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JUDGE DENIED APPELLANT DUE PROCESS. THIS IS THE PROPOSED STATEMENT ON APPEAL THAT WAS FILED ON 2/17/2011
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Martin S Friedlander (Bar 36828)10350 Wilshire BlvdSuite 603Los Angeles California 90024Tel (310) 435-1519Fax (310) 278-7330
Attorneys for Defendant Anthony Grossman
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
PRO VALUE PROPERTIES INC et al
Plaintiff
vs
ANTHONY GROSSMAN DOES 1 TO 10
Defendants
CASE NO 10B01962
GROSSMANrsquoS PROPOSEDSTATEMENT ON APPEAL
JUDGE Christine Ewell
INTRODUCTION
The Courtrsquos statement of decision must explain the legal and factual basis of the
decision ldquoas to each of the principal controverted issuesrdquo at trial as ldquolisted in the Requestrdquo
CCP Sec 632 As shall be demonstrated below the Court failed in its duties A ldquoprincipalrdquo
or material issue is one ldquowhich is relevant and essential to the judgment and closely and
directly related to the trial courtrsquos determination of the ultimate issues in the case Kuffel v
Seaside Oil Co 69 Cal App 3 555 565 (1977) A statement of decision should set forthrd
ultimate facts rather than evidentiary facts Lynch v Cook 148 Cal App 3 1072 (1983) Itrd
should provide a narrative explanation of the judgersquos reasoning People v Casa Blanca
PROPOSED STATEMENT ON APPEAL
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Convalescent Homes Inc 159 Cal App 3 509524 (1984) The findings should not berd
so ldquoultimaterdquo that they are simply legal conclusions Eg findings that a ldquocontract existedrdquo
between the parties or that ldquocoverage existedrdquo under an insurance policy Such findings
ldquomake it extremely difficult if not impossible for the reviewing court to ascertain the basis
for the trial courtrsquos conclusion that ldquocoverage existedrdquo Employers Cas Co V
Northwestern Natrsquol Ins Group Cal App 3 462 473 (1980) Reversible error resultsrd
where a statement of decision ldquofails to make findings on a material issue which would fairly
disclose the trial courtrsquos determinationrdquo Sperber v Robinson 26 Cal App 4 736 745th
(1994) Grossmanrsquos objections should be ldquospecificrdquo Ripani v Liberty Loan Corp 95 Cal
App 3 603 615 (1979)rd
The undersigned contends that what this court conducted calling it a ldquotrialrdquo was a
farce and certainly did not meet the minimum expectations of ldquoDue Process of Lawrdquo
required by the 14 Amendment This Court overruled Grossmanrsquos request that allth
witnesses take the witness stand as is required in every court that this writer attended over
his 40 year career and certainly every Federal Trial the Trial Court attended as a Chief
Prosecutor for the US Attorneyrsquos office for the Central District of California major crimes
division This Court required both witnesses and attorneys to question the witness from the
counsel table which demeaned the court process as we all have known it throughout
history That irregular process prejudiced defense counsel since he had difficulty in
hearing the questions and answers which proceeded in ldquomachine gunrdquo style partially
precluding Evidence Code objections to be raised This court arbitrarily denied Grossman
a jury trial as timely requested by Grossman arbitrarily denied Grossmanrsquos statutory and
constitutional right to enforce validly served Subpoenas to extremely important and
relevant witnesses who had first hand knowledge of the ldquoirregularitiesrdquo in the foreclosure
procedure leading to the illegal sale to Pro Value The documents and testimony of the
Trustee who issued the NOS NOD and allegedly conducted the ldquosalerdquo ldquoriggedrdquo in favor of
Pro Value would have defeated Pro Valuersquos case
This Court ldquostifledrdquo Grossmanrsquos counsel from posing relevant questions to the
PROPOSED STATEMENT ON APPEAL-2-
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witnesses including his narrative by admonishing counsel to ldquoshooshrdquo as a polite way of
refusing to adhere to the Evidence Code and the Constitution Friedlander was duly
ldquoshooshedrdquo under pain of contempt This Court abused it power by stifling Defense
counsel It appeared to defense counsel that this Court used ldquotime constraintsrdquo to
ldquotrumprdquo justice and ldquodue processrdquo No reasonable bench trial could have been
conducted in three 45 minute segments especially one that required documentary
evidence that needed foundation and relevance Friedlander thus made an offer of
proof but there was no court reporter to record that process to preserve the record
on appeal Thus Friedlander on almost a daily basis submitted memorandums of
law to assist the court in following the law
THE REQUEST FOR STATEMENT OF DECISION
Pursuant to CCP Sec 632 and CRC Rule 632 Defendant Anthony Grossman
requested in writing that the Court issue a written Statement of Decision explaining the
factual and legal basis for its decision with respect to the following controverted issues
1 The factual and legal basis of this Court Quashing the Subpoenas served on the
Seaside witnesses in a ldquosua sponterdquo manner when the law required a Motion to quash
not an objection The court failed to do so
2 The factual and legal basis as to whether or not Anthony Grossman was properly
served with a 3 day Notice to Quit as required by statute To be discussed later
3 The factual and legal basis as to whether or not Pro Value was a bona fide purchaser
The court refused and failed to do so on the basis of relevancy based on the
evidence that it claims it properly excluded However the court did receive in
evidence the Lis Pendens recorded by Grossman which put Pro Value on
Constructive Notice which by itself would have precluded Pro Value from being a
BFP The Court failed to deal with the legal consequences of that Lis Pendens in the
context of a BFP Carleen Riojas the office managerrsquos testimony was worthless
She testified that she did not recall the telephone conversation that she had with
PROPOSED STATEMENT ON APPEAL-3-
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Friedlander Friedlander testified without objection that Riojas told him that she
was the office manager that she pulled the Grossman file that she knew before
the sale that Grossman had recorded a Lis Pendens and that he had claims to the
property (actual notice) she testified that was a basis of a conversation with
Seaside the Trustee and the sales price was negotiated downward due to the
impediment prior to any actual sale which gives credence to Grossmanrsquos claim that
the sale was rigged Riojas was given an opportunity to change her testimony but
she did not Friedlanderrsquos testimony puts the ldquolierdquo to Riojasrsquo testimony and she was
anything but credible Friedlander even offered into evidence a letter that he wrote
to Pro Value after his conversation with Riojas which Friedlander testified that it
was his business practice over 40 years to reiterate a conversation in a letter to the
other side to memorialize that conversation for a trial to take place many months or
years later Friedlander was not cross-examined
The Trial Court deliberately refused to render a factual and legal basis as to
whether Pro Value was a BFP and left it ambiguous That is deliberate error and a
denial of due process
A bona fide purchaser is one who pays value for the property without notice of any
adverse interest or any irregularity in the sale proceeding Nguyen v Calhoun 105 Cal
App 4 428 (2003) The Lis Pendens gave ldquoconstructive noticerdquo to the ldquoworldrdquo includingth
Pro Value Thus Pro Value was on ldquoconstructive notice Friedlander testified that the office
manager told him that Pro Value had ldquoactual noticerdquo a fact that has not been challenged
by Pro Value Friedlanderrsquos testimony established that not only did Pro Value have notice
of ldquoirregularitiesrdquo in the sale proceedings but Pro Value participated in those irregularities
per Friedlanderrsquos sworn testimony as to the arrangement of the price before the sale Pro
Value offered no testimony whatsoever as to the actual sale and bidding
The Trusteersquos Deed should not have been admitted into evidence pursuant to
Judicial Notice since it was ldquoirregularrdquo on its face The Trial Court should have noted that
the ldquoamount of the Unpaid Debtrdquo was left blank Both Bayview and Seaside knew or
PROPOSED STATEMENT ON APPEAL-4-
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should have known what the ldquoUnpaid Debtrdquo was The Trusteersquos Deed was not an affidavit
but a Notarial Acknowledgment that Elvia Bouche signed the document as Vice President
of Seaside It doesnrsquot make the facts in that document ldquotruerdquo
4 The factual and legal basis as to whether or not Bayview was an Assignee of the
Original Lender on the date that it substituted Seaside as Trustee of the Grossman TD
The court deliberately failed to do so even after admitting into evidence the
ldquoAllongerdquo which stated on its face that the Note that Grossman signed in favor of
the original lender was endorsed over to HSBC an entity other than Bayview That
Allonge was faxed to Friedlander by Northwestern Trustee the prior Trustee
appointed by Bayview on a date prior to Seasidersquos involvement and puts the lie to
the backdated and forged Assignment referenced in Pro Valuersquos Exhibit 2 This
Court intentionally neglected to state that Exhibit 2 was recorded on 382010 one
day before the sale This court covered up the fraud and perjury of Bayview and
Seaside by admitting that document into evidence and using that document to
support its decision It was backdated to 6102009 which could not have been
prepared by Seaside since Seaside was appointed on 832009 according to Exhibit
1
Since Bayview did not own the note it could not enforce the security for a
note that it did not own We will cite numerous authority in our brief which will
include a reference to a recent decision of the Supreme Court of Massachusetts
5 The factual and legal basis as to whether or not Seaside was a duly authorized Trustee
on the date that they recorded the Notice of Default and Notice of Sale This court did
not answer that question The evidence that it rejected reflected that on the date the
NOD and NOS was recorded Seaside was appointed by an entity other than the
original lender rendering all recordings a ldquonullityrdquo Exhibit 2 recorded on 382010
and back dated to 692010 was Bayview and Seaside attempt to ldquocover-uprdquo the
invalidity of the prior recording of the NOD and NOS by Seaside We have a
subornation of perjury here by Pro Value by offering into evidence it knew was
PROPOSED STATEMENT ON APPEAL-5-
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ldquofalsersquo Pro Value committed a fraud on the Trial Court and put into disrespect the
ldquorule of lawrdquo which that Court swore to uphold
6 The factual and legal basis as to whether or not the Lis Pendens recorded by Grossman
in December 2009 precluded the later Assignment recorded on March 8 2010 from being
subject to the pending action in Department 53 of the LASC The court failed and
refused to address that material issue of law and fact
7 The factual and legal basis as to whether or not Seasidersquos Trusteersquos Deed was null and
void on the date that it was recorded The court failed and refused to address that
material issue of law and fact
8 The factual and legal basis as to whether or not the Trusteersquos Deed passed legal title to
Pro Value The court failed and refused to address that material issue of law and
fact
9 The factual and legal basis as to whether or not the Assignment that was recorded by
Seaside on 382010 was backdated by Seaside and fraudulently signed by an alleged
officer of MERS on the date that it was notarized by the Florida notary The court failed
and refused to address that material issue of law and fact
10 The factual and legal basis as to whether or not Grossman received a ldquofair trialrdquo as that
term is defined by the cases decided under the 14 Amendment The court failed andth
refused to address that material issue of law and fact However Grossman addressed
that issue to the effect that he did not receive a ldquofair trialrdquo
11 The factual and legal basis as to whether or not Trustee and Bayview complied with
Federal and California law with respect to the Trusteersquos sale allegedly conducted by the
Trustee andor its agents The court failed and refused to address that material issue
of law and fact However Friedlander filed a Memorandum of Law that ldquoHearsay in a
Recorded Documentrdquo is still ldquohearsayrdquo and inadmissable Friedlander testified under oath
without objection that the Trustee and Bayview did not comply with those requirements of
law For example Friedlander testified that CC Sec 29235 was not complied with There
was no testimony by Bayview or declaration signed and recorded by Bayview that Bayview
PROPOSED STATEMENT ON APPEAL-6-
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complied with CC Sec 29235 (a)(1) (2) (b) or c The use of the word ldquodeclarationrdquo in
subparagraph should be interpreted to mean a declaration by a mortgagee or beneficiary
A declaration by a Trustee is rank hearsay rendering the entire NOD and NOS void
precluding a sale Friedlanderrsquos testimony was first hand knowledge and certainly trumped
ldquohearsayrdquo CC Sec 29235 was not complied with per the testimony of Friedlander The
Trusteersquos declaration as to what Bayview told her is rank hearsay It required a declaration
by Bayview No such declaration was filed CC Sec 292354 (a) required a declaration
from the mortgage loan servicer (Bayview) in the Notice of Sale It did not The declaration
by the Trustee is not only rank hearsay but did not comply with the Civil Code and the
testimony of Friedlander trumps Pro Value on that issue
12 The factual and legal basis as to whether or not Grossman prevailed on any one or
more of his affirmative defenses The court failed and refused to address that
material issue of law and fact
13 The factual and legal basis as to whether or not the California Unlawful Detainer
Statute is Unconstitutional under either one or more of the Constitutional defenses raised
by Grossman in his answer The court failed and refused to address that material
issue of law and fact
Tender is not an issue in this UD case It may be an issue in the main case entitled
Grossman v Bayview In any event Bayview did not own the Note per the Allongerdquo and
therefore there was no duty to tender Tender is a ldquored herringrdquo irrelevant issue in this
case
DEFENDANT WAS NOT PROPERLY SERVED
All Pro Value offered was Bodinersquos testimony for what it was Process servers are
notorious for ldquosewer servicerdquo Defense counsel has set aside quite a few one of which
resulted in a published decision Bodine testified that he was employed by Bouzane The
Court may take judicial notice of the fact that on the day of the alleged service Bouzane
was under a 2 year suspension stayed for violation of the State Bar ethics Bouzane
headed up an ldquoEviction Millrdquo by the name of ldquoFAST EVICTION SERVICErdquo per Bodinersquos
PROPOSED STATEMENT ON APPEAL-7-
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testimony One wonders why eviction is so fast Neither Bodine nor Bouzane made any
effort to determine whether Grossman had a business address Bodine testified that he
mailed the Notice to Grossman but the return address was Fast Eviction Service and he
did not open its mail Grossman testified he was an attorney That he never saw a Notice
on his screen door and he received no such notice in the mail The first time he saw such
a notice was when he was served a second time with the Summons and Complaint the
first and second service being quashed Grossman testified that he was looking out for
such a Notice since he found out that the Property had been sold and that he would be
receiving a Notice to Quit What led the court to believe that Grossmanrsquos testimony was
ldquoless crediblerdquo That statement brought into question the Courtrsquos entire analysis of this
case Grossman was an attorney testifying under oath while Bodine was a run of the mill
process server working for an attorney who had been disciplined by the State Bar The
Courtrsquos analysis is upside down in favor of pushing through a ldquofloodrdquo of evictions We
believe that the service requirements of the service of a Notice to Quit after a Non-Judicial
sale should meet the same notice and due process requirements of Service of a
Summons and Complaint To the extent that it doesnrsquot we contend that portion of the UD
statute is unconstitutional under the 14 Amendmentth
Joe Nocera business reporter for the New York Times wrote in the October 23
2010 business section of the New York Times regarding the Bank of America and
Countrywide the following
ldquoBut it simply does not follow that the Bank therefore has an absolute right
to take back the home Under the law it has to prove it has that right-by filing
documents that show that the owner of the mortgage has conveyed that right to it
Thatrsquos why this affidavit scandal isnrsquot some legal nicety Itrsquos about the single most
important value of American jurisprudence Due Processrdquo The Allonge proves that
Bayview did not own the Note and therefore did not have the right to enforce it by non-
judicial sale The Allonge was admitted into evidence and it establishes Grossmanrsquos
case for a defense judgment The phony backdated assignment does not trump the
PROPOSED STATEMENT ON APPEAL-8-
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Allonge
RELEVANT PORTIONS OF GROSSMAN TRIAL BRIEF
sect 2936 Assignment of debt carries security
Mortgage passes by assignment of debt The assignment of a debt secured by mortgage
carries with it the security
A mortgage being a mere security for debt it is not transferable without
transfer of the debt Johnson v Razey (1919) 181 Cal 342 184 P 657
Debt and security are inseparable the mortgage alone is not a subject of
transfer Hyde v Mangan (1891) 88 Cal 319 26 P 180
Wests AnnCalCivCode sect 2937 provides ldquoNotices to borrower of transfer of service
by existing and new servicing agent of mortgage or deed of trust on single family
residential real property
(a) The Legislature hereby finds and declares that borrowers or subsequent
obligors have the right to know when a person holding a promissory note bond or other
instrument transfers servicing of the indebtedness secured by a mortgage or deed of trust
on real property containing one to four residential units located in this state The
Legislature also finds that notification to the borrower or subsequent obligor of the transfer
may protect the borrower or subsequent obligor from fraudulent business practices and
may ensure timely payments It is the intent of the Legislature in enacting this section to
mandate that a borrower or subsequent obligor be given written notice when a person
transfers the servicing of the indebtedness on notes bonds or other instruments secured
by a mortgage or deed of trust on real property containing one to four residential units and
located in this state
(b) Any person transferring the servicing of indebtedness as provided in subdivision
(a) to a different servicing agent and any person assuming from another responsibility for
servicing the instrument evidencing indebtedness shall give written notice to the borrower
PROPOSED STATEMENT ON APPEAL-9-
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or subsequent obligor before the borrower or subsequent obligor becomes obligated to
make payments to a new servicing agent
copy In the event a notice of default has been recorded or a judicial foreclosure
proceeding has been commenced the person transferring the servicing of the
indebtedness and the person assuming from another the duty of servicing the
indebtedness shall give written notice to the trustee or attorney named in the notice of
default or judicial foreclosure of the transfer A notice of default notice of sale or judicial
foreclosure shall not be invalidated solely because the servicing agent is changed during
the foreclosure process
(d) Any person transferring the servicing of indebtedness as provided in subdivision
(a) to a different servicing agent shall provide to the new servicing agent all existing
insurance policy information that the person is responsible for maintaining including but
not limited to flood and hazard insurance policy information
(e) The notices required by subdivision (b) shall be sent by first- class mail postage
prepaid to the borrowers or subsequent obligors address designated for loan payment
billings or if escrow is pending as provided in the escrow and shall contain each of the
following
(1) The name and address of the person to which the transfer of the servicing of the
indebtedness is made
(2) The date the transfer was or will be completed
(3) The address where all payments pursuant to the transfer are to be made
(f) Any person assuming from another responsibility for servicing the instrument
evidencing indebtedness shall include in the notice required by subdivision (b) a statement
of the due date of the next payment
PROPOSED STATEMENT ON APPEAL-10-
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(g) The borrower or subsequent obligor shall not be liable to the holder of the note
bond or other instrument or to any servicing agent for payments made to the previous
servicing agent or for late charges if these payments were made prior to the borrower or
subsequent obligor receiving written notice of the transfer as provided by subdivision (e)
and the payments were otherwise on time
(h) For purposes of this section the term servicing agent shall not include a
trustee exercising a power of sale pursuant to a deed of trust
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Star 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
PROPOSED STATEMENT ON APPEAL-11-
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9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
PROPOSED STATEMENT ON APPEAL-12-
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foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
The undersigned spent his time researching the law as ldquoevictionsrdquo based on judicial
and non-judicial foreclosures sales are overwhelming our state and federal court systems
Having handled many ldquolis pendensrdquo cases ldquoconstructive noticerdquo based on a recorded ldquolis
pendens the undersigned will discuss the effect of the recordation of a lsquolis pendensrdquo on a
party claiming to be a bona fide purchaser (ldquoBFPrdquo) Simply put there is no such ldquoanimalrdquo
even though Pro Value asserts that it is a BFP Whether or not Pro Value is a BFP affects
presumptions rebuttable or conclusive Pro Valuersquos counsel misrepresented to the Court
that Pro Value was a BFP and the undersigned says ldquohogwashrdquo
Aside from the evidence and testimony the law is very unclear due to the recent
legislation passed by Congress and California to ldquoprotectrdquo homeowners from being
ldquotossedrdquo out on the street due to what the undersigned has read about the ldquounsavoryrdquo
foreclosure and eviction mills throughout this country
PROPOSED STATEMENT ON APPEAL-13-
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2
3
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Simply put I place John Bouzane dba Fast Eviction Service in the category of an
ldquoeviction millrdquo We had a ldquoreasonablerdquo expectation that the ldquoattorney of recordrdquo would
appear at trial as the ldquotrial attorneyrdquo since Bouzane verified the UD complaint and
subjected himself to be called as a witness by the Defense
Counsel for Pro Value stated that the statute which permitted non-judicial
foreclosure is constitutional I know that since there is no ldquostate actionrdquo Grossman
challenges the Constitutionality of the ldquoevictionrdquo statutes since it requires ldquoState Actionrdquo to
evict a homeowner from their home after a non judicial sale That is an undecided issue
which the undersigned looks forward to present That is why Grossman requested to make
an evidentiary record so that the Court may decide the Constitutional issues There are
many attorneys in the ldquoborrowerrsquos barrdquo who await such a declaration of unconstitutionality
It is not a frivolous position Prior to Sniadach v Family Finance I was writing briefs that pre
judgment attachments without notice and a hearing violated the due process clause of
the 14 Amendment That case was decided by the US Supreme Court before anth
appellate court heard the same argument from the undersigned
FUNCTION OF THE JUDGE
The major feature of a bench trial is that the judge sits as the trier of fact The
Judge determines the admissibility weighs the evidence determines credibility and
renders judgment CCP Sec 6318 (a) Davis v Kahn (1970) 7 Cal App 3 868 874rd
Bullockrsquos Inc v Security First national Bank of Los Angeles (1958) 160 Cal App 2 277nd
285 Judges are precluded from conducting independent investigations outside the
courtroom because to do so would be a denial of due process denying to a litigant the
fair and impartial trial to which everyone is entitled Conservatorship of Schaeffer (2002)
98 Cal App 4 159 164 The general order of proceedings is set forth in CCP Sec 607th
6317
The Courtrsquos reference to ldquotenderrdquo in a non-lease situation raised a suspicion that
this Court referenced some of the proceedings in Grossman v Bayview where ldquoTenderrdquo
was made an issue by Schloss the attorney for Bayview and Seaside We requested the
PROPOSED STATEMENT ON APPEAL-14-
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Court to address why it referenced ldquotenderrdquo in the context of this type of unlawful detainer
case It did not do so Error
According to California Civil Handbook and Desktop Reference Thomas 2007 Ed
at P 874 ldquoThere is considerable controversy as to whether a court may reconsider its
prior ruling at any time-and if so in what manner the issue may be raisedrdquo WE RAISED IT
THROUGHOUT THE ENTIRE PROCEEDINGS WHICH THE TRIAL COURT IGNORED
See discussion in Kerns v CSE Ins Group (2003) 106 Cal App 4 368 383-389th
Defendant requested the court to reopen the case and grant a continuance if necessary
Thomas at P 875 The court had the inherent power it may be done on the courtrsquos own
motion when required by the interests of justice It failed to do so
This court made reversible error and denied Grossman a fair trial by ldquoguttingrdquo
Grossmanrsquos defense when it on its own motion sua sponte quashed the SDTs served on
the Seaside witnesses Grossman proved by competent evidence that the SDTs were duly
served on all of the Seaside witnesses in accordance to CCP Sec 1987 The Objections
admitted service the witnesses did not testify in their affidavits that ldquothey demanded
witnesses feesrdquo from the process server It was the witnesses burden of proof to declare
under oath that they demanded fees and were not paid It is common knowledge that
process servers are trained not to offer witness fees unless they are demanded If the
witnesses had testified that they demanded witness fees at the time they were served
then we would have produced affidavits from the process server that the fees were not
demanded
CCP Sec 19871 (a) provided for a motion The attorneys for the witnesses filed an
objection not a motion The witnesses did not follow the procedure set forth by law The
objections should have been summarily denied Instead the Court took the bench and sua
sponte quashed each of the subpoenas The court refused to allow the undersigned to
object to this unconstitutional procedure Subsection (b) of 19871 (b) provided ldquoon the
courtrsquos own motion after giving counsel notice and an opportunity to be heard or any
reason whatsoever for issuing this unlawful ldquosua sponterdquo order Grossmanrsquos counsel was
PROPOSED STATEMENT ON APPEAL-15-
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2
3
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5
6
7
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given no notice whatsoever refused Grossmanrsquos counsel an opportunity to be heard and
over his objection the court told him to ldquobe quiet and sit downrdquo which he did That order
was a blatant violation of CCP Sec 19871 (b) denied Grossman a fair trial and
evidenced a bias against either Grossman or his counsel or there may be an agenda in
that courthouse to ldquorailroad throughrdquo all of the UD cases since they were ldquoclogging uprdquo an
over burdened court with limited funds due to the very meltdown caused by MERS and
their cohorts such as the Wall Street institutions We believe a former Chief Assistant US
Attorney Criminal Trials Division should have known better Grossman was entitled to the
evidentiary material that he subpoenaed was entitled to cross-examine Ms Weber to
whom Friedlander had corresponded with wrote letters to and Seaside plead the 5th
Amendment to discovery requests such as production of documents admissions that one
of the documents were backdated and forged and that crimes were committed Seaside
being a corporation was not permitted to assert the 5 Amendmentth
The following was the ldquooffer of proofrdquo of the relevancy of the Seaside witnesses
testimony and documents At the time that Bayview using MERS as its conduit was the
Assignee from a Lender who was not the lender of record by virtue of the TD introduced
into evidence by Pro Value The Assignor was a different entity than the Lender The
original Lender was bankrupt and therefore any agency that existed at the time that
Grossman signed the original TD was terminated by operation of law due to the
bankruptcy of the original lender Since Bayview was the Assignee of an entity other
than the original lender Bayview lacked both the power and authority to appoint Seaside
as Trustee Therefore any NOD and NOS issued by Seaside was void as a matter of
law That is the reason why a new backdated assignment was prepared by Seaside
signed by an ldquoallegedrdquo officer of MERS before a Notary was recorded on 382010 and the
sale took place on 392010 Since Pro Value was never a BFP due to the recording of
the lis pendens the Trusteersquos deed was void as a matter of law We demanded that this
court admit into evidence the assignment proving that Seaside was not a duly authorized
Trustee at the time they recorded the NOD and NOS Both the NOD and NOS were void
PROPOSED STATEMENT ON APPEAL-16-
1
2
3
4
5
6
7
8
9
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11
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22
23
24
25
26
27
28
as a matter of law and so is the title of Pro Value This court committed error by not
admitting this evidence
In Alfaro v Community Housing Imp System amp Planning Assn Inc 171
CalApp4th 1356 (CalApp 6 Dist2009) The Court of Appeal in 2009 dealt with the
issue of the recording of a lis pendens and constructive notice and actual notice as
follows
ldquoOne of the central issues in this appeal is whether plaintiffs are chargeable withnotice of the deed restriction at an earlier time than its disclosure in the grant deeds Asexplained above the recording of a deed restriction is ordinarily regarded as imparting
iCivCode sect 1213constructive notice of its contents to subsequent purchasers (
Anderson supra 12 Cal4th 345 349 355 47 CalRptr2d 898 906 P2d 1314)Anderson supra 12 Cal4th 345 47 CalRptr2d 898 906 P2d 1314 went on to state onpage 355 47 CalRptr2d 898 906 P2d 1314 ldquoConstructive notice is ldquothe equivalent ofactual knowledge ie knowledge of its contents is conclusively presumed (4 WitkinSummary of Cal Law [ (9th ed 1987) ] Real Property sect 203 p 408 italics in original)rdquo
Defendants rely on Anderson as establishing that plaintiffs had constructive notice andFN21
actual knowledge of the deed restriction by virtue of its recording and by virtue of thisknowledge cannot successfully allege that defendants failed to disclose it
FN21 This quotation from Witkin is based on two cases AlhambraRedevelopment Agency v Transamerica Financial Services (1989) 212 CalApp3d1370 261 CalRptr 248 observed ldquoHere it is undisputed the Flemings properlyrecorded the contract thereby giving Transamerica constructive if not actual noticeof the contractrdquo ( Id at p 1377 261 CalRptr 248) Anderson v Willson (1920) 48CalApp 289 191 P 1016 stated ldquoWithout doubt the presumption of notice thusraised by this code provision is conclusive and incontrovertiblerdquo ( Id at p 293 191P 1016) Both cases concluded that a person with constructive notice did notqualify as a bona fide purchaser without notice Neither case attributed actualknowledge to the purchaser At most constructive notice has been conclusivelypresumed As we proceed to explain in the text there is a difference betweenactual and constructive notice
There was a caveat in Anderson however ldquo lsquoIf future takers purchase a piece ofproperty with notice of a restriction made by a predecessor then in the absence of duressor fraud they may ordinarily be thought to have bargained for the property with therestriction in mind and to have shown themselves willing to abide by itrsquo rdquo ( Andersonsupra 12 Cal4th at p 366 47 CalRptr2d 898 906 P2d 1314 emphasis added)
Plaintiffs argue that the doctrine of constructive notice does not apply to fraudcauses of action Bishop Creek Lodge v Scira (1996) 46 CalApp4th 1721 54CalRptr2d 745 ( Scira ) stated on page 1734 54 CalRptr2d 745 ldquoUnder a long line ofcases the fact that the victim had constructive notice of the truth from public records is nodefense to fraud The existence of such public records 1386 may be relevant to whetherthe victims reliance was justifiable but it is not by itself conclusive ( Seeger v Odell(1941) 18 Cal2d 409 414-417 115 P2d 977 [ ( Seeger ) ] Grange Co v Simmons(1962) 203 CalApp2d 567 576-577 21 CalRptr 757 Gross v Needham (1960) 184CalApp2d 446 460 7 CalRptr 664 Sullivan v Dunnigan (1959) 171 CalApp2d 662668 341 P2d 404 Regus v Schartkoff (1957) 156 CalApp2d 382 389 319 P2d 721 Schaefer v Berinstein (1956) 140 CalApp2d 278 296 295 P2d 113 Mills v
PROPOSED STATEMENT ON APPEAL-17-
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2
3
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5
6
7
8
9
10
11
12
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15
16
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18
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20
21
22
23
24
25
26
27
28
Hellinger (1950) 100 CalApp2d 482 487 224 P2d 34 Barder v McClung (1949) 93CalApp2d 692 697 209 P2d 808 Stoll v Selander (1947) 81 CalApp2d 286 292 183P2d 935 Anderson v Thacher (1946) 76 CalApp2d 50 70 172 P2d 533)rdquo Therationale for this exception is ldquoThe purpose of the recording acts is to afford protection notto those who make fraudulent misrepresentations but to bona fide purchasers for valuerdquo (Seeger supra 18 Cal2d at p 415 115 P2d 977) Defendants do not discuss thisauthority cited by plaintiffs in their briefsrdquo
The court did not need a lecture from the undersigned that the purpose of the
recording of a Lis Pendens is to give ldquoConstructive Noticerdquo to the world especially to Pro
Value The court knew that the memorandum of law submitted by Pro Value was not worth
the paper it was written on as to its claim that Pro Value was a BFP That is the first thing
they teach law students in law school It is hornbook law as they say in law school The
office manager told Friedlander that she knew that Grossman had filed a lis pendens Not
only did Pro Value have ldquoconstructiverdquo notice they had actual notice Friedlander was
precluded from testifying that Pro Valuersquos attorney requested a copy of the complaint and
promised not to file an unlawful detainer suit against Grossman A short time thereafter on
3302010 an attorney named Bouzane filed the UD The promise made by an agent who
is authorized to speak is binding on his principal This attorney told Friedlander that his
client was in the room with him He believed him since he heard voices in the background
He justifiably relied on that representation of Pro Valuersquos attorney who was sitting in the
room with the attorney The courtrsquos refusal to permit Grossman to put on relevant
evidence is the sole reason for the so-called lack of evidence as enunciated by this
Court in its proposed Statement
Did the court really believe that Friedlander called Pro Value to talk about
settlement Hogwash The Office Manager lied through her teeth and Pro Value suborned
this perjury by objecting on the grounds of ldquosettlementrdquo Friedlander knew what he said to
her and she knew what she said to him His sworn testimony was totally different and
since she lied that she did not remember our conversation she was not in a position to
contradict his testimony Her choice would be to admit perjury to the court or commit
perjury by testifying to something he said which she did not remember Friedlander was
PROPOSED STATEMENT ON APPEAL-18-
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5
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7
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prepared to prove by his sworn testimony regarding some of the declarations of mailing in
the courtrsquos file that if they were mailed they were never received by me They would have
been impeached and I would file a complaint with the District Attorney to investigate this
perjury The conduct of Bouzane and his agents such as the process server were
designed to deprive people like Grossman of their homes and throw them out on the
street Perjury is being suborned The fraud on the court marched on
TITLE ISSUES
A qualified exception to the rule that title cannot be tried in an unlawful detainer
proceeding [see Evid Code sect 624 545[1][c]] is contained in CCP sect 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 sect 1161a Vella v Hudgins (1977) 20 C3d 251 255
Words and Phrases
The term duly implies that all of those elements necessary to valid sale exist
Kessler v Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title that is
duly perfected includes good record title but is not limited to good record title Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title is duly perfected
when all steps have been taken to make it perfect that is to convey to purchaser that
which he has purchased valid and good beyond all reasonable doubt Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837
Grossman filed his verified answer on 72310 Denied Par 6 Denied Par 7 alleging
fraud and a rigged sale Denied par 8 that he was served with a Notice to Quit Denied
Par 9 based on failure of service of notice to quit Denied Par 10 Denied paragraphs 11
and 12 First Affirmative Defense Failed to state a cause of action Second Affirmative
PROPOSED STATEMENT ON APPEAL-19-
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2
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Defense Not properly verified by Pro Value only Bouzane Third Affirmative Defense No
Notice to Quit Fifth Affirmative Defense Denial of Due Process under the 14th
Amendment Sixth Affirmative Defense Denial of Procedural Due Process under the 14th
Amendment Seventh Affirmative Defense Denial of Equal Protection of the law under the
14 Amendmentth
FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT
1 Service of Notice to Quit
2 Compliance with the law regarding the TD sale
LEGAL ISSUES NOT DECIDED BY THE COURT
1 The two due process arguments under the 14 Amendmentth
2 The equal protection Argument under the 14 Amendmentth
3 Denial of Right to Trial by Jury
PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH
EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE
On 2202009 California enacted into law the California Foreclosure Prevention Act as
an amendment to CC Sec 2923 If Bayview took an assignment from a Lender who was not
the Lender as reflected by the Assignment that the Court wrongfully refused to admit into
evidence and gave it back to me until I requested that the Assignment be marked and that the
Courtrsquos minute order reflect that it was offered and refused on the grounds of relevancy and
no other ground That is reversible error A Trustee appointed by an Assignee without good
title is a nullity and every act that Seaside Trust took was a nullity That Assignment which
should have been admitted would prove the fact of nullity and Grossman would be entitled to
move for judgment when Pro Value rested We request the Court to reverse its original refusal
to admit that Assignment into evidence and then grant judgment to Grossman as the Trusteersquos
Deed is null and void That was my offer of proof of relevancy
PROPOSED STATEMENT ON APPEAL-20-
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2
3
4
5
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7
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1 Under CC Sec 29235 the lender must contact the borrower At that point of time I
had given notice to Bayview that I was the attorney for the borrower Pro Value has offered no
evidence Grossman fell within the provisions of CC Sec 2923 as the TD offered into evidence
by Pro Value reflects that Grossman entered into the loan during the period from 112003 -
12312007
2 Pro Value offered no evidence that it complied with CC Sec 29236 offered a loan
modification plan to Grossman
3 Pro Value offered no evidence that it complied with CC Sec 2923 or that Bayview
was exempt
4 Pro Value offered no evidence that it complied with the provisions of HARP (12
USC Sec 1524) which was part of the ldquoeconomic stimulusrdquo to prevent foreclosures and
revitalize the housing sector
5 Pursuant to CC Sec 2924 the Trusteersquos Deed will presume the sale to be valid and
conclusively presumed to be valid if Pro Value was a BFP which it was not Pro Value failed to
prove its case for the following reasons (1) it was not the duly appointed Trustee (2) the
backdated and forged assignment allegedly was from the true lender after it went bankrupt
which required Bayview to record a new document appointing Seaside as its Trustee There is
no relation back case cited by Pro Value since it does not exist Even if it existed the law still
required the duly appointed Trustee under the new assignment to record the NOD and NOS
and comply with all of the other provisions of State and Federal Law which it could not and
did not do thereby making the Trusteersquos deed a ldquonullityrdquo without any presumptions of validity
Plaintiff claimed they have complied with CC Sec 2924 in paragraphs 4 thru 7 of
their complaint that they have met the burden of proof in that a sale had occurred and the
trustees Deed establishes this presumption that the sale was ldquoduly Perfectedrdquo and the Civil
has been complied with Defendant claimed that they did not and Plaintiff has submitted
to the court a certified copy of the Notice of Trustees Sale and asked the court to take
judicial notice of said document as well as the Trusteersquos Deed We requested the court to
PROPOSED STATEMENT ON APPEAL-21-
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2
3
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reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
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2
3
4
5
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7
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12
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15
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20
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22
23
24
25
26
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28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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20
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23
24
25
26
27
28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
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22
23
24
25
26
27
28
was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
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23
24
25
26
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28
Convalescent Homes Inc 159 Cal App 3 509524 (1984) The findings should not berd
so ldquoultimaterdquo that they are simply legal conclusions Eg findings that a ldquocontract existedrdquo
between the parties or that ldquocoverage existedrdquo under an insurance policy Such findings
ldquomake it extremely difficult if not impossible for the reviewing court to ascertain the basis
for the trial courtrsquos conclusion that ldquocoverage existedrdquo Employers Cas Co V
Northwestern Natrsquol Ins Group Cal App 3 462 473 (1980) Reversible error resultsrd
where a statement of decision ldquofails to make findings on a material issue which would fairly
disclose the trial courtrsquos determinationrdquo Sperber v Robinson 26 Cal App 4 736 745th
(1994) Grossmanrsquos objections should be ldquospecificrdquo Ripani v Liberty Loan Corp 95 Cal
App 3 603 615 (1979)rd
The undersigned contends that what this court conducted calling it a ldquotrialrdquo was a
farce and certainly did not meet the minimum expectations of ldquoDue Process of Lawrdquo
required by the 14 Amendment This Court overruled Grossmanrsquos request that allth
witnesses take the witness stand as is required in every court that this writer attended over
his 40 year career and certainly every Federal Trial the Trial Court attended as a Chief
Prosecutor for the US Attorneyrsquos office for the Central District of California major crimes
division This Court required both witnesses and attorneys to question the witness from the
counsel table which demeaned the court process as we all have known it throughout
history That irregular process prejudiced defense counsel since he had difficulty in
hearing the questions and answers which proceeded in ldquomachine gunrdquo style partially
precluding Evidence Code objections to be raised This court arbitrarily denied Grossman
a jury trial as timely requested by Grossman arbitrarily denied Grossmanrsquos statutory and
constitutional right to enforce validly served Subpoenas to extremely important and
relevant witnesses who had first hand knowledge of the ldquoirregularitiesrdquo in the foreclosure
procedure leading to the illegal sale to Pro Value The documents and testimony of the
Trustee who issued the NOS NOD and allegedly conducted the ldquosalerdquo ldquoriggedrdquo in favor of
Pro Value would have defeated Pro Valuersquos case
This Court ldquostifledrdquo Grossmanrsquos counsel from posing relevant questions to the
PROPOSED STATEMENT ON APPEAL-2-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
witnesses including his narrative by admonishing counsel to ldquoshooshrdquo as a polite way of
refusing to adhere to the Evidence Code and the Constitution Friedlander was duly
ldquoshooshedrdquo under pain of contempt This Court abused it power by stifling Defense
counsel It appeared to defense counsel that this Court used ldquotime constraintsrdquo to
ldquotrumprdquo justice and ldquodue processrdquo No reasonable bench trial could have been
conducted in three 45 minute segments especially one that required documentary
evidence that needed foundation and relevance Friedlander thus made an offer of
proof but there was no court reporter to record that process to preserve the record
on appeal Thus Friedlander on almost a daily basis submitted memorandums of
law to assist the court in following the law
THE REQUEST FOR STATEMENT OF DECISION
Pursuant to CCP Sec 632 and CRC Rule 632 Defendant Anthony Grossman
requested in writing that the Court issue a written Statement of Decision explaining the
