SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN DIEGO APPELLATE DIVISION

SALVATORE B. DANNA, Appellant/Petitioner, v. GREENPOINT MORTGAGE FUNDING INC. Appellate/Respondent.

Appellate Court Case No.: TBA Judgment mailed June 23, 2010 Honorable Allan J. Preckel East County Division, Department 12 (619) 456-4012 Trial Court Case Nos.: 37-2009-00033936 PETITION FOR WRIT OF SUPERSEDEAS; MEMORANDUM OF POINTS AND AUTHORITIES *IMMEDIATE STAY REQUESTED*

Salvatore B. DAnna, Pro Per 3941 Kenwood Dr. Spring Valley, CA 91977 V: (619) 602-6647 F: (619) 374-2268 Email: saldanna@gmail.com Attorney for Petitioner SALVATORE B. DANNA, PRO PER

TABLE OF CONTENTS

NOTICE OF APPEAL ..P. 1

I. II.

PETITION FOR WRIT OF SUPERSEDEAS .............P. 5 MEMORANDUM OF POINTS OF AUTHORITIES. .P.10 DECLARATION OF SALVATORE B. DANNA.P. 23 EXHIBIT A- DEED OF TRUST P. 24 EXHIBIT B NOTICE OF NON-COMPLIANCE AND PROOF OF RECEIPT ..P.38 EXHIBIT C ORDER GRANTING WRIT OF MANDATE ...P. 52 EXHIBIT D STATEMENT OF DECISION/JUDGMENT/ORDER ....P. 59 EXHIBIT E HOMES FOR RENT IN AREA ...P. 64

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CERTIFICATE OF SERVICE I hereby certify that I am not a party to the above-entitled case; that on the date shown below I served a true and correct copy of this Notice of Appeal on the parties shown below by placing a true copy in a separate envelope, addressed as shown below; each envelope was then sealed and, with postage fully prepaid, deposited in the United States Postal Services at Lemon Grove, California.

Respondent:

Counsel for Real Parties in Interest: Brian H. Tran Tami S. Crosby Bauer Bergstrom & Winters LLP 1231 E. Dyer Road, Suite 100 Santa Ana, CA 92705 Date: July 1, 2010 By: _______________ Frank DAnna, Jr.

CERTIFICATE OF SERVICE FOR NOTICE OFAPPEAL - 1

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SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN DIEGO APPELLATE DIVISION
SALVATORE B. DANNA, Appellant/Petitioner, v. GREENPOINT MORTGAGE FUNDING INC. Appellate/Respondent.

Appellate Court Case No.: TBA Judgment mailed June 23, 2010 Honorable Allan J. Preckel East County Division, Department 12 (619) 456-4012 Trial Court Case Nos.: 37-2009-00033936 PETITION FOR WRIT OF SUPERSEDEAS; MEMORANDUM OF POINTS AND AUTHORITIES *IMMEDIATE STAY REQUESTED*

Salvatore B. DAnna, Pro Per 3941 Kenwood Dr. Spring Valley, CA 91977 V: (619) 602-6647 F: (619) 374-2268 Email: saldanna@gmail.com Attorney for Petitioner SALVATORE B. DANNA, PRO PER

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I. Petition for Writ of Supersedeas
By this verified Petition, Petitioner shows:

1.

Pursuant to Code of Civil Procedure, section 923, and Rules of Court, rule

8.112, the Petitioner, Salvatore B. DAnna, respectfully petitions the San Diego Superior Court Appellate Division to issue a Writ of Supersedeas for purposes of staying the Superior Court's judgment entered against him and recall any writ of possession that may have issued pending resolution of Petitioners Appeal . The Petitioner will Immediately Suffer Irreparable Harm Code of Civil Procedure 1176(a) provides in pertinent part as follows: An appeal taken by the defendant shall not automatically stay proceedings upon the judgment. Petition for stay of the judgment pending appeal shall first be directed to the judge before whom it was rendered. Stay of judgment shall be granted when the court finds that the moving party will suffer extreme hardship in the absence of a stay and that the nonmoving party will not be irreparably injured by its issuance. In this case, the judgment of the court summarily denied any request for a stay pending appeal right in the judgment. 2. 3. Since the trial was had in this unlawful detainer case over a year ago,

Defendants in this case have been negotiating a settlement of this matter in our Civil Case with Countrywide. In order to possibly qualify for a loan modification, Defendants now have an additional roommate to assist in making the payments to the bank upon approval of a loan modification. This roommate was not a party to this unlawful detainer lawsuit that occurred over a year ago. It would be unreasonable to expect that she could get removed from her home upon 5 days notice from the sheriff. The monthly rental amount she pays was/is to be used as part of the loan modification. If no loan modification gets approved, then a sale of the home to Defendants parents is also an option. Defendant Salvatore B. DAnna last week allowed the house to be appraised by Countyrwide in anticipation of the

