but there was no court reporter to record that process to preserve the record

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on appeal. Thus Friedlander, on almost a daily basis, submitted memorandums of

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law to assist the court in following the law.

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THE REQUEST FOR STATEMENT OF DECISION.

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Pursuant to CCP Sec. 632 and CRC Rule 632, Defendant Anthony Grossman

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requested in writing that the Court issue a written Statement of Decision explaining the

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factual and legal basis for its decision with respect to the following controverted issues:

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1.

The factual and legal basis of this Court Quashing the Subpoenas served on the

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Seaside witnesses, in a “sua sponte” manner, when the law required a Motion to quash,

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not an objection. The court failed to do so.

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2.

The factual and legal basis as to whether or not Anthony Grossman was properly

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served with a 3 day Notice to Quit as required by statute. To be discussed later.

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3.

The factual and legal basis as to whether or not Pro Value was a bona fide purchaser.

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The court refused and failed to do so on the basis of relevancy based on the

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evidence that it claims it properly excluded. However the court did receive in

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evidence the Lis Pendens recorded by Grossman, which put Pro Value on

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Constructive Notice, which, by itself would have precluded Pro Value from being a

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BFP. The Court failed to deal with the legal consequences of that Lis Pendens in the

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context of a BFP. Carleen Riojas, the office manager’s testimony was worthless.

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She testified that she did not recall the telephone conversation that she had with

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Friedlander. Friedlander testified, without objection, that Riojas told him that she

was the office manager; that she pulled the Grossman file; that she knew, before

the sale that Grossman had recorded a Lis Pendens and that he had claims to the

property (actual notice); she testified that was a basis of a conversation with

Seaside, the Trustee, and the sales price was negotiated downward due to the

impediment prior to any actual sale which gives credence to Grossman’s claim that

the sale was rigged. Riojas was given an opportunity to change her testimony, but

she did not. Friedlander’s testimony puts the “lie” to Riojas’ testimony, and she was

anything but credible. Friedlander even offered into evidence a letter that he wrote

to Pro Value after his conversation with Riojas, which Friedlander testified that it

was his business practice over 40 years to reiterate a conversation in a letter to the

other side to memorialize that conversation for a trial to take place many months or

years later. Friedlander was not cross-examined.

The Trial Court deliberately refused to render a factual and legal basis as to

whether Pro Value was a BFP, and left it ambiguous. That is deliberate error and a

denial of due process.

A bona fide purchaser is one who pays value for the property without notice of any

adverse interest or any irregularity in the sale proceeding. Nguyen v. Calhoun, 105 Cal.

App. 4

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428 (2003). The Lis Pendens gave “constructive notice” to the “world” including

Pro Value. Thus Pro Value was on “constructive notice. Friedlander testified that the office

manager told him that Pro Value had “actual notice”, a fact that has not been challenged

by Pro Value. Friedlander’s testimony established that not only did Pro Value have notice

of “irregularities” in the sale proceedings, but Pro Value participated in those irregularities

per Friedlander’s sworn testimony as to the arrangement of the price before the sale. Pro

Value offered no testimony whatsoever as to the actual sale and bidding.

The Trustee’s Deed should not have been admitted into evidence pursuant to

Judicial Notice, since it was “irregular” on its face. The Trial Court should have noted that

the “amount of the Unpaid Debt” was left blank. Both Bayview and Seaside knew or

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should have known what the “Unpaid Debt” was. The Trustee’s Deed was not an affidavit,

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but a Notarial Acknowledgment that Elvia Bouche signed the document as Vice President

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of Seaside. It doesn’t make the facts in that document “true”.

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4.

The factual and legal basis as to whether or not Bayview was an Assignee of the

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Original Lender on the date that it substituted Seaside as Trustee of the Grossman TD.

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The court deliberately failed to do so even after admitting into evidence the

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“Allonge” which stated on its face that the Note that Grossman signed in favor of

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the original lender was endorsed over to HSBC, an entity other than Bayview. That

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Allonge was faxed to Friedlander by Northwestern Trustee, the prior Trustee

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appointed by Bayview on a date prior to Seaside’s involvement, and puts the lie to

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the backdated and forged Assignment referenced in Pro Value’s Exhibit 2. This

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Court intentionally neglected to state that Exhibit 2 was recorded on 3/8/2010, one

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day before the sale. This court covered up the fraud and perjury of Bayview and

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Seaside by admitting that document into evidence and using that document to

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support its decision. It was backdated to 6/10/2009, which could not have been

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prepared by Seaside since Seaside was appointed on 8/3/2009 according to Exhibit

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1.

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Since Bayview did not own the note it could not enforce the security for a

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note that it did not own. We will cite numerous authority in our brief, which will

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include a reference to a recent decision of the Supreme Court of Massachusetts.

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5.

The factual and legal basis as to whether or not Seaside was a duly authorized Trustee

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on the date that they recorded the Notice of Default and Notice of Sale. This court did

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not answer that question. The evidence that it rejected reflected that on the date the

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NOD and NOS was recorded Seaside was appointed by an entity other than the

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original lender, rendering all recordings a “nullity”. Exhibit 2, recorded on 3/8/2010,

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and back dated to 6/9/2010, was Bayview and Seaside attempt to “cover-up” the

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invalidity of the prior recording of the NOD and NOS by Seaside. We have a

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subornation of perjury here by Pro Value by offering into evidence it knew was

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“false’. Pro Value committed a fraud on the Trial Court, and put into disrespect the

“rule of law” which that Court swore to uphold.

