Douglas D. Brunelle, Pro Per Renee C. Brunelle, Pro Per

2 8535 Paradise Valley Road Unit #29

3 Spring Valley, California 91977 Tel 619-871-2991

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8SUPERIOR COURT OF THE STATE OF CALIFORNIA

9COUNTY OF SAN DIEGO

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EAST COUNTY REGIONAL CENTER 11

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13FEDERAL NATIONAL MORTGAGE Case No.: 37-2012-00034472-CL-UD-EC

14 ASSOCIATION,

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Plaintiff,

VS.

DEFENDANT'S TRIAL BRIEF

IMAGED FILE

17 DOUGLAS D. BRUNELLE, RENEE C.

18BRUNELLE and Does 1-50, inclusive, Trial Date: July 11, 2012

Trial Time: 8:30am Defendants. Trial Dept: E-14

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24 Dated: July 4, 2012

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[DEFENDANT'S TRIAL BRIEF]

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TABLE OF CONTENTS

4 INTRODUCTION 4

I. SUMMARY OF ARGUMENT 6

7 A) Attorney Verification Loses Rebuttable Presumption 5

8 B) Trustee Deed Upon Sale violates CCC § 2924b(b)(2) 9

9 C) Failure to Comply with CCC §2924(a)(1)(C) 11

10 D) Failure to Comply with CCC $2924a 11

11 E) Subject Matter Exceeds Court's Jurisdictional Authority 11

12 F) Tender Does Not Apply 12

13 G) Allegations of Fraud Must Be Heard Before the Unlawful

14 Detainer 14

15II. CONCLUSION 14

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17 III. PRAYER 15

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19 Cases 20

Asuncion v Superior Court (1980) 108 CA3d 141, 145-146, 166 CR 306 4 21

Bank of America v. LaIolla Group II, 129 Cal.App. 4th 706, 710,717 (5th Dist. 22

2005 9 23

Bittleston Law etc. Agency v. Howard (1916) 172 Cal. 357, 360 [156 P. 515] 6 24

Consolidated Theatres, Inc. v. Theatrical Stage Employees Union, Local 16 25

(1968) 69 Cal. 2d 713, 721 11 26

Decamp v Kensington Corp (1978) 83 Cal. App.3d 268, 275 5 27

Evans v. Sup.Ct. (Robbins) (1977) 67 Ca1.App.3d 162, 169 13 28

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Hewitt v. Justice's Court, 131 Cal.App. 439, 443 [21 P.2d 641] 10

Kartheiser v. Superior Court (1959) 174 Cal.App.2d 617, 620 10

Keiffer v. Bechtel Corp (1998) 65 Cal.App.4th 893, 896 11

Marlow v. Campbell (1992) 7 Cal.App.4th 921, 928, 9 Cal.Rptr.2d 516, 520 .. 12

Mofrriage of Oddino (1997) 16 Ca1.4th 67, 73 11

Mehr v Superior Court (1983) 139 CA3d 1044, 1049, 189 CR 138 4

Nineteenth Realty Co. v. Diggs, 134 Cal.App. 278, 289 [25 P.2d 522] 10

Old National Financial Services, Inc. v. Seibert (1987) 194 Cal.App.3d

46Q, 465 10

San Joaquin County Human Services Agency v. Marcus W. (2010) 185

al.App.4th 182, 187-188 11

Seidel' v. Anglo-California Trust Co., 55 Ca1.App.2d 913, 920 [132 P.2d 12] 10

Vella v. Hudgins (1977) 20 Ca1.3d 251, 255 13

Statutes

California Evidence Code 403(a)

California Evidence Code § 500

California Evidence Code§ 1271

California Evidence Code § 1530(a)(2)

California Evidence Code § 1561

California Civil Code § 446

California Civil Code § 2924

California Civil Code § 2924(a)(1)(C)

California Civil Code § 2924H(b)2

California Code of Civil Procedure § 1161 a

California Code of Civil Procedure § 1161a(b)(3)

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Otier Authorities

California Rules of Professional Conduct 5-210(c)

Miller and Star 3 r1 10:220

INFTRODUCTION

This litigation is between a plaintiff-lender and a defendant-homeowner, rather

than between landlord and tenant, and title is at issue. Mehr v Superior Court

(1983) 139 CA3d 1044, 1049, 189 CR 138 (because of summary nature of

unlawful detainer proceedings, it is unsuitable forum to try complicated ownership

issues) .' Asuncion v Superior Court (1980) 108 CA3d 141, 145-146, 166 CR 306 -

(eviction of homeowners following foreclosure raises due process issues and must

be heard in superior court).