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sale to our parents. While not doubting these intentions to settle, there are two separate law firms involved and no guarantee on either side that the settlement will move forward which is why a stay must issue in this instance and the appeal may be dismissed if the parties settle rather than the alternative of losing their home beforehand. All parties including our roommate will suffer extreme hardship if a stay of execution pending the outcome of the appeal is not issued by this court. 4. Despite the extreme hardship that would be suffered by moving parties in

the absence of the granting of a stay, plaintiff will suffer no irreparable harm. Defendants are willing to pay the monthly rental value into court, as provided for in CCP 1176, pending the outcome of the appeal. Thus, plaintiff would be protected from any adverse consequences as a result of the issuance of a stay. 5. "An extraordinary writ, such as a Writ Supersedeas, will issue . . . when a

Court of Appeal 'find[s] that it is . . ."necessary to protect a substantial right, . . . when it is shown that some substantial damage will be suffered by petitioner if said writ is denied." [Citation.]' (People v. Superior Court (John D.) (1979) 95 Cal.App.3d 380, 386-387 [], quoting Parker v. Bowron (1953) 40 Cal.2d 344, 351.) . . . ." (In re Marico C. (2004) 124 Cal.App.4th 1303, 1312.) Until this Court renders its decisions with respect to the Petitioner's appeal, the Plaintiff will suffer absolutely no harm if the Court stays the Superior Court's judgment and orders Petitioner to pay rent to the court on a monthly basis. Petitioners will have to pay a monthly rent to someone else in any event and should therefore be allowed to pay that same rent to the court pending the outcome of the appeal. Contrarily, if this Court does not issue a stay pending the outcomes of this proceeding, the Petitioner will suffer imminent, irreparable harm including the loss of his home. 6. A Writ will issue if Petitioner can show that his appeal and/or Civil case

have merit. Petitioner believes that he will be the prevailing party in this appeal and in his Civil case as described fully in the included Points and Authorities.

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7. Unless an appropriate writ is granted, Petitioner will be forced to vacate his home while at the same time a purchase price for the home by Petitioners parents is still being negotiated in Petitioners Civil case. Petitioner could lose his home if a writ and stay are not issued by this court. WHEREFORE, Petitioner prays that this Court: 1. Immediately issue a stay of all further proceedings and order the Superior Court not to issue a Writ of Possession or to recall and void any Writ of Possession already ordered. 2. Grant this Petition for a Writ of Supersedeas pending the Appeal. 3. Order Petitioner to pay the fair market value of rent for the home to the court on a monthly basis pending the outcome of the appeal. 4. Award Petitioner his costs in this proceeding. 5. Grant such other and further relief as the Court may deem just and proper. Respectfully submitted,

Dated: June 30, 2010 By: _____________________________ SALVATORE B. DANNA, Pro Per

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STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN DIEGO) I, Salvatore B. DAnna, am the Petitioner in connection with this writ proceeding. I have personally reviewed and am familiar with the records, files and proceedings described in and the subject of the present Petition, and know the facts set forth in the Petition to be true and correct. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed: June 30, 2010 By: _____________________________ SALVATORE B. DANNA, Pro Per

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II. Memorandum of Points and Authorities
INTRODUCTION

Defendants Salvatore B. DAnna and Frank DAnna seek a stay of enforcement of judgment pending appeal of the judgment and order following a unlawful detainer trial that occurred on June 24, 2009. The Appellate Division of the Superior Court ordered the trial court in Case No. 37-2009-00080405 to issue a statement of decision and to calendar any request for stay pending appeal requested by Petitioner. An inadequate statement of decision and order the denied summarily Petitioners request for a hearing for a stay pending appeal was ordered. Normally, unlawful detainer actions are quickly resolved, with little consideration given to whether the Plaintiff is actually the lawful owner of a given property. This however is a different day and these are different times. In California alone, approximately 20,000 homes have been foreclosed each month in the last six months and owners have been evicted, again, with little or no consideration of whether the title claimed by the Plaintiff has any legal validity. Defendants Salvatore B. DAnna and Frank DAnna have filed a civil action to set aside the foreclosure of their home as a wrongful foreclosure due in part to violation of Civil Code 2923.5. Additionally, other defenses exist having to do with the assignment and non-judicial foreclosure sale itself. Traditionally, there is a tension following a non-judicial foreclosure which exists between the needs of Plaintiffs to perfect their possession of the property and the Defendant owners who are denied due process in a summary proceeding in which evidence in this case was taken on the issue of the validity of title for violation of Civil Code 2923.5 without objections from the court or Plaintiff, again, without any objections during trial, in the answer to the complaint, and in the trial brief .

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Defendants believes that Plaintiff will not be prejudiced by the delay in possession of yet another property in its ever growing non-performing portfolio. More particularly, in as much as Defendants are prepared to make reasonable monthly rental payments and post any required undertaking pending resolution of the appeal and civil action, Plaintiffs can be made whole. II.
A STRONG FACTUAL SHOWING SUPPORTS THE CONCLUSION THAT DEFENDANT WILL PREVAIL AS THE PLAINTIFF IN HIS CIVIL ACTION AND SET THE FORECLOSURE ASIDE.