6. The factual and legal basis as to whether or not the Lis Pendens recorded by Grossman

in December 2009 precluded the later Assignment recorded on March 8, 2010 from being

subject to the pending action in Department 53 of the LASC. The court failed and

refused to address that material issue of law and fact.

7. The factual and legal basis as to whether or not Seaside’s Trustee’s Deed was null and

void on the date that it was recorded. The court failed and refused to address that

material issue of law and fact.

8. The factual and legal basis as to whether or not the Trustee’s Deed passed legal title to

Pro Value. The court failed and refused to address that material issue of law and

fact.

9. The factual and legal basis as to whether or not the Assignment that was recorded by

Seaside on 3/8/2010 was backdated by Seaside and fraudulently signed by an alleged

officer of MERS on the date that it was notarized by the Florida notary. The court failed

and refused to address that material issue of law and fact.

10. The factual and legal basis as to whether or not Grossman received a “fair trial” as that

term is defined by the cases decided under the 14

refused to address that material issue of law and fact. However Grossman addressed

that issue to the effect that he did not receive a “fair trial”.

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Amendment. The court failed and

11. The factual and legal basis as to whether or not Trustee and Bayview complied with

Federal and California law with respect to the Trustee’s sale allegedly conducted by the

Trustee and/or its agents. The court failed and refused to address that material issue

of law and fact. However Friedlander filed a Memorandum of Law that “Hearsay in a

Recorded Document” is still “hearsay” and inadmissable. Friedlander testified, under oath,

without objection, that the Trustee and Bayview did not comply with those requirements of

law. For example, Friedlander testified that CC Sec. 2923.5 was not complied with. There

was no testimony by Bayview or declaration signed and recorded by Bayview that Bayview

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complied with CC Sec. 2923.5 (a)(1), (2); (b); or c. The use of the word “declaration” in

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subparagraph should be interpreted to mean a declaration by a mortgagee or beneficiary.

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A declaration by a Trustee is rank hearsay rendering the entire NOD and NOS void

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precluding a sale. Friedlander’s testimony was first hand knowledge and certainly trumped

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“hearsay”. CC Sec. 2923.5 was not complied with per the testimony of Friedlander. The

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Trustee’s declaration as to what Bayview told her is rank hearsay. It required a declaration

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by Bayview. No such declaration was filed. CC Sec. 2923.54 (a) required a declaration

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from the mortgage loan servicer (Bayview) in the Notice of Sale. It did not. The declaration

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by the Trustee is not only rank hearsay but did not comply with the Civil Code and the

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testimony of Friedlander trumps Pro Value on that issue.

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The factual and legal basis as to whether or not Grossman prevailed on any one or

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more of his affirmative

The court failed and refused to address that

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material issue of law and fact

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13.

The factual and legal basis as to whether or not the California Unlawful Detainer

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Statute is Unconstitutional under either one or more of the Constitutional defenses raised

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by Grossman in his

The court failed and refused to address that material

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issue of law and fact.

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Tender is not an issue in this UD case. It may be an issue in the main case entitled

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Grossman v. Bayview. In any event Bayview did not own the Note, per the Allonge” and

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therefore there was no duty to tender. Tender is a “red herring” irrelevant issue in this

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case.

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DEFENDANT WAS NOT PROPERLY SERVED.

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All Pro Value offered was Bodine’s testimony for what it was. Process servers are

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notorious for “sewer service”. Defense counsel has set aside quite a few, one of which

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resulted in a published decision. Bodine testified that he was employed by Bouzane. The

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Court may take judicial notice of the fact that on the day of the alleged service Bouzane

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was under a 2 year suspension, stayed, for violation of the State Bar ethics. Bouzane

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headed up an “Eviction Mill” by the name of “FAST EVICTION SERVICE” per Bodine’s

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testimony. One wonders why eviction is so fast? Neither Bodine nor Bouzane made any

effort to determine whether Grossman had a business address. Bodine testified that he

mailed the Notice to Grossman, but the return address was Fast Eviction Service and he

did not open its mail. Grossman testified he was an attorney. That he never saw a Notice

on his screen door and he received no such notice in the mail. The first time he saw such

a notice was when he was served a second time with the Summons and Complaint, the

first and second service being quashed. Grossman testified that he was looking out for

such a Notice since he found out that the Property had been sold and that he would be

receiving a Notice to Quit. What led the court to believe that Grossman’s testimony was

“less credible”. That statement brought into question the Court’s entire analysis of this

case. Grossman was an attorney testifying under oath while Bodine was a run of the mill

process server working for an attorney who had been disciplined by the State Bar. The

Court’s analysis is upside down in favor of pushing through a “flood” of evictions. We

believe that the service requirements of the service of a Notice to Quit after a Non-Judicial

sale should meet the same notice and due process requirements of Service of a

Summons and Complaint. To the extent that it doesn’t, we contend that portion of the UD

statute is unconstitutional under the 14

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Amendment.

Joe Nocera, business reporter for the New York Times, wrote in the October 23,

2010 business section of the New York Times regarding the Bank of America and

Countrywide the following:

“But it simply does not follow that the Bank therefore has an absolute right to take back the home. Under the law, it has to prove it has that right-by filing documents that show that the owner of the mortgage has conveyed that right to it. That’s why this affidavit scandal isn’t some legal nicety. It’s about the single most ”

Bayview did not own the Note and therefore did not have the right to enforce it by non-

important value of American jurisprudence: Due Process

The Allonge proves that

judicial sale. The Allonge was admitted into evidence and it establishes Grossman’s

case for a defense judgment. The phony backdated assignment does not trump the

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Allonge.