factual and legal basis for its decision with respect to the following controverted issues
1 The factual and legal basis of this Court Quashing the Subpoenas served on the
Seaside witnesses in a ldquosua sponterdquo manner when the law required a Motion to quash
not an objection The court failed to do so
2 The factual and legal basis as to whether or not Anthony Grossman was properly
served with a 3 day Notice to Quit as required by statute To be discussed later
3 The factual and legal basis as to whether or not Pro Value was a bona fide purchaser
The court refused and failed to do so on the basis of relevancy based on the
evidence that it claims it properly excluded However the court did receive in
evidence the Lis Pendens recorded by Grossman which put Pro Value on
Constructive Notice which by itself would have precluded Pro Value from being a
BFP The Court failed to deal with the legal consequences of that Lis Pendens in the
context of a BFP Carleen Riojas the office managerrsquos testimony was worthless
She testified that she did not recall the telephone conversation that she had with
PROPOSED STATEMENT ON APPEAL-3-
1
2
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28
Friedlander Friedlander testified without objection that Riojas told him that she
was the office manager that she pulled the Grossman file that she knew before
the sale that Grossman had recorded a Lis Pendens and that he had claims to the
property (actual notice) she testified that was a basis of a conversation with
Seaside the Trustee and the sales price was negotiated downward due to the
impediment prior to any actual sale which gives credence to Grossmanrsquos claim that
the sale was rigged Riojas was given an opportunity to change her testimony but
she did not Friedlanderrsquos testimony puts the ldquolierdquo to Riojasrsquo testimony and she was
anything but credible Friedlander even offered into evidence a letter that he wrote
to Pro Value after his conversation with Riojas which Friedlander testified that it
was his business practice over 40 years to reiterate a conversation in a letter to the
other side to memorialize that conversation for a trial to take place many months or
years later Friedlander was not cross-examined
The Trial Court deliberately refused to render a factual and legal basis as to
whether Pro Value was a BFP and left it ambiguous That is deliberate error and a
denial of due process
A bona fide purchaser is one who pays value for the property without notice of any
adverse interest or any irregularity in the sale proceeding Nguyen v Calhoun 105 Cal
App 4 428 (2003) The Lis Pendens gave ldquoconstructive noticerdquo to the ldquoworldrdquo includingth
Pro Value Thus Pro Value was on ldquoconstructive notice Friedlander testified that the office
manager told him that Pro Value had ldquoactual noticerdquo a fact that has not been challenged
by Pro Value Friedlanderrsquos testimony established that not only did Pro Value have notice
of ldquoirregularitiesrdquo in the sale proceedings but Pro Value participated in those irregularities
per Friedlanderrsquos sworn testimony as to the arrangement of the price before the sale Pro
Value offered no testimony whatsoever as to the actual sale and bidding
The Trusteersquos Deed should not have been admitted into evidence pursuant to
Judicial Notice since it was ldquoirregularrdquo on its face The Trial Court should have noted that
the ldquoamount of the Unpaid Debtrdquo was left blank Both Bayview and Seaside knew or
PROPOSED STATEMENT ON APPEAL-4-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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17
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20
21
22
23
24
25
26
27
28
should have known what the ldquoUnpaid Debtrdquo was The Trusteersquos Deed was not an affidavit
but a Notarial Acknowledgment that Elvia Bouche signed the document as Vice President
of Seaside It doesnrsquot make the facts in that document ldquotruerdquo
4 The factual and legal basis as to whether or not Bayview was an Assignee of the
Original Lender on the date that it substituted Seaside as Trustee of the Grossman TD
The court deliberately failed to do so even after admitting into evidence the
ldquoAllongerdquo which stated on its face that the Note that Grossman signed in favor of
the original lender was endorsed over to HSBC an entity other than Bayview That
Allonge was faxed to Friedlander by Northwestern Trustee the prior Trustee
appointed by Bayview on a date prior to Seasidersquos involvement and puts the lie to
the backdated and forged Assignment referenced in Pro Valuersquos Exhibit 2 This
Court intentionally neglected to state that Exhibit 2 was recorded on 382010 one
day before the sale This court covered up the fraud and perjury of Bayview and
Seaside by admitting that document into evidence and using that document to
support its decision It was backdated to 6102009 which could not have been
prepared by Seaside since Seaside was appointed on 832009 according to Exhibit
1
Since Bayview did not own the note it could not enforce the security for a
note that it did not own We will cite numerous authority in our brief which will
include a reference to a recent decision of the Supreme Court of Massachusetts
5 The factual and legal basis as to whether or not Seaside was a duly authorized Trustee
on the date that they recorded the Notice of Default and Notice of Sale This court did
not answer that question The evidence that it rejected reflected that on the date the
NOD and NOS was recorded Seaside was appointed by an entity other than the
original lender rendering all recordings a ldquonullityrdquo Exhibit 2 recorded on 382010
and back dated to 692010 was Bayview and Seaside attempt to ldquocover-uprdquo the
invalidity of the prior recording of the NOD and NOS by Seaside We have a
subornation of perjury here by Pro Value by offering into evidence it knew was
PROPOSED STATEMENT ON APPEAL-5-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ldquofalsersquo Pro Value committed a fraud on the Trial Court and put into disrespect the
ldquorule of lawrdquo which that Court swore to uphold
6 The factual and legal basis as to whether or not the Lis Pendens recorded by Grossman
in December 2009 precluded the later Assignment recorded on March 8 2010 from being
subject to the pending action in Department 53 of the LASC The court failed and
refused to address that material issue of law and fact
7 The factual and legal basis as to whether or not Seasidersquos Trusteersquos Deed was null and
void on the date that it was recorded The court failed and refused to address that
material issue of law and fact
8 The factual and legal basis as to whether or not the Trusteersquos Deed passed legal title to
Pro Value The court failed and refused to address that material issue of law and
fact
9 The factual and legal basis as to whether or not the Assignment that was recorded by
Seaside on 382010 was backdated by Seaside and fraudulently signed by an alleged
officer of MERS on the date that it was notarized by the Florida notary The court failed
and refused to address that material issue of law and fact
10 The factual and legal basis as to whether or not Grossman received a ldquofair trialrdquo as that
term is defined by the cases decided under the 14 Amendment The court failed andth
refused to address that material issue of law and fact However Grossman addressed
that issue to the effect that he did not receive a ldquofair trialrdquo
11 The factual and legal basis as to whether or not Trustee and Bayview complied with
Federal and California law with respect to the Trusteersquos sale allegedly conducted by the
Trustee andor its agents The court failed and refused to address that material issue
of law and fact However Friedlander filed a Memorandum of Law that ldquoHearsay in a
Recorded Documentrdquo is still ldquohearsayrdquo and inadmissable Friedlander testified under oath
without objection that the Trustee and Bayview did not comply with those requirements of
law For example Friedlander testified that CC Sec 29235 was not complied with There
was no testimony by Bayview or declaration signed and recorded by Bayview that Bayview
PROPOSED STATEMENT ON APPEAL-6-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
complied with CC Sec 29235 (a)(1) (2) (b) or c The use of the word ldquodeclarationrdquo in
subparagraph should be interpreted to mean a declaration by a mortgagee or beneficiary
A declaration by a Trustee is rank hearsay rendering the entire NOD and NOS void
precluding a sale Friedlanderrsquos testimony was first hand knowledge and certainly trumped
ldquohearsayrdquo CC Sec 29235 was not complied with per the testimony of Friedlander The
Trusteersquos declaration as to what Bayview told her is rank hearsay It required a declaration
by Bayview No such declaration was filed CC Sec 292354 (a) required a declaration
from the mortgage loan servicer (Bayview) in the Notice of Sale It did not The declaration
by the Trustee is not only rank hearsay but did not comply with the Civil Code and the
testimony of Friedlander trumps Pro Value on that issue
12 The factual and legal basis as to whether or not Grossman prevailed on any one or
more of his affirmative defenses The court failed and refused to address that
material issue of law and fact
13 The factual and legal basis as to whether or not the California Unlawful Detainer
Statute is Unconstitutional under either one or more of the Constitutional defenses raised
by Grossman in his answer The court failed and refused to address that material
issue of law and fact
Tender is not an issue in this UD case It may be an issue in the main case entitled
Grossman v Bayview In any event Bayview did not own the Note per the Allongerdquo and
therefore there was no duty to tender Tender is a ldquored herringrdquo irrelevant issue in this
case
DEFENDANT WAS NOT PROPERLY SERVED
All Pro Value offered was Bodinersquos testimony for what it was Process servers are
notorious for ldquosewer servicerdquo Defense counsel has set aside quite a few one of which
resulted in a published decision Bodine testified that he was employed by Bouzane The
Court may take judicial notice of the fact that on the day of the alleged service Bouzane
was under a 2 year suspension stayed for violation of the State Bar ethics Bouzane
headed up an ldquoEviction Millrdquo by the name of ldquoFAST EVICTION SERVICErdquo per Bodinersquos
PROPOSED STATEMENT ON APPEAL-7-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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18
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23
24
25
26
27
28
testimony One wonders why eviction is so fast Neither Bodine nor Bouzane made any
effort to determine whether Grossman had a business address Bodine testified that he
mailed the Notice to Grossman but the return address was Fast Eviction Service and he
did not open its mail Grossman testified he was an attorney That he never saw a Notice
on his screen door and he received no such notice in the mail The first time he saw such
a notice was when he was served a second time with the Summons and Complaint the
first and second service being quashed Grossman testified that he was looking out for
such a Notice since he found out that the Property had been sold and that he would be
receiving a Notice to Quit What led the court to believe that Grossmanrsquos testimony was
ldquoless crediblerdquo That statement brought into question the Courtrsquos entire analysis of this
case Grossman was an attorney testifying under oath while Bodine was a run of the mill
process server working for an attorney who had been disciplined by the State Bar The
Courtrsquos analysis is upside down in favor of pushing through a ldquofloodrdquo of evictions We
believe that the service requirements of the service of a Notice to Quit after a Non-Judicial
sale should meet the same notice and due process requirements of Service of a
Summons and Complaint To the extent that it doesnrsquot we contend that portion of the UD
statute is unconstitutional under the 14 Amendmentth
Joe Nocera business reporter for the New York Times wrote in the October 23
2010 business section of the New York Times regarding the Bank of America and
Countrywide the following
ldquoBut it simply does not follow that the Bank therefore has an absolute right
to take back the home Under the law it has to prove it has that right-by filing
documents that show that the owner of the mortgage has conveyed that right to it
Thatrsquos why this affidavit scandal isnrsquot some legal nicety Itrsquos about the single most
important value of American jurisprudence Due Processrdquo The Allonge proves that
Bayview did not own the Note and therefore did not have the right to enforce it by non-
judicial sale The Allonge was admitted into evidence and it establishes Grossmanrsquos
case for a defense judgment The phony backdated assignment does not trump the
PROPOSED STATEMENT ON APPEAL-8-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Allonge
RELEVANT PORTIONS OF GROSSMAN TRIAL BRIEF
sect 2936 Assignment of debt carries security
Mortgage passes by assignment of debt The assignment of a debt secured by mortgage
carries with it the security
A mortgage being a mere security for debt it is not transferable without
transfer of the debt Johnson v Razey (1919) 181 Cal 342 184 P 657
Debt and security are inseparable the mortgage alone is not a subject of
transfer Hyde v Mangan (1891) 88 Cal 319 26 P 180
Wests AnnCalCivCode sect 2937 provides ldquoNotices to borrower of transfer of service
by existing and new servicing agent of mortgage or deed of trust on single family
residential real property
(a) The Legislature hereby finds and declares that borrowers or subsequent
obligors have the right to know when a person holding a promissory note bond or other
instrument transfers servicing of the indebtedness secured by a mortgage or deed of trust
on real property containing one to four residential units located in this state The
Legislature also finds that notification to the borrower or subsequent obligor of the transfer
may protect the borrower or subsequent obligor from fraudulent business practices and
may ensure timely payments It is the intent of the Legislature in enacting this section to
mandate that a borrower or subsequent obligor be given written notice when a person
transfers the servicing of the indebtedness on notes bonds or other instruments secured
by a mortgage or deed of trust on real property containing one to four residential units and
located in this state
(b) Any person transferring the servicing of indebtedness as provided in subdivision
(a) to a different servicing agent and any person assuming from another responsibility for
servicing the instrument evidencing indebtedness shall give written notice to the borrower
PROPOSED STATEMENT ON APPEAL-9-
1
2
3
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5
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7
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9
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28
or subsequent obligor before the borrower or subsequent obligor becomes obligated to
make payments to a new servicing agent
copy In the event a notice of default has been recorded or a judicial foreclosure
proceeding has been commenced the person transferring the servicing of the
indebtedness and the person assuming from another the duty of servicing the
indebtedness shall give written notice to the trustee or attorney named in the notice of
default or judicial foreclosure of the transfer A notice of default notice of sale or judicial
foreclosure shall not be invalidated solely because the servicing agent is changed during
the foreclosure process
(d) Any person transferring the servicing of indebtedness as provided in subdivision
(a) to a different servicing agent shall provide to the new servicing agent all existing
insurance policy information that the person is responsible for maintaining including but
not limited to flood and hazard insurance policy information
(e) The notices required by subdivision (b) shall be sent by first- class mail postage
prepaid to the borrowers or subsequent obligors address designated for loan payment
billings or if escrow is pending as provided in the escrow and shall contain each of the
following
(1) The name and address of the person to which the transfer of the servicing of the
indebtedness is made
(2) The date the transfer was or will be completed
(3) The address where all payments pursuant to the transfer are to be made
(f) Any person assuming from another responsibility for servicing the instrument
evidencing indebtedness shall include in the notice required by subdivision (b) a statement
of the due date of the next payment
PROPOSED STATEMENT ON APPEAL-10-
1
2
3
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5
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28
(g) The borrower or subsequent obligor shall not be liable to the holder of the note
bond or other instrument or to any servicing agent for payments made to the previous
servicing agent or for late charges if these payments were made prior to the borrower or
subsequent obligor receiving written notice of the transfer as provided by subdivision (e)
and the payments were otherwise on time
(h) For purposes of this section the term servicing agent shall not include a
trustee exercising a power of sale pursuant to a deed of trust
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Star 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
PROPOSED STATEMENT ON APPEAL-11-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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19
20
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25
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28
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
PROPOSED STATEMENT ON APPEAL-12-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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18
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20
21
22
23
24
25
26
27
28
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
The undersigned spent his time researching the law as ldquoevictionsrdquo based on judicial
and non-judicial foreclosures sales are overwhelming our state and federal court systems
Having handled many ldquolis pendensrdquo cases ldquoconstructive noticerdquo based on a recorded ldquolis
pendens the undersigned will discuss the effect of the recordation of a lsquolis pendensrdquo on a
party claiming to be a bona fide purchaser (ldquoBFPrdquo) Simply put there is no such ldquoanimalrdquo
even though Pro Value asserts that it is a BFP Whether or not Pro Value is a BFP affects
presumptions rebuttable or conclusive Pro Valuersquos counsel misrepresented to the Court
that Pro Value was a BFP and the undersigned says ldquohogwashrdquo
Aside from the evidence and testimony the law is very unclear due to the recent
legislation passed by Congress and California to ldquoprotectrdquo homeowners from being
ldquotossedrdquo out on the street due to what the undersigned has read about the ldquounsavoryrdquo
foreclosure and eviction mills throughout this country
PROPOSED STATEMENT ON APPEAL-13-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Simply put I place John Bouzane dba Fast Eviction Service in the category of an
ldquoeviction millrdquo We had a ldquoreasonablerdquo expectation that the ldquoattorney of recordrdquo would
appear at trial as the ldquotrial attorneyrdquo since Bouzane verified the UD complaint and
subjected himself to be called as a witness by the Defense
Counsel for Pro Value stated that the statute which permitted non-judicial
foreclosure is constitutional I know that since there is no ldquostate actionrdquo Grossman
challenges the Constitutionality of the ldquoevictionrdquo statutes since it requires ldquoState Actionrdquo to
evict a homeowner from their home after a non judicial sale That is an undecided issue
which the undersigned looks forward to present That is why Grossman requested to make
an evidentiary record so that the Court may decide the Constitutional issues There are
many attorneys in the ldquoborrowerrsquos barrdquo who await such a declaration of unconstitutionality
It is not a frivolous position Prior to Sniadach v Family Finance I was writing briefs that pre
judgment attachments without notice and a hearing violated the due process clause of
the 14 Amendment That case was decided by the US Supreme Court before anth
appellate court heard the same argument from the undersigned
FUNCTION OF THE JUDGE
The major feature of a bench trial is that the judge sits as the trier of fact The
Judge determines the admissibility weighs the evidence determines credibility and
renders judgment CCP Sec 6318 (a) Davis v Kahn (1970) 7 Cal App 3 868 874rd
Bullockrsquos Inc v Security First national Bank of Los Angeles (1958) 160 Cal App 2 277nd
285 Judges are precluded from conducting independent investigations outside the
courtroom because to do so would be a denial of due process denying to a litigant the
fair and impartial trial to which everyone is entitled Conservatorship of Schaeffer (2002)
98 Cal App 4 159 164 The general order of proceedings is set forth in CCP Sec 607th
6317
The Courtrsquos reference to ldquotenderrdquo in a non-lease situation raised a suspicion that
this Court referenced some of the proceedings in Grossman v Bayview where ldquoTenderrdquo
was made an issue by Schloss the attorney for Bayview and Seaside We requested the
PROPOSED STATEMENT ON APPEAL-14-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Court to address why it referenced ldquotenderrdquo in the context of this type of unlawful detainer
case It did not do so Error
According to California Civil Handbook and Desktop Reference Thomas 2007 Ed
at P 874 ldquoThere is considerable controversy as to whether a court may reconsider its
prior ruling at any time-and if so in what manner the issue may be raisedrdquo WE RAISED IT
THROUGHOUT THE ENTIRE PROCEEDINGS WHICH THE TRIAL COURT IGNORED
See discussion in Kerns v CSE Ins Group (2003) 106 Cal App 4 368 383-389th
Defendant requested the court to reopen the case and grant a continuance if necessary
Thomas at P 875 The court had the inherent power it may be done on the courtrsquos own
motion when required by the interests of justice It failed to do so
This court made reversible error and denied Grossman a fair trial by ldquoguttingrdquo
Grossmanrsquos defense when it on its own motion sua sponte quashed the SDTs served on
the Seaside witnesses Grossman proved by competent evidence that the SDTs were duly
served on all of the Seaside witnesses in accordance to CCP Sec 1987 The Objections
admitted service the witnesses did not testify in their affidavits that ldquothey demanded
witnesses feesrdquo from the process server It was the witnesses burden of proof to declare
under oath that they demanded fees and were not paid It is common knowledge that
process servers are trained not to offer witness fees unless they are demanded If the
witnesses had testified that they demanded witness fees at the time they were served
then we would have produced affidavits from the process server that the fees were not
demanded
CCP Sec 19871 (a) provided for a motion The attorneys for the witnesses filed an
objection not a motion The witnesses did not follow the procedure set forth by law The
objections should have been summarily denied Instead the Court took the bench and sua
sponte quashed each of the subpoenas The court refused to allow the undersigned to
object to this unconstitutional procedure Subsection (b) of 19871 (b) provided ldquoon the
courtrsquos own motion after giving counsel notice and an opportunity to be heard or any
reason whatsoever for issuing this unlawful ldquosua sponterdquo order Grossmanrsquos counsel was
PROPOSED STATEMENT ON APPEAL-15-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
given no notice whatsoever refused Grossmanrsquos counsel an opportunity to be heard and
over his objection the court told him to ldquobe quiet and sit downrdquo which he did That order
was a blatant violation of CCP Sec 19871 (b) denied Grossman a fair trial and
evidenced a bias against either Grossman or his counsel or there may be an agenda in
that courthouse to ldquorailroad throughrdquo all of the UD cases since they were ldquoclogging uprdquo an
over burdened court with limited funds due to the very meltdown caused by MERS and
their cohorts such as the Wall Street institutions We believe a former Chief Assistant US
Attorney Criminal Trials Division should have known better Grossman was entitled to the
evidentiary material that he subpoenaed was entitled to cross-examine Ms Weber to
whom Friedlander had corresponded with wrote letters to and Seaside plead the 5th
Amendment to discovery requests such as production of documents admissions that one
of the documents were backdated and forged and that crimes were committed Seaside
being a corporation was not permitted to assert the 5 Amendmentth
The following was the ldquooffer of proofrdquo of the relevancy of the Seaside witnesses
testimony and documents At the time that Bayview using MERS as its conduit was the
Assignee from a Lender who was not the lender of record by virtue of the TD introduced
into evidence by Pro Value The Assignor was a different entity than the Lender The
original Lender was bankrupt and therefore any agency that existed at the time that
Grossman signed the original TD was terminated by operation of law due to the
bankruptcy of the original lender Since Bayview was the Assignee of an entity other
than the original lender Bayview lacked both the power and authority to appoint Seaside
as Trustee Therefore any NOD and NOS issued by Seaside was void as a matter of
law That is the reason why a new backdated assignment was prepared by Seaside
signed by an ldquoallegedrdquo officer of MERS before a Notary was recorded on 382010 and the
sale took place on 392010 Since Pro Value was never a BFP due to the recording of
the lis pendens the Trusteersquos deed was void as a matter of law We demanded that this
court admit into evidence the assignment proving that Seaside was not a duly authorized
Trustee at the time they recorded the NOD and NOS Both the NOD and NOS were void
PROPOSED STATEMENT ON APPEAL-16-
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2
3
4
5
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9
10
11
12
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22
23
24
25
26
27
28
as a matter of law and so is the title of Pro Value This court committed error by not
admitting this evidence
In Alfaro v Community Housing Imp System amp Planning Assn Inc 171
CalApp4th 1356 (CalApp 6 Dist2009) The Court of Appeal in 2009 dealt with the
issue of the recording of a lis pendens and constructive notice and actual notice as
follows
ldquoOne of the central issues in this appeal is whether plaintiffs are chargeable withnotice of the deed restriction at an earlier time than its disclosure in the grant deeds Asexplained above the recording of a deed restriction is ordinarily regarded as imparting
iCivCode sect 1213constructive notice of its contents to subsequent purchasers (
Anderson supra 12 Cal4th 345 349 355 47 CalRptr2d 898 906 P2d 1314)Anderson supra 12 Cal4th 345 47 CalRptr2d 898 906 P2d 1314 went on to state onpage 355 47 CalRptr2d 898 906 P2d 1314 ldquoConstructive notice is ldquothe equivalent ofactual knowledge ie knowledge of its contents is conclusively presumed (4 WitkinSummary of Cal Law [ (9th ed 1987) ] Real Property sect 203 p 408 italics in original)rdquo
Defendants rely on Anderson as establishing that plaintiffs had constructive notice andFN21
actual knowledge of the deed restriction by virtue of its recording and by virtue of thisknowledge cannot successfully allege that defendants failed to disclose it
FN21 This quotation from Witkin is based on two cases AlhambraRedevelopment Agency v Transamerica Financial Services (1989) 212 CalApp3d1370 261 CalRptr 248 observed ldquoHere it is undisputed the Flemings properlyrecorded the contract thereby giving Transamerica constructive if not actual noticeof the contractrdquo ( Id at p 1377 261 CalRptr 248) Anderson v Willson (1920) 48CalApp 289 191 P 1016 stated ldquoWithout doubt the presumption of notice thusraised by this code provision is conclusive and incontrovertiblerdquo ( Id at p 293 191P 1016) Both cases concluded that a person with constructive notice did notqualify as a bona fide purchaser without notice Neither case attributed actualknowledge to the purchaser At most constructive notice has been conclusivelypresumed As we proceed to explain in the text there is a difference betweenactual and constructive notice
There was a caveat in Anderson however ldquo lsquoIf future takers purchase a piece ofproperty with notice of a restriction made by a predecessor then in the absence of duressor fraud they may ordinarily be thought to have bargained for the property with therestriction in mind and to have shown themselves willing to abide by itrsquo rdquo ( Andersonsupra 12 Cal4th at p 366 47 CalRptr2d 898 906 P2d 1314 emphasis added)
Plaintiffs argue that the doctrine of constructive notice does not apply to fraudcauses of action Bishop Creek Lodge v Scira (1996) 46 CalApp4th 1721 54CalRptr2d 745 ( Scira ) stated on page 1734 54 CalRptr2d 745 ldquoUnder a long line ofcases the fact that the victim had constructive notice of the truth from public records is nodefense to fraud The existence of such public records 1386 may be relevant to whetherthe victims reliance was justifiable but it is not by itself conclusive ( Seeger v Odell(1941) 18 Cal2d 409 414-417 115 P2d 977 [ ( Seeger ) ] Grange Co v Simmons(1962) 203 CalApp2d 567 576-577 21 CalRptr 757 Gross v Needham (1960) 184CalApp2d 446 460 7 CalRptr 664 Sullivan v Dunnigan (1959) 171 CalApp2d 662668 341 P2d 404 Regus v Schartkoff (1957) 156 CalApp2d 382 389 319 P2d 721 Schaefer v Berinstein (1956) 140 CalApp2d 278 296 295 P2d 113 Mills v
PROPOSED STATEMENT ON APPEAL-17-
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21
22
23
24
25
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Hellinger (1950) 100 CalApp2d 482 487 224 P2d 34 Barder v McClung (1949) 93CalApp2d 692 697 209 P2d 808 Stoll v Selander (1947) 81 CalApp2d 286 292 183P2d 935 Anderson v Thacher (1946) 76 CalApp2d 50 70 172 P2d 533)rdquo Therationale for this exception is ldquoThe purpose of the recording acts is to afford protection notto those who make fraudulent misrepresentations but to bona fide purchasers for valuerdquo (Seeger supra 18 Cal2d at p 415 115 P2d 977) Defendants do not discuss thisauthority cited by plaintiffs in their briefsrdquo
The court did not need a lecture from the undersigned that the purpose of the
recording of a Lis Pendens is to give ldquoConstructive Noticerdquo to the world especially to Pro
Value The court knew that the memorandum of law submitted by Pro Value was not worth
the paper it was written on as to its claim that Pro Value was a BFP That is the first thing
they teach law students in law school It is hornbook law as they say in law school The
office manager told Friedlander that she knew that Grossman had filed a lis pendens Not
only did Pro Value have ldquoconstructiverdquo notice they had actual notice Friedlander was
precluded from testifying that Pro Valuersquos attorney requested a copy of the complaint and
promised not to file an unlawful detainer suit against Grossman A short time thereafter on
3302010 an attorney named Bouzane filed the UD The promise made by an agent who
is authorized to speak is binding on his principal This attorney told Friedlander that his
client was in the room with him He believed him since he heard voices in the background
He justifiably relied on that representation of Pro Valuersquos attorney who was sitting in the
room with the attorney The courtrsquos refusal to permit Grossman to put on relevant
evidence is the sole reason for the so-called lack of evidence as enunciated by this
Court in its proposed Statement
Did the court really believe that Friedlander called Pro Value to talk about
settlement Hogwash The Office Manager lied through her teeth and Pro Value suborned
this perjury by objecting on the grounds of ldquosettlementrdquo Friedlander knew what he said to
her and she knew what she said to him His sworn testimony was totally different and
since she lied that she did not remember our conversation she was not in a position to
contradict his testimony Her choice would be to admit perjury to the court or commit
perjury by testifying to something he said which she did not remember Friedlander was
PROPOSED STATEMENT ON APPEAL-18-
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2
3
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5
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7
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prepared to prove by his sworn testimony regarding some of the declarations of mailing in
the courtrsquos file that if they were mailed they were never received by me They would have
been impeached and I would file a complaint with the District Attorney to investigate this
perjury The conduct of Bouzane and his agents such as the process server were
designed to deprive people like Grossman of their homes and throw them out on the
street Perjury is being suborned The fraud on the court marched on
TITLE ISSUES
A qualified exception to the rule that title cannot be tried in an unlawful detainer
proceeding [see Evid Code sect 624 545[1][c]] is contained in CCP sect 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 sect 1161a Vella v Hudgins (1977) 20 C3d 251 255
Words and Phrases
The term duly implies that all of those elements necessary to valid sale exist
Kessler v Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title that is
duly perfected includes good record title but is not limited to good record title Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title is duly perfected
when all steps have been taken to make it perfect that is to convey to purchaser that
which he has purchased valid and good beyond all reasonable doubt Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837
Grossman filed his verified answer on 72310 Denied Par 6 Denied Par 7 alleging
fraud and a rigged sale Denied par 8 that he was served with a Notice to Quit Denied
Par 9 based on failure of service of notice to quit Denied Par 10 Denied paragraphs 11
and 12 First Affirmative Defense Failed to state a cause of action Second Affirmative
PROPOSED STATEMENT ON APPEAL-19-
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2
3
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5
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Defense Not properly verified by Pro Value only Bouzane Third Affirmative Defense No
Notice to Quit Fifth Affirmative Defense Denial of Due Process under the 14th
Amendment Sixth Affirmative Defense Denial of Procedural Due Process under the 14th
Amendment Seventh Affirmative Defense Denial of Equal Protection of the law under the
14 Amendmentth
FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT
1 Service of Notice to Quit
2 Compliance with the law regarding the TD sale
LEGAL ISSUES NOT DECIDED BY THE COURT
1 The two due process arguments under the 14 Amendmentth
2 The equal protection Argument under the 14 Amendmentth
3 Denial of Right to Trial by Jury
PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH
EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE
On 2202009 California enacted into law the California Foreclosure Prevention Act as
an amendment to CC Sec 2923 If Bayview took an assignment from a Lender who was not
the Lender as reflected by the Assignment that the Court wrongfully refused to admit into
evidence and gave it back to me until I requested that the Assignment be marked and that the
Courtrsquos minute order reflect that it was offered and refused on the grounds of relevancy and
no other ground That is reversible error A Trustee appointed by an Assignee without good
title is a nullity and every act that Seaside Trust took was a nullity That Assignment which
should have been admitted would prove the fact of nullity and Grossman would be entitled to
move for judgment when Pro Value rested We request the Court to reverse its original refusal
to admit that Assignment into evidence and then grant judgment to Grossman as the Trusteersquos
Deed is null and void That was my offer of proof of relevancy
PROPOSED STATEMENT ON APPEAL-20-
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2
3
4
5
6
7
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11
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1 Under CC Sec 29235 the lender must contact the borrower At that point of time I
had given notice to Bayview that I was the attorney for the borrower Pro Value has offered no
evidence Grossman fell within the provisions of CC Sec 2923 as the TD offered into evidence
by Pro Value reflects that Grossman entered into the loan during the period from 112003 -
12312007
2 Pro Value offered no evidence that it complied with CC Sec 29236 offered a loan
modification plan to Grossman
3 Pro Value offered no evidence that it complied with CC Sec 2923 or that Bayview
was exempt
4 Pro Value offered no evidence that it complied with the provisions of HARP (12
USC Sec 1524) which was part of the ldquoeconomic stimulusrdquo to prevent foreclosures and
revitalize the housing sector
5 Pursuant to CC Sec 2924 the Trusteersquos Deed will presume the sale to be valid and
conclusively presumed to be valid if Pro Value was a BFP which it was not Pro Value failed to
prove its case for the following reasons (1) it was not the duly appointed Trustee (2) the
backdated and forged assignment allegedly was from the true lender after it went bankrupt
which required Bayview to record a new document appointing Seaside as its Trustee There is
no relation back case cited by Pro Value since it does not exist Even if it existed the law still
required the duly appointed Trustee under the new assignment to record the NOD and NOS
and comply with all of the other provisions of State and Federal Law which it could not and
did not do thereby making the Trusteersquos deed a ldquonullityrdquo without any presumptions of validity
Plaintiff claimed they have complied with CC Sec 2924 in paragraphs 4 thru 7 of
their complaint that they have met the burden of proof in that a sale had occurred and the
trustees Deed establishes this presumption that the sale was ldquoduly Perfectedrdquo and the Civil
has been complied with Defendant claimed that they did not and Plaintiff has submitted
to the court a certified copy of the Notice of Trustees Sale and asked the court to take
judicial notice of said document as well as the Trusteersquos Deed We requested the court to
PROPOSED STATEMENT ON APPEAL-21-
1
2
3
4
5
6
7
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9
10
11
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28
reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
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2
3
4
5
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7
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11
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23
24
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28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
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28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
1
2
3
4
5
6
7
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11
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28
was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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18
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20
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23
24
25
26
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28
witnesses including his narrative by admonishing counsel to ldquoshooshrdquo as a polite way of
refusing to adhere to the Evidence Code and the Constitution Friedlander was duly
ldquoshooshedrdquo under pain of contempt This Court abused it power by stifling Defense
counsel It appeared to defense counsel that this Court used ldquotime constraintsrdquo to
ldquotrumprdquo justice and ldquodue processrdquo No reasonable bench trial could have been
conducted in three 45 minute segments especially one that required documentary
evidence that needed foundation and relevance Friedlander thus made an offer of
proof but there was no court reporter to record that process to preserve the record
on appeal Thus Friedlander on almost a daily basis submitted memorandums of
law to assist the court in following the law
THE REQUEST FOR STATEMENT OF DECISION
Pursuant to CCP Sec 632 and CRC Rule 632 Defendant Anthony Grossman
requested in writing that the Court issue a written Statement of Decision explaining the
factual and legal basis for its decision with respect to the following controverted issues
1 The factual and legal basis of this Court Quashing the Subpoenas served on the
Seaside witnesses in a ldquosua sponterdquo manner when the law required a Motion to quash
not an objection The court failed to do so
2 The factual and legal basis as to whether or not Anthony Grossman was properly
served with a 3 day Notice to Quit as required by statute To be discussed later
3 The factual and legal basis as to whether or not Pro Value was a bona fide purchaser
The court refused and failed to do so on the basis of relevancy based on the
evidence that it claims it properly excluded However the court did receive in
evidence the Lis Pendens recorded by Grossman which put Pro Value on
Constructive Notice which by itself would have precluded Pro Value from being a
BFP The Court failed to deal with the legal consequences of that Lis Pendens in the
context of a BFP Carleen Riojas the office managerrsquos testimony was worthless
She testified that she did not recall the telephone conversation that she had with
PROPOSED STATEMENT ON APPEAL-3-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
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20
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22
23
24
25
26
27
28
Friedlander Friedlander testified without objection that Riojas told him that she
was the office manager that she pulled the Grossman file that she knew before
the sale that Grossman had recorded a Lis Pendens and that he had claims to the
property (actual notice) she testified that was a basis of a conversation with
Seaside the Trustee and the sales price was negotiated downward due to the
impediment prior to any actual sale which gives credence to Grossmanrsquos claim that
the sale was rigged Riojas was given an opportunity to change her testimony but
she did not Friedlanderrsquos testimony puts the ldquolierdquo to Riojasrsquo testimony and she was
anything but credible Friedlander even offered into evidence a letter that he wrote
to Pro Value after his conversation with Riojas which Friedlander testified that it
was his business practice over 40 years to reiterate a conversation in a letter to the
other side to memorialize that conversation for a trial to take place many months or
years later Friedlander was not cross-examined
The Trial Court deliberately refused to render a factual and legal basis as to
whether Pro Value was a BFP and left it ambiguous That is deliberate error and a
denial of due process
A bona fide purchaser is one who pays value for the property without notice of any
adverse interest or any irregularity in the sale proceeding Nguyen v Calhoun 105 Cal
App 4 428 (2003) The Lis Pendens gave ldquoconstructive noticerdquo to the ldquoworldrdquo includingth
Pro Value Thus Pro Value was on ldquoconstructive notice Friedlander testified that the office
manager told him that Pro Value had ldquoactual noticerdquo a fact that has not been challenged
by Pro Value Friedlanderrsquos testimony established that not only did Pro Value have notice
of ldquoirregularitiesrdquo in the sale proceedings but Pro Value participated in those irregularities
per Friedlanderrsquos sworn testimony as to the arrangement of the price before the sale Pro
Value offered no testimony whatsoever as to the actual sale and bidding
The Trusteersquos Deed should not have been admitted into evidence pursuant to
Judicial Notice since it was ldquoirregularrdquo on its face The Trial Court should have noted that
the ldquoamount of the Unpaid Debtrdquo was left blank Both Bayview and Seaside knew or
PROPOSED STATEMENT ON APPEAL-4-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
should have known what the ldquoUnpaid Debtrdquo was The Trusteersquos Deed was not an affidavit
but a Notarial Acknowledgment that Elvia Bouche signed the document as Vice President
of Seaside It doesnrsquot make the facts in that document ldquotruerdquo
4 The factual and legal basis as to whether or not Bayview was an Assignee of the
Original Lender on the date that it substituted Seaside as Trustee of the Grossman TD
The court deliberately failed to do so even after admitting into evidence the
ldquoAllongerdquo which stated on its face that the Note that Grossman signed in favor of
the original lender was endorsed over to HSBC an entity other than Bayview That
Allonge was faxed to Friedlander by Northwestern Trustee the prior Trustee
appointed by Bayview on a date prior to Seasidersquos involvement and puts the lie to
the backdated and forged Assignment referenced in Pro Valuersquos Exhibit 2 This
Court intentionally neglected to state that Exhibit 2 was recorded on 382010 one
day before the sale This court covered up the fraud and perjury of Bayview and
Seaside by admitting that document into evidence and using that document to
support its decision It was backdated to 6102009 which could not have been
prepared by Seaside since Seaside was appointed on 832009 according to Exhibit
1
Since Bayview did not own the note it could not enforce the security for a
note that it did not own We will cite numerous authority in our brief which will
include a reference to a recent decision of the Supreme Court of Massachusetts
5 The factual and legal basis as to whether or not Seaside was a duly authorized Trustee
on the date that they recorded the Notice of Default and Notice of Sale This court did
not answer that question The evidence that it rejected reflected that on the date the
NOD and NOS was recorded Seaside was appointed by an entity other than the
original lender rendering all recordings a ldquonullityrdquo Exhibit 2 recorded on 382010
and back dated to 692010 was Bayview and Seaside attempt to ldquocover-uprdquo the
invalidity of the prior recording of the NOD and NOS by Seaside We have a
subornation of perjury here by Pro Value by offering into evidence it knew was
PROPOSED STATEMENT ON APPEAL-5-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ldquofalsersquo Pro Value committed a fraud on the Trial Court and put into disrespect the
ldquorule of lawrdquo which that Court swore to uphold
6 The factual and legal basis as to whether or not the Lis Pendens recorded by Grossman
in December 2009 precluded the later Assignment recorded on March 8 2010 from being
subject to the pending action in Department 53 of the LASC The court failed and
refused to address that material issue of law and fact
7 The factual and legal basis as to whether or not Seasidersquos Trusteersquos Deed was null and
void on the date that it was recorded The court failed and refused to address that
material issue of law and fact
8 The factual and legal basis as to whether or not the Trusteersquos Deed passed legal title to
Pro Value The court failed and refused to address that material issue of law and
fact
9 The factual and legal basis as to whether or not the Assignment that was recorded by