A strong factual showing supports the conclusion that Defendant will prevail as the Plaintiff in his civil action to set aside the foreclosure due to noncompliance with Civil Code 2923.5. In either event, the court may rest its discretion on the sworn Declaration of Salvatore B. DAnna in granting a stay. See the Declaration of Salvatore B. DAnna. Here, there are several considerations for the court to resolve. Initially, Defendant has filed a Notice of Appeal, and requests a stay of execution of judgment pending the appeal. Defendant is prepared to pay-over the reasonable rental value to the court, and post any required undertaking. Defendant believes that he has a meritorious defense to this judgment that the trial court heard without objection but failed to decide the issue. III. NONCOMPLIANCE -CIVIL CODE 2923.5 CAN BE HEARD IN A UNLAWFUL DETAINER CASE EFFECTS THE VALIDITY OF PLAINTIFFS TITLE WHICH MUST BE LITIGATED PER 1161a The trial court wrote in what they claim is a proper statement of decision the following in regards to Civil Code 2923.5: Defendants have not shown that Plaintiffs compliance with Civil Code 2923.5 is an issue that is properly raised in the summary proceeding of an unlawful detainer action. Thus no specific findings

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of whether or not Plaintiff complied with said code section will be made, as it is not a principal controverted issue before this court. At issue in this case is the right of possession to the property located at 644 Hillsview Rd. El Cajon, CA 92020 after a non judicial foreclosure sale under CCP 1161a. A qualified exception to the rule that title cannot be tried in an unlawful detainer proceeding [see Evid Code 624] 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, 142 CR 414, 572 P2d 28 ]. To this limited extent, as provided by the statute, title may be litigated in the unlawful detainer proceeding [ Cheney v. Trauzettel (1937) 9 C2d 158, 159, 69 P2d 832 ]. Under this section, which was added to the code in 1929, an action in unlawful detainer by a purchaser at a trustee's sale under a deed of trust is a proper proceeding to remove persons from the demised premises; and, the remedy being purely statutory, if the determination of the question of title to realty becomes necessary, the legislature had the right to provide for the trial of that issue in such a proceeding. Nineteenth Realty Co. v. Diggs (1933) 134 Cal App 278, 25 P 2d 522, 1933 Cal App LEXIS 54. The title of a purchaser at a sale under a trust deed is involved in an action in unlawful detainer brought by him to the limited extent that he must prove his acquisition of title by purchase at the sale, and the defendant may attack the sufficiency of the sale. Cheney v. Trauzettel (1937) 9 Cal 2d 158, 69 P2d 832, 1937 Cal LEXIS 372; Delpy v. Ono (1937, Cal App) 22 Cal App 2d 301, 70 P2d 960, 1937 Cal App LEXIS 116; Defenses challenging the legality of the note, deed

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of trust, and the sale are proper in an unlawful detainer action under Code of Civil Procedure Section 1161a(b)(3) ( Seidell v. Anglo-California Trust Co. (1942) 55 Cal. App. 2d 913, 922, 132 P.2d 12 ). Old National Financial Services, Inc. v. Seibert (1987) 194 Cal. App. 3d 460, 239 Cal. Rptr. 728 , was a proceeding in unlawful detainer brought by the purchaser of real property at a trustee's sale under a deed of trust against the former owner. Although affirming a judgment for plaintiff for restitution and possession of the property, the court of appeal said that Code Civ. Proc. 1161a makes the summary remedy of unlawful detainer available against persons holding over after the property has been sold under a power of sale in a trust deed (Code Civ. Proc. 1161a(b)(3)), and that under this provision, the remedy is afforded when the property has been sold in accordance with Civ. Code 2924 and the title under the sale has been duly perfected ( 194 Cal. App. 3d 460, 464) . The court explained that as a general rule, only claims bearing directly on the right to possession are involved in unlawful detainer proceedings, but that when title is acquired through proceedings described in Code Civ. Proc. 1161a, courts must make a limited inquiry into the basis of the plaintiff's title ( 194 Cal. App. 3d 460, 465) . The court said that the plaintiff need only prove a sale in compliance with the statute and deed of trust, followed by purchase at the sale, and the defendant may raise objections only on that phase of the issue of title ( 194 Cal. App. 3d 460, 465) . The court added that matters affecting the validity of the trust deed or primary obligation itself, or other basic defects in the plaintiff's title, are neither properly raised in the summary proceeding for possession, nor concluded by the judgment, and that further, the pendency of another action concerning title is immaterial to the resolution of an unlawful detainer proceeding ( 194 Cal. App. 3d 460, 465) . Accordingly, for reasons discussed above, the court should have found that Greenpoint has not duly perfected title to the property located at 644 Hillsview Rd. El Cajon, CA 92020 due to non compliance with the newly enacted Civil Code 2923.5. The Declaration required by Civil Code 2923.5 which was attached and recorded with the Notice of Default claimed to have negotiated with Defendant on July 11, 2006 which was two years before the enactment of Civil Code 2923.5 and at a time when Mr. DAnna was not in default and was paying his mortgage on