RELEVANT PORTIONS OF GROSSMAN TRIAL BRIEF

§ 2936. Assignment of debt carries security

Mortgage passes by assignment of debt. The assignment of a debt secured by mortgage carries with it the security. A mortgage being a mere security for debt, it is not transferable without transfer of the debt. Johnson v. Razey (1919) 181 Cal. 342, 184 P. 657.

Debt and security are inseparable; the mortgage alone is not a subject of transfer. Hyde v. Mangan (1891) 88 Cal. 319, 26 P. 180.

West's Ann.Cal.Civ.Code § 2937 provides: “Notices to borrower of transfer of service

by existing and new servicing agent of mortgage or deed of trust on single family

residential real property.

(a) The Legislature hereby finds and declares that borrowers or subsequent

obligors have the right to know when a person holding a promissory note, bond, or other instrument transfers servicing of the indebtedness secured by a mortgage or deed of trust on real property containing one to four residential units located in this state. The Legislature also finds that notification to the borrower or subsequent obligor of the transfer may protect the borrower or subsequent obligor from fraudulent business practices and may ensure timely payments. It is the intent of the Legislature in enacting this section to mandate that a borrower or subsequent obligor be given written notice when a person transfers the servicing of the indebtedness on notes, bonds, or other instruments secured by a mortgage or deed of trust on real property containing one to four residential units and located in this state.

(b) Any person transferring the servicing of indebtedness as provided in subdivision

(a) to a different servicing agent and any person assuming from another responsibility for servicing the instrument evidencing indebtedness, shall give written notice to the borrower

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or subsequent obligor before the borrower or subsequent obligor becomes obligated to

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make payments to a new servicing agent.

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© In the event a notice of default has been recorded or a judicial foreclosure

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proceeding has been commenced, the person transferring the servicing of the indebtedness and the person assuming from another the duty of servicing the indebtedness shall give written notice to the trustee or attorney named in the notice of default or judicial foreclosure of the transfer. A notice of default, notice of sale, or judicial foreclosure shall not be invalidated solely because the servicing agent is changed during the foreclosure process.

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(d)

Any person transferring the servicing of indebtedness as provided in subdivision

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(a)

to a different servicing agent shall provide to the new servicing agent all existing

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insurance policy information that the person is responsible for maintaining, including, but

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not limited to, flood and hazard insurance policy information.

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(e)

The notices required by subdivision (b) shall be sent by first- class mail, postage

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prepaid, to the borrower's or subsequent obligor's address designated for loan payment billings, or if escrow is pending, as provided in the escrow, and shall contain each of the following:

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(1)

The name and address of the person to which the transfer of the servicing of the

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indebtedness is made.

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(2)

The date the transfer was or will be completed.

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(3)

The address where all payments pursuant to the transfer are to be made.

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(f) Any person assuming from another responsibility for servicing the instrument

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evidencing indebtedness shall include in the notice required by subdivision (b) a statement

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of the due date of the next payment.

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(g) The borrower or subsequent obligor shall not be liable to the holder of the note,

bond, or other instrument or to any servicing agent for payments made to the previous servicing agent or for late charges if these payments were made prior to the borrower or subsequent obligor receiving written notice of the transfer as provided by subdivision (e) and the payments were otherwise on time.

(h) For purposes of this section, the term servicing agent shall not include a

trustee exercising a power of sale pursuant to a deed of trust.

If the Trustees sale had occurred prior to Sept 6,2008 plaintiff would prevail but for

other procedural defects in the assignment of the Deed of Trust in Civil Code 2932.5 prior to sale.

A different rule applies in an unlawful detainer action that is brought by the

purchaser after a foreclosure sale. His or her right to obtain possession is based upon the fact that the property has been “duly sold” by foreclosure proceedings, CC1161a (b) (3)

and therefore it is necessary that the plaintiff prove each of the statutory procedures has been complied with as a condition for seeking possession of the property. When the eviction is by a bona fide bidder at the sale the defendant has no defenses to eviction. However as in this case a beneficiary that is the plaintiff in the unlawful detainer action must prove that it has duly complied with each of the statutory requirements for foreclosure, and the trustor can put these questions in issue in the

unlawful detainer proceeding. Miller and Star 3

Additionally as of Sept 6, 2008 additional requirements for a duly perfected foreclosure were added in 2923.5. What did SB 1137 do? SB 1137 added a number of new code sections including Civil Code §§ 2923.5 and 2924.8 (which are the “notice provisions” of SB 1137 and designated as sections 2 and 4, respectively). Section 2923.5 requires contact with, or due diligence to attempt to contact, the borrower before a notice of default (“NOD”) may be recorded after 9-6-08 or continued where the notice of default was recorded prior to 9-6-08 but the notice of sale (“NOS”) will not be recorded until after

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10:220.

PROPOSED STATEMENT ON APPEAL

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9-6-08. Section 2924.8 requires a new Notice of Sale to Resident to be posted on the

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residential property and mailed to the resident of residential properties (in English and in 5

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other languages) as part of the nonjudicial foreclosure process.

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What Loans are Covered under new Civil Code § 2923.5? Civil Code § 2923.5 only

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applies to: (1) Loans made from January 1, 2003, to December 31, 2007, inclusive

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(“Covered Period”); and, (2) loans secured by residential real property that are for owner-

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occupied residences. For purposes of § 2923.5, “owner-occupied” means that the

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residence is the principal residence of the borrower. The words “made” and “principal

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residence” are not defined in the statute, leaving uncertainty as to what these terms mean.

