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TIMOTHY L. MCCANDLESS, ESQ. SBN 147715 LAW OFFICES OF TIMOTHY L. MCCANDLESS 820 Main Street, Ste. 1 Martinez, CA (925) 957-9797 Telephone (909) 382-9956 Facsimile Attorney for Defendant Zenkarla S. Salazar

SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA

GMAC MORTGAGE, LLC FKA GMAC MORTGAGE CORPORATION, Plaintiff, vs. ELIZABETH L. DE VRIES; ZENKARLA S. SALAZAR and DOES 1 through 10, Inclusive Defendant.

Case No.: 111CV198467 DEFENDANTS MOTION IN LIMINE TO EXCLUDE ALL EVIDENCE

To the Court, to Plaintiff, GMAC MORTGAGE, LLC FKA GMAC

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MORTGAGE CORPORATION, [hereinafter GMAC] and its attorney of record: PLEASE TAKE NOTICE that, on Friday, August 5, 2011, at 9:00 AM, or as soon thereafter as the matter may be heard, Defendant, ZENKARLA S. SALAZAR, will in limine judicii move the court, and hereby does move, for an order excluding from trial all evidence proffered by Plaintiff GMAC. The motion will be heard in Department 19 of the Santa Clara Superior Court.
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The motion will be brought pursuant to Evidence Code sections 353 and 400 et seq., Code of Civil Procedure section 430.10(b), and related decisional law. The ground of the motion will be that the Unlawful Detainer Complaint, fails to disclose the reason why Plaintiff supposedly complied with Civil Code section 2932.5 and

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Civil Code section 2924; and accordingly the Complaint fails to state a claim for which relief may be granted, and thus there remain no issues of fact for which relevant evidence might be adduced at trial. More importantly, it is acknowledged that banks, lenders and third party buyers have

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a secured interest in deed which was assigned and recorded as mandated by Civil Code Section 2932.5. In this case, plaintiff did not have the power of sale as mandated by Civil Code Section 2924 because there is no evidence that the secured interest of the current beneficiary has been properly acknowledged and recorded.

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The motion will be based upon this notice of motion and motion, the attached Memorandum of Points and Authorities, on the pleadings and other papers on file for the above-captioned case, and upon such other and further evidence as the court may deem fit. // DATED: August 4, 2011 ________________________________________ LAW OFFICES OF TIMOTHY L. MCCANDLESS By: Timothy P. McCandless, Esq. Attorney for DEFENDANT ZENKARLA S. SALAZAR

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MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL BACKGROUND Defendant Zenkarla S. Salazar is a tenant that holds a valid lease up and until February 2013 with the subject property located at 1568 Valley Crest Drive, San Jose, CA

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95131. This lease agreement was submitted with her answer and was entered before the default. Defendant Salazar demonstrated that she is a bonafide tenant and has a three-year lease at the time she was served with the Unlawful Detainer complaint. Defendant Elizabeth L. De Vries was the original trustor of the subject property and

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executed the Deed of Trust recorded on February 23, 2006 at the County Recorder of Santa Clara County. Plaintiff claimed that a default occurred on the note, that the Trustee recorded a Notice of Default and initiated this unlawful non-judicial foreclosure. After the sale occurred, GMAC took over the title of the subject property.

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This Unlawful Detainer action is commenced and prosecuted pursuant to California Code of Civil Procedure Section 1161a(b). Where real property is sold at a trustee sale in accordance with sections 2924 et seq., of the California Civil Code under a power of sale contained in a deed of trust, the persons who executed said deed of trust, their successor in interest, their tenants and sub-tenants, may be evicted in an action of Unlawful Detainer. California Code of Civil Procedure Section 1161a(b)(3). The sole evidence being offered by Plaintiff is the Deed of Trust and the Trustees Deed Upon sale, which is inadmissible evidence, because Plaintiff GMAC cannot and has not laid the proper foundational proof that it was ever maintained a secured interest in this particular property.

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Judicial notice will not suffice to establish Plaintiffs burden. Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.)

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Judicial notice may not be taken of any matter unless authorized or required by law. (Evid. Code, 450.) Matters that are subject to judicial notice are listed in Evidence Code sections 451 and 452. A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute. [Citation.] (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.)

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Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.) While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein. (Love v. Wolf (1964) 226 Cal.App.2d 378, 403.) When judicial notice is taken of a document, . . . the truthfulness and proper interpretation of the document are disputable. (StorMedia, Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9 (StorMedia).) This court considered the scope of judicial review of a recorded document in Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106 (Poseidon).