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 presumption that the property has been "duly sold" by foreclosure

proceedings, CCC § 1161 a (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.

In an unlawful detainer action, the Plaintiff 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 rd 10:220.

[DEFENDANT'S TRIAL BRIEF I

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Plaintiff relies on one key element in its Unlawful Detainer — the Trustee

Deed Upon Sale, which inaccurately reflects "FEDERAL NATIONAL

MORTGAGE ASSOCIATION (a/k/a "Fannie Mae") as the "foreclosing

beneficiary" entitled to purchase the property through a credit bid which is in

violation of CCC § 2924. Defendant's allegations demonstrate that the Trustee

Deed Upon Sale fraudulently names Federal National Mortgage Association as the

beneficiary. Defendant herein alleges that CCC § 1161a(b)(3), which mandates

that the Plaintiff comply with CCC § 2924 and duly perfect title, has been violated

in that the Trustee Sale violated CCC § 2924 and will not support an Unlawful

Detainer action.

1. SUMMARY OF ARGUMENT

A. ATTORNEY VERIFICATION LOSES REBUTTABLE PRESUMPTION

When an attorney verifies the complaint, CCC § 446 is clear that the

pleadings "shall not otherwise be considered as an affidavit or declaration

establishing the facts therein alleged". Case law is clear that attorney verification

is to be discouraged and should receive a strict construction, and even when that

strict construction is applied, no facts are established within the Complaint.

Getting verification from a party that resides in the next county is no longer a

significant challenge. The Court, in Decamp v Kensington Corp., (1978) 83 Cal.

App.3d 268, 275 clearly recognized the progression of our ability to communicate

quickly and that the problems of distance no longer presented the impossibility of

client verification, so much so that the Court proclaimed, "if the client can be

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The attorney points out in his/her verification (s)he "read the foregoing

document and know its contents" and "I am in./brined and believe" and on that

ground alleges that matters stated herein are true. His/Her verification is based on

"informed and believe" — not personal knowledge. One can almost read into this

that the attorney is standing in the shoes of the Plaintiff and acting as a witness to

the allegations of the Unlawful Detainer Complaint, and as such, at the minimum

there should be a written authorization by the Plaintiff allowing the attorney to

stand in their shoes and act as their "witness" (See California Rules of

Professional Conduct 5-2100)

"The object of the verification is to insure good faith in the averments of the

(Bittleston Law etc. Agency v. Howard (1916) 172 Cal. 357, 360 [156 P.

515].) According to CCP § 446 "When the verification is made by the

attorney ....in those cases the pleadings shall not otherwise be considered as an

affidavit or declaration establishing the facts therein alleged." (Emphasis

added)

Nowhere in the Plaintiff's pleadings is there a single declaration or affidavit

by the Plaintiff on any of the alleged "facts". Every document completed is by

some individual that is swearing under penalty of perjury, "upon information and

belief", not of personal knowledge. Unlawful Detainers, like foreclosures, are a

*aconian and drastic measure whose serious nature should warrant more than

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reached by mail, no such possibility exists... and the attorney verification is not

allowed."

[DEFENDANT'S TRIAL BRIEF]

a signature based on hearsay evidence', and every homeowner should be given

the opportunity to either present competent evidence or cross examine the

individuals who are "claiming the truthfulness" of recitals and "information and

belief".

The very nature of a "prima facie" case is such that a legal proceeding

should commence in which the "prima facie" evidence is tested before a court

ruling is made. By virtue of the attorney verification, Plaintiff willingly forgoes

any "presumptions" and must therefore prove each "element" and "fact" that the

recitals in the Trustee Deed Upon Sale is based on.

California Codes (evidence, civil and procedure) clearly state that business

re ords are nothing more than hearsay unless and if they are supported by

co npetent testimony, that rebuttable presumption is lost upon contest from the

opposing party, that a party to the matter choosing to verify through their attorney

foregoes establishing the facts.