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Further the statutory definition of “residential property” is not limited to 1-4 residential

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properties. Therefore, if one unit in any residential property (e.g., an apartment building, a

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residential unit in a mixed use commercial/residential property, etc) is owner-occupied as

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the borrower’s principal residence, the borrower may be considered to be covered under

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Section 2923.5. Lastly, while it appears that the legislature intended to cover loans that

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were originally intended to be “owner occupied”, the timing of the owner occupancy is also

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uncertain. Loans meeting the above requirements will be called “covered loans” in this

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brief.

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Any loan that was not made between January 1, 2003, through December 31,

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2007, is not a “covered loan” and is not subject to the provisions of § 2923.5 (although it

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still requires a “Notice of Sale to Resident” under certain circumstances discussed below).

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Preconditions to Recording Notice of Default (“NOD”). A trustee, beneficiary, or

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authorized agent may not file a notice of default (“NOD”) until: (1) 30 days after contact is

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made with the borrower as required by section 2923.5(a); or, (2) 30-days after satisfying

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the due diligence requirements of section 2923.5(g); or (3) after qualifying for one of the

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exclusions under section 2923.5(h).

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Contact with the Borrower (Before Foreclosure). The beneficiary or authorized

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agent must contact the borrower in person or by telephone in order to: (1) Assess the

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borrower’s financial situation; and, (2) Explore options for the borrower to avoid

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foreclosure. Since many lenders already have policies which may fulfill these

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requirements, those policies should be reviewed as they are likely to fall short of some of

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the new requirements.

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Assessment of the Borrowers Financial Situation; Discussion of Options and Notice

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of Borrower’s Right to Have a Meeting with Beneficiary or Agent. The assessment of the

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borrower’s financial situation and discussion of options may occur during the first contact,

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or at the subsequent meeting scheduled for that purpose. Civil Code § 2923.5 gives no

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guidance as to what the lender or servicer must do in “assessing the borrower’s financial

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situation. Similarly, there is no guidance as to what, if any, “options for the borrower to

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avoid foreclosure” should be discussed.

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During the initial contact, the beneficiary or authorized agent must advise the

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borrower that he or she has the right to request a subsequent meeting and, if requested,

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the beneficiary or authorized agent shall schedule the meeting to occur within 14 days.

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(Civ. Code § 2923.5(a).) A beneficiary’s or authorized agent’s loss mitigation personnel

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may participate by telephone during any contact required by this section. (Civ. Code §

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2923.5(d)(2).)

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The undersigned spent his time researching the law as “evictions” based on judicial

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and non-judicial foreclosures sales, are overwhelming our state and federal court systems.

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Having handled many “lis pendens” cases, “constructive notice” based on a recorded “lis

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pendens the undersigned will discuss the effect of the recordation of a ‘lis pendens” on a

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party claiming to be a bona fide purchaser (“BFP”) Simply put, there is no such “animal”

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even though Pro Value asserts that it is a BFP. Whether or not Pro Value is a BFP affects

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presumptions, rebuttable or conclusive. Pro Value’s counsel misrepresented to the Court

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that Pro Value was a BFP, and the undersigned says “hogwash”.

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Aside from the evidence and testimony, the law is very unclear due to the recent

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legislation passed by Congress and California to “protect” homeowners from being

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“tossed” out on the street, due to what the undersigned has read about the “unsavory”

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foreclosure and eviction mills throughout this country.

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Simply put, I place John Bouzane dba Fast Eviction Service in the category of an “eviction mill” We had a “reasonable” expectation that the “attorney of record” would appear at trial as the “trial attorney” since Bouzane verified the UD complaint and subjected himself to be called as a witness by the Defense. Counsel for Pro Value stated that the statute which permitted non-judicial foreclosure is constitutional. I know that, since there is no “state action”. Grossman challenges the Constitutionality of the “eviction” statutes, since it requires “State Action” to evict a homeowner from their home after a non judicial sale. That is an undecided issue, which the undersigned looks forward to present. That is why Grossman requested to make an evidentiary record so that the Court may decide the Constitutional issues. There are many attorneys in the “borrower’s bar” who await such a declaration of unconstitutionality.

It is not a frivolous position. Prior to Sniadach v Family Finance I was writing briefs that pre judgment attachments, without notice and a hearing, violated the due process clause of

the 14

appellate court heard the same argument from the undersigned. FUNCTION OF THE JUDGE The major feature of a bench trial is that the judge sits as the trier of fact. The

Judge determines the admissibility, weighs the evidence, determines credibility, and

th

Amendment. That case was decided by the US Supreme Court before an

renders judgment. CCP Sec. 631.8 (a); Davis v. Kahn (1970) 7 Cal. App. 3

Bullock’s Inc v. Security First national Bank of Los Angeles (1958) 160 Cal. App. 2

285. Judges are precluded from conducting independent investigations outside the courtroom, because to do so would be a denial of due process, denying to a litigant the

fair and impartial trial to which everyone is entitled. Conservatorship of Schaeffer (2002)

159, 164. The general order of proceedings is set forth in CCP Sec. 607,

631.7.

The Court’s reference to “tender” in a non-lease situation raised a suspicion that this Court referenced some of the proceedings in Grossman v. Bayview, where “Tender” was made an issue by Schloss, the attorney for Bayview and Seaside. We requested the

98 Cal. App. 4

rd

868, 874;

nd

277,

th

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Court to address why it referenced “tender” in the context of this type of unlawful detainer

case. It did not do so. Error.

According to California Civil Handbook and Desktop Reference, Thomas, 2007 Ed.

at P. 874, “There is considerable controversy as to whether a court may reconsider its

prior ruling at any time-and if so, in what manner the issue may be raised.” WE RAISED IT

THROUGHOUT THE ENTIRE PROCEEDINGS WHICH THE TRIAL COURT IGNORED.