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time. The Notice of Default cannot be recorded until after compliance with Civil Code 2923.5. The Notice of Default was improperly recorded which makes the non-judicial foreclosure sale void as a matter of law. Neither the court, nor the Plaintiff ever objected to the defense that Plaintiffs have not perfected title to the property due to their noncompliance with Civil Code 2923.5. The issue was before the court in Petitioners Answer to the complaint, his Trial Brief, his principle controverted issues to be decided in the statement of decision properly made under CCP 632, and his proposed statement of decision. The issue was tried and testimony received that established noncompliance with 2923.5 which is part of the statutes leading up to the sale of the property at the foreclosure sale. The Plaintiff is allowed to use the Unlawful Detainer method after nonjudicial foreclosure instead of filing a case for ejectment. When the Plaintiff chooses to use this method, they must show that they purchased the property at a properly conducted sale and the Defendant can attack the issue of title by showing the sales process was not in compliance with the statutes. For this reason, Defendant can argue title was not perfected due to irregularities in the sales process and did make this argument because a notice of default cannot be recorded until 30 days after compliance with 2923.5. IV.
NON-COMPLIANCE WITH 2923.5 AS A DEFENSE IN UNLAWFUL DETAINER IS A MATTER OF FIRST IMPRESSION AND DECISION WOULD HELP GUIDE OTHER PARTIES AND THEIR ATTORNEYS MAKING SIMILAR CLAIMS THROUGHOUT CALIFORNIA IN UNLAWFUL DETAINER CASES

Since Civil Code 2923.5 was enacted in July 2008 and became effective September 2008, decisions based on 2923.5 have not been conclusive and none are available regarding its affect on unlawful detainer cases. A recent Writ of Mandate case decided on June 2, 2010 in Orange County in Mabry v. Superior Court which published a decision that purports to claim that the only remedy for noncompliance with Civil Code 2923.5 is a postponement of sale and nothing

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more. The court concluded that any claim for noncompliance with Civil Code 2923.5 must be made before the foreclosure sale. This strict reading of the statute does not seem to be supported by the wording of the statute, nor from the Legislative History of the Bill. Since the judgment in this case does not explain the reason Defendants have not shown that Plaintiffs compliance with Civil Code 2923.5 is an issue that is properly raised in the summary proceeding of an unlawful detainer action, there is no way of knowing if the decision in Mabry was used to make the conclusion in this case. The Mabry case claims that the only remedy under Civil Code 2923.5 is postponement of the sale and an action must be brought in court before the sale takes place is simply dicta. In addition, Petitioners maintains that they did assert their claim for noncompliance before the foreclosure sale and were not required to file a lawsuit because they were following the terms written in the Deed of Trust which calls for notice to the Lender before filing such a lawsuit. In section 20 of the Deed of Trust which is attached to the declaration of Salvatore B. DAnna as Exhibit A, the second paragraph reads: Neither Borrower nor Lender may commence, join, or be joined to any judicial action (as either an individual litigant or the member of a class) that arises from the other party's actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action. If Applicable Law provides a time period, which must elapse before certain action can be taken, that time period will be deemed to be reasonable for purposes of this paragraph. The notice of acceleration and opportunity to cure given to Borrower pursuant to Section 22 and the notice of acceleration given to Borrower pursuant to Section 18 shall be deemed to satisfy the notice and opportunity to take corrective action provisions of this Section 20. Petitioner sent the required notice to Greenpoint on February 6, 2009 by Certified Mail and also recorded a document at the San Diego County Recorders

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Office regarding their noncompliance with 2923.5. The Certified Letter including the signature of the receivers from Greenpoint which received 2 certified letters by two different employees at Greenpoint and the copy of the recorded noncompliance are attached to the Declaration of Salvatore B. DAnna as Exhibit B. The signature cards show that the notice letter was received by Greenpoint 02/12/2009 at 08:04 a.m.in COLUMBUS, GA, 31908 and on 02/13/2009 at 08:58 a.m. in LARKSPUR, CA, 94939. Greenpoint went ahead and allowed the trustee to sell the home at auction two weeks later on February 25, 2009. Petitioners filed their civil lawsuit on April 3, 2009 giving Greenpoint the reasonable time required by the above provision in the deed of trust. In addition to the above, the declaration of compliance with Civil Code 2923.5 attached to the Notice of Default is proof in and of itself of such noncompliance because it purports to have negotiated with Defendants on July 11, 2006, two years before the statute came into existence and at a time when all payments were made timely and Defendants were not in default. IV. A PROCEDURAL MECHANISM EXISTS TO STAY EXECUTION OF JUDGMENT PENDING AN APPEAL. A procedural mechanism exists to stay execution of a judgment pending appeal pursuant to California Code of Civil Procedure section 918.5 which provides as follows: (a) The trial court may, in its discretion, stay the enforcement of a judgment or order if the judgment debtor has another action pending on a disputed claim against the judgment creditor. (b) In exercising its discretion under this section, the court shall consider all of the following: (1) The likelihood of the judgment debtor prevailing in the other action.