Seaside on 382010 was backdated by Seaside and fraudulently signed by an alleged
officer of MERS on the date that it was notarized by the Florida notary The court failed
and refused to address that material issue of law and fact
10 The factual and legal basis as to whether or not Grossman received a ldquofair trialrdquo as that
term is defined by the cases decided under the 14 Amendment The court failed andth
refused to address that material issue of law and fact However Grossman addressed
that issue to the effect that he did not receive a ldquofair trialrdquo
11 The factual and legal basis as to whether or not Trustee and Bayview complied with
Federal and California law with respect to the Trusteersquos sale allegedly conducted by the
Trustee andor its agents The court failed and refused to address that material issue
of law and fact However Friedlander filed a Memorandum of Law that ldquoHearsay in a
Recorded Documentrdquo is still ldquohearsayrdquo and inadmissable Friedlander testified under oath
without objection that the Trustee and Bayview did not comply with those requirements of
law For example Friedlander testified that CC Sec 29235 was not complied with There
was no testimony by Bayview or declaration signed and recorded by Bayview that Bayview
PROPOSED STATEMENT ON APPEAL-6-
1
2
3
4
5
6
7
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9
10
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12
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18
19
20
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22
23
24
25
26
27
28
complied with CC Sec 29235 (a)(1) (2) (b) or c The use of the word ldquodeclarationrdquo in
subparagraph should be interpreted to mean a declaration by a mortgagee or beneficiary
A declaration by a Trustee is rank hearsay rendering the entire NOD and NOS void
precluding a sale Friedlanderrsquos testimony was first hand knowledge and certainly trumped
ldquohearsayrdquo CC Sec 29235 was not complied with per the testimony of Friedlander The
Trusteersquos declaration as to what Bayview told her is rank hearsay It required a declaration
by Bayview No such declaration was filed CC Sec 292354 (a) required a declaration
from the mortgage loan servicer (Bayview) in the Notice of Sale It did not The declaration
by the Trustee is not only rank hearsay but did not comply with the Civil Code and the
testimony of Friedlander trumps Pro Value on that issue
12 The factual and legal basis as to whether or not Grossman prevailed on any one or
more of his affirmative defenses The court failed and refused to address that
material issue of law and fact
13 The factual and legal basis as to whether or not the California Unlawful Detainer
Statute is Unconstitutional under either one or more of the Constitutional defenses raised
by Grossman in his answer The court failed and refused to address that material
issue of law and fact
Tender is not an issue in this UD case It may be an issue in the main case entitled
Grossman v Bayview In any event Bayview did not own the Note per the Allongerdquo and
therefore there was no duty to tender Tender is a ldquored herringrdquo irrelevant issue in this
case
DEFENDANT WAS NOT PROPERLY SERVED
All Pro Value offered was Bodinersquos testimony for what it was Process servers are
notorious for ldquosewer servicerdquo Defense counsel has set aside quite a few one of which
resulted in a published decision Bodine testified that he was employed by Bouzane The
Court may take judicial notice of the fact that on the day of the alleged service Bouzane
was under a 2 year suspension stayed for violation of the State Bar ethics Bouzane
headed up an ldquoEviction Millrdquo by the name of ldquoFAST EVICTION SERVICErdquo per Bodinersquos
PROPOSED STATEMENT ON APPEAL-7-
1
2
3
4
5
6
7
8
9
10
11
12
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28
testimony One wonders why eviction is so fast Neither Bodine nor Bouzane made any
effort to determine whether Grossman had a business address Bodine testified that he
mailed the Notice to Grossman but the return address was Fast Eviction Service and he
did not open its mail Grossman testified he was an attorney That he never saw a Notice
on his screen door and he received no such notice in the mail The first time he saw such
a notice was when he was served a second time with the Summons and Complaint the
first and second service being quashed Grossman testified that he was looking out for
such a Notice since he found out that the Property had been sold and that he would be
receiving a Notice to Quit What led the court to believe that Grossmanrsquos testimony was
ldquoless crediblerdquo That statement brought into question the Courtrsquos entire analysis of this
case Grossman was an attorney testifying under oath while Bodine was a run of the mill
process server working for an attorney who had been disciplined by the State Bar The
Courtrsquos analysis is upside down in favor of pushing through a ldquofloodrdquo of evictions We
believe that the service requirements of the service of a Notice to Quit after a Non-Judicial
sale should meet the same notice and due process requirements of Service of a
Summons and Complaint To the extent that it doesnrsquot we contend that portion of the UD
statute is unconstitutional under the 14 Amendmentth
Joe Nocera business reporter for the New York Times wrote in the October 23
2010 business section of the New York Times regarding the Bank of America and
Countrywide the following
ldquoBut it simply does not follow that the Bank therefore has an absolute right
to take back the home Under the law it has to prove it has that right-by filing
documents that show that the owner of the mortgage has conveyed that right to it
Thatrsquos why this affidavit scandal isnrsquot some legal nicety Itrsquos about the single most
important value of American jurisprudence Due Processrdquo The Allonge proves that
Bayview did not own the Note and therefore did not have the right to enforce it by non-
judicial sale The Allonge was admitted into evidence and it establishes Grossmanrsquos
case for a defense judgment The phony backdated assignment does not trump the
PROPOSED STATEMENT ON APPEAL-8-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Allonge
RELEVANT PORTIONS OF GROSSMAN TRIAL BRIEF
sect 2936 Assignment of debt carries security
Mortgage passes by assignment of debt The assignment of a debt secured by mortgage
carries with it the security
A mortgage being a mere security for debt it is not transferable without
transfer of the debt Johnson v Razey (1919) 181 Cal 342 184 P 657
Debt and security are inseparable the mortgage alone is not a subject of
transfer Hyde v Mangan (1891) 88 Cal 319 26 P 180
Wests AnnCalCivCode sect 2937 provides ldquoNotices to borrower of transfer of service
by existing and new servicing agent of mortgage or deed of trust on single family
residential real property
(a) The Legislature hereby finds and declares that borrowers or subsequent
obligors have the right to know when a person holding a promissory note bond or other
instrument transfers servicing of the indebtedness secured by a mortgage or deed of trust
on real property containing one to four residential units located in this state The
Legislature also finds that notification to the borrower or subsequent obligor of the transfer
may protect the borrower or subsequent obligor from fraudulent business practices and
may ensure timely payments It is the intent of the Legislature in enacting this section to
mandate that a borrower or subsequent obligor be given written notice when a person
transfers the servicing of the indebtedness on notes bonds or other instruments secured
by a mortgage or deed of trust on real property containing one to four residential units and
located in this state
(b) Any person transferring the servicing of indebtedness as provided in subdivision
(a) to a different servicing agent and any person assuming from another responsibility for
servicing the instrument evidencing indebtedness shall give written notice to the borrower
PROPOSED STATEMENT ON APPEAL-9-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
or subsequent obligor before the borrower or subsequent obligor becomes obligated to
make payments to a new servicing agent
copy In the event a notice of default has been recorded or a judicial foreclosure
proceeding has been commenced the person transferring the servicing of the
indebtedness and the person assuming from another the duty of servicing the
indebtedness shall give written notice to the trustee or attorney named in the notice of
default or judicial foreclosure of the transfer A notice of default notice of sale or judicial
foreclosure shall not be invalidated solely because the servicing agent is changed during
the foreclosure process
(d) Any person transferring the servicing of indebtedness as provided in subdivision
(a) to a different servicing agent shall provide to the new servicing agent all existing
insurance policy information that the person is responsible for maintaining including but
not limited to flood and hazard insurance policy information
(e) The notices required by subdivision (b) shall be sent by first- class mail postage
prepaid to the borrowers or subsequent obligors address designated for loan payment
billings or if escrow is pending as provided in the escrow and shall contain each of the
following
(1) The name and address of the person to which the transfer of the servicing of the
indebtedness is made
(2) The date the transfer was or will be completed
(3) The address where all payments pursuant to the transfer are to be made
(f) Any person assuming from another responsibility for servicing the instrument
evidencing indebtedness shall include in the notice required by subdivision (b) a statement
of the due date of the next payment
PROPOSED STATEMENT ON APPEAL-10-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(g) The borrower or subsequent obligor shall not be liable to the holder of the note
bond or other instrument or to any servicing agent for payments made to the previous
servicing agent or for late charges if these payments were made prior to the borrower or
subsequent obligor receiving written notice of the transfer as provided by subdivision (e)
and the payments were otherwise on time
(h) For purposes of this section the term servicing agent shall not include a
trustee exercising a power of sale pursuant to a deed of trust
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Star 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
PROPOSED STATEMENT ON APPEAL-11-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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19
20
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27
28
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
PROPOSED STATEMENT ON APPEAL-12-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
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22
23
24
25
26
27
28
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
The undersigned spent his time researching the law as ldquoevictionsrdquo based on judicial
and non-judicial foreclosures sales are overwhelming our state and federal court systems
Having handled many ldquolis pendensrdquo cases ldquoconstructive noticerdquo based on a recorded ldquolis
pendens the undersigned will discuss the effect of the recordation of a lsquolis pendensrdquo on a
party claiming to be a bona fide purchaser (ldquoBFPrdquo) Simply put there is no such ldquoanimalrdquo
even though Pro Value asserts that it is a BFP Whether or not Pro Value is a BFP affects
presumptions rebuttable or conclusive Pro Valuersquos counsel misrepresented to the Court
that Pro Value was a BFP and the undersigned says ldquohogwashrdquo
Aside from the evidence and testimony the law is very unclear due to the recent
legislation passed by Congress and California to ldquoprotectrdquo homeowners from being
ldquotossedrdquo out on the street due to what the undersigned has read about the ldquounsavoryrdquo
foreclosure and eviction mills throughout this country
PROPOSED STATEMENT ON APPEAL-13-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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20
21
22
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24
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26
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28
Simply put I place John Bouzane dba Fast Eviction Service in the category of an
ldquoeviction millrdquo We had a ldquoreasonablerdquo expectation that the ldquoattorney of recordrdquo would
appear at trial as the ldquotrial attorneyrdquo since Bouzane verified the UD complaint and
subjected himself to be called as a witness by the Defense
Counsel for Pro Value stated that the statute which permitted non-judicial
foreclosure is constitutional I know that since there is no ldquostate actionrdquo Grossman
challenges the Constitutionality of the ldquoevictionrdquo statutes since it requires ldquoState Actionrdquo to
evict a homeowner from their home after a non judicial sale That is an undecided issue
which the undersigned looks forward to present That is why Grossman requested to make
an evidentiary record so that the Court may decide the Constitutional issues There are
many attorneys in the ldquoborrowerrsquos barrdquo who await such a declaration of unconstitutionality
It is not a frivolous position Prior to Sniadach v Family Finance I was writing briefs that pre
judgment attachments without notice and a hearing violated the due process clause of
the 14 Amendment That case was decided by the US Supreme Court before anth
appellate court heard the same argument from the undersigned
FUNCTION OF THE JUDGE
The major feature of a bench trial is that the judge sits as the trier of fact The
Judge determines the admissibility weighs the evidence determines credibility and
renders judgment CCP Sec 6318 (a) Davis v Kahn (1970) 7 Cal App 3 868 874rd
Bullockrsquos Inc v Security First national Bank of Los Angeles (1958) 160 Cal App 2 277nd
285 Judges are precluded from conducting independent investigations outside the
courtroom because to do so would be a denial of due process denying to a litigant the
fair and impartial trial to which everyone is entitled Conservatorship of Schaeffer (2002)
98 Cal App 4 159 164 The general order of proceedings is set forth in CCP Sec 607th
6317
The Courtrsquos reference to ldquotenderrdquo in a non-lease situation raised a suspicion that
this Court referenced some of the proceedings in Grossman v Bayview where ldquoTenderrdquo
was made an issue by Schloss the attorney for Bayview and Seaside We requested the
PROPOSED STATEMENT ON APPEAL-14-
1
2
3
4
5
6
7
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9
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12
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20
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24
25
26
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28
Court to address why it referenced ldquotenderrdquo in the context of this type of unlawful detainer
case It did not do so Error
According to California Civil Handbook and Desktop Reference Thomas 2007 Ed
at P 874 ldquoThere is considerable controversy as to whether a court may reconsider its
prior ruling at any time-and if so in what manner the issue may be raisedrdquo WE RAISED IT
THROUGHOUT THE ENTIRE PROCEEDINGS WHICH THE TRIAL COURT IGNORED
See discussion in Kerns v CSE Ins Group (2003) 106 Cal App 4 368 383-389th
Defendant requested the court to reopen the case and grant a continuance if necessary
Thomas at P 875 The court had the inherent power it may be done on the courtrsquos own
motion when required by the interests of justice It failed to do so
This court made reversible error and denied Grossman a fair trial by ldquoguttingrdquo
Grossmanrsquos defense when it on its own motion sua sponte quashed the SDTs served on
the Seaside witnesses Grossman proved by competent evidence that the SDTs were duly
served on all of the Seaside witnesses in accordance to CCP Sec 1987 The Objections
admitted service the witnesses did not testify in their affidavits that ldquothey demanded
witnesses feesrdquo from the process server It was the witnesses burden of proof to declare
under oath that they demanded fees and were not paid It is common knowledge that
process servers are trained not to offer witness fees unless they are demanded If the
witnesses had testified that they demanded witness fees at the time they were served
then we would have produced affidavits from the process server that the fees were not
demanded
CCP Sec 19871 (a) provided for a motion The attorneys for the witnesses filed an
objection not a motion The witnesses did not follow the procedure set forth by law The
objections should have been summarily denied Instead the Court took the bench and sua
sponte quashed each of the subpoenas The court refused to allow the undersigned to
object to this unconstitutional procedure Subsection (b) of 19871 (b) provided ldquoon the
courtrsquos own motion after giving counsel notice and an opportunity to be heard or any
reason whatsoever for issuing this unlawful ldquosua sponterdquo order Grossmanrsquos counsel was
PROPOSED STATEMENT ON APPEAL-15-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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20
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22
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24
25
26
27
28
given no notice whatsoever refused Grossmanrsquos counsel an opportunity to be heard and
over his objection the court told him to ldquobe quiet and sit downrdquo which he did That order
was a blatant violation of CCP Sec 19871 (b) denied Grossman a fair trial and
evidenced a bias against either Grossman or his counsel or there may be an agenda in
that courthouse to ldquorailroad throughrdquo all of the UD cases since they were ldquoclogging uprdquo an
over burdened court with limited funds due to the very meltdown caused by MERS and
their cohorts such as the Wall Street institutions We believe a former Chief Assistant US
Attorney Criminal Trials Division should have known better Grossman was entitled to the
evidentiary material that he subpoenaed was entitled to cross-examine Ms Weber to
whom Friedlander had corresponded with wrote letters to and Seaside plead the 5th
Amendment to discovery requests such as production of documents admissions that one
of the documents were backdated and forged and that crimes were committed Seaside
being a corporation was not permitted to assert the 5 Amendmentth
The following was the ldquooffer of proofrdquo of the relevancy of the Seaside witnesses
testimony and documents At the time that Bayview using MERS as its conduit was the
Assignee from a Lender who was not the lender of record by virtue of the TD introduced
into evidence by Pro Value The Assignor was a different entity than the Lender The
original Lender was bankrupt and therefore any agency that existed at the time that
Grossman signed the original TD was terminated by operation of law due to the
bankruptcy of the original lender Since Bayview was the Assignee of an entity other
than the original lender Bayview lacked both the power and authority to appoint Seaside
as Trustee Therefore any NOD and NOS issued by Seaside was void as a matter of
law That is the reason why a new backdated assignment was prepared by Seaside
signed by an ldquoallegedrdquo officer of MERS before a Notary was recorded on 382010 and the
sale took place on 392010 Since Pro Value was never a BFP due to the recording of
the lis pendens the Trusteersquos deed was void as a matter of law We demanded that this
court admit into evidence the assignment proving that Seaside was not a duly authorized
Trustee at the time they recorded the NOD and NOS Both the NOD and NOS were void
PROPOSED STATEMENT ON APPEAL-16-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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20
21
22
23
24
25
26
27
28
as a matter of law and so is the title of Pro Value This court committed error by not
admitting this evidence
In Alfaro v Community Housing Imp System amp Planning Assn Inc 171
CalApp4th 1356 (CalApp 6 Dist2009) The Court of Appeal in 2009 dealt with the
issue of the recording of a lis pendens and constructive notice and actual notice as
follows
ldquoOne of the central issues in this appeal is whether plaintiffs are chargeable withnotice of the deed restriction at an earlier time than its disclosure in the grant deeds Asexplained above the recording of a deed restriction is ordinarily regarded as imparting
iCivCode sect 1213constructive notice of its contents to subsequent purchasers (
Anderson supra 12 Cal4th 345 349 355 47 CalRptr2d 898 906 P2d 1314)Anderson supra 12 Cal4th 345 47 CalRptr2d 898 906 P2d 1314 went on to state onpage 355 47 CalRptr2d 898 906 P2d 1314 ldquoConstructive notice is ldquothe equivalent ofactual knowledge ie knowledge of its contents is conclusively presumed (4 WitkinSummary of Cal Law [ (9th ed 1987) ] Real Property sect 203 p 408 italics in original)rdquo
Defendants rely on Anderson as establishing that plaintiffs had constructive notice andFN21
actual knowledge of the deed restriction by virtue of its recording and by virtue of thisknowledge cannot successfully allege that defendants failed to disclose it
FN21 This quotation from Witkin is based on two cases AlhambraRedevelopment Agency v Transamerica Financial Services (1989) 212 CalApp3d1370 261 CalRptr 248 observed ldquoHere it is undisputed the Flemings properlyrecorded the contract thereby giving Transamerica constructive if not actual noticeof the contractrdquo ( Id at p 1377 261 CalRptr 248) Anderson v Willson (1920) 48CalApp 289 191 P 1016 stated ldquoWithout doubt the presumption of notice thusraised by this code provision is conclusive and incontrovertiblerdquo ( Id at p 293 191P 1016) Both cases concluded that a person with constructive notice did notqualify as a bona fide purchaser without notice Neither case attributed actualknowledge to the purchaser At most constructive notice has been conclusivelypresumed As we proceed to explain in the text there is a difference betweenactual and constructive notice
There was a caveat in Anderson however ldquo lsquoIf future takers purchase a piece ofproperty with notice of a restriction made by a predecessor then in the absence of duressor fraud they may ordinarily be thought to have bargained for the property with therestriction in mind and to have shown themselves willing to abide by itrsquo rdquo ( Andersonsupra 12 Cal4th at p 366 47 CalRptr2d 898 906 P2d 1314 emphasis added)
Plaintiffs argue that the doctrine of constructive notice does not apply to fraudcauses of action Bishop Creek Lodge v Scira (1996) 46 CalApp4th 1721 54CalRptr2d 745 ( Scira ) stated on page 1734 54 CalRptr2d 745 ldquoUnder a long line ofcases the fact that the victim had constructive notice of the truth from public records is nodefense to fraud The existence of such public records 1386 may be relevant to whetherthe victims reliance was justifiable but it is not by itself conclusive ( Seeger v Odell(1941) 18 Cal2d 409 414-417 115 P2d 977 [ ( Seeger ) ] Grange Co v Simmons(1962) 203 CalApp2d 567 576-577 21 CalRptr 757 Gross v Needham (1960) 184CalApp2d 446 460 7 CalRptr 664 Sullivan v Dunnigan (1959) 171 CalApp2d 662668 341 P2d 404 Regus v Schartkoff (1957) 156 CalApp2d 382 389 319 P2d 721 Schaefer v Berinstein (1956) 140 CalApp2d 278 296 295 P2d 113 Mills v
PROPOSED STATEMENT ON APPEAL-17-
1
2
3
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5
6
7
8
9
10
11
12
13
14
15
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18
19
20
21
22
23
24
25
26
27
28
Hellinger (1950) 100 CalApp2d 482 487 224 P2d 34 Barder v McClung (1949) 93CalApp2d 692 697 209 P2d 808 Stoll v Selander (1947) 81 CalApp2d 286 292 183P2d 935 Anderson v Thacher (1946) 76 CalApp2d 50 70 172 P2d 533)rdquo Therationale for this exception is ldquoThe purpose of the recording acts is to afford protection notto those who make fraudulent misrepresentations but to bona fide purchasers for valuerdquo (Seeger supra 18 Cal2d at p 415 115 P2d 977) Defendants do not discuss thisauthority cited by plaintiffs in their briefsrdquo
The court did not need a lecture from the undersigned that the purpose of the
recording of a Lis Pendens is to give ldquoConstructive Noticerdquo to the world especially to Pro
Value The court knew that the memorandum of law submitted by Pro Value was not worth
the paper it was written on as to its claim that Pro Value was a BFP That is the first thing
they teach law students in law school It is hornbook law as they say in law school The
office manager told Friedlander that she knew that Grossman had filed a lis pendens Not
only did Pro Value have ldquoconstructiverdquo notice they had actual notice Friedlander was
precluded from testifying that Pro Valuersquos attorney requested a copy of the complaint and
promised not to file an unlawful detainer suit against Grossman A short time thereafter on
3302010 an attorney named Bouzane filed the UD The promise made by an agent who
is authorized to speak is binding on his principal This attorney told Friedlander that his
client was in the room with him He believed him since he heard voices in the background
He justifiably relied on that representation of Pro Valuersquos attorney who was sitting in the
room with the attorney The courtrsquos refusal to permit Grossman to put on relevant
evidence is the sole reason for the so-called lack of evidence as enunciated by this
Court in its proposed Statement
Did the court really believe that Friedlander called Pro Value to talk about
settlement Hogwash The Office Manager lied through her teeth and Pro Value suborned
this perjury by objecting on the grounds of ldquosettlementrdquo Friedlander knew what he said to
her and she knew what she said to him His sworn testimony was totally different and
since she lied that she did not remember our conversation she was not in a position to
contradict his testimony Her choice would be to admit perjury to the court or commit
perjury by testifying to something he said which she did not remember Friedlander was
PROPOSED STATEMENT ON APPEAL-18-
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3
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prepared to prove by his sworn testimony regarding some of the declarations of mailing in
the courtrsquos file that if they were mailed they were never received by me They would have
been impeached and I would file a complaint with the District Attorney to investigate this
perjury The conduct of Bouzane and his agents such as the process server were
designed to deprive people like Grossman of their homes and throw them out on the
street Perjury is being suborned The fraud on the court marched on
TITLE ISSUES
A qualified exception to the rule that title cannot be tried in an unlawful detainer
proceeding [see Evid Code sect 624 545[1][c]] is contained in CCP sect 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 sect 1161a Vella v Hudgins (1977) 20 C3d 251 255
Words and Phrases
The term duly implies that all of those elements necessary to valid sale exist
Kessler v Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title that is
duly perfected includes good record title but is not limited to good record title Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title is duly perfected
when all steps have been taken to make it perfect that is to convey to purchaser that
which he has purchased valid and good beyond all reasonable doubt Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837
Grossman filed his verified answer on 72310 Denied Par 6 Denied Par 7 alleging
fraud and a rigged sale Denied par 8 that he was served with a Notice to Quit Denied
Par 9 based on failure of service of notice to quit Denied Par 10 Denied paragraphs 11
and 12 First Affirmative Defense Failed to state a cause of action Second Affirmative
PROPOSED STATEMENT ON APPEAL-19-
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2
3
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5
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7
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Defense Not properly verified by Pro Value only Bouzane Third Affirmative Defense No
Notice to Quit Fifth Affirmative Defense Denial of Due Process under the 14th
Amendment Sixth Affirmative Defense Denial of Procedural Due Process under the 14th
Amendment Seventh Affirmative Defense Denial of Equal Protection of the law under the
14 Amendmentth
FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT
1 Service of Notice to Quit
2 Compliance with the law regarding the TD sale
LEGAL ISSUES NOT DECIDED BY THE COURT
1 The two due process arguments under the 14 Amendmentth
2 The equal protection Argument under the 14 Amendmentth
3 Denial of Right to Trial by Jury
PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH
EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE
On 2202009 California enacted into law the California Foreclosure Prevention Act as
an amendment to CC Sec 2923 If Bayview took an assignment from a Lender who was not
the Lender as reflected by the Assignment that the Court wrongfully refused to admit into
evidence and gave it back to me until I requested that the Assignment be marked and that the
Courtrsquos minute order reflect that it was offered and refused on the grounds of relevancy and
no other ground That is reversible error A Trustee appointed by an Assignee without good
title is a nullity and every act that Seaside Trust took was a nullity That Assignment which
should have been admitted would prove the fact of nullity and Grossman would be entitled to
move for judgment when Pro Value rested We request the Court to reverse its original refusal
to admit that Assignment into evidence and then grant judgment to Grossman as the Trusteersquos
Deed is null and void That was my offer of proof of relevancy
PROPOSED STATEMENT ON APPEAL-20-
1
2
3
4
5
6
7
8
9
10
11
12
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1 Under CC Sec 29235 the lender must contact the borrower At that point of time I
had given notice to Bayview that I was the attorney for the borrower Pro Value has offered no
evidence Grossman fell within the provisions of CC Sec 2923 as the TD offered into evidence
by Pro Value reflects that Grossman entered into the loan during the period from 112003 -
12312007
2 Pro Value offered no evidence that it complied with CC Sec 29236 offered a loan
modification plan to Grossman
3 Pro Value offered no evidence that it complied with CC Sec 2923 or that Bayview
was exempt
4 Pro Value offered no evidence that it complied with the provisions of HARP (12
USC Sec 1524) which was part of the ldquoeconomic stimulusrdquo to prevent foreclosures and
revitalize the housing sector
5 Pursuant to CC Sec 2924 the Trusteersquos Deed will presume the sale to be valid and
conclusively presumed to be valid if Pro Value was a BFP which it was not Pro Value failed to
prove its case for the following reasons (1) it was not the duly appointed Trustee (2) the
backdated and forged assignment allegedly was from the true lender after it went bankrupt
which required Bayview to record a new document appointing Seaside as its Trustee There is
no relation back case cited by Pro Value since it does not exist Even if it existed the law still
required the duly appointed Trustee under the new assignment to record the NOD and NOS
and comply with all of the other provisions of State and Federal Law which it could not and
did not do thereby making the Trusteersquos deed a ldquonullityrdquo without any presumptions of validity
Plaintiff claimed they have complied with CC Sec 2924 in paragraphs 4 thru 7 of
their complaint that they have met the burden of proof in that a sale had occurred and the
trustees Deed establishes this presumption that the sale was ldquoduly Perfectedrdquo and the Civil
has been complied with Defendant claimed that they did not and Plaintiff has submitted
to the court a certified copy of the Notice of Trustees Sale and asked the court to take
judicial notice of said document as well as the Trusteersquos Deed We requested the court to
PROPOSED STATEMENT ON APPEAL-21-
1
2
3
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5
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7
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9
10
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28
reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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19
20
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22
23
24
25
26
27
28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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22
23
24
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27
28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
1
2
3
4
5
6
7
8
9
10
11
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13
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was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
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2
3
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Friedlander Friedlander testified without objection that Riojas told him that she
was the office manager that she pulled the Grossman file that she knew before
the sale that Grossman had recorded a Lis Pendens and that he had claims to the
property (actual notice) she testified that was a basis of a conversation with
Seaside the Trustee and the sales price was negotiated downward due to the
impediment prior to any actual sale which gives credence to Grossmanrsquos claim that
the sale was rigged Riojas was given an opportunity to change her testimony but
she did not Friedlanderrsquos testimony puts the ldquolierdquo to Riojasrsquo testimony and she was
anything but credible Friedlander even offered into evidence a letter that he wrote
to Pro Value after his conversation with Riojas which Friedlander testified that it
was his business practice over 40 years to reiterate a conversation in a letter to the
other side to memorialize that conversation for a trial to take place many months or
years later Friedlander was not cross-examined
The Trial Court deliberately refused to render a factual and legal basis as to
whether Pro Value was a BFP and left it ambiguous That is deliberate error and a
denial of due process
A bona fide purchaser is one who pays value for the property without notice of any
adverse interest or any irregularity in the sale proceeding Nguyen v Calhoun 105 Cal
App 4 428 (2003) The Lis Pendens gave ldquoconstructive noticerdquo to the ldquoworldrdquo includingth
Pro Value Thus Pro Value was on ldquoconstructive notice Friedlander testified that the office
manager told him that Pro Value had ldquoactual noticerdquo a fact that has not been challenged
by Pro Value Friedlanderrsquos testimony established that not only did Pro Value have notice
of ldquoirregularitiesrdquo in the sale proceedings but Pro Value participated in those irregularities
per Friedlanderrsquos sworn testimony as to the arrangement of the price before the sale Pro
Value offered no testimony whatsoever as to the actual sale and bidding
The Trusteersquos Deed should not have been admitted into evidence pursuant to
Judicial Notice since it was ldquoirregularrdquo on its face The Trial Court should have noted that
the ldquoamount of the Unpaid Debtrdquo was left blank Both Bayview and Seaside knew or
PROPOSED STATEMENT ON APPEAL-4-
1
2
3
4
5
6
7
8
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10
11
12
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24
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28
should have known what the ldquoUnpaid Debtrdquo was The Trusteersquos Deed was not an affidavit
but a Notarial Acknowledgment that Elvia Bouche signed the document as Vice President
of Seaside It doesnrsquot make the facts in that document ldquotruerdquo
4 The factual and legal basis as to whether or not Bayview was an Assignee of the
Original Lender on the date that it substituted Seaside as Trustee of the Grossman TD
The court deliberately failed to do so even after admitting into evidence the
ldquoAllongerdquo which stated on its face that the Note that Grossman signed in favor of
the original lender was endorsed over to HSBC an entity other than Bayview That
Allonge was faxed to Friedlander by Northwestern Trustee the prior Trustee
appointed by Bayview on a date prior to Seasidersquos involvement and puts the lie to
the backdated and forged Assignment referenced in Pro Valuersquos Exhibit 2 This
Court intentionally neglected to state that Exhibit 2 was recorded on 382010 one
day before the sale This court covered up the fraud and perjury of Bayview and
Seaside by admitting that document into evidence and using that document to
support its decision It was backdated to 6102009 which could not have been
prepared by Seaside since Seaside was appointed on 832009 according to Exhibit
1
Since Bayview did not own the note it could not enforce the security for a
note that it did not own We will cite numerous authority in our brief which will
include a reference to a recent decision of the Supreme Court of Massachusetts
5 The factual and legal basis as to whether or not Seaside was a duly authorized Trustee
on the date that they recorded the Notice of Default and Notice of Sale This court did
not answer that question The evidence that it rejected reflected that on the date the
NOD and NOS was recorded Seaside was appointed by an entity other than the
original lender rendering all recordings a ldquonullityrdquo Exhibit 2 recorded on 382010
and back dated to 692010 was Bayview and Seaside attempt to ldquocover-uprdquo the
invalidity of the prior recording of the NOD and NOS by Seaside We have a
subornation of perjury here by Pro Value by offering into evidence it knew was
PROPOSED STATEMENT ON APPEAL-5-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
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22
23
24
25
26
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28
ldquofalsersquo Pro Value committed a fraud on the Trial Court and put into disrespect the
ldquorule of lawrdquo which that Court swore to uphold
6 The factual and legal basis as to whether or not the Lis Pendens recorded by Grossman
in December 2009 precluded the later Assignment recorded on March 8 2010 from being
subject to the pending action in Department 53 of the LASC The court failed and
refused to address that material issue of law and fact
7 The factual and legal basis as to whether or not Seasidersquos Trusteersquos Deed was null and
void on the date that it was recorded The court failed and refused to address that
material issue of law and fact
8 The factual and legal basis as to whether or not the Trusteersquos Deed passed legal title to
Pro Value The court failed and refused to address that material issue of law and
fact
9 The factual and legal basis as to whether or not the Assignment that was recorded by
Seaside on 382010 was backdated by Seaside and fraudulently signed by an alleged
officer of MERS on the date that it was notarized by the Florida notary The court failed
and refused to address that material issue of law and fact
10 The factual and legal basis as to whether or not Grossman received a ldquofair trialrdquo as that
term is defined by the cases decided under the 14 Amendment The court failed andth
refused to address that material issue of law and fact However Grossman addressed
that issue to the effect that he did not receive a ldquofair trialrdquo
11 The factual and legal basis as to whether or not Trustee and Bayview complied with
Federal and California law with respect to the Trusteersquos sale allegedly conducted by the
Trustee andor its agents The court failed and refused to address that material issue
of law and fact However Friedlander filed a Memorandum of Law that ldquoHearsay in a
Recorded Documentrdquo is still ldquohearsayrdquo and inadmissable Friedlander testified under oath
without objection that the Trustee and Bayview did not comply with those requirements of
law For example Friedlander testified that CC Sec 29235 was not complied with There
was no testimony by Bayview or declaration signed and recorded by Bayview that Bayview
PROPOSED STATEMENT ON APPEAL-6-
1
2
3
4
5
6
7
8
9
10
11
12
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22
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24
25
26
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28
complied with CC Sec 29235 (a)(1) (2) (b) or c The use of the word ldquodeclarationrdquo in
subparagraph should be interpreted to mean a declaration by a mortgagee or beneficiary
A declaration by a Trustee is rank hearsay rendering the entire NOD and NOS void
precluding a sale Friedlanderrsquos testimony was first hand knowledge and certainly trumped
ldquohearsayrdquo CC Sec 29235 was not complied with per the testimony of Friedlander The
Trusteersquos declaration as to what Bayview told her is rank hearsay It required a declaration
by Bayview No such declaration was filed CC Sec 292354 (a) required a declaration
from the mortgage loan servicer (Bayview) in the Notice of Sale It did not The declaration
by the Trustee is not only rank hearsay but did not comply with the Civil Code and the
testimony of Friedlander trumps Pro Value on that issue
12 The factual and legal basis as to whether or not Grossman prevailed on any one or
more of his affirmative defenses The court failed and refused to address that
material issue of law and fact
13 The factual and legal basis as to whether or not the California Unlawful Detainer
Statute is Unconstitutional under either one or more of the Constitutional defenses raised
by Grossman in his answer The court failed and refused to address that material
issue of law and fact
Tender is not an issue in this UD case It may be an issue in the main case entitled
Grossman v Bayview In any event Bayview did not own the Note per the Allongerdquo and
therefore there was no duty to tender Tender is a ldquored herringrdquo irrelevant issue in this
case
DEFENDANT WAS NOT PROPERLY SERVED
All Pro Value offered was Bodinersquos testimony for what it was Process servers are
notorious for ldquosewer servicerdquo Defense counsel has set aside quite a few one of which
resulted in a published decision Bodine testified that he was employed by Bouzane The
Court may take judicial notice of the fact that on the day of the alleged service Bouzane
was under a 2 year suspension stayed for violation of the State Bar ethics Bouzane
headed up an ldquoEviction Millrdquo by the name of ldquoFAST EVICTION SERVICErdquo per Bodinersquos
PROPOSED STATEMENT ON APPEAL-7-
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3
4
5
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7
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11
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28
testimony One wonders why eviction is so fast Neither Bodine nor Bouzane made any
effort to determine whether Grossman had a business address Bodine testified that he
mailed the Notice to Grossman but the return address was Fast Eviction Service and he
did not open its mail Grossman testified he was an attorney That he never saw a Notice
on his screen door and he received no such notice in the mail The first time he saw such
a notice was when he was served a second time with the Summons and Complaint the
first and second service being quashed Grossman testified that he was looking out for
such a Notice since he found out that the Property had been sold and that he would be
receiving a Notice to Quit What led the court to believe that Grossmanrsquos testimony was
ldquoless crediblerdquo That statement brought into question the Courtrsquos entire analysis of this
case Grossman was an attorney testifying under oath while Bodine was a run of the mill
process server working for an attorney who had been disciplined by the State Bar The
Courtrsquos analysis is upside down in favor of pushing through a ldquofloodrdquo of evictions We
believe that the service requirements of the service of a Notice to Quit after a Non-Judicial
sale should meet the same notice and due process requirements of Service of a
Summons and Complaint To the extent that it doesnrsquot we contend that portion of the UD
statute is unconstitutional under the 14 Amendmentth
Joe Nocera business reporter for the New York Times wrote in the October 23
2010 business section of the New York Times regarding the Bank of America and
Countrywide the following
ldquoBut it simply does not follow that the Bank therefore has an absolute right
to take back the home Under the law it has to prove it has that right-by filing
documents that show that the owner of the mortgage has conveyed that right to it
Thatrsquos why this affidavit scandal isnrsquot some legal nicety Itrsquos about the single most
important value of American jurisprudence Due Processrdquo The Allonge proves that
Bayview did not own the Note and therefore did not have the right to enforce it by non-
judicial sale The Allonge was admitted into evidence and it establishes Grossmanrsquos
case for a defense judgment The phony backdated assignment does not trump the
PROPOSED STATEMENT ON APPEAL-8-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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28
Allonge
RELEVANT PORTIONS OF GROSSMAN TRIAL BRIEF
sect 2936 Assignment of debt carries security
Mortgage passes by assignment of debt The assignment of a debt secured by mortgage
carries with it the security
A mortgage being a mere security for debt it is not transferable without
transfer of the debt Johnson v Razey (1919) 181 Cal 342 184 P 657
Debt and security are inseparable the mortgage alone is not a subject of
transfer Hyde v Mangan (1891) 88 Cal 319 26 P 180
Wests AnnCalCivCode sect 2937 provides ldquoNotices to borrower of transfer of service
by existing and new servicing agent of mortgage or deed of trust on single family
residential real property
(a) The Legislature hereby finds and declares that borrowers or subsequent
obligors have the right to know when a person holding a promissory note bond or other
instrument transfers servicing of the indebtedness secured by a mortgage or deed of trust
on real property containing one to four residential units located in this state The
Legislature also finds that notification to the borrower or subsequent obligor of the transfer
may protect the borrower or subsequent obligor from fraudulent business practices and
may ensure timely payments It is the intent of the Legislature in enacting this section to
mandate that a borrower or subsequent obligor be given written notice when a person
transfers the servicing of the indebtedness on notes bonds or other instruments secured
by a mortgage or deed of trust on real property containing one to four residential units and
located in this state
(b) Any person transferring the servicing of indebtedness as provided in subdivision
(a) to a different servicing agent and any person assuming from another responsibility for
servicing the instrument evidencing indebtedness shall give written notice to the borrower
PROPOSED STATEMENT ON APPEAL-9-
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2
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28
or subsequent obligor before the borrower or subsequent obligor becomes obligated to
make payments to a new servicing agent
copy In the event a notice of default has been recorded or a judicial foreclosure
proceeding has been commenced the person transferring the servicing of the
indebtedness and the person assuming from another the duty of servicing the
indebtedness shall give written notice to the trustee or attorney named in the notice of
default or judicial foreclosure of the transfer A notice of default notice of sale or judicial