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[T]he fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein. [Citation.] For example, the First Substitution recites that Shanley is the present holder of beneficial interest under said Deed of Trust. By taking judicial notice of the First Substitution, the court does not take judicial

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notice of this fact, because it is hearsay and itcannot be considered not reasonably subject to dispute. (Id. at p. 1117.) The same situation is present here. The Substitution of Trustee recites that the Bank is the present beneficiary under the 2003 deed of trust. As in Poseidon, this fact is hearsay and disputed; the trial court could not take judicial notice of it. Nor does taking judicial notice of the

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Assignment of Deed of Trust establish that the Bank is the beneficiary under the 2003 deed of trust. The assignment recites that JPMorgan Chase Bank, successor in interest to WASHINGTON MUTUAL BANK, SUCCESSOR IN INTEREST TO LONG BEACH MORTGAGE COMPANY assigns all beneficial interest under the 2003 deed of trust to the Bank. The recitation that JPMorgan Chase Bank is the successor in interest to Long Beach

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Mortgage Company, through Washington Mutual, is hearsay. Defendants offered no evidence to establish that JPMorgan Chase Bank had the beneficial interest under the 2003 deed of trust to assign to the Bank. The truthfulness of the contents of the Assignment of Deed of Trust remains subject to dispute (StorMedia, supra, 20 Cal.4th at p. 457, fn. 9), and plaintiffs dispute the

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truthfulness of the contents of all of the recorded documents. Judicial notice of the recorded documents did not establish that the Bank was the beneficiary or that CRC was the trustee under the 2003 deed of trust. Defendants failed to establish facts justifying judgment in [their] favor (Bono, supra, 103 Cal.App.4th at p. 1432), through their request for judicial notice.

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Because the non-judicial foreclosure process is subject to strict scrutiny, and given the material failure of a condition precedent by Plaintiff and/or Plaintiffs agent, the entire nonjudicial foreclosure process is invalid. Therefore, the Deed of trust and the Trustees Deed Upon

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Sale cannot be admitted into evidence, as no lawful foundation can be laid. Robert Herrera et

al., v. Deutsche Bank National Trust company et al, Third Appellate District case attached 628-2011. Moreover, Defendant Salazar contends that Plaintiff never maintained a recorded

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interest in the subject real property at any time during the foreclosure proceedings in this case. In order to enforce the power of sale pursuant to California Civil Code section 2924, the secured instrument must be properly acknowledged and recorded pursuant to California Civil Code section 2932.5. The power of sale may only be exercised under California Code

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of Civil Procedure section 2924, if and only if, the secured interest of the current beneficiary has been properly acknowledged and recorded. In this instance, it was not. Thus, there is a major substantive failure in the non-judicial foreclosure process and the transaction cannot stand. In order for GMAC to have proceeding the first instance under

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Civil Code section 2924 et seq., it was required to be record owner, which was not. As such, Plaintiff GMAC is not entitled to obtain possession of the Subject Property as such evidence overcomes the rebuttable presumption of correctness of the sale. Secured interests in real property are demonstrated by recordation so that the entire world will know that a party maintains a secured interest therein. That is why interests in real property are recorded and deeds are submitted as evidence to assert rights of interest and title. It is a fundamental precept of property law that in order to enforce the power of sale, the beneficiary of a deed of trust must be able to prove the existence of their secured interest in the subject property. Here, GMAC has never demonstrated that it ever had such a secured interest.

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There are no valid recorded assignments recorded by GMAC as the new beneficiary of the Deed of Trust executed by Defendants thus, under California Civil Code Section 2924, plaintiff could enforce the power of sale. Thus, this non-judicial foreclosure of this particular property is invalid and plaintiff GMAC is not the lawful owner of this property and