See discussion in Kerns v. CSE Ins. Group (2003) 106 Cal. App. 4

Defendant requested the court to reopen the case and grant a continuance, if necessary.

Thomas at P. 875. The court had the inherent power, it may be done on the court’s own

motion, when required by the interests of justice. It failed to do so.

This court made reversible error and denied Grossman a fair trial by “gutting”

Grossman’s defense when, it, on its own motion, sua sponte quashed the SDTs served on

the Seaside witnesses. Grossman proved by competent evidence that the SDTs were duly

served on all of the Seaside witnesses in accordance to CCP Sec. 1987. The Objections

admitted service; the witnesses did not testify in their affidavits that “they demanded

witnesses fees” from the process server. It was the witnesses burden of proof to declare,

under oath, that they demanded fees and were not paid. It is common knowledge that

process servers are trained not to offer witness fees unless they are demanded. If the

witnesses had testified that they demanded witness fees at the time they were served,

then we would have produced affidavits from the process server that the fees were not

demanded.

th

368, 383-389.

CCP Sec. 1987.1 (a) provided for a motion. The attorneys for the witnesses filed an

objection; not a motion. The witnesses did not follow the procedure set forth by law. The

objections should have been summarily denied. Instead, the Court took the bench and sua

sponte quashed each of the subpoenas. The court refused to allow the undersigned to

object to this unconstitutional procedure. Subsection (b) of 1987.1 (b) provided “on the

court’s own motion after giving counsel notice and an opportunity to be heard, or any

reason whatsoever for issuing this unlawful “sua sponte” order. Grossman’s counsel was

PROPOSED STATEMENT ON APPEAL

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given no notice whatsoever, refused Grossman’s counsel an opportunity to be heard; and

over his objection the court told him to “be quiet and sit down,” which he did. That order

was a blatant violation of CCP Sec. 1987.1 (b); denied Grossman a fair trial; and

evidenced a bias against either Grossman or his counsel, or there may be an agenda in

that courthouse to “railroad through” all of the UD cases since they were “clogging up” an

over burdened court, with limited funds, due to the very meltdown caused by MERS and

their cohorts, such as the Wall Street institutions. We believe a former Chief Assistant US

Attorney, Criminal Trials Division, should have known better. Grossman was entitled to the

evidentiary material that he subpoenaed; was entitled to cross-examine Ms. Weber to

whom Friedlander had corresponded with, wrote letters to, and Seaside plead the 5 th

Amendment to discovery requests, such as production of documents, admissions that one

of the documents were backdated and forged, and that crimes were committed. Seaside,

being a corporation was not permitted to assert the 5

th

Amendment.

The following was the “offer of proof” of the relevancy of the Seaside witnesses

testimony and documents. At the time that Bayview, using MERS, as its conduit , was the

Assignee from a Lender who was not the lender of record by virtue of the TD introduced

into evidence by Pro Value. The Assignor was a different entity than the Lender. The

original Lender was bankrupt, and therefore any agency that existed at the time that

Grossman signed the original TD was terminated by operation of law due to the

bankruptcy of the original lender. Since Bayview was the Assignee of an entity other

than the original lender, Bayview lacked both the power and authority to appoint Seaside

as Trustee. Therefore any NOD and NOS issued by Seaside was void as a matter of

law. That is the reason why a new backdated assignment was prepared by Seaside

signed by an “alleged” officer of MERS before a Notary was recorded on 3/8/2010 and the

sale took place on 3/9/2010. Since Pro Value was never a BFP, due to the recording of

the lis pendens, the Trustee’s deed was void as a matter of law. We demanded that this

court admit into evidence the assignment proving that Seaside was not a duly authorized

Trustee at the time they recorded the NOD and NOS. Both the NOD and NOS were void

PROPOSED STATEMENT ON APPEAL

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as a matter of law, and so is the title of Pro Value. This court committed error by not

admitting this evidence.

In Alfaro v. Community Housing Imp. System & Planning Ass'n, Inc. 171

Cal.App.4th 1356, (Cal.App. 6 Dist.,2009.) The Court of Appeal in 2009 dealt with the

issue of the recording of a lis pendens and constructive notice and actual notice as

follows:

“One of the central issues in this appeal is whether plaintiffs are chargeable with

notice of the deed restriction at an earlier time than its disclosure in the grant deeds. As explained above, the recording of a deed restriction is ordinarily regarded as imparting

constructive notice of its contents to subsequent purchasers. (

actual knowledge; i.e., knowledge of its contents is conclusively presumed.' (4 Witkin, Summary of Cal. Law [ (9th ed. 1987) ] Real Property, § 203, p. 408, italics in original.)”

Defendants rely on Anderson as establishing that plaintiffs had constructive notice and actual knowledge of the deed restriction by virtue of its recording and, by virtue of this

knowledge, cannot successfully allege that defendants failed to disclose it.

1370, 261 Cal.Rptr. 248 observed, “Here, it is undisputed the Flemings properly recorded the contract, thereby giving Transamerica constructive, if not actual notice

of the contract.” ( Id. at p. 1377, 261 Cal.Rptr. 248.) Anderson v. Willson (1920) 48 Cal.App. 289, 191 P. 1016 stated: “Without doubt, the presumption of notice thus

raised by this code provision is conclusive and incontrovertible.” ( Id. at p. 293, 191 P. 1016.) Both cases concluded that a person with constructive notice did not

qualify as a bona fide purchaser without notice. Neither case attributed actual knowledge to the purchaser. At most, constructive notice has been conclusively

presumed. As we proceed to explain in the text, there is a difference between actual and constructive notice.