California Evidence Code § 500 states: Except as otherwise provided by

law, a party has the burden of proof as to each fact the existence or nonexistence

of which is essential to the claim for relief or defense that he is asserting."

California Evidence Code § 1530(a)(2) requires that a purported copy of a writing

in the custody of a public entity either "be attested to or a certified as a correct

copy" — however all the recording of the TDUS proves is it was recorded;

iWebster definition of Hearsay evidence: evidence based not on a witness's personal knowledge but on another's statement not made under oath

[DEFENDANT'S TRIAL BRIEF I

according to California Evidence Codes §§ 403 2 and 1271 3 , the recording of the

TDUS does not establish the proof of the preliminary facts nor does it overcome

the hearsay rule of the recitals in the document unless and only if, there is

competent testimony to support the facts asserted within the document. Neither an

attorney nor a realtor can attest to and testify as to the validity and truthfulness of

the contents and recitals of the documents.

California Evidence Code § 1561 requires Plaintiff to provide evidence

about the source of information and how the TDUS was prepared; it is clear that

the document was not prepared by Plaintiff but rather the improper Trustee

cl4iming to have conducted the Trustee Sale. Defendant has the right to question

the preparation and validity of the contents of the document.

Defendant hereby objects to the Trustee Deed Upon Sale being entered into

evidence, as Defendants affirmative defense challenges the contents of the

ddcuments as hearsay.

2alifornia Evidence Code 403 (a) states "The proponent of the proffered evidence has the burden of producing

evidence as to the existence of the preliminary fact. and the proffered evidence is inadmissible unless the court

finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact. when:

(I) The relevance of the proffered evidence depends on the existence of the preliminary fact: (2) The preliminary fact is the personal knowledge of a witness concerning the subject matter of his testimony: (3) The preliminary fact is the authenticity of a writing; or (4) The proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself.

3California Evidence Code§ 1271: Evidence of a writing made as a record of an act. condition, or event is not made inadmissible by the hearsay rule when offered to prove the act. condition. or event if:

(a) The writing was made in the regular course of a business: (b) The writing was made at or near the time of the act. condition. or event: (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation: and (d) The sources of information and method and time of preparation were such as to indicate its

trustworthiness.

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B. TRUSTEE DEED UPON SALE VIOLATES CCC § 2924(B)(2)

In Bank of America v. LaJolla Group II, 129 Cal.App. 4th 706, 710,717 (5th

Dist. 2005) the Court found, "No statute creates a presumption — conclusive or

otherwise for any purchaser bona tide or otherwise — that any recitals in a

trustee's deed render effective a sale that had no contractual basis."

In this matter Defendant's Deed of Trust (Certified copy of pages 1 and 2,

and the signature page of the Deed of Trust, Instrument Number 2005-0984778,

attached as "Exhibit A") reflects that the Lender is First National Bank of

Arizona, MFRS is the "nominee" of the Lender and its successor and/or assigns,

and the Trustee is First American Title Company.

In this matter Plaintiff relies on the recitals and "statutory presumption" of

the Trustee Deed Upon Sale and Unlawful Detainer. "Statutory presumption" is

afforded only to those Plaintiffs who verify the , complaint, not to attorney

verifications; and there is no evidence that First National Bank of Arizona or

WRS has assigned the Note or Deed of Trust to Federal National Mortgage

Msociation.

(2) to require the last and highest bidder to deposit. if not deposited previously, the full amount of the bidder's final bid in cash, a cashier's check drawn on a state or national bank. a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state. or a cash equivalent which has been designated in the notice of sale as acceptable to the trustee. immediately prior to the completion of the sale. the completion of the sale being so announced by the fall of the hammer or in another customary manner. The present beneficiary of the deed of trust under foreclosure shall have the right to offset his or her bid or bids only to the extent of the total amount due the beneficiary including the trustee's fees and expenses.