foreclosure shall not be invalidated solely because the servicing agent is changed during
the foreclosure process
(d) Any person transferring the servicing of indebtedness as provided in subdivision
(a) to a different servicing agent shall provide to the new servicing agent all existing
insurance policy information that the person is responsible for maintaining including but
not limited to flood and hazard insurance policy information
(e) The notices required by subdivision (b) shall be sent by first- class mail postage
prepaid to the borrowers or subsequent obligors address designated for loan payment
billings or if escrow is pending as provided in the escrow and shall contain each of the
following
(1) The name and address of the person to which the transfer of the servicing of the
indebtedness is made
(2) The date the transfer was or will be completed
(3) The address where all payments pursuant to the transfer are to be made
(f) Any person assuming from another responsibility for servicing the instrument
evidencing indebtedness shall include in the notice required by subdivision (b) a statement
of the due date of the next payment
PROPOSED STATEMENT ON APPEAL-10-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(g) The borrower or subsequent obligor shall not be liable to the holder of the note
bond or other instrument or to any servicing agent for payments made to the previous
servicing agent or for late charges if these payments were made prior to the borrower or
subsequent obligor receiving written notice of the transfer as provided by subdivision (e)
and the payments were otherwise on time
(h) For purposes of this section the term servicing agent shall not include a
trustee exercising a power of sale pursuant to a deed of trust
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Star 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
PROPOSED STATEMENT ON APPEAL-11-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
PROPOSED STATEMENT ON APPEAL-12-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
The undersigned spent his time researching the law as ldquoevictionsrdquo based on judicial
and non-judicial foreclosures sales are overwhelming our state and federal court systems
Having handled many ldquolis pendensrdquo cases ldquoconstructive noticerdquo based on a recorded ldquolis
pendens the undersigned will discuss the effect of the recordation of a lsquolis pendensrdquo on a
party claiming to be a bona fide purchaser (ldquoBFPrdquo) Simply put there is no such ldquoanimalrdquo
even though Pro Value asserts that it is a BFP Whether or not Pro Value is a BFP affects
presumptions rebuttable or conclusive Pro Valuersquos counsel misrepresented to the Court
that Pro Value was a BFP and the undersigned says ldquohogwashrdquo
Aside from the evidence and testimony the law is very unclear due to the recent
legislation passed by Congress and California to ldquoprotectrdquo homeowners from being
ldquotossedrdquo out on the street due to what the undersigned has read about the ldquounsavoryrdquo
foreclosure and eviction mills throughout this country
PROPOSED STATEMENT ON APPEAL-13-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Simply put I place John Bouzane dba Fast Eviction Service in the category of an
ldquoeviction millrdquo We had a ldquoreasonablerdquo expectation that the ldquoattorney of recordrdquo would
appear at trial as the ldquotrial attorneyrdquo since Bouzane verified the UD complaint and
subjected himself to be called as a witness by the Defense
Counsel for Pro Value stated that the statute which permitted non-judicial
foreclosure is constitutional I know that since there is no ldquostate actionrdquo Grossman
challenges the Constitutionality of the ldquoevictionrdquo statutes since it requires ldquoState Actionrdquo to
evict a homeowner from their home after a non judicial sale That is an undecided issue
which the undersigned looks forward to present That is why Grossman requested to make
an evidentiary record so that the Court may decide the Constitutional issues There are
many attorneys in the ldquoborrowerrsquos barrdquo who await such a declaration of unconstitutionality
It is not a frivolous position Prior to Sniadach v Family Finance I was writing briefs that pre
judgment attachments without notice and a hearing violated the due process clause of
the 14 Amendment That case was decided by the US Supreme Court before anth
appellate court heard the same argument from the undersigned
FUNCTION OF THE JUDGE
The major feature of a bench trial is that the judge sits as the trier of fact The
Judge determines the admissibility weighs the evidence determines credibility and
renders judgment CCP Sec 6318 (a) Davis v Kahn (1970) 7 Cal App 3 868 874rd
Bullockrsquos Inc v Security First national Bank of Los Angeles (1958) 160 Cal App 2 277nd
285 Judges are precluded from conducting independent investigations outside the
courtroom because to do so would be a denial of due process denying to a litigant the
fair and impartial trial to which everyone is entitled Conservatorship of Schaeffer (2002)
98 Cal App 4 159 164 The general order of proceedings is set forth in CCP Sec 607th
6317
The Courtrsquos reference to ldquotenderrdquo in a non-lease situation raised a suspicion that
this Court referenced some of the proceedings in Grossman v Bayview where ldquoTenderrdquo
was made an issue by Schloss the attorney for Bayview and Seaside We requested the
PROPOSED STATEMENT ON APPEAL-14-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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20
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23
24
25
26
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28
Court to address why it referenced ldquotenderrdquo in the context of this type of unlawful detainer
case It did not do so Error
According to California Civil Handbook and Desktop Reference Thomas 2007 Ed
at P 874 ldquoThere is considerable controversy as to whether a court may reconsider its
prior ruling at any time-and if so in what manner the issue may be raisedrdquo WE RAISED IT
THROUGHOUT THE ENTIRE PROCEEDINGS WHICH THE TRIAL COURT IGNORED
See discussion in Kerns v CSE Ins Group (2003) 106 Cal App 4 368 383-389th
Defendant requested the court to reopen the case and grant a continuance if necessary
Thomas at P 875 The court had the inherent power it may be done on the courtrsquos own
motion when required by the interests of justice It failed to do so
This court made reversible error and denied Grossman a fair trial by ldquoguttingrdquo
Grossmanrsquos defense when it on its own motion sua sponte quashed the SDTs served on
the Seaside witnesses Grossman proved by competent evidence that the SDTs were duly
served on all of the Seaside witnesses in accordance to CCP Sec 1987 The Objections
admitted service the witnesses did not testify in their affidavits that ldquothey demanded
witnesses feesrdquo from the process server It was the witnesses burden of proof to declare
under oath that they demanded fees and were not paid It is common knowledge that
process servers are trained not to offer witness fees unless they are demanded If the
witnesses had testified that they demanded witness fees at the time they were served
then we would have produced affidavits from the process server that the fees were not
demanded
CCP Sec 19871 (a) provided for a motion The attorneys for the witnesses filed an
objection not a motion The witnesses did not follow the procedure set forth by law The
objections should have been summarily denied Instead the Court took the bench and sua
sponte quashed each of the subpoenas The court refused to allow the undersigned to
object to this unconstitutional procedure Subsection (b) of 19871 (b) provided ldquoon the
courtrsquos own motion after giving counsel notice and an opportunity to be heard or any
reason whatsoever for issuing this unlawful ldquosua sponterdquo order Grossmanrsquos counsel was
PROPOSED STATEMENT ON APPEAL-15-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
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17
18
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20
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23
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25
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28
given no notice whatsoever refused Grossmanrsquos counsel an opportunity to be heard and
over his objection the court told him to ldquobe quiet and sit downrdquo which he did That order
was a blatant violation of CCP Sec 19871 (b) denied Grossman a fair trial and
evidenced a bias against either Grossman or his counsel or there may be an agenda in
that courthouse to ldquorailroad throughrdquo all of the UD cases since they were ldquoclogging uprdquo an
over burdened court with limited funds due to the very meltdown caused by MERS and
their cohorts such as the Wall Street institutions We believe a former Chief Assistant US
Attorney Criminal Trials Division should have known better Grossman was entitled to the
evidentiary material that he subpoenaed was entitled to cross-examine Ms Weber to
whom Friedlander had corresponded with wrote letters to and Seaside plead the 5th
Amendment to discovery requests such as production of documents admissions that one
of the documents were backdated and forged and that crimes were committed Seaside
being a corporation was not permitted to assert the 5 Amendmentth
The following was the ldquooffer of proofrdquo of the relevancy of the Seaside witnesses
testimony and documents At the time that Bayview using MERS as its conduit was the
Assignee from a Lender who was not the lender of record by virtue of the TD introduced
into evidence by Pro Value The Assignor was a different entity than the Lender The
original Lender was bankrupt and therefore any agency that existed at the time that
Grossman signed the original TD was terminated by operation of law due to the
bankruptcy of the original lender Since Bayview was the Assignee of an entity other
than the original lender Bayview lacked both the power and authority to appoint Seaside
as Trustee Therefore any NOD and NOS issued by Seaside was void as a matter of
law That is the reason why a new backdated assignment was prepared by Seaside
signed by an ldquoallegedrdquo officer of MERS before a Notary was recorded on 382010 and the
sale took place on 392010 Since Pro Value was never a BFP due to the recording of
the lis pendens the Trusteersquos deed was void as a matter of law We demanded that this
court admit into evidence the assignment proving that Seaside was not a duly authorized
Trustee at the time they recorded the NOD and NOS Both the NOD and NOS were void
PROPOSED STATEMENT ON APPEAL-16-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
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18
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20
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22
23
24
25
26
27
28
as a matter of law and so is the title of Pro Value This court committed error by not
admitting this evidence
In Alfaro v Community Housing Imp System amp Planning Assn Inc 171
CalApp4th 1356 (CalApp 6 Dist2009) The Court of Appeal in 2009 dealt with the
issue of the recording of a lis pendens and constructive notice and actual notice as
follows
ldquoOne of the central issues in this appeal is whether plaintiffs are chargeable withnotice of the deed restriction at an earlier time than its disclosure in the grant deeds Asexplained above the recording of a deed restriction is ordinarily regarded as imparting
iCivCode sect 1213constructive notice of its contents to subsequent purchasers (
Anderson supra 12 Cal4th 345 349 355 47 CalRptr2d 898 906 P2d 1314)Anderson supra 12 Cal4th 345 47 CalRptr2d 898 906 P2d 1314 went on to state onpage 355 47 CalRptr2d 898 906 P2d 1314 ldquoConstructive notice is ldquothe equivalent ofactual knowledge ie knowledge of its contents is conclusively presumed (4 WitkinSummary of Cal Law [ (9th ed 1987) ] Real Property sect 203 p 408 italics in original)rdquo
Defendants rely on Anderson as establishing that plaintiffs had constructive notice andFN21
actual knowledge of the deed restriction by virtue of its recording and by virtue of thisknowledge cannot successfully allege that defendants failed to disclose it
FN21 This quotation from Witkin is based on two cases AlhambraRedevelopment Agency v Transamerica Financial Services (1989) 212 CalApp3d1370 261 CalRptr 248 observed ldquoHere it is undisputed the Flemings properlyrecorded the contract thereby giving Transamerica constructive if not actual noticeof the contractrdquo ( Id at p 1377 261 CalRptr 248) Anderson v Willson (1920) 48CalApp 289 191 P 1016 stated ldquoWithout doubt the presumption of notice thusraised by this code provision is conclusive and incontrovertiblerdquo ( Id at p 293 191P 1016) Both cases concluded that a person with constructive notice did notqualify as a bona fide purchaser without notice Neither case attributed actualknowledge to the purchaser At most constructive notice has been conclusivelypresumed As we proceed to explain in the text there is a difference betweenactual and constructive notice
There was a caveat in Anderson however ldquo lsquoIf future takers purchase a piece ofproperty with notice of a restriction made by a predecessor then in the absence of duressor fraud they may ordinarily be thought to have bargained for the property with therestriction in mind and to have shown themselves willing to abide by itrsquo rdquo ( Andersonsupra 12 Cal4th at p 366 47 CalRptr2d 898 906 P2d 1314 emphasis added)
Plaintiffs argue that the doctrine of constructive notice does not apply to fraudcauses of action Bishop Creek Lodge v Scira (1996) 46 CalApp4th 1721 54CalRptr2d 745 ( Scira ) stated on page 1734 54 CalRptr2d 745 ldquoUnder a long line ofcases the fact that the victim had constructive notice of the truth from public records is nodefense to fraud The existence of such public records 1386 may be relevant to whetherthe victims reliance was justifiable but it is not by itself conclusive ( Seeger v Odell(1941) 18 Cal2d 409 414-417 115 P2d 977 [ ( Seeger ) ] Grange Co v Simmons(1962) 203 CalApp2d 567 576-577 21 CalRptr 757 Gross v Needham (1960) 184CalApp2d 446 460 7 CalRptr 664 Sullivan v Dunnigan (1959) 171 CalApp2d 662668 341 P2d 404 Regus v Schartkoff (1957) 156 CalApp2d 382 389 319 P2d 721 Schaefer v Berinstein (1956) 140 CalApp2d 278 296 295 P2d 113 Mills v
PROPOSED STATEMENT ON APPEAL-17-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Hellinger (1950) 100 CalApp2d 482 487 224 P2d 34 Barder v McClung (1949) 93CalApp2d 692 697 209 P2d 808 Stoll v Selander (1947) 81 CalApp2d 286 292 183P2d 935 Anderson v Thacher (1946) 76 CalApp2d 50 70 172 P2d 533)rdquo Therationale for this exception is ldquoThe purpose of the recording acts is to afford protection notto those who make fraudulent misrepresentations but to bona fide purchasers for valuerdquo (Seeger supra 18 Cal2d at p 415 115 P2d 977) Defendants do not discuss thisauthority cited by plaintiffs in their briefsrdquo
The court did not need a lecture from the undersigned that the purpose of the
recording of a Lis Pendens is to give ldquoConstructive Noticerdquo to the world especially to Pro
Value The court knew that the memorandum of law submitted by Pro Value was not worth
the paper it was written on as to its claim that Pro Value was a BFP That is the first thing
they teach law students in law school It is hornbook law as they say in law school The
office manager told Friedlander that she knew that Grossman had filed a lis pendens Not
only did Pro Value have ldquoconstructiverdquo notice they had actual notice Friedlander was
precluded from testifying that Pro Valuersquos attorney requested a copy of the complaint and
promised not to file an unlawful detainer suit against Grossman A short time thereafter on
3302010 an attorney named Bouzane filed the UD The promise made by an agent who
is authorized to speak is binding on his principal This attorney told Friedlander that his
client was in the room with him He believed him since he heard voices in the background
He justifiably relied on that representation of Pro Valuersquos attorney who was sitting in the
room with the attorney The courtrsquos refusal to permit Grossman to put on relevant
evidence is the sole reason for the so-called lack of evidence as enunciated by this
Court in its proposed Statement
Did the court really believe that Friedlander called Pro Value to talk about
settlement Hogwash The Office Manager lied through her teeth and Pro Value suborned
this perjury by objecting on the grounds of ldquosettlementrdquo Friedlander knew what he said to
her and she knew what she said to him His sworn testimony was totally different and
since she lied that she did not remember our conversation she was not in a position to
contradict his testimony Her choice would be to admit perjury to the court or commit
perjury by testifying to something he said which she did not remember Friedlander was
PROPOSED STATEMENT ON APPEAL-18-
1
2
3
4
5
6
7
8
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10
11
12
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17
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28
prepared to prove by his sworn testimony regarding some of the declarations of mailing in
the courtrsquos file that if they were mailed they were never received by me They would have
been impeached and I would file a complaint with the District Attorney to investigate this
perjury The conduct of Bouzane and his agents such as the process server were
designed to deprive people like Grossman of their homes and throw them out on the
street Perjury is being suborned The fraud on the court marched on
TITLE ISSUES
A qualified exception to the rule that title cannot be tried in an unlawful detainer
proceeding [see Evid Code sect 624 545[1][c]] is contained in CCP sect 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 sect 1161a Vella v Hudgins (1977) 20 C3d 251 255
Words and Phrases
The term duly implies that all of those elements necessary to valid sale exist
Kessler v Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title that is
duly perfected includes good record title but is not limited to good record title Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title is duly perfected
when all steps have been taken to make it perfect that is to convey to purchaser that
which he has purchased valid and good beyond all reasonable doubt Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837
Grossman filed his verified answer on 72310 Denied Par 6 Denied Par 7 alleging
fraud and a rigged sale Denied par 8 that he was served with a Notice to Quit Denied
Par 9 based on failure of service of notice to quit Denied Par 10 Denied paragraphs 11
and 12 First Affirmative Defense Failed to state a cause of action Second Affirmative
PROPOSED STATEMENT ON APPEAL-19-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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20
21
22
23
24
25
26
27
28
Defense Not properly verified by Pro Value only Bouzane Third Affirmative Defense No
Notice to Quit Fifth Affirmative Defense Denial of Due Process under the 14th
Amendment Sixth Affirmative Defense Denial of Procedural Due Process under the 14th
Amendment Seventh Affirmative Defense Denial of Equal Protection of the law under the
14 Amendmentth
FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT
1 Service of Notice to Quit
2 Compliance with the law regarding the TD sale
LEGAL ISSUES NOT DECIDED BY THE COURT
1 The two due process arguments under the 14 Amendmentth
2 The equal protection Argument under the 14 Amendmentth
3 Denial of Right to Trial by Jury
PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH
EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE
On 2202009 California enacted into law the California Foreclosure Prevention Act as
an amendment to CC Sec 2923 If Bayview took an assignment from a Lender who was not
the Lender as reflected by the Assignment that the Court wrongfully refused to admit into
evidence and gave it back to me until I requested that the Assignment be marked and that the
Courtrsquos minute order reflect that it was offered and refused on the grounds of relevancy and
no other ground That is reversible error A Trustee appointed by an Assignee without good
title is a nullity and every act that Seaside Trust took was a nullity That Assignment which
should have been admitted would prove the fact of nullity and Grossman would be entitled to
move for judgment when Pro Value rested We request the Court to reverse its original refusal
to admit that Assignment into evidence and then grant judgment to Grossman as the Trusteersquos
Deed is null and void That was my offer of proof of relevancy
PROPOSED STATEMENT ON APPEAL-20-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
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22
23
24
25
26
27
28
1 Under CC Sec 29235 the lender must contact the borrower At that point of time I
had given notice to Bayview that I was the attorney for the borrower Pro Value has offered no
evidence Grossman fell within the provisions of CC Sec 2923 as the TD offered into evidence
by Pro Value reflects that Grossman entered into the loan during the period from 112003 -
12312007
2 Pro Value offered no evidence that it complied with CC Sec 29236 offered a loan
modification plan to Grossman
3 Pro Value offered no evidence that it complied with CC Sec 2923 or that Bayview
was exempt
4 Pro Value offered no evidence that it complied with the provisions of HARP (12
USC Sec 1524) which was part of the ldquoeconomic stimulusrdquo to prevent foreclosures and
revitalize the housing sector
5 Pursuant to CC Sec 2924 the Trusteersquos Deed will presume the sale to be valid and
conclusively presumed to be valid if Pro Value was a BFP which it was not Pro Value failed to
prove its case for the following reasons (1) it was not the duly appointed Trustee (2) the
backdated and forged assignment allegedly was from the true lender after it went bankrupt
which required Bayview to record a new document appointing Seaside as its Trustee There is
no relation back case cited by Pro Value since it does not exist Even if it existed the law still
required the duly appointed Trustee under the new assignment to record the NOD and NOS
and comply with all of the other provisions of State and Federal Law which it could not and
did not do thereby making the Trusteersquos deed a ldquonullityrdquo without any presumptions of validity
Plaintiff claimed they have complied with CC Sec 2924 in paragraphs 4 thru 7 of
their complaint that they have met the burden of proof in that a sale had occurred and the
trustees Deed establishes this presumption that the sale was ldquoduly Perfectedrdquo and the Civil
has been complied with Defendant claimed that they did not and Plaintiff has submitted
to the court a certified copy of the Notice of Trustees Sale and asked the court to take
judicial notice of said document as well as the Trusteersquos Deed We requested the court to
PROPOSED STATEMENT ON APPEAL-21-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
1
2
3
4
5
6
7
8
9
10
11
12
13
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15
16
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18
19
20
21
22
23
24
25
26
27
28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
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8
9
10
11
12
13
14
15
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18
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20
21
22
23
24
25
26
27
28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
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19
20
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23
24
25
26
27
28
was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
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2
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5
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10
11
12
13
14
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23
24
25
26
27
28
should have known what the ldquoUnpaid Debtrdquo was The Trusteersquos Deed was not an affidavit
but a Notarial Acknowledgment that Elvia Bouche signed the document as Vice President
of Seaside It doesnrsquot make the facts in that document ldquotruerdquo
4 The factual and legal basis as to whether or not Bayview was an Assignee of the
Original Lender on the date that it substituted Seaside as Trustee of the Grossman TD
The court deliberately failed to do so even after admitting into evidence the
ldquoAllongerdquo which stated on its face that the Note that Grossman signed in favor of
the original lender was endorsed over to HSBC an entity other than Bayview That
Allonge was faxed to Friedlander by Northwestern Trustee the prior Trustee
appointed by Bayview on a date prior to Seasidersquos involvement and puts the lie to
the backdated and forged Assignment referenced in Pro Valuersquos Exhibit 2 This
Court intentionally neglected to state that Exhibit 2 was recorded on 382010 one
day before the sale This court covered up the fraud and perjury of Bayview and
Seaside by admitting that document into evidence and using that document to
support its decision It was backdated to 6102009 which could not have been
prepared by Seaside since Seaside was appointed on 832009 according to Exhibit
1
Since Bayview did not own the note it could not enforce the security for a
note that it did not own We will cite numerous authority in our brief which will
include a reference to a recent decision of the Supreme Court of Massachusetts
5 The factual and legal basis as to whether or not Seaside was a duly authorized Trustee
on the date that they recorded the Notice of Default and Notice of Sale This court did
not answer that question The evidence that it rejected reflected that on the date the
NOD and NOS was recorded Seaside was appointed by an entity other than the
original lender rendering all recordings a ldquonullityrdquo Exhibit 2 recorded on 382010
and back dated to 692010 was Bayview and Seaside attempt to ldquocover-uprdquo the
invalidity of the prior recording of the NOD and NOS by Seaside We have a
subornation of perjury here by Pro Value by offering into evidence it knew was
PROPOSED STATEMENT ON APPEAL-5-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ldquofalsersquo Pro Value committed a fraud on the Trial Court and put into disrespect the
ldquorule of lawrdquo which that Court swore to uphold
6 The factual and legal basis as to whether or not the Lis Pendens recorded by Grossman
in December 2009 precluded the later Assignment recorded on March 8 2010 from being
subject to the pending action in Department 53 of the LASC The court failed and
refused to address that material issue of law and fact
7 The factual and legal basis as to whether or not Seasidersquos Trusteersquos Deed was null and
void on the date that it was recorded The court failed and refused to address that
material issue of law and fact
8 The factual and legal basis as to whether or not the Trusteersquos Deed passed legal title to
Pro Value The court failed and refused to address that material issue of law and
fact
9 The factual and legal basis as to whether or not the Assignment that was recorded by
Seaside on 382010 was backdated by Seaside and fraudulently signed by an alleged
officer of MERS on the date that it was notarized by the Florida notary The court failed
and refused to address that material issue of law and fact
10 The factual and legal basis as to whether or not Grossman received a ldquofair trialrdquo as that
term is defined by the cases decided under the 14 Amendment The court failed andth
refused to address that material issue of law and fact However Grossman addressed
that issue to the effect that he did not receive a ldquofair trialrdquo
11 The factual and legal basis as to whether or not Trustee and Bayview complied with
Federal and California law with respect to the Trusteersquos sale allegedly conducted by the
Trustee andor its agents The court failed and refused to address that material issue
of law and fact However Friedlander filed a Memorandum of Law that ldquoHearsay in a
Recorded Documentrdquo is still ldquohearsayrdquo and inadmissable Friedlander testified under oath
without objection that the Trustee and Bayview did not comply with those requirements of
law For example Friedlander testified that CC Sec 29235 was not complied with There
was no testimony by Bayview or declaration signed and recorded by Bayview that Bayview
PROPOSED STATEMENT ON APPEAL-6-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
complied with CC Sec 29235 (a)(1) (2) (b) or c The use of the word ldquodeclarationrdquo in
subparagraph should be interpreted to mean a declaration by a mortgagee or beneficiary
A declaration by a Trustee is rank hearsay rendering the entire NOD and NOS void
precluding a sale Friedlanderrsquos testimony was first hand knowledge and certainly trumped
ldquohearsayrdquo CC Sec 29235 was not complied with per the testimony of Friedlander The
Trusteersquos declaration as to what Bayview told her is rank hearsay It required a declaration
by Bayview No such declaration was filed CC Sec 292354 (a) required a declaration
from the mortgage loan servicer (Bayview) in the Notice of Sale It did not The declaration
by the Trustee is not only rank hearsay but did not comply with the Civil Code and the
testimony of Friedlander trumps Pro Value on that issue
12 The factual and legal basis as to whether or not Grossman prevailed on any one or
more of his affirmative defenses The court failed and refused to address that
material issue of law and fact
13 The factual and legal basis as to whether or not the California Unlawful Detainer
Statute is Unconstitutional under either one or more of the Constitutional defenses raised
by Grossman in his answer The court failed and refused to address that material
issue of law and fact
Tender is not an issue in this UD case It may be an issue in the main case entitled
Grossman v Bayview In any event Bayview did not own the Note per the Allongerdquo and
therefore there was no duty to tender Tender is a ldquored herringrdquo irrelevant issue in this
case
DEFENDANT WAS NOT PROPERLY SERVED
All Pro Value offered was Bodinersquos testimony for what it was Process servers are
notorious for ldquosewer servicerdquo Defense counsel has set aside quite a few one of which
resulted in a published decision Bodine testified that he was employed by Bouzane The
Court may take judicial notice of the fact that on the day of the alleged service Bouzane
was under a 2 year suspension stayed for violation of the State Bar ethics Bouzane
headed up an ldquoEviction Millrdquo by the name of ldquoFAST EVICTION SERVICErdquo per Bodinersquos
PROPOSED STATEMENT ON APPEAL-7-
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2
3
4
5
6
7
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9
10
11
12
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14
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24
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testimony One wonders why eviction is so fast Neither Bodine nor Bouzane made any
effort to determine whether Grossman had a business address Bodine testified that he
mailed the Notice to Grossman but the return address was Fast Eviction Service and he
did not open its mail Grossman testified he was an attorney That he never saw a Notice
on his screen door and he received no such notice in the mail The first time he saw such
a notice was when he was served a second time with the Summons and Complaint the
first and second service being quashed Grossman testified that he was looking out for
such a Notice since he found out that the Property had been sold and that he would be
receiving a Notice to Quit What led the court to believe that Grossmanrsquos testimony was
ldquoless crediblerdquo That statement brought into question the Courtrsquos entire analysis of this
case Grossman was an attorney testifying under oath while Bodine was a run of the mill
process server working for an attorney who had been disciplined by the State Bar The
Courtrsquos analysis is upside down in favor of pushing through a ldquofloodrdquo of evictions We
believe that the service requirements of the service of a Notice to Quit after a Non-Judicial
sale should meet the same notice and due process requirements of Service of a
Summons and Complaint To the extent that it doesnrsquot we contend that portion of the UD
statute is unconstitutional under the 14 Amendmentth
Joe Nocera business reporter for the New York Times wrote in the October 23
2010 business section of the New York Times regarding the Bank of America and
Countrywide the following
ldquoBut it simply does not follow that the Bank therefore has an absolute right
to take back the home Under the law it has to prove it has that right-by filing
documents that show that the owner of the mortgage has conveyed that right to it
Thatrsquos why this affidavit scandal isnrsquot some legal nicety Itrsquos about the single most
important value of American jurisprudence Due Processrdquo The Allonge proves that
Bayview did not own the Note and therefore did not have the right to enforce it by non-
judicial sale The Allonge was admitted into evidence and it establishes Grossmanrsquos
case for a defense judgment The phony backdated assignment does not trump the
PROPOSED STATEMENT ON APPEAL-8-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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18
19
20
21
22
23
24
25
26
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28
Allonge
RELEVANT PORTIONS OF GROSSMAN TRIAL BRIEF
sect 2936 Assignment of debt carries security
Mortgage passes by assignment of debt The assignment of a debt secured by mortgage
carries with it the security
A mortgage being a mere security for debt it is not transferable without
transfer of the debt Johnson v Razey (1919) 181 Cal 342 184 P 657
Debt and security are inseparable the mortgage alone is not a subject of
transfer Hyde v Mangan (1891) 88 Cal 319 26 P 180
Wests AnnCalCivCode sect 2937 provides ldquoNotices to borrower of transfer of service
by existing and new servicing agent of mortgage or deed of trust on single family
residential real property
(a) The Legislature hereby finds and declares that borrowers or subsequent
obligors have the right to know when a person holding a promissory note bond or other
instrument transfers servicing of the indebtedness secured by a mortgage or deed of trust
on real property containing one to four residential units located in this state The
Legislature also finds that notification to the borrower or subsequent obligor of the transfer
may protect the borrower or subsequent obligor from fraudulent business practices and
may ensure timely payments It is the intent of the Legislature in enacting this section to
mandate that a borrower or subsequent obligor be given written notice when a person
transfers the servicing of the indebtedness on notes bonds or other instruments secured
by a mortgage or deed of trust on real property containing one to four residential units and
located in this state
(b) Any person transferring the servicing of indebtedness as provided in subdivision
(a) to a different servicing agent and any person assuming from another responsibility for
servicing the instrument evidencing indebtedness shall give written notice to the borrower
PROPOSED STATEMENT ON APPEAL-9-
1
2
3
4
5
6
7
8
9
10
11
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13
14
15
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23
24
25
26
27
28
or subsequent obligor before the borrower or subsequent obligor becomes obligated to
make payments to a new servicing agent
copy In the event a notice of default has been recorded or a judicial foreclosure
proceeding has been commenced the person transferring the servicing of the
indebtedness and the person assuming from another the duty of servicing the
indebtedness shall give written notice to the trustee or attorney named in the notice of
default or judicial foreclosure of the transfer A notice of default notice of sale or judicial
foreclosure shall not be invalidated solely because the servicing agent is changed during
the foreclosure process
(d) Any person transferring the servicing of indebtedness as provided in subdivision
(a) to a different servicing agent shall provide to the new servicing agent all existing
insurance policy information that the person is responsible for maintaining including but
not limited to flood and hazard insurance policy information
(e) The notices required by subdivision (b) shall be sent by first- class mail postage
prepaid to the borrowers or subsequent obligors address designated for loan payment
billings or if escrow is pending as provided in the escrow and shall contain each of the
following
(1) The name and address of the person to which the transfer of the servicing of the
indebtedness is made
(2) The date the transfer was or will be completed
(3) The address where all payments pursuant to the transfer are to be made
(f) Any person assuming from another responsibility for servicing the instrument
evidencing indebtedness shall include in the notice required by subdivision (b) a statement
of the due date of the next payment
PROPOSED STATEMENT ON APPEAL-10-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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19
20
21
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25
26
27
28
(g) The borrower or subsequent obligor shall not be liable to the holder of the note
bond or other instrument or to any servicing agent for payments made to the previous
servicing agent or for late charges if these payments were made prior to the borrower or
subsequent obligor receiving written notice of the transfer as provided by subdivision (e)
and the payments were otherwise on time
(h) For purposes of this section the term servicing agent shall not include a
trustee exercising a power of sale pursuant to a deed of trust
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Star 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
PROPOSED STATEMENT ON APPEAL-11-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
PROPOSED STATEMENT ON APPEAL-12-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
The undersigned spent his time researching the law as ldquoevictionsrdquo based on judicial
and non-judicial foreclosures sales are overwhelming our state and federal court systems
Having handled many ldquolis pendensrdquo cases ldquoconstructive noticerdquo based on a recorded ldquolis
pendens the undersigned will discuss the effect of the recordation of a lsquolis pendensrdquo on a
party claiming to be a bona fide purchaser (ldquoBFPrdquo) Simply put there is no such ldquoanimalrdquo
even though Pro Value asserts that it is a BFP Whether or not Pro Value is a BFP affects
presumptions rebuttable or conclusive Pro Valuersquos counsel misrepresented to the Court
that Pro Value was a BFP and the undersigned says ldquohogwashrdquo
Aside from the evidence and testimony the law is very unclear due to the recent
legislation passed by Congress and California to ldquoprotectrdquo homeowners from being
ldquotossedrdquo out on the street due to what the undersigned has read about the ldquounsavoryrdquo
foreclosure and eviction mills throughout this country
PROPOSED STATEMENT ON APPEAL-13-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Simply put I place John Bouzane dba Fast Eviction Service in the category of an
ldquoeviction millrdquo We had a ldquoreasonablerdquo expectation that the ldquoattorney of recordrdquo would
appear at trial as the ldquotrial attorneyrdquo since Bouzane verified the UD complaint and
subjected himself to be called as a witness by the Defense
Counsel for Pro Value stated that the statute which permitted non-judicial
foreclosure is constitutional I know that since there is no ldquostate actionrdquo Grossman
challenges the Constitutionality of the ldquoevictionrdquo statutes since it requires ldquoState Actionrdquo to
evict a homeowner from their home after a non judicial sale That is an undecided issue
which the undersigned looks forward to present That is why Grossman requested to make
an evidentiary record so that the Court may decide the Constitutional issues There are
many attorneys in the ldquoborrowerrsquos barrdquo who await such a declaration of unconstitutionality
It is not a frivolous position Prior to Sniadach v Family Finance I was writing briefs that pre
judgment attachments without notice and a hearing violated the due process clause of
the 14 Amendment That case was decided by the US Supreme Court before anth
appellate court heard the same argument from the undersigned
FUNCTION OF THE JUDGE
The major feature of a bench trial is that the judge sits as the trier of fact The
Judge determines the admissibility weighs the evidence determines credibility and
renders judgment CCP Sec 6318 (a) Davis v Kahn (1970) 7 Cal App 3 868 874rd
Bullockrsquos Inc v Security First national Bank of Los Angeles (1958) 160 Cal App 2 277nd
285 Judges are precluded from conducting independent investigations outside the
courtroom because to do so would be a denial of due process denying to a litigant the
fair and impartial trial to which everyone is entitled Conservatorship of Schaeffer (2002)
98 Cal App 4 159 164 The general order of proceedings is set forth in CCP Sec 607th
6317
The Courtrsquos reference to ldquotenderrdquo in a non-lease situation raised a suspicion that
this Court referenced some of the proceedings in Grossman v Bayview where ldquoTenderrdquo
was made an issue by Schloss the attorney for Bayview and Seaside We requested the
PROPOSED STATEMENT ON APPEAL-14-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Court to address why it referenced ldquotenderrdquo in the context of this type of unlawful detainer
case It did not do so Error
According to California Civil Handbook and Desktop Reference Thomas 2007 Ed
at P 874 ldquoThere is considerable controversy as to whether a court may reconsider its
prior ruling at any time-and if so in what manner the issue may be raisedrdquo WE RAISED IT
THROUGHOUT THE ENTIRE PROCEEDINGS WHICH THE TRIAL COURT IGNORED
See discussion in Kerns v CSE Ins Group (2003) 106 Cal App 4 368 383-389th
Defendant requested the court to reopen the case and grant a continuance if necessary
Thomas at P 875 The court had the inherent power it may be done on the courtrsquos own
motion when required by the interests of justice It failed to do so
This court made reversible error and denied Grossman a fair trial by ldquoguttingrdquo
Grossmanrsquos defense when it on its own motion sua sponte quashed the SDTs served on
the Seaside witnesses Grossman proved by competent evidence that the SDTs were duly
served on all of the Seaside witnesses in accordance to CCP Sec 1987 The Objections
admitted service the witnesses did not testify in their affidavits that ldquothey demanded
witnesses feesrdquo from the process server It was the witnesses burden of proof to declare
under oath that they demanded fees and were not paid It is common knowledge that
process servers are trained not to offer witness fees unless they are demanded If the
witnesses had testified that they demanded witness fees at the time they were served
then we would have produced affidavits from the process server that the fees were not
demanded
CCP Sec 19871 (a) provided for a motion The attorneys for the witnesses filed an
objection not a motion The witnesses did not follow the procedure set forth by law The
objections should have been summarily denied Instead the Court took the bench and sua
sponte quashed each of the subpoenas The court refused to allow the undersigned to
object to this unconstitutional procedure Subsection (b) of 19871 (b) provided ldquoon the
courtrsquos own motion after giving counsel notice and an opportunity to be heard or any
reason whatsoever for issuing this unlawful ldquosua sponterdquo order Grossmanrsquos counsel was
PROPOSED STATEMENT ON APPEAL-15-
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5
6
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9
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given no notice whatsoever refused Grossmanrsquos counsel an opportunity to be heard and
over his objection the court told him to ldquobe quiet and sit downrdquo which he did That order
was a blatant violation of CCP Sec 19871 (b) denied Grossman a fair trial and
evidenced a bias against either Grossman or his counsel or there may be an agenda in
that courthouse to ldquorailroad throughrdquo all of the UD cases since they were ldquoclogging uprdquo an
over burdened court with limited funds due to the very meltdown caused by MERS and
their cohorts such as the Wall Street institutions We believe a former Chief Assistant US
Attorney Criminal Trials Division should have known better Grossman was entitled to the
evidentiary material that he subpoenaed was entitled to cross-examine Ms Weber to
whom Friedlander had corresponded with wrote letters to and Seaside plead the 5th
Amendment to discovery requests such as production of documents admissions that one
of the documents were backdated and forged and that crimes were committed Seaside
being a corporation was not permitted to assert the 5 Amendmentth
The following was the ldquooffer of proofrdquo of the relevancy of the Seaside witnesses
testimony and documents At the time that Bayview using MERS as its conduit was the
Assignee from a Lender who was not the lender of record by virtue of the TD introduced
into evidence by Pro Value The Assignor was a different entity than the Lender The
original Lender was bankrupt and therefore any agency that existed at the time that
Grossman signed the original TD was terminated by operation of law due to the
bankruptcy of the original lender Since Bayview was the Assignee of an entity other
than the original lender Bayview lacked both the power and authority to appoint Seaside
as Trustee Therefore any NOD and NOS issued by Seaside was void as a matter of
law That is the reason why a new backdated assignment was prepared by Seaside
signed by an ldquoallegedrdquo officer of MERS before a Notary was recorded on 382010 and the
sale took place on 392010 Since Pro Value was never a BFP due to the recording of
the lis pendens the Trusteersquos deed was void as a matter of law We demanded that this
court admit into evidence the assignment proving that Seaside was not a duly authorized
Trustee at the time they recorded the NOD and NOS Both the NOD and NOS were void
PROPOSED STATEMENT ON APPEAL-16-
1
2
3
4
5
6
7
8
9
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23
24
25
26
27
28
as a matter of law and so is the title of Pro Value This court committed error by not
admitting this evidence
In Alfaro v Community Housing Imp System amp Planning Assn Inc 171
CalApp4th 1356 (CalApp 6 Dist2009) The Court of Appeal in 2009 dealt with the
issue of the recording of a lis pendens and constructive notice and actual notice as
follows
ldquoOne of the central issues in this appeal is whether plaintiffs are chargeable withnotice of the deed restriction at an earlier time than its disclosure in the grant deeds Asexplained above the recording of a deed restriction is ordinarily regarded as imparting
iCivCode sect 1213constructive notice of its contents to subsequent purchasers (
Anderson supra 12 Cal4th 345 349 355 47 CalRptr2d 898 906 P2d 1314)Anderson supra 12 Cal4th 345 47 CalRptr2d 898 906 P2d 1314 went on to state onpage 355 47 CalRptr2d 898 906 P2d 1314 ldquoConstructive notice is ldquothe equivalent ofactual knowledge ie knowledge of its contents is conclusively presumed (4 WitkinSummary of Cal Law [ (9th ed 1987) ] Real Property sect 203 p 408 italics in original)rdquo