There was a caveat in Anderson, however. “ ‘If future takers purchase a piece of

property with notice of a restriction made by a predecessor, then, in the absence of duress or fraud, they may ordinarily be thought to have bargained for the property with the

restriction in mind, and to have shown themselves willing to abide by it.’ ” ( Anderson, supra, 12 Cal.4th at p. 366, 47 Cal.Rptr.2d 898, 906 P.2d 1314; emphasis added.)

Plaintiffs argue that the doctrine of constructive notice does not apply to fraud causes of action. Bishop Creek Lodge v. Scira (1996) 46 Cal.App.4th 1721, 54 Cal.Rptr.2d 745 ( Scira ) stated on page 1734, 54 Cal.Rptr.2d 745: “Under a long line of cases, the fact that the victim had constructive notice of the truth from public records is no

defense to fraud. The existence of such public records *1386 may be relevant to whether the victim's reliance was justifiable, but it is not, by itself, conclusive. ( Seeger v. Odell

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Hellinger (1950) 100 Cal.App.2d 482, 487, 224 P.2d 34

rationale for this exception is, “The purpose of the recording acts is to afford protection not

to those who make fraudulent misrepresentations but to bona fide purchasers for value.” ( Seeger, supra, 18 Cal.2d at p. 415, 115 P.2d 977.) Defendants do not discuss this

authority, cited by plaintiffs, in their briefs.”

)

The

The court did not need a lecture from the undersigned that the purpose of the

recording of a Lis Pendens is to give “Constructive Notice” to the world, especially to Pro

Value. The court knew that the memorandum of law submitted by Pro Value was not worth

the paper it was written on, as to its claim that Pro Value was a BFP. That is the first thing

they teach law students in law school. It is hornbook law as they say in law school. The

office manager told Friedlander that she knew that Grossman had filed a lis pendens. Not

only did Pro Value have “constructive” notice, they had actual notice. Friedlander was

precluded from testifying that Pro Value’s attorney requested a copy of the complaint and

promised not to file an unlawful detainer suit against Grossman. A short time thereafter on

3/30/2010, an attorney named Bouzane filed the UD. The promise made by an agent who

is authorized to speak is binding on his principal. This attorney told Friedlander that his

client was in the room with him. He believed him since he heard voices in the background.

He justifiably relied on that representation of Pro Value’s attorney who was sitting in the

room with the attorney. The court’s refusal to permit Grossman to put on relevant

evidence is the sole reason for the so-called lack of evidence as enunciated by this

Court in its proposed Statement.

Did the court really believe that Friedlander called Pro Value to talk about

settlement. Hogwash. The Office Manager lied through her teeth, and Pro Value suborned

this perjury by objecting on the grounds of “settlement”. Friedlander knew what he said to

her and she knew what she said to him. His sworn testimony was totally different, and

since she lied that she did not remember our conversation, she was not in a position to

contradict his testimony. Her choice would be to admit perjury to the court or commit

perjury by testifying to something he said which she did not remember. Friedlander was

PROPOSED STATEMENT ON APPEAL

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prepared to prove by his sworn testimony regarding some of the declarations of mailing in

the court’s file that if they were mailed, they were never received by me. They would have

been impeached and I would file a complaint with the District Attorney to investigate this

perjury. The conduct of Bouzane and his agents, such as the process server, were

designed to deprive people like Grossman of their homes and throw them out on the

street. Perjury is being suborned. The fraud on the court marched on. TITLE ISSUES

A qualified exception to the rule that title cannot be tried in an unlawful detainer

proceeding [see Evid Code § 624; 5.45[1][c]] is contained in CCP § 1161a. By extending the summary eviction remedy beyond the conventional landlord-tenant relationship to include purchasers of the occupied property, the statute provides for a narrow and sharply focused examination of title. A purchaser of the property as described in the statute, who starts an unlawful detainer proceeding to evict an occupant in possession, must show that he or she acquired the property at a regularly conducted sale and thereafter "duly perfected" the title [CCP § 1161a; Vella v. Hudgins (1977) 20 C3d 251, 255. Words and Phrases

The term "duly" implies that all of those elements necessary to valid sale exist. Kessler v. Bridge (1958, Cal App Dep't Super Ct) 161 Cal App 2d Supp 837. Title that is "duly perfected" includes good record title, but is not limited to good record title. Kessler v. Bridge (1958, Cal App Dep't Super Ct) 161 Cal App 2d Supp 837. Title is "duly perfected" when all steps have been taken to make it perfect, that is, to convey to purchaser that which he has purchased, valid and good beyond all reasonable doubt. Kessler v. Bridge (1958, Cal App Dep't Super Ct) 161 Cal App 2d Supp 837. Grossman filed his verified answer on 7/23/10. Denied Par. 6. Denied Par. 7 alleging fraud and a rigged sale. Denied par. 8 that he was served with a Notice to Quit. Denied Par 9 based on failure of service of notice to quit. Denied Par. 10. Denied paragraphs 11 and 12. First Affirmative Defense. Failed to state a cause of action. Second Affirmative

PROPOSED STATEMENT ON APPEAL

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Defense. Not properly verified by Pro Value, only Bouzane. Third Affirmative Defense. No Notice to Quit. Fifth Affirmative Defense. Denial of Due Process under the 14 th Amendment. Sixth Affirmative Defense. Denial of Procedural Due Process under the 14 th Amendment. Seventh Affirmative Defense. Denial of Equal Protection of the law under the

14

th

Amendment.

FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT

1.

2.

LEGAL ISSUES NOT DECIDED BY THE COURT.