9 'DEFENDANT'S TRIAL BRIEF]

"Under such unlawful detainer statutes it has been held that title, to the

extent required by section 1161a, 'not only may, but must, be tried in such actions

if the provisions of the statutes extending the remedy beyond the cases where the

conventional relation of landlord and tenant exists are not to be judicially

nullified.' " (Seidell v. Anglo-California Trust Co., 55 Cal.App.2d 913, 920 [132

P.2d 12].) To same effect, see Hewitt v. Justice's Court, 131 Cal.App. 439, 443 [21

P.2d 641]; Kartheiser v. Superior Court (1959) 174 Cal.App.2d 617, 620; See also

Nineteenth Realty Co. v. Diggs, 134 Cal.App. 278. 289 [25 P.2d 522]

Furthermore, Kessler reaffirmed the jurisdiction of the unlawful detainer

court to hear equitable defenses, specifically noting that the validity of the sale and

trustee's deed are properly raised as defense in an action under CCP 1161a(b)(3)

Id at 840.

In an action for unlawful detainer, section 1161a requires proof that the

property was -duly sold in accordance with Section 2924 of the Civil Code." Title,

to the extent required by section 1161a, "not only may, but must, be tried in such

actions." Kartheiser v. Superior Court (1959) 174 Call. App. 2d 617, 620.

As such, the Trustee Deed Upon Sale naming "Federal National Mortgage

Association" as the foreclosing beneficiary who did a credit bid is in direct

violation of CCC § 2924h(b)(2) and therefore possession MUST BE DENIED.

/0 [DEFENDANT'S TRIAL BRIEF]

C. FAILURE TO COMPLY WITH CALIFORNIA CIVIL CODE § 2924(A)(1)(C)

Plaintiff has the burden to demonstrate the sale was held in accordance with

the law, Plaintiff is required to present evidence at trial showing the party that

elected to conduct the sale under CCC § 2924(a)(1)(C) had the requisite legal

authority to do so. The "electing beneficiary" must have legal power deriving

from the original Note or Deed of Trust. Otherwise, the statute does not permit a

sale to take place. In this matter, First National Bank of Arizona is the named

1,6nder on the Note and Deed of Trust; Defendant denies Federal National

Mortgage Association has any rights to the Note and Deed of Trust. Plaintiff has

provided no evidence that Federal National Mortgage Association became the

"foreclosing beneficiary". The statute does not empower a stranger to elect the

remedy of sale.

D. FAILURE TO COMPLY WITH CCC § 2924A

Any notices listing Northwest Trustee Services as the trustee were improper

and incorrect, making the recitals in regards to the Notices defective.

E. SUBJECT MATTER EXCEEDS COURTS JURISDICTIONAL AUTHORITY

Subject matter jurisdiction is always at issue, whether or not raised in the

tri 1 court. See Consolidated Theatres, Inc. v. Theatrical Stage Employees Union,

Local 16 (1968) 69 Cal. 2d 713, 721; San Joaquin County Human Services

Agency v. Marcus W. (2010) 185 Cal.App.4th 182, 187-188; Marriage of Oddino

(1997) 16 Ca1.4th 67, 73; Keilfrr v. Bechtel Corp. (1998) 65 Cal.App.4th 893,

896.

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The Unlawful Detainer Court is a Limited Jurisdiction and as such lacks the

jurisdiction in which to award title. If the Unlawful Detainer Court recognizes

that title is at issue and needs to be awarded not just determined, then the

Unlawful Detainer Court is obligated to reclassify the case to the unlimited

jurisdiction, or stay the proceeding until the final outcome of the issues of title are

resolved. "If. the court in which the action is filed does not have the power to

adjudicate the action, the proceedings are void." Marlow v. Campbell (1992) 7

Cal.App.4th 921, 928, 9 Cal.Rptr.2d 516, 520.

Defendant hereby does allege that the Trustee Deed Upon Sale is fatally

defective and the Trustee Sale should be canceled and set aside. Defendant

realizes this is beyond this courts jurisdiction and respectfully requests this matter

be remanded to the appropriate Unlimited Jurisdiction Court.

F. TENDER IS NOT REQUIRED FOR DETERMINING POSSESSION

There is no tender required to determine possession. Tender is only

required to determine and return title. Stating that a Plaintiff has not perfected title

is not the same as awarding title to the Defendant.