Defendants rely on Anderson as establishing that plaintiffs had constructive notice andFN21
actual knowledge of the deed restriction by virtue of its recording and by virtue of thisknowledge cannot successfully allege that defendants failed to disclose it
FN21 This quotation from Witkin is based on two cases AlhambraRedevelopment Agency v Transamerica Financial Services (1989) 212 CalApp3d1370 261 CalRptr 248 observed ldquoHere it is undisputed the Flemings properlyrecorded the contract thereby giving Transamerica constructive if not actual noticeof the contractrdquo ( Id at p 1377 261 CalRptr 248) Anderson v Willson (1920) 48CalApp 289 191 P 1016 stated ldquoWithout doubt the presumption of notice thusraised by this code provision is conclusive and incontrovertiblerdquo ( Id at p 293 191P 1016) Both cases concluded that a person with constructive notice did notqualify as a bona fide purchaser without notice Neither case attributed actualknowledge to the purchaser At most constructive notice has been conclusivelypresumed As we proceed to explain in the text there is a difference betweenactual and constructive notice
There was a caveat in Anderson however ldquo lsquoIf future takers purchase a piece ofproperty with notice of a restriction made by a predecessor then in the absence of duressor fraud they may ordinarily be thought to have bargained for the property with therestriction in mind and to have shown themselves willing to abide by itrsquo rdquo ( Andersonsupra 12 Cal4th at p 366 47 CalRptr2d 898 906 P2d 1314 emphasis added)
Plaintiffs argue that the doctrine of constructive notice does not apply to fraudcauses of action Bishop Creek Lodge v Scira (1996) 46 CalApp4th 1721 54CalRptr2d 745 ( Scira ) stated on page 1734 54 CalRptr2d 745 ldquoUnder a long line ofcases the fact that the victim had constructive notice of the truth from public records is nodefense to fraud The existence of such public records 1386 may be relevant to whetherthe victims reliance was justifiable but it is not by itself conclusive ( Seeger v Odell(1941) 18 Cal2d 409 414-417 115 P2d 977 [ ( Seeger ) ] Grange Co v Simmons(1962) 203 CalApp2d 567 576-577 21 CalRptr 757 Gross v Needham (1960) 184CalApp2d 446 460 7 CalRptr 664 Sullivan v Dunnigan (1959) 171 CalApp2d 662668 341 P2d 404 Regus v Schartkoff (1957) 156 CalApp2d 382 389 319 P2d 721 Schaefer v Berinstein (1956) 140 CalApp2d 278 296 295 P2d 113 Mills v
PROPOSED STATEMENT ON APPEAL-17-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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18
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20
21
22
23
24
25
26
27
28
Hellinger (1950) 100 CalApp2d 482 487 224 P2d 34 Barder v McClung (1949) 93CalApp2d 692 697 209 P2d 808 Stoll v Selander (1947) 81 CalApp2d 286 292 183P2d 935 Anderson v Thacher (1946) 76 CalApp2d 50 70 172 P2d 533)rdquo Therationale for this exception is ldquoThe purpose of the recording acts is to afford protection notto those who make fraudulent misrepresentations but to bona fide purchasers for valuerdquo (Seeger supra 18 Cal2d at p 415 115 P2d 977) Defendants do not discuss thisauthority cited by plaintiffs in their briefsrdquo
The court did not need a lecture from the undersigned that the purpose of the
recording of a Lis Pendens is to give ldquoConstructive Noticerdquo to the world especially to Pro
Value The court knew that the memorandum of law submitted by Pro Value was not worth
the paper it was written on as to its claim that Pro Value was a BFP That is the first thing
they teach law students in law school It is hornbook law as they say in law school The
office manager told Friedlander that she knew that Grossman had filed a lis pendens Not
only did Pro Value have ldquoconstructiverdquo notice they had actual notice Friedlander was
precluded from testifying that Pro Valuersquos attorney requested a copy of the complaint and
promised not to file an unlawful detainer suit against Grossman A short time thereafter on
3302010 an attorney named Bouzane filed the UD The promise made by an agent who
is authorized to speak is binding on his principal This attorney told Friedlander that his
client was in the room with him He believed him since he heard voices in the background
He justifiably relied on that representation of Pro Valuersquos attorney who was sitting in the
room with the attorney The courtrsquos refusal to permit Grossman to put on relevant
evidence is the sole reason for the so-called lack of evidence as enunciated by this
Court in its proposed Statement
Did the court really believe that Friedlander called Pro Value to talk about
settlement Hogwash The Office Manager lied through her teeth and Pro Value suborned
this perjury by objecting on the grounds of ldquosettlementrdquo Friedlander knew what he said to
her and she knew what she said to him His sworn testimony was totally different and
since she lied that she did not remember our conversation she was not in a position to
contradict his testimony Her choice would be to admit perjury to the court or commit
perjury by testifying to something he said which she did not remember Friedlander was
PROPOSED STATEMENT ON APPEAL-18-
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2
3
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5
6
7
8
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11
12
13
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prepared to prove by his sworn testimony regarding some of the declarations of mailing in
the courtrsquos file that if they were mailed they were never received by me They would have
been impeached and I would file a complaint with the District Attorney to investigate this
perjury The conduct of Bouzane and his agents such as the process server were
designed to deprive people like Grossman of their homes and throw them out on the
street Perjury is being suborned The fraud on the court marched on
TITLE ISSUES
A qualified exception to the rule that title cannot be tried in an unlawful detainer
proceeding [see Evid Code sect 624 545[1][c]] is contained in CCP sect 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 sect 1161a Vella v Hudgins (1977) 20 C3d 251 255
Words and Phrases
The term duly implies that all of those elements necessary to valid sale exist
Kessler v Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title that is
duly perfected includes good record title but is not limited to good record title Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title is duly perfected
when all steps have been taken to make it perfect that is to convey to purchaser that
which he has purchased valid and good beyond all reasonable doubt Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837
Grossman filed his verified answer on 72310 Denied Par 6 Denied Par 7 alleging
fraud and a rigged sale Denied par 8 that he was served with a Notice to Quit Denied
Par 9 based on failure of service of notice to quit Denied Par 10 Denied paragraphs 11
and 12 First Affirmative Defense Failed to state a cause of action Second Affirmative
PROPOSED STATEMENT ON APPEAL-19-
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2
3
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Defense Not properly verified by Pro Value only Bouzane Third Affirmative Defense No
Notice to Quit Fifth Affirmative Defense Denial of Due Process under the 14th
Amendment Sixth Affirmative Defense Denial of Procedural Due Process under the 14th
Amendment Seventh Affirmative Defense Denial of Equal Protection of the law under the
14 Amendmentth
FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT
1 Service of Notice to Quit
2 Compliance with the law regarding the TD sale
LEGAL ISSUES NOT DECIDED BY THE COURT
1 The two due process arguments under the 14 Amendmentth
2 The equal protection Argument under the 14 Amendmentth
3 Denial of Right to Trial by Jury
PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH
EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE
On 2202009 California enacted into law the California Foreclosure Prevention Act as
an amendment to CC Sec 2923 If Bayview took an assignment from a Lender who was not
the Lender as reflected by the Assignment that the Court wrongfully refused to admit into
evidence and gave it back to me until I requested that the Assignment be marked and that the
Courtrsquos minute order reflect that it was offered and refused on the grounds of relevancy and
no other ground That is reversible error A Trustee appointed by an Assignee without good
title is a nullity and every act that Seaside Trust took was a nullity That Assignment which
should have been admitted would prove the fact of nullity and Grossman would be entitled to
move for judgment when Pro Value rested We request the Court to reverse its original refusal
to admit that Assignment into evidence and then grant judgment to Grossman as the Trusteersquos
Deed is null and void That was my offer of proof of relevancy
PROPOSED STATEMENT ON APPEAL-20-
1
2
3
4
5
6
7
8
9
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11
12
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23
24
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26
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28
1 Under CC Sec 29235 the lender must contact the borrower At that point of time I
had given notice to Bayview that I was the attorney for the borrower Pro Value has offered no
evidence Grossman fell within the provisions of CC Sec 2923 as the TD offered into evidence
by Pro Value reflects that Grossman entered into the loan during the period from 112003 -
12312007
2 Pro Value offered no evidence that it complied with CC Sec 29236 offered a loan
modification plan to Grossman
3 Pro Value offered no evidence that it complied with CC Sec 2923 or that Bayview
was exempt
4 Pro Value offered no evidence that it complied with the provisions of HARP (12
USC Sec 1524) which was part of the ldquoeconomic stimulusrdquo to prevent foreclosures and
revitalize the housing sector
5 Pursuant to CC Sec 2924 the Trusteersquos Deed will presume the sale to be valid and
conclusively presumed to be valid if Pro Value was a BFP which it was not Pro Value failed to
prove its case for the following reasons (1) it was not the duly appointed Trustee (2) the
backdated and forged assignment allegedly was from the true lender after it went bankrupt
which required Bayview to record a new document appointing Seaside as its Trustee There is
no relation back case cited by Pro Value since it does not exist Even if it existed the law still
required the duly appointed Trustee under the new assignment to record the NOD and NOS
and comply with all of the other provisions of State and Federal Law which it could not and
did not do thereby making the Trusteersquos deed a ldquonullityrdquo without any presumptions of validity
Plaintiff claimed they have complied with CC Sec 2924 in paragraphs 4 thru 7 of
their complaint that they have met the burden of proof in that a sale had occurred and the
trustees Deed establishes this presumption that the sale was ldquoduly Perfectedrdquo and the Civil
has been complied with Defendant claimed that they did not and Plaintiff has submitted
to the court a certified copy of the Notice of Trustees Sale and asked the court to take
judicial notice of said document as well as the Trusteersquos Deed We requested the court to
PROPOSED STATEMENT ON APPEAL-21-
1
2
3
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28
reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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19
20
21
22
23
24
25
26
27
28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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18
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20
21
22
23
24
25
26
27
28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ldquofalsersquo Pro Value committed a fraud on the Trial Court and put into disrespect the
ldquorule of lawrdquo which that Court swore to uphold
6 The factual and legal basis as to whether or not the Lis Pendens recorded by Grossman
in December 2009 precluded the later Assignment recorded on March 8 2010 from being
subject to the pending action in Department 53 of the LASC The court failed and
refused to address that material issue of law and fact
7 The factual and legal basis as to whether or not Seasidersquos Trusteersquos Deed was null and
void on the date that it was recorded The court failed and refused to address that
material issue of law and fact
8 The factual and legal basis as to whether or not the Trusteersquos Deed passed legal title to
Pro Value The court failed and refused to address that material issue of law and
fact
9 The factual and legal basis as to whether or not the Assignment that was recorded by
Seaside on 382010 was backdated by Seaside and fraudulently signed by an alleged
officer of MERS on the date that it was notarized by the Florida notary The court failed
and refused to address that material issue of law and fact
10 The factual and legal basis as to whether or not Grossman received a ldquofair trialrdquo as that
term is defined by the cases decided under the 14 Amendment The court failed andth
refused to address that material issue of law and fact However Grossman addressed
that issue to the effect that he did not receive a ldquofair trialrdquo
11 The factual and legal basis as to whether or not Trustee and Bayview complied with
Federal and California law with respect to the Trusteersquos sale allegedly conducted by the
Trustee andor its agents The court failed and refused to address that material issue
of law and fact However Friedlander filed a Memorandum of Law that ldquoHearsay in a
Recorded Documentrdquo is still ldquohearsayrdquo and inadmissable Friedlander testified under oath
without objection that the Trustee and Bayview did not comply with those requirements of
law For example Friedlander testified that CC Sec 29235 was not complied with There
was no testimony by Bayview or declaration signed and recorded by Bayview that Bayview
PROPOSED STATEMENT ON APPEAL-6-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
complied with CC Sec 29235 (a)(1) (2) (b) or c The use of the word ldquodeclarationrdquo in
subparagraph should be interpreted to mean a declaration by a mortgagee or beneficiary
A declaration by a Trustee is rank hearsay rendering the entire NOD and NOS void
precluding a sale Friedlanderrsquos testimony was first hand knowledge and certainly trumped
ldquohearsayrdquo CC Sec 29235 was not complied with per the testimony of Friedlander The
Trusteersquos declaration as to what Bayview told her is rank hearsay It required a declaration
by Bayview No such declaration was filed CC Sec 292354 (a) required a declaration
from the mortgage loan servicer (Bayview) in the Notice of Sale It did not The declaration
by the Trustee is not only rank hearsay but did not comply with the Civil Code and the
testimony of Friedlander trumps Pro Value on that issue
12 The factual and legal basis as to whether or not Grossman prevailed on any one or
more of his affirmative defenses The court failed and refused to address that
material issue of law and fact
13 The factual and legal basis as to whether or not the California Unlawful Detainer
Statute is Unconstitutional under either one or more of the Constitutional defenses raised
by Grossman in his answer The court failed and refused to address that material
issue of law and fact
Tender is not an issue in this UD case It may be an issue in the main case entitled
Grossman v Bayview In any event Bayview did not own the Note per the Allongerdquo and
therefore there was no duty to tender Tender is a ldquored herringrdquo irrelevant issue in this
case
DEFENDANT WAS NOT PROPERLY SERVED
All Pro Value offered was Bodinersquos testimony for what it was Process servers are
notorious for ldquosewer servicerdquo Defense counsel has set aside quite a few one of which
resulted in a published decision Bodine testified that he was employed by Bouzane The
Court may take judicial notice of the fact that on the day of the alleged service Bouzane
was under a 2 year suspension stayed for violation of the State Bar ethics Bouzane
headed up an ldquoEviction Millrdquo by the name of ldquoFAST EVICTION SERVICErdquo per Bodinersquos
PROPOSED STATEMENT ON APPEAL-7-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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19
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21
22
23
24
25
26
27
28
testimony One wonders why eviction is so fast Neither Bodine nor Bouzane made any
effort to determine whether Grossman had a business address Bodine testified that he
mailed the Notice to Grossman but the return address was Fast Eviction Service and he
did not open its mail Grossman testified he was an attorney That he never saw a Notice
on his screen door and he received no such notice in the mail The first time he saw such
a notice was when he was served a second time with the Summons and Complaint the
first and second service being quashed Grossman testified that he was looking out for
such a Notice since he found out that the Property had been sold and that he would be
receiving a Notice to Quit What led the court to believe that Grossmanrsquos testimony was
ldquoless crediblerdquo That statement brought into question the Courtrsquos entire analysis of this
case Grossman was an attorney testifying under oath while Bodine was a run of the mill
process server working for an attorney who had been disciplined by the State Bar The
Courtrsquos analysis is upside down in favor of pushing through a ldquofloodrdquo of evictions We
believe that the service requirements of the service of a Notice to Quit after a Non-Judicial
sale should meet the same notice and due process requirements of Service of a
Summons and Complaint To the extent that it doesnrsquot we contend that portion of the UD
statute is unconstitutional under the 14 Amendmentth
Joe Nocera business reporter for the New York Times wrote in the October 23
2010 business section of the New York Times regarding the Bank of America and
Countrywide the following
ldquoBut it simply does not follow that the Bank therefore has an absolute right
to take back the home Under the law it has to prove it has that right-by filing
documents that show that the owner of the mortgage has conveyed that right to it
Thatrsquos why this affidavit scandal isnrsquot some legal nicety Itrsquos about the single most
important value of American jurisprudence Due Processrdquo The Allonge proves that
Bayview did not own the Note and therefore did not have the right to enforce it by non-
judicial sale The Allonge was admitted into evidence and it establishes Grossmanrsquos
case for a defense judgment The phony backdated assignment does not trump the
PROPOSED STATEMENT ON APPEAL-8-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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18
19
20
21
22
23
24
25
26
27
28
Allonge
RELEVANT PORTIONS OF GROSSMAN TRIAL BRIEF
sect 2936 Assignment of debt carries security
Mortgage passes by assignment of debt The assignment of a debt secured by mortgage
carries with it the security
A mortgage being a mere security for debt it is not transferable without
transfer of the debt Johnson v Razey (1919) 181 Cal 342 184 P 657
Debt and security are inseparable the mortgage alone is not a subject of
transfer Hyde v Mangan (1891) 88 Cal 319 26 P 180
Wests AnnCalCivCode sect 2937 provides ldquoNotices to borrower of transfer of service
by existing and new servicing agent of mortgage or deed of trust on single family
residential real property
(a) The Legislature hereby finds and declares that borrowers or subsequent
obligors have the right to know when a person holding a promissory note bond or other
instrument transfers servicing of the indebtedness secured by a mortgage or deed of trust
on real property containing one to four residential units located in this state The
Legislature also finds that notification to the borrower or subsequent obligor of the transfer
may protect the borrower or subsequent obligor from fraudulent business practices and
may ensure timely payments It is the intent of the Legislature in enacting this section to
mandate that a borrower or subsequent obligor be given written notice when a person
transfers the servicing of the indebtedness on notes bonds or other instruments secured
by a mortgage or deed of trust on real property containing one to four residential units and
located in this state
(b) Any person transferring the servicing of indebtedness as provided in subdivision
(a) to a different servicing agent and any person assuming from another responsibility for
servicing the instrument evidencing indebtedness shall give written notice to the borrower
PROPOSED STATEMENT ON APPEAL-9-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
or subsequent obligor before the borrower or subsequent obligor becomes obligated to
make payments to a new servicing agent
copy In the event a notice of default has been recorded or a judicial foreclosure
proceeding has been commenced the person transferring the servicing of the
indebtedness and the person assuming from another the duty of servicing the
indebtedness shall give written notice to the trustee or attorney named in the notice of
default or judicial foreclosure of the transfer A notice of default notice of sale or judicial
foreclosure shall not be invalidated solely because the servicing agent is changed during
the foreclosure process
(d) Any person transferring the servicing of indebtedness as provided in subdivision
(a) to a different servicing agent shall provide to the new servicing agent all existing
insurance policy information that the person is responsible for maintaining including but
not limited to flood and hazard insurance policy information
(e) The notices required by subdivision (b) shall be sent by first- class mail postage
prepaid to the borrowers or subsequent obligors address designated for loan payment
billings or if escrow is pending as provided in the escrow and shall contain each of the
following
(1) The name and address of the person to which the transfer of the servicing of the
indebtedness is made
(2) The date the transfer was or will be completed
(3) The address where all payments pursuant to the transfer are to be made
(f) Any person assuming from another responsibility for servicing the instrument
evidencing indebtedness shall include in the notice required by subdivision (b) a statement
of the due date of the next payment
PROPOSED STATEMENT ON APPEAL-10-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(g) The borrower or subsequent obligor shall not be liable to the holder of the note
bond or other instrument or to any servicing agent for payments made to the previous
servicing agent or for late charges if these payments were made prior to the borrower or
subsequent obligor receiving written notice of the transfer as provided by subdivision (e)
and the payments were otherwise on time
(h) For purposes of this section the term servicing agent shall not include a
trustee exercising a power of sale pursuant to a deed of trust
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Star 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
PROPOSED STATEMENT ON APPEAL-11-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
PROPOSED STATEMENT ON APPEAL-12-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
The undersigned spent his time researching the law as ldquoevictionsrdquo based on judicial
and non-judicial foreclosures sales are overwhelming our state and federal court systems
Having handled many ldquolis pendensrdquo cases ldquoconstructive noticerdquo based on a recorded ldquolis
pendens the undersigned will discuss the effect of the recordation of a lsquolis pendensrdquo on a
party claiming to be a bona fide purchaser (ldquoBFPrdquo) Simply put there is no such ldquoanimalrdquo
even though Pro Value asserts that it is a BFP Whether or not Pro Value is a BFP affects
presumptions rebuttable or conclusive Pro Valuersquos counsel misrepresented to the Court
that Pro Value was a BFP and the undersigned says ldquohogwashrdquo
Aside from the evidence and testimony the law is very unclear due to the recent
legislation passed by Congress and California to ldquoprotectrdquo homeowners from being
ldquotossedrdquo out on the street due to what the undersigned has read about the ldquounsavoryrdquo
foreclosure and eviction mills throughout this country
PROPOSED STATEMENT ON APPEAL-13-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Simply put I place John Bouzane dba Fast Eviction Service in the category of an
ldquoeviction millrdquo We had a ldquoreasonablerdquo expectation that the ldquoattorney of recordrdquo would
appear at trial as the ldquotrial attorneyrdquo since Bouzane verified the UD complaint and
subjected himself to be called as a witness by the Defense
Counsel for Pro Value stated that the statute which permitted non-judicial
foreclosure is constitutional I know that since there is no ldquostate actionrdquo Grossman
challenges the Constitutionality of the ldquoevictionrdquo statutes since it requires ldquoState Actionrdquo to
evict a homeowner from their home after a non judicial sale That is an undecided issue
which the undersigned looks forward to present That is why Grossman requested to make
an evidentiary record so that the Court may decide the Constitutional issues There are
many attorneys in the ldquoborrowerrsquos barrdquo who await such a declaration of unconstitutionality
It is not a frivolous position Prior to Sniadach v Family Finance I was writing briefs that pre
judgment attachments without notice and a hearing violated the due process clause of
the 14 Amendment That case was decided by the US Supreme Court before anth
appellate court heard the same argument from the undersigned
FUNCTION OF THE JUDGE
The major feature of a bench trial is that the judge sits as the trier of fact The
Judge determines the admissibility weighs the evidence determines credibility and
renders judgment CCP Sec 6318 (a) Davis v Kahn (1970) 7 Cal App 3 868 874rd
Bullockrsquos Inc v Security First national Bank of Los Angeles (1958) 160 Cal App 2 277nd
285 Judges are precluded from conducting independent investigations outside the
courtroom because to do so would be a denial of due process denying to a litigant the
fair and impartial trial to which everyone is entitled Conservatorship of Schaeffer (2002)
98 Cal App 4 159 164 The general order of proceedings is set forth in CCP Sec 607th
6317
The Courtrsquos reference to ldquotenderrdquo in a non-lease situation raised a suspicion that
this Court referenced some of the proceedings in Grossman v Bayview where ldquoTenderrdquo
was made an issue by Schloss the attorney for Bayview and Seaside We requested the
PROPOSED STATEMENT ON APPEAL-14-
1
2
3
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5
6
7
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14
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23
24
25
26
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28
Court to address why it referenced ldquotenderrdquo in the context of this type of unlawful detainer
case It did not do so Error
According to California Civil Handbook and Desktop Reference Thomas 2007 Ed
at P 874 ldquoThere is considerable controversy as to whether a court may reconsider its
prior ruling at any time-and if so in what manner the issue may be raisedrdquo WE RAISED IT
THROUGHOUT THE ENTIRE PROCEEDINGS WHICH THE TRIAL COURT IGNORED
See discussion in Kerns v CSE Ins Group (2003) 106 Cal App 4 368 383-389th
Defendant requested the court to reopen the case and grant a continuance if necessary
Thomas at P 875 The court had the inherent power it may be done on the courtrsquos own
motion when required by the interests of justice It failed to do so
This court made reversible error and denied Grossman a fair trial by ldquoguttingrdquo
Grossmanrsquos defense when it on its own motion sua sponte quashed the SDTs served on
the Seaside witnesses Grossman proved by competent evidence that the SDTs were duly
served on all of the Seaside witnesses in accordance to CCP Sec 1987 The Objections
admitted service the witnesses did not testify in their affidavits that ldquothey demanded
witnesses feesrdquo from the process server It was the witnesses burden of proof to declare
under oath that they demanded fees and were not paid It is common knowledge that
process servers are trained not to offer witness fees unless they are demanded If the
witnesses had testified that they demanded witness fees at the time they were served
then we would have produced affidavits from the process server that the fees were not
demanded
CCP Sec 19871 (a) provided for a motion The attorneys for the witnesses filed an
objection not a motion The witnesses did not follow the procedure set forth by law The
objections should have been summarily denied Instead the Court took the bench and sua
sponte quashed each of the subpoenas The court refused to allow the undersigned to
object to this unconstitutional procedure Subsection (b) of 19871 (b) provided ldquoon the
courtrsquos own motion after giving counsel notice and an opportunity to be heard or any
reason whatsoever for issuing this unlawful ldquosua sponterdquo order Grossmanrsquos counsel was
PROPOSED STATEMENT ON APPEAL-15-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
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20
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25
26
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28
given no notice whatsoever refused Grossmanrsquos counsel an opportunity to be heard and
over his objection the court told him to ldquobe quiet and sit downrdquo which he did That order
was a blatant violation of CCP Sec 19871 (b) denied Grossman a fair trial and
evidenced a bias against either Grossman or his counsel or there may be an agenda in
that courthouse to ldquorailroad throughrdquo all of the UD cases since they were ldquoclogging uprdquo an
over burdened court with limited funds due to the very meltdown caused by MERS and
their cohorts such as the Wall Street institutions We believe a former Chief Assistant US
Attorney Criminal Trials Division should have known better Grossman was entitled to the
evidentiary material that he subpoenaed was entitled to cross-examine Ms Weber to
whom Friedlander had corresponded with wrote letters to and Seaside plead the 5th
Amendment to discovery requests such as production of documents admissions that one
of the documents were backdated and forged and that crimes were committed Seaside
being a corporation was not permitted to assert the 5 Amendmentth
The following was the ldquooffer of proofrdquo of the relevancy of the Seaside witnesses
testimony and documents At the time that Bayview using MERS as its conduit was the
Assignee from a Lender who was not the lender of record by virtue of the TD introduced
into evidence by Pro Value The Assignor was a different entity than the Lender The
original Lender was bankrupt and therefore any agency that existed at the time that
Grossman signed the original TD was terminated by operation of law due to the
bankruptcy of the original lender Since Bayview was the Assignee of an entity other
than the original lender Bayview lacked both the power and authority to appoint Seaside
as Trustee Therefore any NOD and NOS issued by Seaside was void as a matter of
law That is the reason why a new backdated assignment was prepared by Seaside
signed by an ldquoallegedrdquo officer of MERS before a Notary was recorded on 382010 and the
sale took place on 392010 Since Pro Value was never a BFP due to the recording of
the lis pendens the Trusteersquos deed was void as a matter of law We demanded that this
court admit into evidence the assignment proving that Seaside was not a duly authorized
Trustee at the time they recorded the NOD and NOS Both the NOD and NOS were void
PROPOSED STATEMENT ON APPEAL-16-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
as a matter of law and so is the title of Pro Value This court committed error by not
admitting this evidence
In Alfaro v Community Housing Imp System amp Planning Assn Inc 171
CalApp4th 1356 (CalApp 6 Dist2009) The Court of Appeal in 2009 dealt with the
issue of the recording of a lis pendens and constructive notice and actual notice as
follows
ldquoOne of the central issues in this appeal is whether plaintiffs are chargeable withnotice of the deed restriction at an earlier time than its disclosure in the grant deeds Asexplained above the recording of a deed restriction is ordinarily regarded as imparting
iCivCode sect 1213constructive notice of its contents to subsequent purchasers (
Anderson supra 12 Cal4th 345 349 355 47 CalRptr2d 898 906 P2d 1314)Anderson supra 12 Cal4th 345 47 CalRptr2d 898 906 P2d 1314 went on to state onpage 355 47 CalRptr2d 898 906 P2d 1314 ldquoConstructive notice is ldquothe equivalent ofactual knowledge ie knowledge of its contents is conclusively presumed (4 WitkinSummary of Cal Law [ (9th ed 1987) ] Real Property sect 203 p 408 italics in original)rdquo
Defendants rely on Anderson as establishing that plaintiffs had constructive notice andFN21
actual knowledge of the deed restriction by virtue of its recording and by virtue of thisknowledge cannot successfully allege that defendants failed to disclose it
FN21 This quotation from Witkin is based on two cases AlhambraRedevelopment Agency v Transamerica Financial Services (1989) 212 CalApp3d1370 261 CalRptr 248 observed ldquoHere it is undisputed the Flemings properlyrecorded the contract thereby giving Transamerica constructive if not actual noticeof the contractrdquo ( Id at p 1377 261 CalRptr 248) Anderson v Willson (1920) 48CalApp 289 191 P 1016 stated ldquoWithout doubt the presumption of notice thusraised by this code provision is conclusive and incontrovertiblerdquo ( Id at p 293 191P 1016) Both cases concluded that a person with constructive notice did notqualify as a bona fide purchaser without notice Neither case attributed actualknowledge to the purchaser At most constructive notice has been conclusivelypresumed As we proceed to explain in the text there is a difference betweenactual and constructive notice
There was a caveat in Anderson however ldquo lsquoIf future takers purchase a piece ofproperty with notice of a restriction made by a predecessor then in the absence of duressor fraud they may ordinarily be thought to have bargained for the property with therestriction in mind and to have shown themselves willing to abide by itrsquo rdquo ( Andersonsupra 12 Cal4th at p 366 47 CalRptr2d 898 906 P2d 1314 emphasis added)
Plaintiffs argue that the doctrine of constructive notice does not apply to fraudcauses of action Bishop Creek Lodge v Scira (1996) 46 CalApp4th 1721 54CalRptr2d 745 ( Scira ) stated on page 1734 54 CalRptr2d 745 ldquoUnder a long line ofcases the fact that the victim had constructive notice of the truth from public records is nodefense to fraud The existence of such public records 1386 may be relevant to whetherthe victims reliance was justifiable but it is not by itself conclusive ( Seeger v Odell(1941) 18 Cal2d 409 414-417 115 P2d 977 [ ( Seeger ) ] Grange Co v Simmons(1962) 203 CalApp2d 567 576-577 21 CalRptr 757 Gross v Needham (1960) 184CalApp2d 446 460 7 CalRptr 664 Sullivan v Dunnigan (1959) 171 CalApp2d 662668 341 P2d 404 Regus v Schartkoff (1957) 156 CalApp2d 382 389 319 P2d 721 Schaefer v Berinstein (1956) 140 CalApp2d 278 296 295 P2d 113 Mills v
PROPOSED STATEMENT ON APPEAL-17-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Hellinger (1950) 100 CalApp2d 482 487 224 P2d 34 Barder v McClung (1949) 93CalApp2d 692 697 209 P2d 808 Stoll v Selander (1947) 81 CalApp2d 286 292 183P2d 935 Anderson v Thacher (1946) 76 CalApp2d 50 70 172 P2d 533)rdquo Therationale for this exception is ldquoThe purpose of the recording acts is to afford protection notto those who make fraudulent misrepresentations but to bona fide purchasers for valuerdquo (Seeger supra 18 Cal2d at p 415 115 P2d 977) Defendants do not discuss thisauthority cited by plaintiffs in their briefsrdquo
The court did not need a lecture from the undersigned that the purpose of the
recording of a Lis Pendens is to give ldquoConstructive Noticerdquo to the world especially to Pro
Value The court knew that the memorandum of law submitted by Pro Value was not worth
the paper it was written on as to its claim that Pro Value was a BFP That is the first thing
they teach law students in law school It is hornbook law as they say in law school The
office manager told Friedlander that she knew that Grossman had filed a lis pendens Not
only did Pro Value have ldquoconstructiverdquo notice they had actual notice Friedlander was
precluded from testifying that Pro Valuersquos attorney requested a copy of the complaint and
promised not to file an unlawful detainer suit against Grossman A short time thereafter on
3302010 an attorney named Bouzane filed the UD The promise made by an agent who
is authorized to speak is binding on his principal This attorney told Friedlander that his
client was in the room with him He believed him since he heard voices in the background
He justifiably relied on that representation of Pro Valuersquos attorney who was sitting in the
room with the attorney The courtrsquos refusal to permit Grossman to put on relevant
evidence is the sole reason for the so-called lack of evidence as enunciated by this
Court in its proposed Statement
Did the court really believe that Friedlander called Pro Value to talk about
settlement Hogwash The Office Manager lied through her teeth and Pro Value suborned
this perjury by objecting on the grounds of ldquosettlementrdquo Friedlander knew what he said to
her and she knew what she said to him His sworn testimony was totally different and
since she lied that she did not remember our conversation she was not in a position to
contradict his testimony Her choice would be to admit perjury to the court or commit
perjury by testifying to something he said which she did not remember Friedlander was
PROPOSED STATEMENT ON APPEAL-18-
1
2
3
4
5
6
7
8
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11
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14
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17
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19
20
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23
24
25
26
27
28
prepared to prove by his sworn testimony regarding some of the declarations of mailing in
the courtrsquos file that if they were mailed they were never received by me They would have
been impeached and I would file a complaint with the District Attorney to investigate this
perjury The conduct of Bouzane and his agents such as the process server were
designed to deprive people like Grossman of their homes and throw them out on the
street Perjury is being suborned The fraud on the court marched on
TITLE ISSUES
A qualified exception to the rule that title cannot be tried in an unlawful detainer
proceeding [see Evid Code sect 624 545[1][c]] is contained in CCP sect 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 sect 1161a Vella v Hudgins (1977) 20 C3d 251 255
Words and Phrases
The term duly implies that all of those elements necessary to valid sale exist
Kessler v Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title that is
duly perfected includes good record title but is not limited to good record title Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title is duly perfected
when all steps have been taken to make it perfect that is to convey to purchaser that
which he has purchased valid and good beyond all reasonable doubt Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837
Grossman filed his verified answer on 72310 Denied Par 6 Denied Par 7 alleging
fraud and a rigged sale Denied par 8 that he was served with a Notice to Quit Denied
Par 9 based on failure of service of notice to quit Denied Par 10 Denied paragraphs 11
and 12 First Affirmative Defense Failed to state a cause of action Second Affirmative
PROPOSED STATEMENT ON APPEAL-19-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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20
21
22
23
24
25
26
27
28
Defense Not properly verified by Pro Value only Bouzane Third Affirmative Defense No
Notice to Quit Fifth Affirmative Defense Denial of Due Process under the 14th
Amendment Sixth Affirmative Defense Denial of Procedural Due Process under the 14th
Amendment Seventh Affirmative Defense Denial of Equal Protection of the law under the
14 Amendmentth
FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT
1 Service of Notice to Quit
2 Compliance with the law regarding the TD sale
LEGAL ISSUES NOT DECIDED BY THE COURT
1 The two due process arguments under the 14 Amendmentth
2 The equal protection Argument under the 14 Amendmentth
3 Denial of Right to Trial by Jury
PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH
EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE
On 2202009 California enacted into law the California Foreclosure Prevention Act as
an amendment to CC Sec 2923 If Bayview took an assignment from a Lender who was not
the Lender as reflected by the Assignment that the Court wrongfully refused to admit into
evidence and gave it back to me until I requested that the Assignment be marked and that the
Courtrsquos minute order reflect that it was offered and refused on the grounds of relevancy and
no other ground That is reversible error A Trustee appointed by an Assignee without good
title is a nullity and every act that Seaside Trust took was a nullity That Assignment which
should have been admitted would prove the fact of nullity and Grossman would be entitled to
move for judgment when Pro Value rested We request the Court to reverse its original refusal
to admit that Assignment into evidence and then grant judgment to Grossman as the Trusteersquos
Deed is null and void That was my offer of proof of relevancy
PROPOSED STATEMENT ON APPEAL-20-
1
2
3
4
5
6
7
8
9
10
11
12
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23
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28
1 Under CC Sec 29235 the lender must contact the borrower At that point of time I
had given notice to Bayview that I was the attorney for the borrower Pro Value has offered no
evidence Grossman fell within the provisions of CC Sec 2923 as the TD offered into evidence
by Pro Value reflects that Grossman entered into the loan during the period from 112003 -
12312007
2 Pro Value offered no evidence that it complied with CC Sec 29236 offered a loan
modification plan to Grossman
3 Pro Value offered no evidence that it complied with CC Sec 2923 or that Bayview
was exempt
4 Pro Value offered no evidence that it complied with the provisions of HARP (12
USC Sec 1524) which was part of the ldquoeconomic stimulusrdquo to prevent foreclosures and
revitalize the housing sector
5 Pursuant to CC Sec 2924 the Trusteersquos Deed will presume the sale to be valid and
conclusively presumed to be valid if Pro Value was a BFP which it was not Pro Value failed to
prove its case for the following reasons (1) it was not the duly appointed Trustee (2) the
backdated and forged assignment allegedly was from the true lender after it went bankrupt
which required Bayview to record a new document appointing Seaside as its Trustee There is
no relation back case cited by Pro Value since it does not exist Even if it existed the law still
required the duly appointed Trustee under the new assignment to record the NOD and NOS
and comply with all of the other provisions of State and Federal Law which it could not and
did not do thereby making the Trusteersquos deed a ldquonullityrdquo without any presumptions of validity
Plaintiff claimed they have complied with CC Sec 2924 in paragraphs 4 thru 7 of
their complaint that they have met the burden of proof in that a sale had occurred and the
trustees Deed establishes this presumption that the sale was ldquoduly Perfectedrdquo and the Civil
has been complied with Defendant claimed that they did not and Plaintiff has submitted
to the court a certified copy of the Notice of Trustees Sale and asked the court to take
judicial notice of said document as well as the Trusteersquos Deed We requested the court to
PROPOSED STATEMENT ON APPEAL-21-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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20
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24
25
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27
28
reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
complied with CC Sec 29235 (a)(1) (2) (b) or c The use of the word ldquodeclarationrdquo in
subparagraph should be interpreted to mean a declaration by a mortgagee or beneficiary
A declaration by a Trustee is rank hearsay rendering the entire NOD and NOS void
precluding a sale Friedlanderrsquos testimony was first hand knowledge and certainly trumped
ldquohearsayrdquo CC Sec 29235 was not complied with per the testimony of Friedlander The
Trusteersquos declaration as to what Bayview told her is rank hearsay It required a declaration
by Bayview No such declaration was filed CC Sec 292354 (a) required a declaration
from the mortgage loan servicer (Bayview) in the Notice of Sale It did not The declaration
by the Trustee is not only rank hearsay but did not comply with the Civil Code and the
testimony of Friedlander trumps Pro Value on that issue
12 The factual and legal basis as to whether or not Grossman prevailed on any one or
more of his affirmative defenses The court failed and refused to address that
material issue of law and fact
13 The factual and legal basis as to whether or not the California Unlawful Detainer
Statute is Unconstitutional under either one or more of the Constitutional defenses raised
by Grossman in his answer The court failed and refused to address that material
issue of law and fact
Tender is not an issue in this UD case It may be an issue in the main case entitled
Grossman v Bayview In any event Bayview did not own the Note per the Allongerdquo and
therefore there was no duty to tender Tender is a ldquored herringrdquo irrelevant issue in this
case
DEFENDANT WAS NOT PROPERLY SERVED
All Pro Value offered was Bodinersquos testimony for what it was Process servers are
notorious for ldquosewer servicerdquo Defense counsel has set aside quite a few one of which
resulted in a published decision Bodine testified that he was employed by Bouzane The
Court may take judicial notice of the fact that on the day of the alleged service Bouzane
was under a 2 year suspension stayed for violation of the State Bar ethics Bouzane
headed up an ldquoEviction Millrdquo by the name of ldquoFAST EVICTION SERVICErdquo per Bodinersquos
PROPOSED STATEMENT ON APPEAL-7-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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23
24
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testimony One wonders why eviction is so fast Neither Bodine nor Bouzane made any
effort to determine whether Grossman had a business address Bodine testified that he
mailed the Notice to Grossman but the return address was Fast Eviction Service and he
did not open its mail Grossman testified he was an attorney That he never saw a Notice
on his screen door and he received no such notice in the mail The first time he saw such
a notice was when he was served a second time with the Summons and Complaint the
first and second service being quashed Grossman testified that he was looking out for
such a Notice since he found out that the Property had been sold and that he would be
receiving a Notice to Quit What led the court to believe that Grossmanrsquos testimony was
ldquoless crediblerdquo That statement brought into question the Courtrsquos entire analysis of this
case Grossman was an attorney testifying under oath while Bodine was a run of the mill