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not entitled to obtain possession pursuant to California Civil Procedure Section 1161a. II. THE COURT HAS POWER TO EXCLUDE ALL EVIDENCE FROM TRIAL, ON GROUNDS ANALOGOUS TO A GENERAL DEMURRER. The court has power to consider and grant an objection to all evidence under Evidence Code sections 353 and 400 et seq. If no cause of action or defense is stated by the respective pleading, then no factual issue any longer exists, and therefore no evidence may be admitted on grounds of relevance under Evidence Code sections 400 et seq. It is well established that a party may bring an in limine objection in order to exclude all evidence, as a sort of general demurrer or motion for judgment on the pleadings. Although not in form a motion, this method of attacking the pleading is identical in purpose to a general demurrer and motion for judgment on the pleadings and is governed by the same rules. [Citations.] 5 WITKIN, Cal.Proc.3rd page 386, Pleading at 953. See also 6 WITKIN, Cal.Proc.3rd pages 571-573, Proceedings Without Trial at 272-273. According to 5 WITKIN, Cal.Proc.3rd page 340, Pleading at 899, a general demurrer concerns only the defense that the pleading does not state facts sufficient to constitute a cause of action or defense. That is precisely what defendant contends here: the Unlawful Detainer Complaint fails to state a claim for which relief may be granted, because it fails to plead a necessary element of compliance with Civil Code sections 2932.5 and 2924

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et al. III. THE COURT MUST STRICTLY ENFORCE THE TECHNICAL REQUIREMENTS FOR A FORECLOSURE. The harshness of non-judicial foreclosure has been recognized. The exercise of the power of sale is a harsh method of foreclosing the rights of the grantor. Anderson v. Heart Federal Savings (1989) 208 Cal.App.3d 202, 6 215, citing to System Inv. Corporation v. Union Bank (1971) 21 Cal.App.3d 137, 153. The statutory requirements are intended to

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protect the trustor from a wrongful or unfair loss of his property Moeller v. Lien (1994) 25 Cal.App.4th 822, 830; accord, Hicks v. E.T. Legg & Associates (2001) 89 Cal.App.4th 496, 503; Lo Nguyen v. Calhoun (6th District 2003) 105 Cal.App.4th 428, 440, and a valid foreclosure by the private power of sale requires strict compliance with the requirements of the statute. Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and Mortgages, Chapter 10 10.179; Anderson v. Heart Federal Sav. & Loan Assn., 208 Cal. App. 3d 202, 211 (3d Dist. 1989), reh'g denied and opinion modified, (Mar. 28, 1989); Miller v. Cote (4th Dist. 1982) 127 Cal. App. 3d 888, 894; System Inv. Corp. v. Union Bank (2d Dist. 1971) 21 Cal. App. 3d 137, 152-153; Bisno v. Sax (2d Dist. 1959) 175 Cal. App. 2d 714, 720. It has been a cornerstone of foreclosure law that the statutory requirements, intending to protect the trustor from a wrongful or unfair loss of the property, must be

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complied with strictly. Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and Mortgages, Chapter 10 10.182. Close compliance does not count. As a result, any trustees sale based on a statutorily deficient Notice of Default is invalid (emphasis added). Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and Mortgages,

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Chapter 10 10.182; Anderson v. Heart Federal Sav. & Loan Assn. (3dDist. 1989) 208 Cal. App. 3d 202, 211, reh'g denied and opinion modified, (Mar. 28, 1989); Miller v. Cote (4th Dist. 1982) 127 Cal. App. 3d 888, 894; System Inv. Corp. v. Union Bank (2d Dist. 1971) 21 Cal. App. 3d 137, 152-153; Saterstrom v. Glick Bros. Sash, Door & Mill Co.(3d Dist. 1931)

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118 Cal. App. 379. It is a fundamental precept of property law that in order to enforce the power of sale, the beneficiary of a deed of trust must be able to prove the existence of their secured interest in the subject property. Here, GMAC has never demonstrated that it ever had such a secured

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interest. Additionally, any trustees sale based on a statutorily deficient Notice of Trustee Sale is invalid. Anderson v. Heart Federal Sav. & Loan Assn. (3d Dist. 1989) 11 208 Cal.App. 3d 202, 211, reh'g denied and opinion modified, (Mar. 28, 1989). The California Sixth District

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Court of Appeal observed, Pursuing that policy [of judicial interpretation], the courts have fashioned rules to protect the debtor, one of them being that the notice of default will be strictly construed and must correctly set forth the amounts required to cure the default. Sweatt v. The Foreclosure Co., Inc. (1985 - 6th District) 166 Cal.App.3d 273 at 278, citing to Miller v. Cote (1982) 127 Cal.App.3d 888, 894 and SystemInv. Corp. v. Union Bank (1971) 21 Cal.App.3d 137, 152-153. The same reasoning applies even to a notice of a trustees sale. Courts will set aside a foreclosure sale when there has been fraud, when the sale has been improperly, unfairly, or unlawfully conducted, or when there has been such a mistake that it would be inequitable to let it stand. Bank of America Nat. Trust & Savings Assn v. Reidy (1940) 15 Cal. 2d 243, 248; Whitman v. Transtate Title Co.(4th Dist. 1985) 165 Cal. App. 3d 312, 322-323; In re
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Worcester (9th Cir. 1987) 811 F.2d 1224, 1228. See also Smith v. Williams (1961) 55 Cal. 2d 617, 621; Stirton v. Pastor (4th Dist. 1960) 177 Cal. App. 2d 232, 234; Brown v. Busch (3d Dist. 1957) 152 Cal.App. 2d 200, 203-204. In this case, there is no evidence whether GMAC maintained a properly