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(2) The amount of the judgment of the judgment creditor as compared to the amount of the probable recovery of the judgment debtor in the action on the disputed claim. (3) The financial ability of the judgment creditor to satisfy the judgment if a judgment is rendered against the judgment creditor in the action on the disputed claim. Thus, the court may exercise its learned discretion whether to stay this action, order the posting of an adequate undertaking and payment of a reasonably monthly rental value. In the matter of Asuncion vs. Superior Court, (1981) 108 Cal.App.3d 141, 146, 166 Cal.Rptr. 306, the Fourth District Court of Appeal held in pertinent part, A possibility, which we understand is frequently utilized in other counties, is for the superior court to stay the eviction proceedings until trial of the fraud action, based on the authority of Code of Civil Procedure section 526 which permits a preliminary injunction to preserve the status quo on such grounds as irreparable injury, multiplicity of legal actions, or unconscionable relative hardship. (See, e. g., Continental Baking Co. v. Katz, 68 Cal.2d 512, 528, 67 Cal.Rptr. 761 and see gen. discussion of subject in 2 Witkin, Cal. Procedure (2d ed. 1970) Provisional Remedies, 47, p. 1496; 73, pp. 1511-1512.) Bond would be required to obtain such an injunction (Code Civ.Proc., 529), which could be waived for an indigent litigant. Conover v. Hall, 11 Cal.3d 842, 851, 853, 114 Cal.Rptr. 642. It has been held where foreclosure of a trust deed would moot a claim of right under a deed, and the deed is attacked as a fraudulent conveyance, a preliminary injunction is permitted to prevent foreclosure pending trial. Weingand v. Atlantic Savings & Loan Assn., (1970) 1 Cal.3d 806, 83 Cal.Rptr. 650. Staying the eviction here is analogous. In Gonzales v. Gem Properties, Inc., (1974) 37 Cal.App.3d 1029, 1036, 112 Cal.Rptr. 884, 889, the Second Appellate District pointed out, "The summary nature of unlawful detainer proceedings suggests that, as a practical matter, the likelihood of the defendant's being prepared to litigate the factual issues involved

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in a fraudulent scheme to deprive him of his property, no matter how diligent defendant is, is not great." Normally, the unlawful detainer action may encompass only a "narrow and sharply focused examination of title" directed at the formal validity of the trustee sale Vella v. Hudgins, (1977) 20 Cal.3d 251, 255, 142 Cal.Rptr. 414, 416. Here, Greenpoint is not a bonafied purchaser and had notice of the claims of Defendant. As such, there is no presumption that the trustees deed after sale is valid. Petitioner would also be prejudiced if he was unable to assert his claims against Greenpoint as has already been done in this unlawful detainer case because Petitioner did not appeal the dismissal of Greenpoint in his civil case for two reasons. The first was because Petitioner was prepared to argue noncompliance by Greenpoint with 2923.5 in this unlawful detainer case which he did. The second is because even though Greenpoint is listed as the owner in the Trustee Deed, Countrywide asserts that they are the owners due to an assignment prior to the foreclosure sale. Indeed, the moveout agreement offered by the realtor in this case stated that Countrywide had purchased the property at the nonjudicial foreclosure sale. In addition, the 1099 for the difference between the credit bid and the original loan amount was sent by Countrywide. Petitioners tried to have the unlawful detainer trial postponed for additional discovery after an employee of Countrywide verified the Requests for Admissions in this case, but his Writ was denied. If the issue of noncompliance cannot be litigated in this unlawful detainer case, which it already has, Petitioner will have lost his rights to all of his claims against Greenpoint whom was dismissed from the Civil case without appeal to pursue them in this unlawful detainer case. Thus, it would appear that sufficient facts exist proving the non-compliance with 2923.5 which was tried without objection and would support a stay pending the appeal. The possibility of a settlement in this case albeit with Countrywide,

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also supports a stay pending the outcome of the civil case and on appeal in this case. V. PLAINTIFF WILL SUFFER NO PREJUDICE BY THE ISSUANCE OF A STAY PENDING RESOLUTION OF THE APPEAL. Plaintiff will suffer no prejudice by the issuance of a stay pending resolution of the civil action and/or appeal, because Defendant is prepared to make monthly payments based upon the reasonable rental value. Examples of the current rental rates in and around the area of Petitioners home and a proposed monthly rent fee to be paid to the court is included in the Declaration of Salvatore B. DAnna filed herewith. In the event that the stay is not issued, the property will be lost forever, and cannot be easily replaced. On the other hand, the subject property will only sit in the non-performing portfolio waiting to be sold in a market in which homes are not selling at any price, even if, the lenders were able to make loans on the property. Thus, in a practical sense, if the stay is granted, Plaintiff will at least have the benefit of receiving regular payments from the defendant on the property pending the appeal and/or settlement in the civil action. Prejudice is never presumed; rather it must be affirmatively demonstrated by the defendant in order to sustain his burdens of proof and the production of evidence on the issue. Miller v. Eisenhower Medical Center, (1980) 27 Cal.3d 614, 624, 166 Cal.Rptr. 826. In the absence of prejudice on the part of Plaintiff, the court would properly exercise its discretion by ordering a stay pending appeal.