process server working for an attorney who had been disciplined by the State Bar The
Courtrsquos analysis is upside down in favor of pushing through a ldquofloodrdquo of evictions We
believe that the service requirements of the service of a Notice to Quit after a Non-Judicial
sale should meet the same notice and due process requirements of Service of a
Summons and Complaint To the extent that it doesnrsquot we contend that portion of the UD
statute is unconstitutional under the 14 Amendmentth
Joe Nocera business reporter for the New York Times wrote in the October 23
2010 business section of the New York Times regarding the Bank of America and
Countrywide the following
ldquoBut it simply does not follow that the Bank therefore has an absolute right
to take back the home Under the law it has to prove it has that right-by filing
documents that show that the owner of the mortgage has conveyed that right to it
Thatrsquos why this affidavit scandal isnrsquot some legal nicety Itrsquos about the single most
important value of American jurisprudence Due Processrdquo The Allonge proves that
Bayview did not own the Note and therefore did not have the right to enforce it by non-
judicial sale The Allonge was admitted into evidence and it establishes Grossmanrsquos
case for a defense judgment The phony backdated assignment does not trump the
PROPOSED STATEMENT ON APPEAL-8-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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19
20
21
22
23
24
25
26
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28
Allonge
RELEVANT PORTIONS OF GROSSMAN TRIAL BRIEF
sect 2936 Assignment of debt carries security
Mortgage passes by assignment of debt The assignment of a debt secured by mortgage
carries with it the security
A mortgage being a mere security for debt it is not transferable without
transfer of the debt Johnson v Razey (1919) 181 Cal 342 184 P 657
Debt and security are inseparable the mortgage alone is not a subject of
transfer Hyde v Mangan (1891) 88 Cal 319 26 P 180
Wests AnnCalCivCode sect 2937 provides ldquoNotices to borrower of transfer of service
by existing and new servicing agent of mortgage or deed of trust on single family
residential real property
(a) The Legislature hereby finds and declares that borrowers or subsequent
obligors have the right to know when a person holding a promissory note bond or other
instrument transfers servicing of the indebtedness secured by a mortgage or deed of trust
on real property containing one to four residential units located in this state The
Legislature also finds that notification to the borrower or subsequent obligor of the transfer
may protect the borrower or subsequent obligor from fraudulent business practices and
may ensure timely payments It is the intent of the Legislature in enacting this section to
mandate that a borrower or subsequent obligor be given written notice when a person
transfers the servicing of the indebtedness on notes bonds or other instruments secured
by a mortgage or deed of trust on real property containing one to four residential units and
located in this state
(b) Any person transferring the servicing of indebtedness as provided in subdivision
(a) to a different servicing agent and any person assuming from another responsibility for
servicing the instrument evidencing indebtedness shall give written notice to the borrower
PROPOSED STATEMENT ON APPEAL-9-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
or subsequent obligor before the borrower or subsequent obligor becomes obligated to
make payments to a new servicing agent
copy In the event a notice of default has been recorded or a judicial foreclosure
proceeding has been commenced the person transferring the servicing of the
indebtedness and the person assuming from another the duty of servicing the
indebtedness shall give written notice to the trustee or attorney named in the notice of
default or judicial foreclosure of the transfer A notice of default notice of sale or judicial
foreclosure shall not be invalidated solely because the servicing agent is changed during
the foreclosure process
(d) Any person transferring the servicing of indebtedness as provided in subdivision
(a) to a different servicing agent shall provide to the new servicing agent all existing
insurance policy information that the person is responsible for maintaining including but
not limited to flood and hazard insurance policy information
(e) The notices required by subdivision (b) shall be sent by first- class mail postage
prepaid to the borrowers or subsequent obligors address designated for loan payment
billings or if escrow is pending as provided in the escrow and shall contain each of the
following
(1) The name and address of the person to which the transfer of the servicing of the
indebtedness is made
(2) The date the transfer was or will be completed
(3) The address where all payments pursuant to the transfer are to be made
(f) Any person assuming from another responsibility for servicing the instrument
evidencing indebtedness shall include in the notice required by subdivision (b) a statement
of the due date of the next payment
PROPOSED STATEMENT ON APPEAL-10-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(g) The borrower or subsequent obligor shall not be liable to the holder of the note
bond or other instrument or to any servicing agent for payments made to the previous
servicing agent or for late charges if these payments were made prior to the borrower or
subsequent obligor receiving written notice of the transfer as provided by subdivision (e)
and the payments were otherwise on time
(h) For purposes of this section the term servicing agent shall not include a
trustee exercising a power of sale pursuant to a deed of trust
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Star 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
PROPOSED STATEMENT ON APPEAL-11-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
PROPOSED STATEMENT ON APPEAL-12-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
The undersigned spent his time researching the law as ldquoevictionsrdquo based on judicial
and non-judicial foreclosures sales are overwhelming our state and federal court systems
Having handled many ldquolis pendensrdquo cases ldquoconstructive noticerdquo based on a recorded ldquolis
pendens the undersigned will discuss the effect of the recordation of a lsquolis pendensrdquo on a
party claiming to be a bona fide purchaser (ldquoBFPrdquo) Simply put there is no such ldquoanimalrdquo
even though Pro Value asserts that it is a BFP Whether or not Pro Value is a BFP affects
presumptions rebuttable or conclusive Pro Valuersquos counsel misrepresented to the Court
that Pro Value was a BFP and the undersigned says ldquohogwashrdquo
Aside from the evidence and testimony the law is very unclear due to the recent
legislation passed by Congress and California to ldquoprotectrdquo homeowners from being
ldquotossedrdquo out on the street due to what the undersigned has read about the ldquounsavoryrdquo
foreclosure and eviction mills throughout this country
PROPOSED STATEMENT ON APPEAL-13-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Simply put I place John Bouzane dba Fast Eviction Service in the category of an
ldquoeviction millrdquo We had a ldquoreasonablerdquo expectation that the ldquoattorney of recordrdquo would
appear at trial as the ldquotrial attorneyrdquo since Bouzane verified the UD complaint and
subjected himself to be called as a witness by the Defense
Counsel for Pro Value stated that the statute which permitted non-judicial
foreclosure is constitutional I know that since there is no ldquostate actionrdquo Grossman
challenges the Constitutionality of the ldquoevictionrdquo statutes since it requires ldquoState Actionrdquo to
evict a homeowner from their home after a non judicial sale That is an undecided issue
which the undersigned looks forward to present That is why Grossman requested to make
an evidentiary record so that the Court may decide the Constitutional issues There are
many attorneys in the ldquoborrowerrsquos barrdquo who await such a declaration of unconstitutionality
It is not a frivolous position Prior to Sniadach v Family Finance I was writing briefs that pre
judgment attachments without notice and a hearing violated the due process clause of
the 14 Amendment That case was decided by the US Supreme Court before anth
appellate court heard the same argument from the undersigned
FUNCTION OF THE JUDGE
The major feature of a bench trial is that the judge sits as the trier of fact The
Judge determines the admissibility weighs the evidence determines credibility and
renders judgment CCP Sec 6318 (a) Davis v Kahn (1970) 7 Cal App 3 868 874rd
Bullockrsquos Inc v Security First national Bank of Los Angeles (1958) 160 Cal App 2 277nd
285 Judges are precluded from conducting independent investigations outside the
courtroom because to do so would be a denial of due process denying to a litigant the
fair and impartial trial to which everyone is entitled Conservatorship of Schaeffer (2002)
98 Cal App 4 159 164 The general order of proceedings is set forth in CCP Sec 607th
6317
The Courtrsquos reference to ldquotenderrdquo in a non-lease situation raised a suspicion that
this Court referenced some of the proceedings in Grossman v Bayview where ldquoTenderrdquo
was made an issue by Schloss the attorney for Bayview and Seaside We requested the
PROPOSED STATEMENT ON APPEAL-14-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
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Court to address why it referenced ldquotenderrdquo in the context of this type of unlawful detainer
case It did not do so Error
According to California Civil Handbook and Desktop Reference Thomas 2007 Ed
at P 874 ldquoThere is considerable controversy as to whether a court may reconsider its
prior ruling at any time-and if so in what manner the issue may be raisedrdquo WE RAISED IT
THROUGHOUT THE ENTIRE PROCEEDINGS WHICH THE TRIAL COURT IGNORED
See discussion in Kerns v CSE Ins Group (2003) 106 Cal App 4 368 383-389th
Defendant requested the court to reopen the case and grant a continuance if necessary
Thomas at P 875 The court had the inherent power it may be done on the courtrsquos own
motion when required by the interests of justice It failed to do so
This court made reversible error and denied Grossman a fair trial by ldquoguttingrdquo
Grossmanrsquos defense when it on its own motion sua sponte quashed the SDTs served on
the Seaside witnesses Grossman proved by competent evidence that the SDTs were duly
served on all of the Seaside witnesses in accordance to CCP Sec 1987 The Objections
admitted service the witnesses did not testify in their affidavits that ldquothey demanded
witnesses feesrdquo from the process server It was the witnesses burden of proof to declare
under oath that they demanded fees and were not paid It is common knowledge that
process servers are trained not to offer witness fees unless they are demanded If the
witnesses had testified that they demanded witness fees at the time they were served
then we would have produced affidavits from the process server that the fees were not
demanded
CCP Sec 19871 (a) provided for a motion The attorneys for the witnesses filed an
objection not a motion The witnesses did not follow the procedure set forth by law The
objections should have been summarily denied Instead the Court took the bench and sua
sponte quashed each of the subpoenas The court refused to allow the undersigned to
object to this unconstitutional procedure Subsection (b) of 19871 (b) provided ldquoon the
courtrsquos own motion after giving counsel notice and an opportunity to be heard or any
reason whatsoever for issuing this unlawful ldquosua sponterdquo order Grossmanrsquos counsel was
PROPOSED STATEMENT ON APPEAL-15-
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3
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6
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given no notice whatsoever refused Grossmanrsquos counsel an opportunity to be heard and
over his objection the court told him to ldquobe quiet and sit downrdquo which he did That order
was a blatant violation of CCP Sec 19871 (b) denied Grossman a fair trial and
evidenced a bias against either Grossman or his counsel or there may be an agenda in
that courthouse to ldquorailroad throughrdquo all of the UD cases since they were ldquoclogging uprdquo an
over burdened court with limited funds due to the very meltdown caused by MERS and
their cohorts such as the Wall Street institutions We believe a former Chief Assistant US
Attorney Criminal Trials Division should have known better Grossman was entitled to the
evidentiary material that he subpoenaed was entitled to cross-examine Ms Weber to
whom Friedlander had corresponded with wrote letters to and Seaside plead the 5th
Amendment to discovery requests such as production of documents admissions that one
of the documents were backdated and forged and that crimes were committed Seaside
being a corporation was not permitted to assert the 5 Amendmentth
The following was the ldquooffer of proofrdquo of the relevancy of the Seaside witnesses
testimony and documents At the time that Bayview using MERS as its conduit was the
Assignee from a Lender who was not the lender of record by virtue of the TD introduced
into evidence by Pro Value The Assignor was a different entity than the Lender The
original Lender was bankrupt and therefore any agency that existed at the time that
Grossman signed the original TD was terminated by operation of law due to the
bankruptcy of the original lender Since Bayview was the Assignee of an entity other
than the original lender Bayview lacked both the power and authority to appoint Seaside
as Trustee Therefore any NOD and NOS issued by Seaside was void as a matter of
law That is the reason why a new backdated assignment was prepared by Seaside
signed by an ldquoallegedrdquo officer of MERS before a Notary was recorded on 382010 and the
sale took place on 392010 Since Pro Value was never a BFP due to the recording of
the lis pendens the Trusteersquos deed was void as a matter of law We demanded that this
court admit into evidence the assignment proving that Seaside was not a duly authorized
Trustee at the time they recorded the NOD and NOS Both the NOD and NOS were void
PROPOSED STATEMENT ON APPEAL-16-
1
2
3
4
5
6
7
8
9
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11
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23
24
25
26
27
28
as a matter of law and so is the title of Pro Value This court committed error by not
admitting this evidence
In Alfaro v Community Housing Imp System amp Planning Assn Inc 171
CalApp4th 1356 (CalApp 6 Dist2009) The Court of Appeal in 2009 dealt with the
issue of the recording of a lis pendens and constructive notice and actual notice as
follows
ldquoOne of the central issues in this appeal is whether plaintiffs are chargeable withnotice of the deed restriction at an earlier time than its disclosure in the grant deeds Asexplained above the recording of a deed restriction is ordinarily regarded as imparting
iCivCode sect 1213constructive notice of its contents to subsequent purchasers (
Anderson supra 12 Cal4th 345 349 355 47 CalRptr2d 898 906 P2d 1314)Anderson supra 12 Cal4th 345 47 CalRptr2d 898 906 P2d 1314 went on to state onpage 355 47 CalRptr2d 898 906 P2d 1314 ldquoConstructive notice is ldquothe equivalent ofactual knowledge ie knowledge of its contents is conclusively presumed (4 WitkinSummary of Cal Law [ (9th ed 1987) ] Real Property sect 203 p 408 italics in original)rdquo
Defendants rely on Anderson as establishing that plaintiffs had constructive notice andFN21
actual knowledge of the deed restriction by virtue of its recording and by virtue of thisknowledge cannot successfully allege that defendants failed to disclose it
FN21 This quotation from Witkin is based on two cases AlhambraRedevelopment Agency v Transamerica Financial Services (1989) 212 CalApp3d1370 261 CalRptr 248 observed ldquoHere it is undisputed the Flemings properlyrecorded the contract thereby giving Transamerica constructive if not actual noticeof the contractrdquo ( Id at p 1377 261 CalRptr 248) Anderson v Willson (1920) 48CalApp 289 191 P 1016 stated ldquoWithout doubt the presumption of notice thusraised by this code provision is conclusive and incontrovertiblerdquo ( Id at p 293 191P 1016) Both cases concluded that a person with constructive notice did notqualify as a bona fide purchaser without notice Neither case attributed actualknowledge to the purchaser At most constructive notice has been conclusivelypresumed As we proceed to explain in the text there is a difference betweenactual and constructive notice
There was a caveat in Anderson however ldquo lsquoIf future takers purchase a piece ofproperty with notice of a restriction made by a predecessor then in the absence of duressor fraud they may ordinarily be thought to have bargained for the property with therestriction in mind and to have shown themselves willing to abide by itrsquo rdquo ( Andersonsupra 12 Cal4th at p 366 47 CalRptr2d 898 906 P2d 1314 emphasis added)
Plaintiffs argue that the doctrine of constructive notice does not apply to fraudcauses of action Bishop Creek Lodge v Scira (1996) 46 CalApp4th 1721 54CalRptr2d 745 ( Scira ) stated on page 1734 54 CalRptr2d 745 ldquoUnder a long line ofcases the fact that the victim had constructive notice of the truth from public records is nodefense to fraud The existence of such public records 1386 may be relevant to whetherthe victims reliance was justifiable but it is not by itself conclusive ( Seeger v Odell(1941) 18 Cal2d 409 414-417 115 P2d 977 [ ( Seeger ) ] Grange Co v Simmons(1962) 203 CalApp2d 567 576-577 21 CalRptr 757 Gross v Needham (1960) 184CalApp2d 446 460 7 CalRptr 664 Sullivan v Dunnigan (1959) 171 CalApp2d 662668 341 P2d 404 Regus v Schartkoff (1957) 156 CalApp2d 382 389 319 P2d 721 Schaefer v Berinstein (1956) 140 CalApp2d 278 296 295 P2d 113 Mills v
PROPOSED STATEMENT ON APPEAL-17-
1
2
3
4
5
6
7
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9
10
11
12
13
14
15
16
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18
19
20
21
22
23
24
25
26
27
28
Hellinger (1950) 100 CalApp2d 482 487 224 P2d 34 Barder v McClung (1949) 93CalApp2d 692 697 209 P2d 808 Stoll v Selander (1947) 81 CalApp2d 286 292 183P2d 935 Anderson v Thacher (1946) 76 CalApp2d 50 70 172 P2d 533)rdquo Therationale for this exception is ldquoThe purpose of the recording acts is to afford protection notto those who make fraudulent misrepresentations but to bona fide purchasers for valuerdquo (Seeger supra 18 Cal2d at p 415 115 P2d 977) Defendants do not discuss thisauthority cited by plaintiffs in their briefsrdquo
The court did not need a lecture from the undersigned that the purpose of the
recording of a Lis Pendens is to give ldquoConstructive Noticerdquo to the world especially to Pro
Value The court knew that the memorandum of law submitted by Pro Value was not worth
the paper it was written on as to its claim that Pro Value was a BFP That is the first thing
they teach law students in law school It is hornbook law as they say in law school The
office manager told Friedlander that she knew that Grossman had filed a lis pendens Not
only did Pro Value have ldquoconstructiverdquo notice they had actual notice Friedlander was
precluded from testifying that Pro Valuersquos attorney requested a copy of the complaint and
promised not to file an unlawful detainer suit against Grossman A short time thereafter on
3302010 an attorney named Bouzane filed the UD The promise made by an agent who
is authorized to speak is binding on his principal This attorney told Friedlander that his
client was in the room with him He believed him since he heard voices in the background
He justifiably relied on that representation of Pro Valuersquos attorney who was sitting in the
room with the attorney The courtrsquos refusal to permit Grossman to put on relevant
evidence is the sole reason for the so-called lack of evidence as enunciated by this
Court in its proposed Statement
Did the court really believe that Friedlander called Pro Value to talk about
settlement Hogwash The Office Manager lied through her teeth and Pro Value suborned
this perjury by objecting on the grounds of ldquosettlementrdquo Friedlander knew what he said to
her and she knew what she said to him His sworn testimony was totally different and
since she lied that she did not remember our conversation she was not in a position to
contradict his testimony Her choice would be to admit perjury to the court or commit
perjury by testifying to something he said which she did not remember Friedlander was
PROPOSED STATEMENT ON APPEAL-18-
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2
3
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5
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7
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prepared to prove by his sworn testimony regarding some of the declarations of mailing in
the courtrsquos file that if they were mailed they were never received by me They would have
been impeached and I would file a complaint with the District Attorney to investigate this
perjury The conduct of Bouzane and his agents such as the process server were
designed to deprive people like Grossman of their homes and throw them out on the
street Perjury is being suborned The fraud on the court marched on
TITLE ISSUES
A qualified exception to the rule that title cannot be tried in an unlawful detainer
proceeding [see Evid Code sect 624 545[1][c]] is contained in CCP sect 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 sect 1161a Vella v Hudgins (1977) 20 C3d 251 255
Words and Phrases
The term duly implies that all of those elements necessary to valid sale exist
Kessler v Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title that is
duly perfected includes good record title but is not limited to good record title Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title is duly perfected
when all steps have been taken to make it perfect that is to convey to purchaser that
which he has purchased valid and good beyond all reasonable doubt Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837
Grossman filed his verified answer on 72310 Denied Par 6 Denied Par 7 alleging
fraud and a rigged sale Denied par 8 that he was served with a Notice to Quit Denied
Par 9 based on failure of service of notice to quit Denied Par 10 Denied paragraphs 11
and 12 First Affirmative Defense Failed to state a cause of action Second Affirmative
PROPOSED STATEMENT ON APPEAL-19-
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2
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Defense Not properly verified by Pro Value only Bouzane Third Affirmative Defense No
Notice to Quit Fifth Affirmative Defense Denial of Due Process under the 14th
Amendment Sixth Affirmative Defense Denial of Procedural Due Process under the 14th
Amendment Seventh Affirmative Defense Denial of Equal Protection of the law under the
14 Amendmentth
FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT
1 Service of Notice to Quit
2 Compliance with the law regarding the TD sale
LEGAL ISSUES NOT DECIDED BY THE COURT
1 The two due process arguments under the 14 Amendmentth
2 The equal protection Argument under the 14 Amendmentth
3 Denial of Right to Trial by Jury
PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH
EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE
On 2202009 California enacted into law the California Foreclosure Prevention Act as
an amendment to CC Sec 2923 If Bayview took an assignment from a Lender who was not
the Lender as reflected by the Assignment that the Court wrongfully refused to admit into
evidence and gave it back to me until I requested that the Assignment be marked and that the
Courtrsquos minute order reflect that it was offered and refused on the grounds of relevancy and
no other ground That is reversible error A Trustee appointed by an Assignee without good
title is a nullity and every act that Seaside Trust took was a nullity That Assignment which
should have been admitted would prove the fact of nullity and Grossman would be entitled to
move for judgment when Pro Value rested We request the Court to reverse its original refusal
to admit that Assignment into evidence and then grant judgment to Grossman as the Trusteersquos
Deed is null and void That was my offer of proof of relevancy
PROPOSED STATEMENT ON APPEAL-20-
1
2
3
4
5
6
7
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28
1 Under CC Sec 29235 the lender must contact the borrower At that point of time I
had given notice to Bayview that I was the attorney for the borrower Pro Value has offered no
evidence Grossman fell within the provisions of CC Sec 2923 as the TD offered into evidence
by Pro Value reflects that Grossman entered into the loan during the period from 112003 -
12312007
2 Pro Value offered no evidence that it complied with CC Sec 29236 offered a loan
modification plan to Grossman
3 Pro Value offered no evidence that it complied with CC Sec 2923 or that Bayview
was exempt
4 Pro Value offered no evidence that it complied with the provisions of HARP (12
USC Sec 1524) which was part of the ldquoeconomic stimulusrdquo to prevent foreclosures and
revitalize the housing sector
5 Pursuant to CC Sec 2924 the Trusteersquos Deed will presume the sale to be valid and
conclusively presumed to be valid if Pro Value was a BFP which it was not Pro Value failed to
prove its case for the following reasons (1) it was not the duly appointed Trustee (2) the
backdated and forged assignment allegedly was from the true lender after it went bankrupt
which required Bayview to record a new document appointing Seaside as its Trustee There is
no relation back case cited by Pro Value since it does not exist Even if it existed the law still
required the duly appointed Trustee under the new assignment to record the NOD and NOS
and comply with all of the other provisions of State and Federal Law which it could not and
did not do thereby making the Trusteersquos deed a ldquonullityrdquo without any presumptions of validity
Plaintiff claimed they have complied with CC Sec 2924 in paragraphs 4 thru 7 of
their complaint that they have met the burden of proof in that a sale had occurred and the
trustees Deed establishes this presumption that the sale was ldquoduly Perfectedrdquo and the Civil
has been complied with Defendant claimed that they did not and Plaintiff has submitted
to the court a certified copy of the Notice of Trustees Sale and asked the court to take
judicial notice of said document as well as the Trusteersquos Deed We requested the court to
PROPOSED STATEMENT ON APPEAL-21-
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2
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reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
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2
3
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5
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11
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23
24
25
26
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28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
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10
11
12
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14
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24
25
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27
28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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25
26
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28
was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
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2
3
4
5
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7
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9
10
11
12
13
14
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28
testimony One wonders why eviction is so fast Neither Bodine nor Bouzane made any
effort to determine whether Grossman had a business address Bodine testified that he
mailed the Notice to Grossman but the return address was Fast Eviction Service and he
did not open its mail Grossman testified he was an attorney That he never saw a Notice
on his screen door and he received no such notice in the mail The first time he saw such
a notice was when he was served a second time with the Summons and Complaint the
first and second service being quashed Grossman testified that he was looking out for
such a Notice since he found out that the Property had been sold and that he would be
receiving a Notice to Quit What led the court to believe that Grossmanrsquos testimony was
ldquoless crediblerdquo That statement brought into question the Courtrsquos entire analysis of this
case Grossman was an attorney testifying under oath while Bodine was a run of the mill
process server working for an attorney who had been disciplined by the State Bar The
Courtrsquos analysis is upside down in favor of pushing through a ldquofloodrdquo of evictions We
believe that the service requirements of the service of a Notice to Quit after a Non-Judicial
sale should meet the same notice and due process requirements of Service of a
Summons and Complaint To the extent that it doesnrsquot we contend that portion of the UD
statute is unconstitutional under the 14 Amendmentth
Joe Nocera business reporter for the New York Times wrote in the October 23
2010 business section of the New York Times regarding the Bank of America and
Countrywide the following
ldquoBut it simply does not follow that the Bank therefore has an absolute right
to take back the home Under the law it has to prove it has that right-by filing
documents that show that the owner of the mortgage has conveyed that right to it
Thatrsquos why this affidavit scandal isnrsquot some legal nicety Itrsquos about the single most
important value of American jurisprudence Due Processrdquo The Allonge proves that
Bayview did not own the Note and therefore did not have the right to enforce it by non-
judicial sale The Allonge was admitted into evidence and it establishes Grossmanrsquos
case for a defense judgment The phony backdated assignment does not trump the
PROPOSED STATEMENT ON APPEAL-8-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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18
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20
21
22
23
24
25
26
27
28
Allonge
RELEVANT PORTIONS OF GROSSMAN TRIAL BRIEF
sect 2936 Assignment of debt carries security
Mortgage passes by assignment of debt The assignment of a debt secured by mortgage
carries with it the security
A mortgage being a mere security for debt it is not transferable without
transfer of the debt Johnson v Razey (1919) 181 Cal 342 184 P 657
Debt and security are inseparable the mortgage alone is not a subject of
transfer Hyde v Mangan (1891) 88 Cal 319 26 P 180
Wests AnnCalCivCode sect 2937 provides ldquoNotices to borrower of transfer of service
by existing and new servicing agent of mortgage or deed of trust on single family
residential real property
(a) The Legislature hereby finds and declares that borrowers or subsequent
obligors have the right to know when a person holding a promissory note bond or other
instrument transfers servicing of the indebtedness secured by a mortgage or deed of trust
on real property containing one to four residential units located in this state The
Legislature also finds that notification to the borrower or subsequent obligor of the transfer
may protect the borrower or subsequent obligor from fraudulent business practices and
may ensure timely payments It is the intent of the Legislature in enacting this section to
mandate that a borrower or subsequent obligor be given written notice when a person
transfers the servicing of the indebtedness on notes bonds or other instruments secured
by a mortgage or deed of trust on real property containing one to four residential units and
located in this state
(b) Any person transferring the servicing of indebtedness as provided in subdivision
(a) to a different servicing agent and any person assuming from another responsibility for
servicing the instrument evidencing indebtedness shall give written notice to the borrower
PROPOSED STATEMENT ON APPEAL-9-
1
2
3
4
5
6
7
8
9
10
11
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14
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18
19
20
21
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28
or subsequent obligor before the borrower or subsequent obligor becomes obligated to
make payments to a new servicing agent
copy In the event a notice of default has been recorded or a judicial foreclosure
proceeding has been commenced the person transferring the servicing of the
indebtedness and the person assuming from another the duty of servicing the
indebtedness shall give written notice to the trustee or attorney named in the notice of
default or judicial foreclosure of the transfer A notice of default notice of sale or judicial
foreclosure shall not be invalidated solely because the servicing agent is changed during
the foreclosure process
(d) Any person transferring the servicing of indebtedness as provided in subdivision
(a) to a different servicing agent shall provide to the new servicing agent all existing
insurance policy information that the person is responsible for maintaining including but
not limited to flood and hazard insurance policy information
(e) The notices required by subdivision (b) shall be sent by first- class mail postage
prepaid to the borrowers or subsequent obligors address designated for loan payment
billings or if escrow is pending as provided in the escrow and shall contain each of the
following
(1) The name and address of the person to which the transfer of the servicing of the
indebtedness is made
(2) The date the transfer was or will be completed
(3) The address where all payments pursuant to the transfer are to be made
(f) Any person assuming from another responsibility for servicing the instrument
evidencing indebtedness shall include in the notice required by subdivision (b) a statement
of the due date of the next payment
PROPOSED STATEMENT ON APPEAL-10-
1
2
3
4
5
6
7
8
9
10
11
12
13
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15
16
17
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19
20
21
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25
26
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28
(g) The borrower or subsequent obligor shall not be liable to the holder of the note
bond or other instrument or to any servicing agent for payments made to the previous
servicing agent or for late charges if these payments were made prior to the borrower or
subsequent obligor receiving written notice of the transfer as provided by subdivision (e)
and the payments were otherwise on time
(h) For purposes of this section the term servicing agent shall not include a
trustee exercising a power of sale pursuant to a deed of trust
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Star 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
PROPOSED STATEMENT ON APPEAL-11-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
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9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
PROPOSED STATEMENT ON APPEAL-12-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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20
21
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24
25
26
27
28
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
The undersigned spent his time researching the law as ldquoevictionsrdquo based on judicial
and non-judicial foreclosures sales are overwhelming our state and federal court systems
Having handled many ldquolis pendensrdquo cases ldquoconstructive noticerdquo based on a recorded ldquolis
pendens the undersigned will discuss the effect of the recordation of a lsquolis pendensrdquo on a
party claiming to be a bona fide purchaser (ldquoBFPrdquo) Simply put there is no such ldquoanimalrdquo
even though Pro Value asserts that it is a BFP Whether or not Pro Value is a BFP affects
presumptions rebuttable or conclusive Pro Valuersquos counsel misrepresented to the Court
that Pro Value was a BFP and the undersigned says ldquohogwashrdquo
Aside from the evidence and testimony the law is very unclear due to the recent
legislation passed by Congress and California to ldquoprotectrdquo homeowners from being
ldquotossedrdquo out on the street due to what the undersigned has read about the ldquounsavoryrdquo
foreclosure and eviction mills throughout this country
PROPOSED STATEMENT ON APPEAL-13-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Simply put I place John Bouzane dba Fast Eviction Service in the category of an
ldquoeviction millrdquo We had a ldquoreasonablerdquo expectation that the ldquoattorney of recordrdquo would
appear at trial as the ldquotrial attorneyrdquo since Bouzane verified the UD complaint and
subjected himself to be called as a witness by the Defense
Counsel for Pro Value stated that the statute which permitted non-judicial
foreclosure is constitutional I know that since there is no ldquostate actionrdquo Grossman
challenges the Constitutionality of the ldquoevictionrdquo statutes since it requires ldquoState Actionrdquo to
evict a homeowner from their home after a non judicial sale That is an undecided issue
which the undersigned looks forward to present That is why Grossman requested to make
an evidentiary record so that the Court may decide the Constitutional issues There are
many attorneys in the ldquoborrowerrsquos barrdquo who await such a declaration of unconstitutionality
It is not a frivolous position Prior to Sniadach v Family Finance I was writing briefs that pre
judgment attachments without notice and a hearing violated the due process clause of
the 14 Amendment That case was decided by the US Supreme Court before anth
appellate court heard the same argument from the undersigned
FUNCTION OF THE JUDGE
The major feature of a bench trial is that the judge sits as the trier of fact The
Judge determines the admissibility weighs the evidence determines credibility and
renders judgment CCP Sec 6318 (a) Davis v Kahn (1970) 7 Cal App 3 868 874rd
Bullockrsquos Inc v Security First national Bank of Los Angeles (1958) 160 Cal App 2 277nd
285 Judges are precluded from conducting independent investigations outside the
courtroom because to do so would be a denial of due process denying to a litigant the
fair and impartial trial to which everyone is entitled Conservatorship of Schaeffer (2002)
98 Cal App 4 159 164 The general order of proceedings is set forth in CCP Sec 607th
6317
The Courtrsquos reference to ldquotenderrdquo in a non-lease situation raised a suspicion that
this Court referenced some of the proceedings in Grossman v Bayview where ldquoTenderrdquo
was made an issue by Schloss the attorney for Bayview and Seaside We requested the
PROPOSED STATEMENT ON APPEAL-14-
1
2
3
4
5
6
7
8
9
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11
12
13
14
15
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20
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22
23
24
25
26
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28
Court to address why it referenced ldquotenderrdquo in the context of this type of unlawful detainer
case It did not do so Error
According to California Civil Handbook and Desktop Reference Thomas 2007 Ed
at P 874 ldquoThere is considerable controversy as to whether a court may reconsider its
prior ruling at any time-and if so in what manner the issue may be raisedrdquo WE RAISED IT
THROUGHOUT THE ENTIRE PROCEEDINGS WHICH THE TRIAL COURT IGNORED
See discussion in Kerns v CSE Ins Group (2003) 106 Cal App 4 368 383-389th
Defendant requested the court to reopen the case and grant a continuance if necessary
Thomas at P 875 The court had the inherent power it may be done on the courtrsquos own
motion when required by the interests of justice It failed to do so
This court made reversible error and denied Grossman a fair trial by ldquoguttingrdquo
Grossmanrsquos defense when it on its own motion sua sponte quashed the SDTs served on
the Seaside witnesses Grossman proved by competent evidence that the SDTs were duly
served on all of the Seaside witnesses in accordance to CCP Sec 1987 The Objections
admitted service the witnesses did not testify in their affidavits that ldquothey demanded
witnesses feesrdquo from the process server It was the witnesses burden of proof to declare
under oath that they demanded fees and were not paid It is common knowledge that
process servers are trained not to offer witness fees unless they are demanded If the
witnesses had testified that they demanded witness fees at the time they were served
then we would have produced affidavits from the process server that the fees were not
demanded
CCP Sec 19871 (a) provided for a motion The attorneys for the witnesses filed an
objection not a motion The witnesses did not follow the procedure set forth by law The
objections should have been summarily denied Instead the Court took the bench and sua
sponte quashed each of the subpoenas The court refused to allow the undersigned to
object to this unconstitutional procedure Subsection (b) of 19871 (b) provided ldquoon the
courtrsquos own motion after giving counsel notice and an opportunity to be heard or any
reason whatsoever for issuing this unlawful ldquosua sponterdquo order Grossmanrsquos counsel was
PROPOSED STATEMENT ON APPEAL-15-
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2
3
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5
6
7
8
9
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28
given no notice whatsoever refused Grossmanrsquos counsel an opportunity to be heard and
over his objection the court told him to ldquobe quiet and sit downrdquo which he did That order
was a blatant violation of CCP Sec 19871 (b) denied Grossman a fair trial and
evidenced a bias against either Grossman or his counsel or there may be an agenda in
that courthouse to ldquorailroad throughrdquo all of the UD cases since they were ldquoclogging uprdquo an
over burdened court with limited funds due to the very meltdown caused by MERS and
their cohorts such as the Wall Street institutions We believe a former Chief Assistant US
Attorney Criminal Trials Division should have known better Grossman was entitled to the
evidentiary material that he subpoenaed was entitled to cross-examine Ms Weber to
whom Friedlander had corresponded with wrote letters to and Seaside plead the 5th
Amendment to discovery requests such as production of documents admissions that one
of the documents were backdated and forged and that crimes were committed Seaside
being a corporation was not permitted to assert the 5 Amendmentth
The following was the ldquooffer of proofrdquo of the relevancy of the Seaside witnesses
testimony and documents At the time that Bayview using MERS as its conduit was the
Assignee from a Lender who was not the lender of record by virtue of the TD introduced
into evidence by Pro Value The Assignor was a different entity than the Lender The
original Lender was bankrupt and therefore any agency that existed at the time that
Grossman signed the original TD was terminated by operation of law due to the
bankruptcy of the original lender Since Bayview was the Assignee of an entity other
than the original lender Bayview lacked both the power and authority to appoint Seaside
as Trustee Therefore any NOD and NOS issued by Seaside was void as a matter of
law That is the reason why a new backdated assignment was prepared by Seaside
signed by an ldquoallegedrdquo officer of MERS before a Notary was recorded on 382010 and the
sale took place on 392010 Since Pro Value was never a BFP due to the recording of
the lis pendens the Trusteersquos deed was void as a matter of law We demanded that this
court admit into evidence the assignment proving that Seaside was not a duly authorized
Trustee at the time they recorded the NOD and NOS Both the NOD and NOS were void
PROPOSED STATEMENT ON APPEAL-16-
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2
3
4
5
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as a matter of law and so is the title of Pro Value This court committed error by not
admitting this evidence
In Alfaro v Community Housing Imp System amp Planning Assn Inc 171
CalApp4th 1356 (CalApp 6 Dist2009) The Court of Appeal in 2009 dealt with the
issue of the recording of a lis pendens and constructive notice and actual notice as
follows
ldquoOne of the central issues in this appeal is whether plaintiffs are chargeable withnotice of the deed restriction at an earlier time than its disclosure in the grant deeds Asexplained above the recording of a deed restriction is ordinarily regarded as imparting
iCivCode sect 1213constructive notice of its contents to subsequent purchasers (
Anderson supra 12 Cal4th 345 349 355 47 CalRptr2d 898 906 P2d 1314)Anderson supra 12 Cal4th 345 47 CalRptr2d 898 906 P2d 1314 went on to state onpage 355 47 CalRptr2d 898 906 P2d 1314 ldquoConstructive notice is ldquothe equivalent ofactual knowledge ie knowledge of its contents is conclusively presumed (4 WitkinSummary of Cal Law [ (9th ed 1987) ] Real Property sect 203 p 408 italics in original)rdquo
Defendants rely on Anderson as establishing that plaintiffs had constructive notice andFN21
actual knowledge of the deed restriction by virtue of its recording and by virtue of thisknowledge cannot successfully allege that defendants failed to disclose it
FN21 This quotation from Witkin is based on two cases AlhambraRedevelopment Agency v Transamerica Financial Services (1989) 212 CalApp3d1370 261 CalRptr 248 observed ldquoHere it is undisputed the Flemings properlyrecorded the contract thereby giving Transamerica constructive if not actual noticeof the contractrdquo ( Id at p 1377 261 CalRptr 248) Anderson v Willson (1920) 48CalApp 289 191 P 1016 stated ldquoWithout doubt the presumption of notice thusraised by this code provision is conclusive and incontrovertiblerdquo ( Id at p 293 191P 1016) Both cases concluded that a person with constructive notice did notqualify as a bona fide purchaser without notice Neither case attributed actualknowledge to the purchaser At most constructive notice has been conclusivelypresumed As we proceed to explain in the text there is a difference betweenactual and constructive notice
There was a caveat in Anderson however ldquo lsquoIf future takers purchase a piece ofproperty with notice of a restriction made by a predecessor then in the absence of duressor fraud they may ordinarily be thought to have bargained for the property with therestriction in mind and to have shown themselves willing to abide by itrsquo rdquo ( Andersonsupra 12 Cal4th at p 366 47 CalRptr2d 898 906 P2d 1314 emphasis added)
Plaintiffs argue that the doctrine of constructive notice does not apply to fraudcauses of action Bishop Creek Lodge v Scira (1996) 46 CalApp4th 1721 54CalRptr2d 745 ( Scira ) stated on page 1734 54 CalRptr2d 745 ldquoUnder a long line ofcases the fact that the victim had constructive notice of the truth from public records is nodefense to fraud The existence of such public records 1386 may be relevant to whetherthe victims reliance was justifiable but it is not by itself conclusive ( Seeger v Odell(1941) 18 Cal2d 409 414-417 115 P2d 977 [ ( Seeger ) ] Grange Co v Simmons(1962) 203 CalApp2d 567 576-577 21 CalRptr 757 Gross v Needham (1960) 184CalApp2d 446 460 7 CalRptr 664 Sullivan v Dunnigan (1959) 171 CalApp2d 662668 341 P2d 404 Regus v Schartkoff (1957) 156 CalApp2d 382 389 319 P2d 721 Schaefer v Berinstein (1956) 140 CalApp2d 278 296 295 P2d 113 Mills v
PROPOSED STATEMENT ON APPEAL-17-
1
2
3