The two due process arguments under the 14 The equal protection Argument under the 14 Denial of Right to Trial by Jury.

th

2.

3.

1.

Amendment

Service of Notice to Quit.

Compliance with the law regarding the TD sale.

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Amendment.

PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH

EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE.

On 2/20/2009 California enacted into law the California Foreclosure Prevention Act as

an amendment to CC Sec. 2923. If Bayview took an assignment from a Lender who was not

the Lender as reflected by the Assignment that the Court wrongfully refused to admit into

evidence and gave it back to me until I requested that the Assignment be marked and that the

Court’s minute order reflect that it was offered and refused on the grounds of relevancy, and

no other ground. That is reversible error. A Trustee appointed by an Assignee without good

title is a nullity and every act that Seaside Trust took was a nullity. That Assignment, which

should have been admitted, would prove the fact of nullity, and Grossman would be entitled to

move for judgment when Pro Value rested. We request the Court to reverse its original refusal

to admit that Assignment into evidence and then grant judgment to Grossman as the Trustee’s

Deed is null and void. That was my offer of proof of relevancy.

PROPOSED STATEMENT ON APPEAL

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1. Under CC Sec. 2923.5 the lender must contact the borrower. At that point of time I

had given notice to Bayview that I was the attorney for the borrower. Pro Value has offered no

evidence. Grossman fell within the provisions of CC Sec. 2923 as the TD offered into evidence

by Pro Value reflects that Grossman entered into the loan during the period from 1/1/2003 -

12/31/2007.

2. Pro Value offered no evidence that it complied with CC Sec. 2923.6; offered a loan

modification plan to Grossman.

3. Pro Value offered no evidence that it complied with CC Sec. 2923 or that Bayview

was exempt.

4. Pro Value offered no evidence that it complied with the provisions of HARP, (12

USC Sec. 1524), which was part of the “economic stimulus” to prevent foreclosures and

revitalize the housing sector.

5. Pursuant to CC Sec. 2924 the Trustee’s Deed will presume the sale to be valid and

conclusively presumed to be valid if Pro Value was a BFP, which it was not. Pro Value failed to

prove its case for the following reasons: (1) it was not the duly appointed Trustee; (2) the

backdated and forged assignment allegedly was from the true lender, after it went bankrupt,

which required Bayview to record a new document appointing Seaside as its Trustee. There is

no relation back case cited by Pro Value since it does not exist. Even if it existed, the law still

required the duly appointed Trustee under the new assignment to record the NOD and NOS

and comply with all of the other provisions of State and Federal Law, which it could not, and

did not do, thereby making the Trustee’s deed a “nullity” without any presumptions of validity.

Plaintiff claimed they have complied with CC Sec. 2924 in paragraphs 4 thru 7 of

their complaint that they have met the burden of proof in that a sale had occurred and the

trustees Deed establishes this presumption that the sale was “duly Perfected” and the Civil

has been complied with. Defendant claimed that they did not and Plaintiff has submitted

to the court a certified copy of the Notice of Trustees Sale and asked the court to take

judicial notice of said document as well as the Trustee’s Deed. We requested the court to

PROPOSED STATEMENT ON APPEAL

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reverse its prior ruling admitting the Trustee’s Deed into evidence and to deny its

admission on the grounds of relevancy since pro Value has not, and can not establish that

Bayview, acting as the assignee of an alleged lender that was never in title, duly appointed

Seaside as Trustee. Seaside has never been appointed Trustee by any assignee that was

in title on the day of the recordation of the Substitution of Trustee.

If the Trustees sale had occurred prior to Sept 6,2008 plaintiff would prevail but for

other procedural defects in the assignment of the Deed of Trust in Civil Code 2932.5

prior to sale.

A different rule applies in an unlawful detainer action that is brought by the

purchaser after a foreclosure sale. His or her right to obtain possession is based upon the

fact that the property has been “duly sold” by foreclosure proceedings, CC1161a (b) (3)

and therefore it is necessary that the plaintiff prove each of the statutory procedures has

been complied with as a condition for seeking possession of the property.

When the eviction is by a bona fide bidder at the sale the defendant has no

defenses to eviction. However as in this case a beneficiary that is the plaintiff in the

unlawful detainer action must prove that it has duly complied with each of the statutory

requirements for foreclosure, and the trustor can put these questions in issue in the

unlawful detainer proceeding. Miller and Starr 3

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10:220.

Additionally as of Sept 6, 2008 additional requirements for a duly perfected

foreclosure were added in 2923.5. What did SB 1137 do? SB 1137 added a number of

new code sections including Civil Code §§ 2923.5 and 2924.8 (which are the “notice

provisions” of SB 1137 and designated as sections 2 and 4, respectively). Section 2923.5

requires contact with, or due diligence to attempt to contact, the borrower before a notice

of default (“NOD”) may be recorded after 9-6-08 or continued where the notice of default

was recorded prior to 9-6-08 but the notice of sale (“NOS”) will not be recorded until after

9-6-08. Section 2924.8 requires a new Notice of Sale to Resident to be posted on the

residential property and mailed to the resident of residential properties (in English and in 5

other languages) as part of the nonjudicial foreclosure process.

PROPOSED STATEMENT ON APPEAL

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What Loans are Covered under new Civil Code § 2923.5? Civil Code § 2923.5 only

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applies to: (1) Loans made from January 1, 2003, to December 31, 2007, inclusive

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(“Covered Period”); and, (2) loans secured by residential real property that are for owner-

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occupied residences. For purposes of § 2923.5, “owner-occupied” means that the

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residence is the principal residence of the borrower. The words “made” and “principal

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residence” are not defined in the statute, leaving uncertainty as to what these terms mean.