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CONCLUSION For all pleadings filed in this matter, the Declaration of Salvatore B. DAnna, the Memorandum of Points and Authorities, Defendants Salvatore B. DAnna and Frank DAnna respectfully requests that the court grant a stay pending appeal and/or resolution/settlement of the civil case.
VI

Dated: June 30, 2010

By: ____________________ Frank DAnna, Pro Per

By: ________________________ Salvatore B. DAnna, Pro Per

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VII. Certificate of Petitioner
Petitioner hereby certifies that, pursuant to Rule 14(c)(1) of the California Rules of court, the enclosed Petition for Writ of Supersedeas was produced using 13point Times New Roman type style and contains approximately 4, 832 words. In arriving at that estimate, Petitioner has relied on the word count function of Microsoft Word 2007, which was used to prepare the document.

Respectfully submitted,

Dated: June 30, 2010

By: _____________________________ SALVATORE B. DANNA, Pro Per

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PROOF OF SERVICE BY MAIL In re: Caption: Filed: STATE OF CALIFORNIA COUNTY OF SAN DIEGO Petition for Writ of Supersedeas Greenpoint v. DAnna, Trial Court Case No. 37-2009-00033936 San Diego Superior Court Appellate Division ) ) ss: )

I am a citizen of the United States and a resident of the City of San Diego, County of San Diego; I am over the age of eighteen years and not a party to the within action; my business address is 3941 Kenwood Dr. Spring Valley, California 91977. On this date, I served the persons interested in this action by placing one copy of the above-entitled document in sealed envelopes with overnight postage fully prepaid in the United States post office mailbox at Lemon Grove, California, addressed as follows: Brian H. Tran, Esq. MILES, BAUER, BERGSTROM & WINTERS, LLP 1665 Scenic Avenue, Suite 200 Costa Mesa, CA 92626 San Diego Superior Court The Honorable Allan J. Preckel 250 East Main Street Dept 12 El Cajon, CA 92020 San Diego Superior Court Appellate Division 220 West Broadway San Diego, CA 92112-0128 I declare under penalty of perjury that the foregoing is true and correct. Executed on July 1, 2010, at Lemon Grove, California Date: July 1, 2010 By: __________________ Frank DAnna, Jr.

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Frank DAnna, Pro Per Salvatore B. DAnna, Pro Per 3941 Kenwood Dr. Spring Valley, CA 91977 Telephone: (619) 602-6647 Fax: (619) 374-2268 Email: saldanna@gmail.com Salvatore B. DAnna for Defendant, Pro Per SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO EAST COUNTY DIVISION Greenpoint Mortgage Funding Inc., Plaintiffs, vs. Frank DAnna and Salvatore B. DAnna, Defendants I, Salvatore B. DAnna, hereby declare: ) ) ) ) ) ) ) ) ) ) ) Case No.: 37-2009-00033936 DECLARATION OF DEFENDANT SALVATORE B. DANNA WRIT OF SUPERSEDEAS Trial Date: June 24, 2009

1. I am named as a defendant in this matter and reside at 644 Hillsview Rd. El Cajon, CA 92020, which premises is the subject of this action. 2. Attached hereto as Exhibit A is a copy of the recorded Deed of Trust which states in section 20 the procedure to follow before filing a lawsuit. 3. Attached hereto as Exhibit B is a copy of a letter I faxed to the trustee and sent by certified mail with return receipt to all interested parties on February 6, 2009. The letter included a copy of a recorded document and a letter warning all parties of noncompliance with Civil Code 2923.5. 4. Attached hereto as Exhibit C is a copy of the Order from the Appellate Division granting my Petition for a Writ of Mandamus filed July 16, 2009. 5. Attached hereto as Exhibit D is a copy of the judgment that I am appealing and asking this court to stay pending appeal. 6. Attached hereto as Exhibit E are recent listings for homes similar in size and location and their monthly rental rate. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: July 1, 2010 By _____________________________ Salvatore B. DAnna, Pro Per
Declaration ISO Writ of Supersedeas - 1

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EXHIBIT A

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EXHIBIT B

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BY SALVATORE B. DANNA, ATTORNEY-IN-FACT FOR FRANK DANNA

FACSIMILE TRANSMITTAL SHEET

TO: FROM:

Debbie Jackson
COMPANY:

Frank DAnna
DATE:

Old Republic Title Company Trustee Services Division

FAX NUMBER:

2/6/2009
TOTAL NO. OF PAGES, INCLUDING COVER:

925-798-3283
PHONE NUMBER:

6
SENDERS FAX NUMBER:

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

619-374-2268

X URGENT

FOR REVIEW

PLEASE COMMENT

PLEASE REPLY

PLEASE RECYCLE

NOTES/COMMENTS:

See attached

Salvatore B. DAnna, Attorney-in-fact For Frank DAnna, Principal 3941 Kenwood Dr. Spring Valley, CA 91977 Property Address 644 Hillsview Rd El Cajon, CA 92020 February 6, 2009 Countrywide Home Loans Servicing LP Customer Service Correspondence, SV3-14B Purported Loan# 22150300 P.O. BOX 1140 Simi Valley, CA 93062-1140 Old Republic Title Company - Trustee Services Division c/o Debbie Jackson 1000 Burnett Avenue, Suite 400 Concord, CA 94520 Old Republic National Title Insurance Company Purported New Trustee For Loan # 0086769734 500 City Parkway West, Suite 200 Orange, CA 92868-2913 Marin Conveyancing Corporation Purported Trustee For Loan # 0086769734 275 Broadhollow Rd. Melville, NY 11747 Marin Conveyancing Corporation Purported Trustee For Loan # 0086769734 2730 GATEWAY OAKS DR STE 100 SACRAMENTO, CA 95833 Greenpoint Mortgage Purported Servicer P.O. Box 84013 Columbus, GA 31908-4013 Greenpoint Mortgage Funding, Inc Purported Lender 100 Wood Hollow Dr. Novato, CA 94945 Mortgage Electronic Registration Systems, Inc. Purported Beneficiary P.O. Box 2026 Flint, MI 48501-2026

SENT VIA CERTIFIED MAIL

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Re: NOTICE OF NON COMPLIANCE CALIFORNIA CIVIL CODE 2923.5
Dear All:

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

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If we had met as required by California Civil Code 2923.5 the property would have reflected a value of approximately $200,000. I am willing to pay an interest rate of 6.25 % and I will be able to make monthly payments of $1,246.00. The principal balance of my loan should be reduced the present market value of $200,000. As an alternative, I am willing to pay an interest rate of 1.75% and am able to make monthly payments of $1,246.00 with the principal balance of my loan remaining at $352,000. Please be advised that you are all on Notice that if you continue to pursue the sale of my property by recording the date it is to be sold, you will do so knowing that any subsequent buyer will take title with Notice of my interest in my property due to your intentional tortuous violations of the law and you will be held liable for the consequences of your actions.
I write this letter with the hope that out of the ever growing list of entities involved, one of you will discuss this matter further and give it the attention it deserves. Please call me at 619-602-6647 and/or send a fax to 619-374-2268. Sincerely, _________________________________ Frank DAnna by Salvatore B. DAnna, attorney-in-fact.

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Date Produced: 02/16/2009

POSTEDIGITAL LLC

The following is the delivery information for Certified Mail item number 7114 7336 1554 4319 1814. Our records indicate that this item was delivered on 02/13/2009 at 11:43 a.m. in MELVILLE, NY, 11747. The scanned image of the recipient information is provided below.

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The customer reference number shown below is not validated or endorsed by the United States Postal Service. It is solely for customer use.

Customer Reference Number: 40586632-42512053-0

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Date Produced: 02/16/2009

POSTEDIGITAL LLC

The following is the delivery information for Certified Mail item number 7114 7336 1554 4319 1821. Our records indicate that this item was delivered on 02/12/2009 at 08:04 a.m. in COLUMBUS, GA, 31908. The scanned image of the recipient information is provided below.

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Customer Reference Number: 40586633-42512055-0

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Date Produced: 02/16/2009

POSTEDIGITAL LLC

The following is the delivery information for Certified Mail item number 7114 7336 1554 4319 1838. Our records indicate that this item was delivered on 02/12/2009 at 11:15 a.m. in SACRAMENTO, CA, 95814. The scanned image of the recipient information is provided below. Signature of Recipient:

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Customer Reference Number: 40586633-42512055-1

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Date Produced: 02/16/2009

POSTEDIGITAL LLC

The following is the delivery information for Certified Mail item number 7114 7336 1554 4319 1845. Our records indicate that this item was delivered on 02/13/2009 at 08:58 a.m. in LARKSPUR, CA, 94939. The scanned image of the recipient information is provided below.

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Customer Reference Number: 40586633-42512055-2

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Date Produced: 02/16/2009

POSTEDIGITAL LLC

The following is the delivery information for Certified Mail item number 7114 7336 1554 4319 1852. Our records indicate that this item was delivered on 02/14/2009 at 11:06 a.m. in OCALA, FL, 34478. The scanned image of the recipient information is provided below.

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Customer Reference Number: 40586632-42512053-1

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Date Produced: 02/16/2009

POSTEDIGITAL LLC

The following is the delivery information for Certified Mail item number 7114 7336 1554 4319 1869. Our records indicate that this item was delivered on 02/11/2009 at 09:19 a.m. in SIMI VALLEY, CA, 93062. The scanned image of the recipient information is provided below.

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Customer Reference Number: 40586633-42512055-3

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Date Produced: 02/16/2009

POSTEDIGITAL LLC

The following is the delivery information for Certified Mail item number 7114 7336 1554 4319 1883. Our records indicate that this item was delivered on 02/12/2009 at 10:36 a.m. in CONCORD, CA, 94520. The scanned image of the recipient information is provided below.