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5
6
7
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9
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11
12
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21
22
23
24
25
26
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28
Hellinger (1950) 100 CalApp2d 482 487 224 P2d 34 Barder v McClung (1949) 93CalApp2d 692 697 209 P2d 808 Stoll v Selander (1947) 81 CalApp2d 286 292 183P2d 935 Anderson v Thacher (1946) 76 CalApp2d 50 70 172 P2d 533)rdquo Therationale for this exception is ldquoThe purpose of the recording acts is to afford protection notto those who make fraudulent misrepresentations but to bona fide purchasers for valuerdquo (Seeger supra 18 Cal2d at p 415 115 P2d 977) Defendants do not discuss thisauthority cited by plaintiffs in their briefsrdquo
The court did not need a lecture from the undersigned that the purpose of the
recording of a Lis Pendens is to give ldquoConstructive Noticerdquo to the world especially to Pro
Value The court knew that the memorandum of law submitted by Pro Value was not worth
the paper it was written on as to its claim that Pro Value was a BFP That is the first thing
they teach law students in law school It is hornbook law as they say in law school The
office manager told Friedlander that she knew that Grossman had filed a lis pendens Not
only did Pro Value have ldquoconstructiverdquo notice they had actual notice Friedlander was
precluded from testifying that Pro Valuersquos attorney requested a copy of the complaint and
promised not to file an unlawful detainer suit against Grossman A short time thereafter on
3302010 an attorney named Bouzane filed the UD The promise made by an agent who
is authorized to speak is binding on his principal This attorney told Friedlander that his
client was in the room with him He believed him since he heard voices in the background
He justifiably relied on that representation of Pro Valuersquos attorney who was sitting in the
room with the attorney The courtrsquos refusal to permit Grossman to put on relevant
evidence is the sole reason for the so-called lack of evidence as enunciated by this
Court in its proposed Statement
Did the court really believe that Friedlander called Pro Value to talk about
settlement Hogwash The Office Manager lied through her teeth and Pro Value suborned
this perjury by objecting on the grounds of ldquosettlementrdquo Friedlander knew what he said to
her and she knew what she said to him His sworn testimony was totally different and
since she lied that she did not remember our conversation she was not in a position to
contradict his testimony Her choice would be to admit perjury to the court or commit
perjury by testifying to something he said which she did not remember Friedlander was
PROPOSED STATEMENT ON APPEAL-18-
1
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3
4
5
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7
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28
prepared to prove by his sworn testimony regarding some of the declarations of mailing in
the courtrsquos file that if they were mailed they were never received by me They would have
been impeached and I would file a complaint with the District Attorney to investigate this
perjury The conduct of Bouzane and his agents such as the process server were
designed to deprive people like Grossman of their homes and throw them out on the
street Perjury is being suborned The fraud on the court marched on
TITLE ISSUES
A qualified exception to the rule that title cannot be tried in an unlawful detainer
proceeding [see Evid Code sect 624 545[1][c]] is contained in CCP sect 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 sect 1161a Vella v Hudgins (1977) 20 C3d 251 255
Words and Phrases
The term duly implies that all of those elements necessary to valid sale exist
Kessler v Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title that is
duly perfected includes good record title but is not limited to good record title Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title is duly perfected
when all steps have been taken to make it perfect that is to convey to purchaser that
which he has purchased valid and good beyond all reasonable doubt Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837
Grossman filed his verified answer on 72310 Denied Par 6 Denied Par 7 alleging
fraud and a rigged sale Denied par 8 that he was served with a Notice to Quit Denied
Par 9 based on failure of service of notice to quit Denied Par 10 Denied paragraphs 11
and 12 First Affirmative Defense Failed to state a cause of action Second Affirmative
PROPOSED STATEMENT ON APPEAL-19-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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20
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24
25
26
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28
Defense Not properly verified by Pro Value only Bouzane Third Affirmative Defense No
Notice to Quit Fifth Affirmative Defense Denial of Due Process under the 14th
Amendment Sixth Affirmative Defense Denial of Procedural Due Process under the 14th
Amendment Seventh Affirmative Defense Denial of Equal Protection of the law under the
14 Amendmentth
FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT
1 Service of Notice to Quit
2 Compliance with the law regarding the TD sale
LEGAL ISSUES NOT DECIDED BY THE COURT
1 The two due process arguments under the 14 Amendmentth
2 The equal protection Argument under the 14 Amendmentth
3 Denial of Right to Trial by Jury
PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH
EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE
On 2202009 California enacted into law the California Foreclosure Prevention Act as
an amendment to CC Sec 2923 If Bayview took an assignment from a Lender who was not
the Lender as reflected by the Assignment that the Court wrongfully refused to admit into
evidence and gave it back to me until I requested that the Assignment be marked and that the
Courtrsquos minute order reflect that it was offered and refused on the grounds of relevancy and
no other ground That is reversible error A Trustee appointed by an Assignee without good
title is a nullity and every act that Seaside Trust took was a nullity That Assignment which
should have been admitted would prove the fact of nullity and Grossman would be entitled to
move for judgment when Pro Value rested We request the Court to reverse its original refusal
to admit that Assignment into evidence and then grant judgment to Grossman as the Trusteersquos
Deed is null and void That was my offer of proof of relevancy
PROPOSED STATEMENT ON APPEAL-20-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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24
25
26
27
28
1 Under CC Sec 29235 the lender must contact the borrower At that point of time I
had given notice to Bayview that I was the attorney for the borrower Pro Value has offered no
evidence Grossman fell within the provisions of CC Sec 2923 as the TD offered into evidence
by Pro Value reflects that Grossman entered into the loan during the period from 112003 -
12312007
2 Pro Value offered no evidence that it complied with CC Sec 29236 offered a loan
modification plan to Grossman
3 Pro Value offered no evidence that it complied with CC Sec 2923 or that Bayview
was exempt
4 Pro Value offered no evidence that it complied with the provisions of HARP (12
USC Sec 1524) which was part of the ldquoeconomic stimulusrdquo to prevent foreclosures and
revitalize the housing sector
5 Pursuant to CC Sec 2924 the Trusteersquos Deed will presume the sale to be valid and
conclusively presumed to be valid if Pro Value was a BFP which it was not Pro Value failed to
prove its case for the following reasons (1) it was not the duly appointed Trustee (2) the
backdated and forged assignment allegedly was from the true lender after it went bankrupt
which required Bayview to record a new document appointing Seaside as its Trustee There is
no relation back case cited by Pro Value since it does not exist Even if it existed the law still
required the duly appointed Trustee under the new assignment to record the NOD and NOS
and comply with all of the other provisions of State and Federal Law which it could not and
did not do thereby making the Trusteersquos deed a ldquonullityrdquo without any presumptions of validity
Plaintiff claimed they have complied with CC Sec 2924 in paragraphs 4 thru 7 of
their complaint that they have met the burden of proof in that a sale had occurred and the
trustees Deed establishes this presumption that the sale was ldquoduly Perfectedrdquo and the Civil
has been complied with Defendant claimed that they did not and Plaintiff has submitted
to the court a certified copy of the Notice of Trustees Sale and asked the court to take
judicial notice of said document as well as the Trusteersquos Deed We requested the court to
PROPOSED STATEMENT ON APPEAL-21-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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19
20
21
22
23
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25
26
27
28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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19
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21
22
23
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25
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28
was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
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2
3
4
5
6
7
8
9
10
11
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15
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20
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22
23
24
25
26
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28
Allonge
RELEVANT PORTIONS OF GROSSMAN TRIAL BRIEF
sect 2936 Assignment of debt carries security
Mortgage passes by assignment of debt The assignment of a debt secured by mortgage
carries with it the security
A mortgage being a mere security for debt it is not transferable without
transfer of the debt Johnson v Razey (1919) 181 Cal 342 184 P 657
Debt and security are inseparable the mortgage alone is not a subject of
transfer Hyde v Mangan (1891) 88 Cal 319 26 P 180
Wests AnnCalCivCode sect 2937 provides ldquoNotices to borrower of transfer of service
by existing and new servicing agent of mortgage or deed of trust on single family
residential real property
(a) The Legislature hereby finds and declares that borrowers or subsequent
obligors have the right to know when a person holding a promissory note bond or other
instrument transfers servicing of the indebtedness secured by a mortgage or deed of trust
on real property containing one to four residential units located in this state The
Legislature also finds that notification to the borrower or subsequent obligor of the transfer
may protect the borrower or subsequent obligor from fraudulent business practices and
may ensure timely payments It is the intent of the Legislature in enacting this section to
mandate that a borrower or subsequent obligor be given written notice when a person
transfers the servicing of the indebtedness on notes bonds or other instruments secured
by a mortgage or deed of trust on real property containing one to four residential units and
located in this state
(b) Any person transferring the servicing of indebtedness as provided in subdivision
(a) to a different servicing agent and any person assuming from another responsibility for
servicing the instrument evidencing indebtedness shall give written notice to the borrower
PROPOSED STATEMENT ON APPEAL-9-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
or subsequent obligor before the borrower or subsequent obligor becomes obligated to
make payments to a new servicing agent
copy In the event a notice of default has been recorded or a judicial foreclosure
proceeding has been commenced the person transferring the servicing of the
indebtedness and the person assuming from another the duty of servicing the
indebtedness shall give written notice to the trustee or attorney named in the notice of
default or judicial foreclosure of the transfer A notice of default notice of sale or judicial
foreclosure shall not be invalidated solely because the servicing agent is changed during
the foreclosure process
(d) Any person transferring the servicing of indebtedness as provided in subdivision
(a) to a different servicing agent shall provide to the new servicing agent all existing
insurance policy information that the person is responsible for maintaining including but
not limited to flood and hazard insurance policy information
(e) The notices required by subdivision (b) shall be sent by first- class mail postage
prepaid to the borrowers or subsequent obligors address designated for loan payment
billings or if escrow is pending as provided in the escrow and shall contain each of the
following
(1) The name and address of the person to which the transfer of the servicing of the
indebtedness is made
(2) The date the transfer was or will be completed
(3) The address where all payments pursuant to the transfer are to be made
(f) Any person assuming from another responsibility for servicing the instrument
evidencing indebtedness shall include in the notice required by subdivision (b) a statement
of the due date of the next payment
PROPOSED STATEMENT ON APPEAL-10-
1
2
3
4
5
6
7
8
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11
12
13
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15
16
17
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20
21
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23
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25
26
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28
(g) The borrower or subsequent obligor shall not be liable to the holder of the note
bond or other instrument or to any servicing agent for payments made to the previous
servicing agent or for late charges if these payments were made prior to the borrower or
subsequent obligor receiving written notice of the transfer as provided by subdivision (e)
and the payments were otherwise on time
(h) For purposes of this section the term servicing agent shall not include a
trustee exercising a power of sale pursuant to a deed of trust
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Star 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
PROPOSED STATEMENT ON APPEAL-11-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
PROPOSED STATEMENT ON APPEAL-12-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
The undersigned spent his time researching the law as ldquoevictionsrdquo based on judicial
and non-judicial foreclosures sales are overwhelming our state and federal court systems
Having handled many ldquolis pendensrdquo cases ldquoconstructive noticerdquo based on a recorded ldquolis
pendens the undersigned will discuss the effect of the recordation of a lsquolis pendensrdquo on a
party claiming to be a bona fide purchaser (ldquoBFPrdquo) Simply put there is no such ldquoanimalrdquo
even though Pro Value asserts that it is a BFP Whether or not Pro Value is a BFP affects
presumptions rebuttable or conclusive Pro Valuersquos counsel misrepresented to the Court
that Pro Value was a BFP and the undersigned says ldquohogwashrdquo
Aside from the evidence and testimony the law is very unclear due to the recent
legislation passed by Congress and California to ldquoprotectrdquo homeowners from being
ldquotossedrdquo out on the street due to what the undersigned has read about the ldquounsavoryrdquo
foreclosure and eviction mills throughout this country
PROPOSED STATEMENT ON APPEAL-13-
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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19
20
21
22
23
24
25
26
27
28
Simply put I place John Bouzane dba Fast Eviction Service in the category of an
ldquoeviction millrdquo We had a ldquoreasonablerdquo expectation that the ldquoattorney of recordrdquo would
appear at trial as the ldquotrial attorneyrdquo since Bouzane verified the UD complaint and
subjected himself to be called as a witness by the Defense
Counsel for Pro Value stated that the statute which permitted non-judicial
foreclosure is constitutional I know that since there is no ldquostate actionrdquo Grossman
challenges the Constitutionality of the ldquoevictionrdquo statutes since it requires ldquoState Actionrdquo to
evict a homeowner from their home after a non judicial sale That is an undecided issue
which the undersigned looks forward to present That is why Grossman requested to make
an evidentiary record so that the Court may decide the Constitutional issues There are
many attorneys in the ldquoborrowerrsquos barrdquo who await such a declaration of unconstitutionality
It is not a frivolous position Prior to Sniadach v Family Finance I was writing briefs that pre
judgment attachments without notice and a hearing violated the due process clause of
the 14 Amendment That case was decided by the US Supreme Court before anth
appellate court heard the same argument from the undersigned
FUNCTION OF THE JUDGE
The major feature of a bench trial is that the judge sits as the trier of fact The
Judge determines the admissibility weighs the evidence determines credibility and
renders judgment CCP Sec 6318 (a) Davis v Kahn (1970) 7 Cal App 3 868 874rd
Bullockrsquos Inc v Security First national Bank of Los Angeles (1958) 160 Cal App 2 277nd
285 Judges are precluded from conducting independent investigations outside the
courtroom because to do so would be a denial of due process denying to a litigant the
fair and impartial trial to which everyone is entitled Conservatorship of Schaeffer (2002)
98 Cal App 4 159 164 The general order of proceedings is set forth in CCP Sec 607th
6317
The Courtrsquos reference to ldquotenderrdquo in a non-lease situation raised a suspicion that
this Court referenced some of the proceedings in Grossman v Bayview where ldquoTenderrdquo
was made an issue by Schloss the attorney for Bayview and Seaside We requested the
PROPOSED STATEMENT ON APPEAL-14-
1
2
3
4
5
6
7
8
9
10
11
12
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14
15
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20
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23
24
25
26
27
28
Court to address why it referenced ldquotenderrdquo in the context of this type of unlawful detainer
case It did not do so Error
According to California Civil Handbook and Desktop Reference Thomas 2007 Ed
at P 874 ldquoThere is considerable controversy as to whether a court may reconsider its
prior ruling at any time-and if so in what manner the issue may be raisedrdquo WE RAISED IT
THROUGHOUT THE ENTIRE PROCEEDINGS WHICH THE TRIAL COURT IGNORED
See discussion in Kerns v CSE Ins Group (2003) 106 Cal App 4 368 383-389th
Defendant requested the court to reopen the case and grant a continuance if necessary
Thomas at P 875 The court had the inherent power it may be done on the courtrsquos own
motion when required by the interests of justice It failed to do so
This court made reversible error and denied Grossman a fair trial by ldquoguttingrdquo
Grossmanrsquos defense when it on its own motion sua sponte quashed the SDTs served on
the Seaside witnesses Grossman proved by competent evidence that the SDTs were duly
served on all of the Seaside witnesses in accordance to CCP Sec 1987 The Objections
admitted service the witnesses did not testify in their affidavits that ldquothey demanded
witnesses feesrdquo from the process server It was the witnesses burden of proof to declare
under oath that they demanded fees and were not paid It is common knowledge that
process servers are trained not to offer witness fees unless they are demanded If the
witnesses had testified that they demanded witness fees at the time they were served
then we would have produced affidavits from the process server that the fees were not
demanded
CCP Sec 19871 (a) provided for a motion The attorneys for the witnesses filed an
objection not a motion The witnesses did not follow the procedure set forth by law The
objections should have been summarily denied Instead the Court took the bench and sua
sponte quashed each of the subpoenas The court refused to allow the undersigned to
object to this unconstitutional procedure Subsection (b) of 19871 (b) provided ldquoon the
courtrsquos own motion after giving counsel notice and an opportunity to be heard or any
reason whatsoever for issuing this unlawful ldquosua sponterdquo order Grossmanrsquos counsel was
PROPOSED STATEMENT ON APPEAL-15-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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20
21
22
23
24
25
26
27
28
given no notice whatsoever refused Grossmanrsquos counsel an opportunity to be heard and
over his objection the court told him to ldquobe quiet and sit downrdquo which he did That order
was a blatant violation of CCP Sec 19871 (b) denied Grossman a fair trial and
evidenced a bias against either Grossman or his counsel or there may be an agenda in
that courthouse to ldquorailroad throughrdquo all of the UD cases since they were ldquoclogging uprdquo an
over burdened court with limited funds due to the very meltdown caused by MERS and
their cohorts such as the Wall Street institutions We believe a former Chief Assistant US
Attorney Criminal Trials Division should have known better Grossman was entitled to the
evidentiary material that he subpoenaed was entitled to cross-examine Ms Weber to
whom Friedlander had corresponded with wrote letters to and Seaside plead the 5th
Amendment to discovery requests such as production of documents admissions that one
of the documents were backdated and forged and that crimes were committed Seaside
being a corporation was not permitted to assert the 5 Amendmentth
The following was the ldquooffer of proofrdquo of the relevancy of the Seaside witnesses
testimony and documents At the time that Bayview using MERS as its conduit was the
Assignee from a Lender who was not the lender of record by virtue of the TD introduced
into evidence by Pro Value The Assignor was a different entity than the Lender The
original Lender was bankrupt and therefore any agency that existed at the time that
Grossman signed the original TD was terminated by operation of law due to the
bankruptcy of the original lender Since Bayview was the Assignee of an entity other
than the original lender Bayview lacked both the power and authority to appoint Seaside
as Trustee Therefore any NOD and NOS issued by Seaside was void as a matter of
law That is the reason why a new backdated assignment was prepared by Seaside
signed by an ldquoallegedrdquo officer of MERS before a Notary was recorded on 382010 and the
sale took place on 392010 Since Pro Value was never a BFP due to the recording of
the lis pendens the Trusteersquos deed was void as a matter of law We demanded that this
court admit into evidence the assignment proving that Seaside was not a duly authorized
Trustee at the time they recorded the NOD and NOS Both the NOD and NOS were void
PROPOSED STATEMENT ON APPEAL-16-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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19
20
21
22
23
24
25
26
27
28
as a matter of law and so is the title of Pro Value This court committed error by not
admitting this evidence
In Alfaro v Community Housing Imp System amp Planning Assn Inc 171
CalApp4th 1356 (CalApp 6 Dist2009) The Court of Appeal in 2009 dealt with the
issue of the recording of a lis pendens and constructive notice and actual notice as
follows
ldquoOne of the central issues in this appeal is whether plaintiffs are chargeable withnotice of the deed restriction at an earlier time than its disclosure in the grant deeds Asexplained above the recording of a deed restriction is ordinarily regarded as imparting
iCivCode sect 1213constructive notice of its contents to subsequent purchasers (
Anderson supra 12 Cal4th 345 349 355 47 CalRptr2d 898 906 P2d 1314)Anderson supra 12 Cal4th 345 47 CalRptr2d 898 906 P2d 1314 went on to state onpage 355 47 CalRptr2d 898 906 P2d 1314 ldquoConstructive notice is ldquothe equivalent ofactual knowledge ie knowledge of its contents is conclusively presumed (4 WitkinSummary of Cal Law [ (9th ed 1987) ] Real Property sect 203 p 408 italics in original)rdquo
Defendants rely on Anderson as establishing that plaintiffs had constructive notice andFN21
actual knowledge of the deed restriction by virtue of its recording and by virtue of thisknowledge cannot successfully allege that defendants failed to disclose it
FN21 This quotation from Witkin is based on two cases AlhambraRedevelopment Agency v Transamerica Financial Services (1989) 212 CalApp3d1370 261 CalRptr 248 observed ldquoHere it is undisputed the Flemings properlyrecorded the contract thereby giving Transamerica constructive if not actual noticeof the contractrdquo ( Id at p 1377 261 CalRptr 248) Anderson v Willson (1920) 48CalApp 289 191 P 1016 stated ldquoWithout doubt the presumption of notice thusraised by this code provision is conclusive and incontrovertiblerdquo ( Id at p 293 191P 1016) Both cases concluded that a person with constructive notice did notqualify as a bona fide purchaser without notice Neither case attributed actualknowledge to the purchaser At most constructive notice has been conclusivelypresumed As we proceed to explain in the text there is a difference betweenactual and constructive notice
There was a caveat in Anderson however ldquo lsquoIf future takers purchase a piece ofproperty with notice of a restriction made by a predecessor then in the absence of duressor fraud they may ordinarily be thought to have bargained for the property with therestriction in mind and to have shown themselves willing to abide by itrsquo rdquo ( Andersonsupra 12 Cal4th at p 366 47 CalRptr2d 898 906 P2d 1314 emphasis added)
Plaintiffs argue that the doctrine of constructive notice does not apply to fraudcauses of action Bishop Creek Lodge v Scira (1996) 46 CalApp4th 1721 54CalRptr2d 745 ( Scira ) stated on page 1734 54 CalRptr2d 745 ldquoUnder a long line ofcases the fact that the victim had constructive notice of the truth from public records is nodefense to fraud The existence of such public records 1386 may be relevant to whetherthe victims reliance was justifiable but it is not by itself conclusive ( Seeger v Odell(1941) 18 Cal2d 409 414-417 115 P2d 977 [ ( Seeger ) ] Grange Co v Simmons(1962) 203 CalApp2d 567 576-577 21 CalRptr 757 Gross v Needham (1960) 184CalApp2d 446 460 7 CalRptr 664 Sullivan v Dunnigan (1959) 171 CalApp2d 662668 341 P2d 404 Regus v Schartkoff (1957) 156 CalApp2d 382 389 319 P2d 721 Schaefer v Berinstein (1956) 140 CalApp2d 278 296 295 P2d 113 Mills v
PROPOSED STATEMENT ON APPEAL-17-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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20
21
22
23
24
25
26
27
28
Hellinger (1950) 100 CalApp2d 482 487 224 P2d 34 Barder v McClung (1949) 93CalApp2d 692 697 209 P2d 808 Stoll v Selander (1947) 81 CalApp2d 286 292 183P2d 935 Anderson v Thacher (1946) 76 CalApp2d 50 70 172 P2d 533)rdquo Therationale for this exception is ldquoThe purpose of the recording acts is to afford protection notto those who make fraudulent misrepresentations but to bona fide purchasers for valuerdquo (Seeger supra 18 Cal2d at p 415 115 P2d 977) Defendants do not discuss thisauthority cited by plaintiffs in their briefsrdquo
The court did not need a lecture from the undersigned that the purpose of the
recording of a Lis Pendens is to give ldquoConstructive Noticerdquo to the world especially to Pro
Value The court knew that the memorandum of law submitted by Pro Value was not worth
the paper it was written on as to its claim that Pro Value was a BFP That is the first thing
they teach law students in law school It is hornbook law as they say in law school The
office manager told Friedlander that she knew that Grossman had filed a lis pendens Not
only did Pro Value have ldquoconstructiverdquo notice they had actual notice Friedlander was
precluded from testifying that Pro Valuersquos attorney requested a copy of the complaint and
promised not to file an unlawful detainer suit against Grossman A short time thereafter on
3302010 an attorney named Bouzane filed the UD The promise made by an agent who
is authorized to speak is binding on his principal This attorney told Friedlander that his
client was in the room with him He believed him since he heard voices in the background
He justifiably relied on that representation of Pro Valuersquos attorney who was sitting in the
room with the attorney The courtrsquos refusal to permit Grossman to put on relevant
evidence is the sole reason for the so-called lack of evidence as enunciated by this
Court in its proposed Statement
Did the court really believe that Friedlander called Pro Value to talk about
settlement Hogwash The Office Manager lied through her teeth and Pro Value suborned
this perjury by objecting on the grounds of ldquosettlementrdquo Friedlander knew what he said to
her and she knew what she said to him His sworn testimony was totally different and
since she lied that she did not remember our conversation she was not in a position to
contradict his testimony Her choice would be to admit perjury to the court or commit
perjury by testifying to something he said which she did not remember Friedlander was
PROPOSED STATEMENT ON APPEAL-18-
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2
3
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7
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prepared to prove by his sworn testimony regarding some of the declarations of mailing in
the courtrsquos file that if they were mailed they were never received by me They would have
been impeached and I would file a complaint with the District Attorney to investigate this
perjury The conduct of Bouzane and his agents such as the process server were
designed to deprive people like Grossman of their homes and throw them out on the
street Perjury is being suborned The fraud on the court marched on
TITLE ISSUES
A qualified exception to the rule that title cannot be tried in an unlawful detainer
proceeding [see Evid Code sect 624 545[1][c]] is contained in CCP sect 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 sect 1161a Vella v Hudgins (1977) 20 C3d 251 255
Words and Phrases
The term duly implies that all of those elements necessary to valid sale exist
Kessler v Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title that is
duly perfected includes good record title but is not limited to good record title Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title is duly perfected
when all steps have been taken to make it perfect that is to convey to purchaser that
which he has purchased valid and good beyond all reasonable doubt Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837
Grossman filed his verified answer on 72310 Denied Par 6 Denied Par 7 alleging
fraud and a rigged sale Denied par 8 that he was served with a Notice to Quit Denied
Par 9 based on failure of service of notice to quit Denied Par 10 Denied paragraphs 11
and 12 First Affirmative Defense Failed to state a cause of action Second Affirmative
PROPOSED STATEMENT ON APPEAL-19-
1
2
3
4
5
6
7
8
9
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11
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13
14
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20
21
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23
24
25
26
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28
Defense Not properly verified by Pro Value only Bouzane Third Affirmative Defense No
Notice to Quit Fifth Affirmative Defense Denial of Due Process under the 14th
Amendment Sixth Affirmative Defense Denial of Procedural Due Process under the 14th
Amendment Seventh Affirmative Defense Denial of Equal Protection of the law under the
14 Amendmentth
FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT
1 Service of Notice to Quit
2 Compliance with the law regarding the TD sale
LEGAL ISSUES NOT DECIDED BY THE COURT
1 The two due process arguments under the 14 Amendmentth
2 The equal protection Argument under the 14 Amendmentth
3 Denial of Right to Trial by Jury
PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH
EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE
On 2202009 California enacted into law the California Foreclosure Prevention Act as
an amendment to CC Sec 2923 If Bayview took an assignment from a Lender who was not
the Lender as reflected by the Assignment that the Court wrongfully refused to admit into
evidence and gave it back to me until I requested that the Assignment be marked and that the
Courtrsquos minute order reflect that it was offered and refused on the grounds of relevancy and
no other ground That is reversible error A Trustee appointed by an Assignee without good
title is a nullity and every act that Seaside Trust took was a nullity That Assignment which
should have been admitted would prove the fact of nullity and Grossman would be entitled to
move for judgment when Pro Value rested We request the Court to reverse its original refusal
to admit that Assignment into evidence and then grant judgment to Grossman as the Trusteersquos
Deed is null and void That was my offer of proof of relevancy
PROPOSED STATEMENT ON APPEAL-20-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 Under CC Sec 29235 the lender must contact the borrower At that point of time I
had given notice to Bayview that I was the attorney for the borrower Pro Value has offered no
evidence Grossman fell within the provisions of CC Sec 2923 as the TD offered into evidence
by Pro Value reflects that Grossman entered into the loan during the period from 112003 -
12312007
2 Pro Value offered no evidence that it complied with CC Sec 29236 offered a loan
modification plan to Grossman
3 Pro Value offered no evidence that it complied with CC Sec 2923 or that Bayview
was exempt
4 Pro Value offered no evidence that it complied with the provisions of HARP (12
USC Sec 1524) which was part of the ldquoeconomic stimulusrdquo to prevent foreclosures and
revitalize the housing sector
5 Pursuant to CC Sec 2924 the Trusteersquos Deed will presume the sale to be valid and
conclusively presumed to be valid if Pro Value was a BFP which it was not Pro Value failed to
prove its case for the following reasons (1) it was not the duly appointed Trustee (2) the
backdated and forged assignment allegedly was from the true lender after it went bankrupt
which required Bayview to record a new document appointing Seaside as its Trustee There is
no relation back case cited by Pro Value since it does not exist Even if it existed the law still
required the duly appointed Trustee under the new assignment to record the NOD and NOS
and comply with all of the other provisions of State and Federal Law which it could not and
did not do thereby making the Trusteersquos deed a ldquonullityrdquo without any presumptions of validity
Plaintiff claimed they have complied with CC Sec 2924 in paragraphs 4 thru 7 of
their complaint that they have met the burden of proof in that a sale had occurred and the
trustees Deed establishes this presumption that the sale was ldquoduly Perfectedrdquo and the Civil
has been complied with Defendant claimed that they did not and Plaintiff has submitted
to the court a certified copy of the Notice of Trustees Sale and asked the court to take
judicial notice of said document as well as the Trusteersquos Deed We requested the court to
PROPOSED STATEMENT ON APPEAL-21-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
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2
3
4
5
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7
8
9
10
11
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13
14
15
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23
24
25
26
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28
or subsequent obligor before the borrower or subsequent obligor becomes obligated to
make payments to a new servicing agent
copy In the event a notice of default has been recorded or a judicial foreclosure
proceeding has been commenced the person transferring the servicing of the
indebtedness and the person assuming from another the duty of servicing the
indebtedness shall give written notice to the trustee or attorney named in the notice of
default or judicial foreclosure of the transfer A notice of default notice of sale or judicial
foreclosure shall not be invalidated solely because the servicing agent is changed during
the foreclosure process
(d) Any person transferring the servicing of indebtedness as provided in subdivision
(a) to a different servicing agent shall provide to the new servicing agent all existing
insurance policy information that the person is responsible for maintaining including but
not limited to flood and hazard insurance policy information
(e) The notices required by subdivision (b) shall be sent by first- class mail postage
prepaid to the borrowers or subsequent obligors address designated for loan payment
billings or if escrow is pending as provided in the escrow and shall contain each of the
following
(1) The name and address of the person to which the transfer of the servicing of the
indebtedness is made
(2) The date the transfer was or will be completed
(3) The address where all payments pursuant to the transfer are to be made
(f) Any person assuming from another responsibility for servicing the instrument
evidencing indebtedness shall include in the notice required by subdivision (b) a statement
of the due date of the next payment
PROPOSED STATEMENT ON APPEAL-10-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(g) The borrower or subsequent obligor shall not be liable to the holder of the note
bond or other instrument or to any servicing agent for payments made to the previous
servicing agent or for late charges if these payments were made prior to the borrower or
subsequent obligor receiving written notice of the transfer as provided by subdivision (e)
and the payments were otherwise on time
(h) For purposes of this section the term servicing agent shall not include a
trustee exercising a power of sale pursuant to a deed of trust
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Star 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
PROPOSED STATEMENT ON APPEAL-11-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
PROPOSED STATEMENT ON APPEAL-12-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
The undersigned spent his time researching the law as ldquoevictionsrdquo based on judicial
and non-judicial foreclosures sales are overwhelming our state and federal court systems
Having handled many ldquolis pendensrdquo cases ldquoconstructive noticerdquo based on a recorded ldquolis
pendens the undersigned will discuss the effect of the recordation of a lsquolis pendensrdquo on a
party claiming to be a bona fide purchaser (ldquoBFPrdquo) Simply put there is no such ldquoanimalrdquo
even though Pro Value asserts that it is a BFP Whether or not Pro Value is a BFP affects
presumptions rebuttable or conclusive Pro Valuersquos counsel misrepresented to the Court
that Pro Value was a BFP and the undersigned says ldquohogwashrdquo
Aside from the evidence and testimony the law is very unclear due to the recent
legislation passed by Congress and California to ldquoprotectrdquo homeowners from being
ldquotossedrdquo out on the street due to what the undersigned has read about the ldquounsavoryrdquo
foreclosure and eviction mills throughout this country
PROPOSED STATEMENT ON APPEAL-13-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Simply put I place John Bouzane dba Fast Eviction Service in the category of an
ldquoeviction millrdquo We had a ldquoreasonablerdquo expectation that the ldquoattorney of recordrdquo would
appear at trial as the ldquotrial attorneyrdquo since Bouzane verified the UD complaint and
subjected himself to be called as a witness by the Defense
Counsel for Pro Value stated that the statute which permitted non-judicial
foreclosure is constitutional I know that since there is no ldquostate actionrdquo Grossman
challenges the Constitutionality of the ldquoevictionrdquo statutes since it requires ldquoState Actionrdquo to
evict a homeowner from their home after a non judicial sale That is an undecided issue
which the undersigned looks forward to present That is why Grossman requested to make
an evidentiary record so that the Court may decide the Constitutional issues There are
many attorneys in the ldquoborrowerrsquos barrdquo who await such a declaration of unconstitutionality
It is not a frivolous position Prior to Sniadach v Family Finance I was writing briefs that pre
judgment attachments without notice and a hearing violated the due process clause of
the 14 Amendment That case was decided by the US Supreme Court before anth
appellate court heard the same argument from the undersigned
FUNCTION OF THE JUDGE
The major feature of a bench trial is that the judge sits as the trier of fact The
Judge determines the admissibility weighs the evidence determines credibility and
renders judgment CCP Sec 6318 (a) Davis v Kahn (1970) 7 Cal App 3 868 874rd
Bullockrsquos Inc v Security First national Bank of Los Angeles (1958) 160 Cal App 2 277nd
285 Judges are precluded from conducting independent investigations outside the
courtroom because to do so would be a denial of due process denying to a litigant the
fair and impartial trial to which everyone is entitled Conservatorship of Schaeffer (2002)
98 Cal App 4 159 164 The general order of proceedings is set forth in CCP Sec 607th
6317
The Courtrsquos reference to ldquotenderrdquo in a non-lease situation raised a suspicion that
this Court referenced some of the proceedings in Grossman v Bayview where ldquoTenderrdquo
was made an issue by Schloss the attorney for Bayview and Seaside We requested the
PROPOSED STATEMENT ON APPEAL-14-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Court to address why it referenced ldquotenderrdquo in the context of this type of unlawful detainer
case It did not do so Error
According to California Civil Handbook and Desktop Reference Thomas 2007 Ed
at P 874 ldquoThere is considerable controversy as to whether a court may reconsider its
prior ruling at any time-and if so in what manner the issue may be raisedrdquo WE RAISED IT
THROUGHOUT THE ENTIRE PROCEEDINGS WHICH THE TRIAL COURT IGNORED
See discussion in Kerns v CSE Ins Group (2003) 106 Cal App 4 368 383-389th
Defendant requested the court to reopen the case and grant a continuance if necessary
Thomas at P 875 The court had the inherent power it may be done on the courtrsquos own
motion when required by the interests of justice It failed to do so
This court made reversible error and denied Grossman a fair trial by ldquoguttingrdquo
Grossmanrsquos defense when it on its own motion sua sponte quashed the SDTs served on
the Seaside witnesses Grossman proved by competent evidence that the SDTs were duly
served on all of the Seaside witnesses in accordance to CCP Sec 1987 The Objections
admitted service the witnesses did not testify in their affidavits that ldquothey demanded
witnesses feesrdquo from the process server It was the witnesses burden of proof to declare
under oath that they demanded fees and were not paid It is common knowledge that
process servers are trained not to offer witness fees unless they are demanded If the
witnesses had testified that they demanded witness fees at the time they were served
then we would have produced affidavits from the process server that the fees were not
demanded
CCP Sec 19871 (a) provided for a motion The attorneys for the witnesses filed an
objection not a motion The witnesses did not follow the procedure set forth by law The
objections should have been summarily denied Instead the Court took the bench and sua
sponte quashed each of the subpoenas The court refused to allow the undersigned to
object to this unconstitutional procedure Subsection (b) of 19871 (b) provided ldquoon the
courtrsquos own motion after giving counsel notice and an opportunity to be heard or any
reason whatsoever for issuing this unlawful ldquosua sponterdquo order Grossmanrsquos counsel was
PROPOSED STATEMENT ON APPEAL-15-
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
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28
given no notice whatsoever refused Grossmanrsquos counsel an opportunity to be heard and
over his objection the court told him to ldquobe quiet and sit downrdquo which he did That order
was a blatant violation of CCP Sec 19871 (b) denied Grossman a fair trial and
evidenced a bias against either Grossman or his counsel or there may be an agenda in
that courthouse to ldquorailroad throughrdquo all of the UD cases since they were ldquoclogging uprdquo an
over burdened court with limited funds due to the very meltdown caused by MERS and
their cohorts such as the Wall Street institutions We believe a former Chief Assistant US
Attorney Criminal Trials Division should have known better Grossman was entitled to the
evidentiary material that he subpoenaed was entitled to cross-examine Ms Weber to
whom Friedlander had corresponded with wrote letters to and Seaside plead the 5th
Amendment to discovery requests such as production of documents admissions that one
of the documents were backdated and forged and that crimes were committed Seaside
being a corporation was not permitted to assert the 5 Amendmentth
The following was the ldquooffer of proofrdquo of the relevancy of the Seaside witnesses
testimony and documents At the time that Bayview using MERS as its conduit was the
Assignee from a Lender who was not the lender of record by virtue of the TD introduced
into evidence by Pro Value The Assignor was a different entity than the Lender The
original Lender was bankrupt and therefore any agency that existed at the time that
Grossman signed the original TD was terminated by operation of law due to the
bankruptcy of the original lender Since Bayview was the Assignee of an entity other
than the original lender Bayview lacked both the power and authority to appoint Seaside
as Trustee Therefore any NOD and NOS issued by Seaside was void as a matter of
law That is the reason why a new backdated assignment was prepared by Seaside
signed by an ldquoallegedrdquo officer of MERS before a Notary was recorded on 382010 and the
sale took place on 392010 Since Pro Value was never a BFP due to the recording of
the lis pendens the Trusteersquos deed was void as a matter of law We demanded that this
court admit into evidence the assignment proving that Seaside was not a duly authorized
Trustee at the time they recorded the NOD and NOS Both the NOD and NOS were void
PROPOSED STATEMENT ON APPEAL-16-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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18
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20
21
22
23
24
25
26
27
28
as a matter of law and so is the title of Pro Value This court committed error by not
admitting this evidence
In Alfaro v Community Housing Imp System amp Planning Assn Inc 171
CalApp4th 1356 (CalApp 6 Dist2009) The Court of Appeal in 2009 dealt with the
issue of the recording of a lis pendens and constructive notice and actual notice as
follows
ldquoOne of the central issues in this appeal is whether plaintiffs are chargeable withnotice of the deed restriction at an earlier time than its disclosure in the grant deeds Asexplained above the recording of a deed restriction is ordinarily regarded as imparting
iCivCode sect 1213constructive notice of its contents to subsequent purchasers (
Anderson supra 12 Cal4th 345 349 355 47 CalRptr2d 898 906 P2d 1314)Anderson supra 12 Cal4th 345 47 CalRptr2d 898 906 P2d 1314 went on to state onpage 355 47 CalRptr2d 898 906 P2d 1314 ldquoConstructive notice is ldquothe equivalent ofactual knowledge ie knowledge of its contents is conclusively presumed (4 WitkinSummary of Cal Law [ (9th ed 1987) ] Real Property sect 203 p 408 italics in original)rdquo