The Unlawful Detainer Court is asked to listen to evidence as to WHY the

Plaintiff has not perfected title and has not complied with CCC § 2924 statute

upon which to base the Unlawful Detainer Complaint and to recognize the issue

of title is being litigated in the Supreme Court Of The State Of New York, County

Of New York, Index No. 151436/2012 (Attached as "Exhibit B"). The Court's

or4 job is to determine if title has been duly perfect and if CCC § 2924 has been

followed — the law does not allow for the Unlawful Detainer court to award the

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title to defendant. As such the Unlawful Detainer Court would be in error in

demanding tender in order for Defendant to be heard on the affirmative defense

that Plaintiff has not followed CCC § 2924 and duly perfected title as required by

CCC § 1161(b)(3) upon which to support the Unlawful Detainer.

G. ALLEGATIONS OF FRAUD MUST BE HEARD BEFORE THE

UNLAWFUL DETAINER

In an unlawful detainer action the Plaintiff is seeking to establish their right to

possession under CCP Sec. 1161 a, under which Plaintiff is obligated to show it

has perfected title. An "eviction after foreclosure . . . sale under CCP Sec. 1161a

requires the purchaser seeking eviction to have 'duly perfected' title. Thus, in Sec.

1161a UDs, a plaintiff's lack of perfected title is a defense." Friedman, Garcia &

Flagarty, Landlord-Tenant (The Rutter Group) Sec. 8:388, citing Vella v. Hudgins

(1977) 20 Ca1.3d 251, 255 and Evans v. Sup.Ct. (Robbins) (1977) 67 Cal.App.3d

162, 169.

The Vella court states: "A qualified exception to the rule that title cannot be

tried in unlawful detainer is contained in Code of Civil Procedure section 1161a,

which extends the summary eviction remedy beyond the conventional landlord-

tenant relationship to include certain purchasers of property . . . . CCP Section

1161a provides for a narrow and sharply focused examination of title." Vella,

supra, 20 Ca1.3d 251 at 255.

Because of its summary character, an unlawful detainer action is not a

suitable vehicle for trying complicated ownership issues involving allegations of

rand. Mehr v Superior Court (1983) 139 CA3d 1044, 1049, 189 CR 138. See

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Berry v Society of Saint Pius X (1999) 69 CA4th 354, 363, 81 CR2d 574 (title

cannot generally be tried in unlawful detainer action); Asuncion v Superior Court

(1980) 108 CA3d 141, 145-146, 166 CR 306 (eviction of homeowners following

foreclosure raises due process issues and cannot be heard as part of summary

unlawful detainer proceeding). Issues extrinsic to the right of possession are

generally excluded even though they arise out of the parties' landlord-tenant

relationship. E.S. Bills, Inc. v Tzucanow (1985) 38 C3d 824, 830, 215 CR 278;

Saberi v Bakhliari (1985) 169 CA3d 509, 515, 215 CR 359. (Emphasis added)

For these reasons, justice demands that the unlawful detainer action be stayed

until the allegations of fraud are heard in the related case.

II. CONCLUSION

Defendant adamantly denies that Respondent "acquired the property in

accordance with CCC § 2924 and duly perfected title". CCC § 1161a(b)(3) is

clear that Plaintiff must prove compliance with CCC § 2924 and having had duly

perfected title beyond all reasonable doubt.

The fundamental issue in an unlawful detainer proceeding is the plaintiffs

right to possession. (See Old National Financial Services, Inc. v. Seibert (1987)

194 Cal.App.3d 460, 465.) But where, as here, the unlawful detainer action is

brought pursuant to Code of Civil Procedure section 1161a, subdivision (b)(3) the

Plaintiff must show "[w]here the property has been sold in accordance with

Section 2924 of the Civil Code, under a power of sale contained in a deed of trust .

and the title under the sale has been duly perfected." A purchaser of the

ly [DEFENDANT'S TRIAL BRIEF]

DEFENDANT, in pro per

1-1 eat) \ D4te:

prbperty 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 ]. Here

Plaintiff relies on the defective Trustee Deed Upon Sale and possession therefore,

MUST BE DENIED.

III. PRAYER

1. That this Court will deny Plaintiff possession of Defendant's property.

2. That the matter be stayed until the final outcome of the litigation on title is

resolved.

3. That the Plaintiff be ordered to pay Defendant all costs in this matter.

'AR-ez-ruzsz_ C

DEFENDANT, in pro per

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