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Customer Reference Number: 40586633-42512055-5

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EXHIBIT D

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san diego craigslist > east SD county > housing > apts/housing for rent email this posting to a friend
Stating a discriminatory preference in a housing post is illegal - please flag discriminatory posts as prohibited Avoid scams and fraud by dealing locally! Beware any arrangement involving Western Union, Moneygram, wire transfer, or a landlord/owner who is out of the country or cannot meet you in person. More info please flag with care: miscategorized prohibited spam/overpost best of craigslist

Date: 2010-06-30, 3:04PM PDT Reply to: hous-tx6b6-1819709858@craigslist.org [Errors when replying to ads?] Motivated owner wants to rent this energy-efficient home ASAP. Half off of July's rent for qualfied residents O.A.C. (on approved credit) Yes, we will consider Section 8 applicants too. A smartly-planned, single story, detached home with lots of green in mind. Fully-insulated to help keep you cool in the summer and warm in the winter. Complete insulation minimizes outside noise as well. An energy- and cost-saver that your wallet will appreciate. Almost everything inside this home is newly purchased: New a/c unit with heating and cooling capabilities. Three new ceiling fans in living areas. New ceramic tile flooring throughout the entire house. New window coverings and new vinyl windows. Newly-tiled bathroom and fixtures. Large, open kitchen area provides lots of room for family time and includes: New stove with built-in clock and new stove hood. New 20 cubic foot refrigerator. New oak kitchen cabinetry. New granite-design, laminate countertops with built-in breakfast sitting area. Newer model washer and dryer in unit. House is approximately 1000 square feet. Bedrooms are small but house has large, open, central area near kitchen for gatherings. Private, fenced yard includes pomegranate and peach trees.
1 of 3 7/1/2010 8:30 AM

Half off July's rent for qualified renters

http://sandiego.craigslist.org/esd/apa/1819709858 html

Other nearby trees include: lemon, peach, fig and loquat. Landscape to be maintained by the Landlord. House is located behind grey castle auto dealership, Auto DElegance on El Cajon Blvd. Two off-street parking spaces. Walk to convenience stores. Close proximity to the trolley line and I-8 freeway. Rent: $1375.00 with a minimum six-month lease. Deposit: $1375.00 O.A.C. Bed: 3 Bath: 1.5 Pet Deposit is an additional $300.00 to the security deposit. Maximum weight for dogs is 25 pounds. ALL AVAILABLE UNITS ARE NON-SMOKING. Renters insurance is required. Applicants with eviction records are not accepted.

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If you'd like to see the house, please call my associate, Rhett, at 619.442.2065. He operates a nearby business, is readily available, can provide applications on the house but CANNOT answer questions about the house or leasing. If you have additional questions about the rental process, please call 619.264.3194. My name is Madeline and I will respond as soon as possible. THANK YOU FOR YOUR INTEREST! 675 El Cajon Blvd. (google map) (yahoo map)
cats are OK - purrr dogs are OK - wooof Location: El Cajon it's NOT ok to contact this poster with services or other commercial interests

2 of 3

7/1/2010 11:30 AM

Half off July's rent for qualified renters

http://sandiego.craigslist.org/esd/apa/1819709858 html

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PostingID: 1819709858
Copyright 2010 craigslist, inc. terms of use privacy policy feedback forum

3 of 3

7/1/2010 11:30 AM

Private House CLOSE TO ALL

http://sandiego.craigslist.org/csd/apa/1817181126.html

68

san diego craigslist > city of san diego > housing > apts/housing for email this posting to a friend rent
Stating a discriminatory preference in a housing post is illegal - please flag discriminatory posts as prohibited Avoid scams and fraud by dealing locally! Beware any arrangement involving Western Union, Moneygram, wire transfer, or a landlord/owner who is out of the country or cannot meet you in person. More info

please flag with care: miscategorized prohibited spam/overpost best of craigslist

Date: 2010-06-29, 9:09AM PDT Reply to: see below

Private 3 bedroom house, 2 bath, covered parking, section 8 ok, central a/c, washer/dryer, refrig, stove $800 security deposit Available now Call 858-586-1422
Location: El Cajon it's NOT ok to contact this poster with services or other commercial interests

PostingID: 1817181126
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1 of 1

7/1/2010 11:32 AM

Nice House with RV Parking

http://sandiego.craigslist.org/csd/apa/1815397654.html

69

san diego craigslist > city of san diego > housing > apts/housing for email this posting to a friend rent
Stating a discriminatory preference in a housing post is illegal - please flag discriminatory posts as prohibited Avoid scams and fraud by dealing locally! Beware any arrangement involving Western Union, Moneygram, wire transfer, or a landlord/owner who is out of the country or cannot meet you in person. More info

please flag with care: miscategorized prohibited spam/overpost best of craigslist

Date: 2010-06-28, 10:11AM PDT Reply to: see below

Nice 3 bedroom House Features: 2 bath, 1400 sq ft, RV parking, detached garage, w/d hookups, no pets Available 7/1 Call 858-547-4861
Location: El Cajon it's NOT ok to contact this poster with services or other commercial interests

PostingID: 1815397654
No contact info?

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1 of 1

7/1/2010 11:33 AM