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Further the statutory definition of “residential property” is not limited to 1-4 residential

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properties. Therefore, if one unit in any residential property (e.g., an apartment building, a

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residential unit in a mixed use commercial/residential property, etc) is owner-occupied as

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the borrower’s principal residence, the borrower may be considered to be covered under

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Section 2923.5. Lastly, while it appears that the legislature intended to cover loans that

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were originally intended to be “owner occupied”, the timing of the owner occupancy is also

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uncertain. Loans meeting the above requirements will be called “covered loans” in this

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brief.

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Any loan that was not made between January 1, 2003, through December 31,

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2007, is not a “covered loan” and is not subject to the provisions of § 2923.5 (although it

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still requires a “Notice of Sale to Resident” under certain circumstances discussed below).

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Preconditions to Recording Notice of Default (“NOD”). A trustee, beneficiary, or

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authorized agent may not file a notice of default (“NOD”) until: (1) 30 days after contact is

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made with the borrower as required by section 2923.5(a); or, (2) 30-days after satisfying

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the due diligence requirements of section 2923.5(g); or (3) after qualifying for one of the

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exclusions under section 2923.5(h).

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Friedlander posed to the Court the following question. How would the Trustee be in

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a position of first hand personal knowledge to attest to compliance with the new California

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and Federal Law to put a halt to foreclosures. The only entity that would know those facts

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based on first hand knowledge would be Bayview, not the Trustee. That put a donut hole

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in all non-judicial sales followed by evictions in California.

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PROPOSED STATEMENT ON APPEAL

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Contact with the Borrower (Before Foreclosure). The beneficiary or authorized

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agent must contact the borrower in person or by telephone in order to: (1) Assess the

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borrower’s financial situation; and, (2) Explore options for the borrower to avoid

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foreclosure. Since many lenders already have policies which may fulfill these

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requirements, those policies should be reviewed as they are likely to fall short of some of

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the new requirements.

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Assessment of the Borrowers Financial Situation; Discussion of Options and Notice

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of Borrower’s Right to Have a Meeting with Beneficiary or Agent. The assessment of the

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borrower’s financial situation and discussion of options may occur during the first contact,

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or at the subsequent meeting scheduled for that purpose. Civil Code § 2923.5 gives no

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guidance as to what the lender or servicer must do in “assessing the borrower’s financial

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situation. Similarly, there is no guidance as to what, if any, “options for the borrower to

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avoid foreclosure” should be discussed.

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During the initial contact, the beneficiary or authorized agent must advise the

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borrower that he or she has the right to request a subsequent meeting and, if requested,

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the beneficiary or authorized agent shall schedule the meeting to occur within 14 days.

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(Civ. Code § 2923.5(a).) A beneficiary’s or authorized agent’s loss mitigation personnel

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may participate by telephone during any contact required by this section. (Civ. Code §

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2923.5(d)(2).)

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Plaintiff offered no admissible evidence that it complied with these new

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legislative provisions.

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THE LAW ON SERVICE OF NOTICE TO QUIT

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1. Service of Notice

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Proper service on the tenant of a valid notice to quit is a prerequisite

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to a judgment declaring a landlord’s right to possession. Liebovich v Shahrokhkhany

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(1997) 56 CA4th 511, 513, 65 CR2d 457 (3-day notice to pay rent or quit). The landlord

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must allege and prove proper service of the required notice; a court may not issue a

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judgment for possession in the landlord’s favor without evidence that the required notice

PROPOSED STATEMENT ON APPEAL

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was properly served. 56 CA4th at 513. When the fact of service is contested, compliance

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with one of the statutory methods for service must be shown. 56 CA4th at 514. Affidavits

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of service may not be relied on at trial to prove the notice to quit was served in accordance

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with the statutory requirements; the testimony of the person who made the service is

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required (56 CA4th at 514), unless service was made by a sheriff, marshal, or registered

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process server (see Evid C §647; Govt C §§26662, 71265). Code of Civil Procedure

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§1162 does not require reasonable diligence in attempting personal service before

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substituted service may be used. Nourafchan v Miner (1985) 169 CA3d 746, 750–751,

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215 CR 450. For example, if the tenant is not at home or at his or her usual place of

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business when personal service is attempted, the notice may be served by substituted

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service without making further attempts at personal service. Substituted service must be

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attempted, however, before service by posting and mailing. Hozz v Lewis (1989) 215

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CA3d 314, 317–318, 263 CR 577. A person using the posting and mailing method of

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service must first have determined that the tenant’s residence and business cannot

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be ascertained or that a person of suitable age and discretion cannot be found

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there. Highland Plastics, Inc. v Enders (1980) 109 CA3d Supp 1, 6, 167 CR 353. The

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issue of “suitable age” depends on the facts of the case. See Lehr v Crosby (1981) 123

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CA3d Supp 1, 6, 177 CR 96 (16-year old child was found to be of “suitable age”).

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Insufficient service. Under CCP §1162(3), posting of the notice without also mailing the

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notice does not constitute sufficient service. Jordan v Talbot (1961) 55 C2d 597, 609, 12

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CR 488. Service of a 3-day notice to quit by certified mail, return receipt requested, is not,

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by itself, a sufficient method of service under either CCP §1162(2) or CCP §1162(3).

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Liebovich v Shahrokhkhany, supra, 56 CA4th at 516.

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Dated: February 13, 2011

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Respectfully submitted,

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Martin S. Friedlander, Esq.

PROPOSED STATEMENT ON APPEAL

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