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acknowledged and recorded security instrument in the subject property, anytime during the non-judicial foreclosure process. The Trustees Deed Upon Sale was recorded on December 9, 2010 when defendant De Vries property was sold at a trustee sale on November 15, 20102011when they have not complied with the requirements of California non-judicial

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foreclosure law. The foreclosers made no reasonable efforts to insure that it is acting under the authority of a lawsuit beneficiary. A primary concern in this matter is the fact that GMAC had no legal right to foreclose upon the home of Defendant De Vries, even if she had not paid as required, if the same

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GMAC has not fully complied with Civil Code section 2932.5 and 2924. The basis for its noncompliance, and why this precludes a finding that Plaintiffs title was duly perfected, is set forth below. IV. SINCE 2008, THE ABILITY TO ENFORCE THE POWER OF SALE OF A SECURED INSTRUMENT IN REAL PROPERTY IS MANDATED BY CALIFORNIA CIVIL CODE SECTION 2932.5 WHICH ALLOWS AN ASSIGNEE TO PROCEED WITH A NON-JUDICIAL FORECLOSURE PROVIDING THAT THE ASSIGNMENT IS PROPERLY ACKNOWLEDGED AND RECORDED. In 2008, the California Legislature added Civil Code section 2932.5. The previous section is of particular relevance here: Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the payment of money, the power is part of the security and vests in any person who by assignment becomes entitled to payment of

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the money secured by the instrument. The power of sale may be exercised by the assignee if the assignment is duly acknowledged and recorded. There is no assignment ever recorded by GMAC. See also Code of Civil Procedure

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section 459: it is not necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part required thereby; if such allegations be controverted, the party pleading must establish on the trial the facts showing such performance. Nonetheless, this pleading of compliance that [o]ne of the below necessary requirements was met by the Beneficiary: violates another rule of pleading, namely, that allegations be made positively. Pleading in the alternative is not permitted. The opposing party is entitled to a distinct statement of the facts claimed by the pleader to exist, and a statement in the alternative is uncertain and ambiguous. It is no answer to an objection to averments made alternatively to say that, if either of the averments is true, a cause of action is alleged. Such a pleading is vulnerable to special demurrer, and there is authority that the

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defect cannot be cured by verdict or by judgment by default. But where the point is raised for the first time on appeal, it is not ground for reversal if the appellant was not prejudiced by the uncertainty. 49 Cal.Jur.3d (1979 ed.), pages 412-413, Pleading at 51. The noncompliance with Californias law of pleading here is prejudicial. The issue of whether or not the lender recorded a receivers deed is expected to be a major factual issue at the trial. It is true that defendant SALAZAR might use contention interrogatories and other specially worded interrogatories to find out what factual theory, exactly, underlies the cryptic alternative statement that [o]ne of the below necessary requirements was met by the

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Beneficiary:. And defendant SALAZAR must still then, at that point, discover the evidence

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upon which Plaintiff (or, more precisely, Plaintiffs predecessor-in-interest) relies in contending that there was compliance with California Civil Code subsection 2932.5. CONCLUSION The public record shows, as a matter of law, that PLAINTIFF GMAC and Plaintiffs predecessor-in-interest did not comply with the requirement to disclose according to Code of Civil Procedure subsection 2932.5 Although the Plaintiff could supply this information and cure the pleading error here, yet such an reparative measure will not cure the invalidity of that there they complied with Civil Code 2924 and that no document was recorded with the

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Office of the County Recorder. Until that defect is repaired, there cannot be any duly perfected title that serves as the basis for Plaintiffs Unlawful Detainer case. The case must be stopped, and that may be done by an exclusion of all evidence, as prayed for above. Respectfully submitted,

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Dated: August 4, 2011

LAW OFFICES OF TIMOTHY MCCANDLESS ESQ.

_____________________________________ Timothy L. McCandless, Esq., Attorney for Defendant ZENKARLA S. SALAZAR

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