Defendants rely on Anderson as establishing that plaintiffs had constructive notice andFN21
actual knowledge of the deed restriction by virtue of its recording and by virtue of thisknowledge cannot successfully allege that defendants failed to disclose it
FN21 This quotation from Witkin is based on two cases AlhambraRedevelopment Agency v Transamerica Financial Services (1989) 212 CalApp3d1370 261 CalRptr 248 observed ldquoHere it is undisputed the Flemings properlyrecorded the contract thereby giving Transamerica constructive if not actual noticeof the contractrdquo ( Id at p 1377 261 CalRptr 248) Anderson v Willson (1920) 48CalApp 289 191 P 1016 stated ldquoWithout doubt the presumption of notice thusraised by this code provision is conclusive and incontrovertiblerdquo ( Id at p 293 191P 1016) Both cases concluded that a person with constructive notice did notqualify as a bona fide purchaser without notice Neither case attributed actualknowledge to the purchaser At most constructive notice has been conclusivelypresumed As we proceed to explain in the text there is a difference betweenactual and constructive notice
There was a caveat in Anderson however ldquo lsquoIf future takers purchase a piece ofproperty with notice of a restriction made by a predecessor then in the absence of duressor fraud they may ordinarily be thought to have bargained for the property with therestriction in mind and to have shown themselves willing to abide by itrsquo rdquo ( Andersonsupra 12 Cal4th at p 366 47 CalRptr2d 898 906 P2d 1314 emphasis added)
Plaintiffs argue that the doctrine of constructive notice does not apply to fraudcauses of action Bishop Creek Lodge v Scira (1996) 46 CalApp4th 1721 54CalRptr2d 745 ( Scira ) stated on page 1734 54 CalRptr2d 745 ldquoUnder a long line ofcases the fact that the victim had constructive notice of the truth from public records is nodefense to fraud The existence of such public records 1386 may be relevant to whetherthe victims reliance was justifiable but it is not by itself conclusive ( Seeger v Odell(1941) 18 Cal2d 409 414-417 115 P2d 977 [ ( Seeger ) ] Grange Co v Simmons(1962) 203 CalApp2d 567 576-577 21 CalRptr 757 Gross v Needham (1960) 184CalApp2d 446 460 7 CalRptr 664 Sullivan v Dunnigan (1959) 171 CalApp2d 662668 341 P2d 404 Regus v Schartkoff (1957) 156 CalApp2d 382 389 319 P2d 721 Schaefer v Berinstein (1956) 140 CalApp2d 278 296 295 P2d 113 Mills v
PROPOSED STATEMENT ON APPEAL-17-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Hellinger (1950) 100 CalApp2d 482 487 224 P2d 34 Barder v McClung (1949) 93CalApp2d 692 697 209 P2d 808 Stoll v Selander (1947) 81 CalApp2d 286 292 183P2d 935 Anderson v Thacher (1946) 76 CalApp2d 50 70 172 P2d 533)rdquo Therationale for this exception is ldquoThe purpose of the recording acts is to afford protection notto those who make fraudulent misrepresentations but to bona fide purchasers for valuerdquo (Seeger supra 18 Cal2d at p 415 115 P2d 977) Defendants do not discuss thisauthority cited by plaintiffs in their briefsrdquo
The court did not need a lecture from the undersigned that the purpose of the
recording of a Lis Pendens is to give ldquoConstructive Noticerdquo to the world especially to Pro
Value The court knew that the memorandum of law submitted by Pro Value was not worth
the paper it was written on as to its claim that Pro Value was a BFP That is the first thing
they teach law students in law school It is hornbook law as they say in law school The
office manager told Friedlander that she knew that Grossman had filed a lis pendens Not
only did Pro Value have ldquoconstructiverdquo notice they had actual notice Friedlander was
precluded from testifying that Pro Valuersquos attorney requested a copy of the complaint and
promised not to file an unlawful detainer suit against Grossman A short time thereafter on
3302010 an attorney named Bouzane filed the UD The promise made by an agent who
is authorized to speak is binding on his principal This attorney told Friedlander that his
client was in the room with him He believed him since he heard voices in the background
He justifiably relied on that representation of Pro Valuersquos attorney who was sitting in the
room with the attorney The courtrsquos refusal to permit Grossman to put on relevant
evidence is the sole reason for the so-called lack of evidence as enunciated by this
Court in its proposed Statement
Did the court really believe that Friedlander called Pro Value to talk about
settlement Hogwash The Office Manager lied through her teeth and Pro Value suborned
this perjury by objecting on the grounds of ldquosettlementrdquo Friedlander knew what he said to
her and she knew what she said to him His sworn testimony was totally different and
since she lied that she did not remember our conversation she was not in a position to
contradict his testimony Her choice would be to admit perjury to the court or commit
perjury by testifying to something he said which she did not remember Friedlander was
PROPOSED STATEMENT ON APPEAL-18-
1
2
3
4
5
6
7
8
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10
11
12
13
14
15
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17
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19
20
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25
26
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28
prepared to prove by his sworn testimony regarding some of the declarations of mailing in
the courtrsquos file that if they were mailed they were never received by me They would have
been impeached and I would file a complaint with the District Attorney to investigate this
perjury The conduct of Bouzane and his agents such as the process server were
designed to deprive people like Grossman of their homes and throw them out on the
street Perjury is being suborned The fraud on the court marched on
TITLE ISSUES
A qualified exception to the rule that title cannot be tried in an unlawful detainer
proceeding [see Evid Code sect 624 545[1][c]] is contained in CCP sect 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 sect 1161a Vella v Hudgins (1977) 20 C3d 251 255
Words and Phrases
The term duly implies that all of those elements necessary to valid sale exist
Kessler v Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title that is
duly perfected includes good record title but is not limited to good record title Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title is duly perfected
when all steps have been taken to make it perfect that is to convey to purchaser that
which he has purchased valid and good beyond all reasonable doubt Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837
Grossman filed his verified answer on 72310 Denied Par 6 Denied Par 7 alleging
fraud and a rigged sale Denied par 8 that he was served with a Notice to Quit Denied
Par 9 based on failure of service of notice to quit Denied Par 10 Denied paragraphs 11
and 12 First Affirmative Defense Failed to state a cause of action Second Affirmative
PROPOSED STATEMENT ON APPEAL-19-
1
2
3
4
5
6
7
8
9
10
11
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14
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20
21
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23
24
25
26
27
28
Defense Not properly verified by Pro Value only Bouzane Third Affirmative Defense No
Notice to Quit Fifth Affirmative Defense Denial of Due Process under the 14th
Amendment Sixth Affirmative Defense Denial of Procedural Due Process under the 14th
Amendment Seventh Affirmative Defense Denial of Equal Protection of the law under the
14 Amendmentth
FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT
1 Service of Notice to Quit
2 Compliance with the law regarding the TD sale
LEGAL ISSUES NOT DECIDED BY THE COURT
1 The two due process arguments under the 14 Amendmentth
2 The equal protection Argument under the 14 Amendmentth
3 Denial of Right to Trial by Jury
PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH
EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE
On 2202009 California enacted into law the California Foreclosure Prevention Act as
an amendment to CC Sec 2923 If Bayview took an assignment from a Lender who was not
the Lender as reflected by the Assignment that the Court wrongfully refused to admit into
evidence and gave it back to me until I requested that the Assignment be marked and that the
Courtrsquos minute order reflect that it was offered and refused on the grounds of relevancy and
no other ground That is reversible error A Trustee appointed by an Assignee without good
title is a nullity and every act that Seaside Trust took was a nullity That Assignment which
should have been admitted would prove the fact of nullity and Grossman would be entitled to
move for judgment when Pro Value rested We request the Court to reverse its original refusal
to admit that Assignment into evidence and then grant judgment to Grossman as the Trusteersquos
Deed is null and void That was my offer of proof of relevancy
PROPOSED STATEMENT ON APPEAL-20-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 Under CC Sec 29235 the lender must contact the borrower At that point of time I
had given notice to Bayview that I was the attorney for the borrower Pro Value has offered no
evidence Grossman fell within the provisions of CC Sec 2923 as the TD offered into evidence
by Pro Value reflects that Grossman entered into the loan during the period from 112003 -
12312007
2 Pro Value offered no evidence that it complied with CC Sec 29236 offered a loan
modification plan to Grossman
3 Pro Value offered no evidence that it complied with CC Sec 2923 or that Bayview
was exempt
4 Pro Value offered no evidence that it complied with the provisions of HARP (12
USC Sec 1524) which was part of the ldquoeconomic stimulusrdquo to prevent foreclosures and
revitalize the housing sector
5 Pursuant to CC Sec 2924 the Trusteersquos Deed will presume the sale to be valid and
conclusively presumed to be valid if Pro Value was a BFP which it was not Pro Value failed to
prove its case for the following reasons (1) it was not the duly appointed Trustee (2) the
backdated and forged assignment allegedly was from the true lender after it went bankrupt
which required Bayview to record a new document appointing Seaside as its Trustee There is
no relation back case cited by Pro Value since it does not exist Even if it existed the law still
required the duly appointed Trustee under the new assignment to record the NOD and NOS
and comply with all of the other provisions of State and Federal Law which it could not and
did not do thereby making the Trusteersquos deed a ldquonullityrdquo without any presumptions of validity
Plaintiff claimed they have complied with CC Sec 2924 in paragraphs 4 thru 7 of
their complaint that they have met the burden of proof in that a sale had occurred and the
trustees Deed establishes this presumption that the sale was ldquoduly Perfectedrdquo and the Civil
has been complied with Defendant claimed that they did not and Plaintiff has submitted
to the court a certified copy of the Notice of Trustees Sale and asked the court to take
judicial notice of said document as well as the Trusteersquos Deed We requested the court to
PROPOSED STATEMENT ON APPEAL-21-
1
2
3
4
5
6
7
8
9
10
11
12
13
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16
17
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19
20
21
22
23
24
25
26
27
28
reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(g) The borrower or subsequent obligor shall not be liable to the holder of the note
bond or other instrument or to any servicing agent for payments made to the previous
servicing agent or for late charges if these payments were made prior to the borrower or
subsequent obligor receiving written notice of the transfer as provided by subdivision (e)
and the payments were otherwise on time
(h) For purposes of this section the term servicing agent shall not include a
trustee exercising a power of sale pursuant to a deed of trust
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Star 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
PROPOSED STATEMENT ON APPEAL-11-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
PROPOSED STATEMENT ON APPEAL-12-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
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28
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
The undersigned spent his time researching the law as ldquoevictionsrdquo based on judicial
and non-judicial foreclosures sales are overwhelming our state and federal court systems
Having handled many ldquolis pendensrdquo cases ldquoconstructive noticerdquo based on a recorded ldquolis
pendens the undersigned will discuss the effect of the recordation of a lsquolis pendensrdquo on a
party claiming to be a bona fide purchaser (ldquoBFPrdquo) Simply put there is no such ldquoanimalrdquo
even though Pro Value asserts that it is a BFP Whether or not Pro Value is a BFP affects
presumptions rebuttable or conclusive Pro Valuersquos counsel misrepresented to the Court
that Pro Value was a BFP and the undersigned says ldquohogwashrdquo
Aside from the evidence and testimony the law is very unclear due to the recent
legislation passed by Congress and California to ldquoprotectrdquo homeowners from being
ldquotossedrdquo out on the street due to what the undersigned has read about the ldquounsavoryrdquo
foreclosure and eviction mills throughout this country
PROPOSED STATEMENT ON APPEAL-13-
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2
3
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5
6
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9
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19
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28
Simply put I place John Bouzane dba Fast Eviction Service in the category of an
ldquoeviction millrdquo We had a ldquoreasonablerdquo expectation that the ldquoattorney of recordrdquo would
appear at trial as the ldquotrial attorneyrdquo since Bouzane verified the UD complaint and
subjected himself to be called as a witness by the Defense
Counsel for Pro Value stated that the statute which permitted non-judicial
foreclosure is constitutional I know that since there is no ldquostate actionrdquo Grossman
challenges the Constitutionality of the ldquoevictionrdquo statutes since it requires ldquoState Actionrdquo to
evict a homeowner from their home after a non judicial sale That is an undecided issue
which the undersigned looks forward to present That is why Grossman requested to make
an evidentiary record so that the Court may decide the Constitutional issues There are
many attorneys in the ldquoborrowerrsquos barrdquo who await such a declaration of unconstitutionality
It is not a frivolous position Prior to Sniadach v Family Finance I was writing briefs that pre
judgment attachments without notice and a hearing violated the due process clause of
the 14 Amendment That case was decided by the US Supreme Court before anth
appellate court heard the same argument from the undersigned
FUNCTION OF THE JUDGE
The major feature of a bench trial is that the judge sits as the trier of fact The
Judge determines the admissibility weighs the evidence determines credibility and
renders judgment CCP Sec 6318 (a) Davis v Kahn (1970) 7 Cal App 3 868 874rd
Bullockrsquos Inc v Security First national Bank of Los Angeles (1958) 160 Cal App 2 277nd
285 Judges are precluded from conducting independent investigations outside the
courtroom because to do so would be a denial of due process denying to a litigant the
fair and impartial trial to which everyone is entitled Conservatorship of Schaeffer (2002)
98 Cal App 4 159 164 The general order of proceedings is set forth in CCP Sec 607th
6317
The Courtrsquos reference to ldquotenderrdquo in a non-lease situation raised a suspicion that
this Court referenced some of the proceedings in Grossman v Bayview where ldquoTenderrdquo
was made an issue by Schloss the attorney for Bayview and Seaside We requested the
PROPOSED STATEMENT ON APPEAL-14-
1
2
3
4
5
6
7
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9
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11
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23
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25
26
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28
Court to address why it referenced ldquotenderrdquo in the context of this type of unlawful detainer
case It did not do so Error
According to California Civil Handbook and Desktop Reference Thomas 2007 Ed
at P 874 ldquoThere is considerable controversy as to whether a court may reconsider its
prior ruling at any time-and if so in what manner the issue may be raisedrdquo WE RAISED IT
THROUGHOUT THE ENTIRE PROCEEDINGS WHICH THE TRIAL COURT IGNORED
See discussion in Kerns v CSE Ins Group (2003) 106 Cal App 4 368 383-389th
Defendant requested the court to reopen the case and grant a continuance if necessary
Thomas at P 875 The court had the inherent power it may be done on the courtrsquos own
motion when required by the interests of justice It failed to do so
This court made reversible error and denied Grossman a fair trial by ldquoguttingrdquo
Grossmanrsquos defense when it on its own motion sua sponte quashed the SDTs served on
the Seaside witnesses Grossman proved by competent evidence that the SDTs were duly
served on all of the Seaside witnesses in accordance to CCP Sec 1987 The Objections
admitted service the witnesses did not testify in their affidavits that ldquothey demanded
witnesses feesrdquo from the process server It was the witnesses burden of proof to declare
under oath that they demanded fees and were not paid It is common knowledge that
process servers are trained not to offer witness fees unless they are demanded If the
witnesses had testified that they demanded witness fees at the time they were served
then we would have produced affidavits from the process server that the fees were not
demanded
CCP Sec 19871 (a) provided for a motion The attorneys for the witnesses filed an
objection not a motion The witnesses did not follow the procedure set forth by law The
objections should have been summarily denied Instead the Court took the bench and sua
sponte quashed each of the subpoenas The court refused to allow the undersigned to
object to this unconstitutional procedure Subsection (b) of 19871 (b) provided ldquoon the
courtrsquos own motion after giving counsel notice and an opportunity to be heard or any
reason whatsoever for issuing this unlawful ldquosua sponterdquo order Grossmanrsquos counsel was
PROPOSED STATEMENT ON APPEAL-15-
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2
3
4
5
6
7
8
9
10
11
12
13
14
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20
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24
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27
28
given no notice whatsoever refused Grossmanrsquos counsel an opportunity to be heard and
over his objection the court told him to ldquobe quiet and sit downrdquo which he did That order
was a blatant violation of CCP Sec 19871 (b) denied Grossman a fair trial and
evidenced a bias against either Grossman or his counsel or there may be an agenda in
that courthouse to ldquorailroad throughrdquo all of the UD cases since they were ldquoclogging uprdquo an
over burdened court with limited funds due to the very meltdown caused by MERS and
their cohorts such as the Wall Street institutions We believe a former Chief Assistant US
Attorney Criminal Trials Division should have known better Grossman was entitled to the
evidentiary material that he subpoenaed was entitled to cross-examine Ms Weber to
whom Friedlander had corresponded with wrote letters to and Seaside plead the 5th
Amendment to discovery requests such as production of documents admissions that one
of the documents were backdated and forged and that crimes were committed Seaside
being a corporation was not permitted to assert the 5 Amendmentth
The following was the ldquooffer of proofrdquo of the relevancy of the Seaside witnesses
testimony and documents At the time that Bayview using MERS as its conduit was the
Assignee from a Lender who was not the lender of record by virtue of the TD introduced
into evidence by Pro Value The Assignor was a different entity than the Lender The
original Lender was bankrupt and therefore any agency that existed at the time that
Grossman signed the original TD was terminated by operation of law due to the
bankruptcy of the original lender Since Bayview was the Assignee of an entity other
than the original lender Bayview lacked both the power and authority to appoint Seaside
as Trustee Therefore any NOD and NOS issued by Seaside was void as a matter of
law That is the reason why a new backdated assignment was prepared by Seaside
signed by an ldquoallegedrdquo officer of MERS before a Notary was recorded on 382010 and the
sale took place on 392010 Since Pro Value was never a BFP due to the recording of
the lis pendens the Trusteersquos deed was void as a matter of law We demanded that this
court admit into evidence the assignment proving that Seaside was not a duly authorized
Trustee at the time they recorded the NOD and NOS Both the NOD and NOS were void
PROPOSED STATEMENT ON APPEAL-16-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
as a matter of law and so is the title of Pro Value This court committed error by not
admitting this evidence
In Alfaro v Community Housing Imp System amp Planning Assn Inc 171
CalApp4th 1356 (CalApp 6 Dist2009) The Court of Appeal in 2009 dealt with the
issue of the recording of a lis pendens and constructive notice and actual notice as
follows
ldquoOne of the central issues in this appeal is whether plaintiffs are chargeable withnotice of the deed restriction at an earlier time than its disclosure in the grant deeds Asexplained above the recording of a deed restriction is ordinarily regarded as imparting
iCivCode sect 1213constructive notice of its contents to subsequent purchasers (
Anderson supra 12 Cal4th 345 349 355 47 CalRptr2d 898 906 P2d 1314)Anderson supra 12 Cal4th 345 47 CalRptr2d 898 906 P2d 1314 went on to state onpage 355 47 CalRptr2d 898 906 P2d 1314 ldquoConstructive notice is ldquothe equivalent ofactual knowledge ie knowledge of its contents is conclusively presumed (4 WitkinSummary of Cal Law [ (9th ed 1987) ] Real Property sect 203 p 408 italics in original)rdquo
Defendants rely on Anderson as establishing that plaintiffs had constructive notice andFN21
actual knowledge of the deed restriction by virtue of its recording and by virtue of thisknowledge cannot successfully allege that defendants failed to disclose it
FN21 This quotation from Witkin is based on two cases AlhambraRedevelopment Agency v Transamerica Financial Services (1989) 212 CalApp3d1370 261 CalRptr 248 observed ldquoHere it is undisputed the Flemings properlyrecorded the contract thereby giving Transamerica constructive if not actual noticeof the contractrdquo ( Id at p 1377 261 CalRptr 248) Anderson v Willson (1920) 48CalApp 289 191 P 1016 stated ldquoWithout doubt the presumption of notice thusraised by this code provision is conclusive and incontrovertiblerdquo ( Id at p 293 191P 1016) Both cases concluded that a person with constructive notice did notqualify as a bona fide purchaser without notice Neither case attributed actualknowledge to the purchaser At most constructive notice has been conclusivelypresumed As we proceed to explain in the text there is a difference betweenactual and constructive notice
There was a caveat in Anderson however ldquo lsquoIf future takers purchase a piece ofproperty with notice of a restriction made by a predecessor then in the absence of duressor fraud they may ordinarily be thought to have bargained for the property with therestriction in mind and to have shown themselves willing to abide by itrsquo rdquo ( Andersonsupra 12 Cal4th at p 366 47 CalRptr2d 898 906 P2d 1314 emphasis added)
Plaintiffs argue that the doctrine of constructive notice does not apply to fraudcauses of action Bishop Creek Lodge v Scira (1996) 46 CalApp4th 1721 54CalRptr2d 745 ( Scira ) stated on page 1734 54 CalRptr2d 745 ldquoUnder a long line ofcases the fact that the victim had constructive notice of the truth from public records is nodefense to fraud The existence of such public records 1386 may be relevant to whetherthe victims reliance was justifiable but it is not by itself conclusive ( Seeger v Odell(1941) 18 Cal2d 409 414-417 115 P2d 977 [ ( Seeger ) ] Grange Co v Simmons(1962) 203 CalApp2d 567 576-577 21 CalRptr 757 Gross v Needham (1960) 184CalApp2d 446 460 7 CalRptr 664 Sullivan v Dunnigan (1959) 171 CalApp2d 662668 341 P2d 404 Regus v Schartkoff (1957) 156 CalApp2d 382 389 319 P2d 721 Schaefer v Berinstein (1956) 140 CalApp2d 278 296 295 P2d 113 Mills v
PROPOSED STATEMENT ON APPEAL-17-
1
2
3
4
5
6
7
8
9
10
11
12
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14
15
16
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18
19
20
21
22
23
24
25
26
27
28
Hellinger (1950) 100 CalApp2d 482 487 224 P2d 34 Barder v McClung (1949) 93CalApp2d 692 697 209 P2d 808 Stoll v Selander (1947) 81 CalApp2d 286 292 183P2d 935 Anderson v Thacher (1946) 76 CalApp2d 50 70 172 P2d 533)rdquo Therationale for this exception is ldquoThe purpose of the recording acts is to afford protection notto those who make fraudulent misrepresentations but to bona fide purchasers for valuerdquo (Seeger supra 18 Cal2d at p 415 115 P2d 977) Defendants do not discuss thisauthority cited by plaintiffs in their briefsrdquo
The court did not need a lecture from the undersigned that the purpose of the
recording of a Lis Pendens is to give ldquoConstructive Noticerdquo to the world especially to Pro
Value The court knew that the memorandum of law submitted by Pro Value was not worth
the paper it was written on as to its claim that Pro Value was a BFP That is the first thing
they teach law students in law school It is hornbook law as they say in law school The
office manager told Friedlander that she knew that Grossman had filed a lis pendens Not
only did Pro Value have ldquoconstructiverdquo notice they had actual notice Friedlander was
precluded from testifying that Pro Valuersquos attorney requested a copy of the complaint and
promised not to file an unlawful detainer suit against Grossman A short time thereafter on
3302010 an attorney named Bouzane filed the UD The promise made by an agent who
is authorized to speak is binding on his principal This attorney told Friedlander that his
client was in the room with him He believed him since he heard voices in the background
He justifiably relied on that representation of Pro Valuersquos attorney who was sitting in the
room with the attorney The courtrsquos refusal to permit Grossman to put on relevant
evidence is the sole reason for the so-called lack of evidence as enunciated by this
Court in its proposed Statement
Did the court really believe that Friedlander called Pro Value to talk about
settlement Hogwash The Office Manager lied through her teeth and Pro Value suborned
this perjury by objecting on the grounds of ldquosettlementrdquo Friedlander knew what he said to
her and she knew what she said to him His sworn testimony was totally different and
since she lied that she did not remember our conversation she was not in a position to
contradict his testimony Her choice would be to admit perjury to the court or commit
perjury by testifying to something he said which she did not remember Friedlander was
PROPOSED STATEMENT ON APPEAL-18-
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2
3
4
5
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7
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28
prepared to prove by his sworn testimony regarding some of the declarations of mailing in
the courtrsquos file that if they were mailed they were never received by me They would have
been impeached and I would file a complaint with the District Attorney to investigate this
perjury The conduct of Bouzane and his agents such as the process server were
designed to deprive people like Grossman of their homes and throw them out on the
street Perjury is being suborned The fraud on the court marched on
TITLE ISSUES
A qualified exception to the rule that title cannot be tried in an unlawful detainer
proceeding [see Evid Code sect 624 545[1][c]] is contained in CCP sect 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 sect 1161a Vella v Hudgins (1977) 20 C3d 251 255
Words and Phrases
The term duly implies that all of those elements necessary to valid sale exist
Kessler v Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title that is
duly perfected includes good record title but is not limited to good record title Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title is duly perfected
when all steps have been taken to make it perfect that is to convey to purchaser that
which he has purchased valid and good beyond all reasonable doubt Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837
Grossman filed his verified answer on 72310 Denied Par 6 Denied Par 7 alleging
fraud and a rigged sale Denied par 8 that he was served with a Notice to Quit Denied
Par 9 based on failure of service of notice to quit Denied Par 10 Denied paragraphs 11
and 12 First Affirmative Defense Failed to state a cause of action Second Affirmative
PROPOSED STATEMENT ON APPEAL-19-
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2
3
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5
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Defense Not properly verified by Pro Value only Bouzane Third Affirmative Defense No
Notice to Quit Fifth Affirmative Defense Denial of Due Process under the 14th
Amendment Sixth Affirmative Defense Denial of Procedural Due Process under the 14th
Amendment Seventh Affirmative Defense Denial of Equal Protection of the law under the
14 Amendmentth
FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT
1 Service of Notice to Quit
2 Compliance with the law regarding the TD sale
LEGAL ISSUES NOT DECIDED BY THE COURT
1 The two due process arguments under the 14 Amendmentth
2 The equal protection Argument under the 14 Amendmentth
3 Denial of Right to Trial by Jury
PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH
EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE
On 2202009 California enacted into law the California Foreclosure Prevention Act as
an amendment to CC Sec 2923 If Bayview took an assignment from a Lender who was not
the Lender as reflected by the Assignment that the Court wrongfully refused to admit into
evidence and gave it back to me until I requested that the Assignment be marked and that the
Courtrsquos minute order reflect that it was offered and refused on the grounds of relevancy and
no other ground That is reversible error A Trustee appointed by an Assignee without good
title is a nullity and every act that Seaside Trust took was a nullity That Assignment which
should have been admitted would prove the fact of nullity and Grossman would be entitled to
move for judgment when Pro Value rested We request the Court to reverse its original refusal
to admit that Assignment into evidence and then grant judgment to Grossman as the Trusteersquos
Deed is null and void That was my offer of proof of relevancy
PROPOSED STATEMENT ON APPEAL-20-
1
2
3
4
5
6
7
8
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11
12
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15
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23
24
25
26
27
28
1 Under CC Sec 29235 the lender must contact the borrower At that point of time I
had given notice to Bayview that I was the attorney for the borrower Pro Value has offered no
evidence Grossman fell within the provisions of CC Sec 2923 as the TD offered into evidence
by Pro Value reflects that Grossman entered into the loan during the period from 112003 -
12312007
2 Pro Value offered no evidence that it complied with CC Sec 29236 offered a loan
modification plan to Grossman
3 Pro Value offered no evidence that it complied with CC Sec 2923 or that Bayview
was exempt
4 Pro Value offered no evidence that it complied with the provisions of HARP (12
USC Sec 1524) which was part of the ldquoeconomic stimulusrdquo to prevent foreclosures and
revitalize the housing sector
5 Pursuant to CC Sec 2924 the Trusteersquos Deed will presume the sale to be valid and
conclusively presumed to be valid if Pro Value was a BFP which it was not Pro Value failed to
prove its case for the following reasons (1) it was not the duly appointed Trustee (2) the
backdated and forged assignment allegedly was from the true lender after it went bankrupt
which required Bayview to record a new document appointing Seaside as its Trustee There is
no relation back case cited by Pro Value since it does not exist Even if it existed the law still
required the duly appointed Trustee under the new assignment to record the NOD and NOS
and comply with all of the other provisions of State and Federal Law which it could not and
did not do thereby making the Trusteersquos deed a ldquonullityrdquo without any presumptions of validity
Plaintiff claimed they have complied with CC Sec 2924 in paragraphs 4 thru 7 of
their complaint that they have met the burden of proof in that a sale had occurred and the
trustees Deed establishes this presumption that the sale was ldquoduly Perfectedrdquo and the Civil
has been complied with Defendant claimed that they did not and Plaintiff has submitted
to the court a certified copy of the Notice of Trustees Sale and asked the court to take
judicial notice of said document as well as the Trusteersquos Deed We requested the court to
PROPOSED STATEMENT ON APPEAL-21-
1
2
3
4
5
6
7
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10
11
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13
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20
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23
24
25
26
27
28
reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
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2
3
4
5
6
7
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10
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9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
PROPOSED STATEMENT ON APPEAL-12-
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2
3
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5
6
7
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foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
The undersigned spent his time researching the law as ldquoevictionsrdquo based on judicial
and non-judicial foreclosures sales are overwhelming our state and federal court systems
Having handled many ldquolis pendensrdquo cases ldquoconstructive noticerdquo based on a recorded ldquolis
pendens the undersigned will discuss the effect of the recordation of a lsquolis pendensrdquo on a
party claiming to be a bona fide purchaser (ldquoBFPrdquo) Simply put there is no such ldquoanimalrdquo
even though Pro Value asserts that it is a BFP Whether or not Pro Value is a BFP affects
presumptions rebuttable or conclusive Pro Valuersquos counsel misrepresented to the Court
that Pro Value was a BFP and the undersigned says ldquohogwashrdquo
Aside from the evidence and testimony the law is very unclear due to the recent
legislation passed by Congress and California to ldquoprotectrdquo homeowners from being
ldquotossedrdquo out on the street due to what the undersigned has read about the ldquounsavoryrdquo
foreclosure and eviction mills throughout this country
PROPOSED STATEMENT ON APPEAL-13-
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2
3
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5
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26
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Simply put I place John Bouzane dba Fast Eviction Service in the category of an
ldquoeviction millrdquo We had a ldquoreasonablerdquo expectation that the ldquoattorney of recordrdquo would
appear at trial as the ldquotrial attorneyrdquo since Bouzane verified the UD complaint and
subjected himself to be called as a witness by the Defense
Counsel for Pro Value stated that the statute which permitted non-judicial
foreclosure is constitutional I know that since there is no ldquostate actionrdquo Grossman
challenges the Constitutionality of the ldquoevictionrdquo statutes since it requires ldquoState Actionrdquo to
evict a homeowner from their home after a non judicial sale That is an undecided issue
which the undersigned looks forward to present That is why Grossman requested to make
an evidentiary record so that the Court may decide the Constitutional issues There are
many attorneys in the ldquoborrowerrsquos barrdquo who await such a declaration of unconstitutionality
It is not a frivolous position Prior to Sniadach v Family Finance I was writing briefs that pre
judgment attachments without notice and a hearing violated the due process clause of
the 14 Amendment That case was decided by the US Supreme Court before anth
appellate court heard the same argument from the undersigned
FUNCTION OF THE JUDGE
The major feature of a bench trial is that the judge sits as the trier of fact The
Judge determines the admissibility weighs the evidence determines credibility and
renders judgment CCP Sec 6318 (a) Davis v Kahn (1970) 7 Cal App 3 868 874rd
Bullockrsquos Inc v Security First national Bank of Los Angeles (1958) 160 Cal App 2 277nd
285 Judges are precluded from conducting independent investigations outside the
courtroom because to do so would be a denial of due process denying to a litigant the
fair and impartial trial to which everyone is entitled Conservatorship of Schaeffer (2002)
98 Cal App 4 159 164 The general order of proceedings is set forth in CCP Sec 607th
6317
The Courtrsquos reference to ldquotenderrdquo in a non-lease situation raised a suspicion that
this Court referenced some of the proceedings in Grossman v Bayview where ldquoTenderrdquo
was made an issue by Schloss the attorney for Bayview and Seaside We requested the
PROPOSED STATEMENT ON APPEAL-14-
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2
3
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5
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7
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Court to address why it referenced ldquotenderrdquo in the context of this type of unlawful detainer
case It did not do so Error
According to California Civil Handbook and Desktop Reference Thomas 2007 Ed
at P 874 ldquoThere is considerable controversy as to whether a court may reconsider its
prior ruling at any time-and if so in what manner the issue may be raisedrdquo WE RAISED IT
THROUGHOUT THE ENTIRE PROCEEDINGS WHICH THE TRIAL COURT IGNORED
See discussion in Kerns v CSE Ins Group (2003) 106 Cal App 4 368 383-389th
Defendant requested the court to reopen the case and grant a continuance if necessary
Thomas at P 875 The court had the inherent power it may be done on the courtrsquos own
motion when required by the interests of justice It failed to do so
This court made reversible error and denied Grossman a fair trial by ldquoguttingrdquo
Grossmanrsquos defense when it on its own motion sua sponte quashed the SDTs served on
the Seaside witnesses Grossman proved by competent evidence that the SDTs were duly
served on all of the Seaside witnesses in accordance to CCP Sec 1987 The Objections
admitted service the witnesses did not testify in their affidavits that ldquothey demanded
witnesses feesrdquo from the process server It was the witnesses burden of proof to declare
under oath that they demanded fees and were not paid It is common knowledge that
process servers are trained not to offer witness fees unless they are demanded If the
witnesses had testified that they demanded witness fees at the time they were served
then we would have produced affidavits from the process server that the fees were not
demanded
CCP Sec 19871 (a) provided for a motion The attorneys for the witnesses filed an
objection not a motion The witnesses did not follow the procedure set forth by law The
objections should have been summarily denied Instead the Court took the bench and sua
sponte quashed each of the subpoenas The court refused to allow the undersigned to
object to this unconstitutional procedure Subsection (b) of 19871 (b) provided ldquoon the
courtrsquos own motion after giving counsel notice and an opportunity to be heard or any
reason whatsoever for issuing this unlawful ldquosua sponterdquo order Grossmanrsquos counsel was
PROPOSED STATEMENT ON APPEAL-15-
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2
3
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5
6
7
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11
12
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given no notice whatsoever refused Grossmanrsquos counsel an opportunity to be heard and
over his objection the court told him to ldquobe quiet and sit downrdquo which he did That order
was a blatant violation of CCP Sec 19871 (b) denied Grossman a fair trial and
evidenced a bias against either Grossman or his counsel or there may be an agenda in
that courthouse to ldquorailroad throughrdquo all of the UD cases since they were ldquoclogging uprdquo an
over burdened court with limited funds due to the very meltdown caused by MERS and
their cohorts such as the Wall Street institutions We believe a former Chief Assistant US
Attorney Criminal Trials Division should have known better Grossman was entitled to the
evidentiary material that he subpoenaed was entitled to cross-examine Ms Weber to
whom Friedlander had corresponded with wrote letters to and Seaside plead the 5th
Amendment to discovery requests such as production of documents admissions that one
of the documents were backdated and forged and that crimes were committed Seaside
being a corporation was not permitted to assert the 5 Amendmentth
The following was the ldquooffer of proofrdquo of the relevancy of the Seaside witnesses
testimony and documents At the time that Bayview using MERS as its conduit was the
Assignee from a Lender who was not the lender of record by virtue of the TD introduced
into evidence by Pro Value The Assignor was a different entity than the Lender The
original Lender was bankrupt and therefore any agency that existed at the time that
Grossman signed the original TD was terminated by operation of law due to the
bankruptcy of the original lender Since Bayview was the Assignee of an entity other
than the original lender Bayview lacked both the power and authority to appoint Seaside
as Trustee Therefore any NOD and NOS issued by Seaside was void as a matter of
law That is the reason why a new backdated assignment was prepared by Seaside
signed by an ldquoallegedrdquo officer of MERS before a Notary was recorded on 382010 and the
sale took place on 392010 Since Pro Value was never a BFP due to the recording of
the lis pendens the Trusteersquos deed was void as a matter of law We demanded that this
court admit into evidence the assignment proving that Seaside was not a duly authorized
Trustee at the time they recorded the NOD and NOS Both the NOD and NOS were void
PROPOSED STATEMENT ON APPEAL-16-
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2
3
4
5
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7
8
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23
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25
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27
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as a matter of law and so is the title of Pro Value This court committed error by not
admitting this evidence
In Alfaro v Community Housing Imp System amp Planning Assn Inc 171
CalApp4th 1356 (CalApp 6 Dist2009) The Court of Appeal in 2009 dealt with the
issue of the recording of a lis pendens and constructive notice and actual notice as
follows
ldquoOne of the central issues in this appeal is whether plaintiffs are chargeable withnotice of the deed restriction at an earlier time than its disclosure in the grant deeds Asexplained above the recording of a deed restriction is ordinarily regarded as imparting
iCivCode sect 1213constructive notice of its contents to subsequent purchasers (
Anderson supra 12 Cal4th 345 349 355 47 CalRptr2d 898 906 P2d 1314)Anderson supra 12 Cal4th 345 47 CalRptr2d 898 906 P2d 1314 went on to state onpage 355 47 CalRptr2d 898 906 P2d 1314 ldquoConstructive notice is ldquothe equivalent ofactual knowledge ie knowledge of its contents is conclusively presumed (4 WitkinSummary of Cal Law [ (9th ed 1987) ] Real Property sect 203 p 408 italics in original)rdquo
Defendants rely on Anderson as establishing that plaintiffs had constructive notice andFN21
actual knowledge of the deed restriction by virtue of its recording and by virtue of thisknowledge cannot successfully allege that defendants failed to disclose it
FN21 This quotation from Witkin is based on two cases AlhambraRedevelopment Agency v Transamerica Financial Services (1989) 212 CalApp3d1370 261 CalRptr 248 observed ldquoHere it is undisputed the Flemings properlyrecorded the contract thereby giving Transamerica constructive if not actual noticeof the contractrdquo ( Id at p 1377 261 CalRptr 248) Anderson v Willson (1920) 48CalApp 289 191 P 1016 stated ldquoWithout doubt the presumption of notice thusraised by this code provision is conclusive and incontrovertiblerdquo ( Id at p 293 191P 1016) Both cases concluded that a person with constructive notice did notqualify as a bona fide purchaser without notice Neither case attributed actualknowledge to the purchaser At most constructive notice has been conclusivelypresumed As we proceed to explain in the text there is a difference betweenactual and constructive notice
There was a caveat in Anderson however ldquo lsquoIf future takers purchase a piece ofproperty with notice of a restriction made by a predecessor then in the absence of duressor fraud they may ordinarily be thought to have bargained for the property with therestriction in mind and to have shown themselves willing to abide by itrsquo rdquo ( Andersonsupra 12 Cal4th at p 366 47 CalRptr2d 898 906 P2d 1314 emphasis added)
Plaintiffs argue that the doctrine of constructive notice does not apply to fraudcauses of action Bishop Creek Lodge v Scira (1996) 46 CalApp4th 1721 54CalRptr2d 745 ( Scira ) stated on page 1734 54 CalRptr2d 745 ldquoUnder a long line ofcases the fact that the victim had constructive notice of the truth from public records is nodefense to fraud The existence of such public records 1386 may be relevant to whetherthe victims reliance was justifiable but it is not by itself conclusive ( Seeger v Odell(1941) 18 Cal2d 409 414-417 115 P2d 977 [ ( Seeger ) ] Grange Co v Simmons(1962) 203 CalApp2d 567 576-577 21 CalRptr 757 Gross v Needham (1960) 184CalApp2d 446 460 7 CalRptr 664 Sullivan v Dunnigan (1959) 171 CalApp2d 662668 341 P2d 404 Regus v Schartkoff (1957) 156 CalApp2d 382 389 319 P2d 721 Schaefer v Berinstein (1956) 140 CalApp2d 278 296 295 P2d 113 Mills v
PROPOSED STATEMENT ON APPEAL-17-
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23
24
25
26
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Hellinger (1950) 100 CalApp2d 482 487 224 P2d 34 Barder v McClung (1949) 93CalApp2d 692 697 209 P2d 808 Stoll v Selander (1947) 81 CalApp2d 286 292 183P2d 935 Anderson v Thacher (1946) 76 CalApp2d 50 70 172 P2d 533)rdquo Therationale for this exception is ldquoThe purpose of the recording acts is to afford protection notto those who make fraudulent misrepresentations but to bona fide purchasers for valuerdquo (Seeger supra 18 Cal2d at p 415 115 P2d 977) Defendants do not discuss thisauthority cited by plaintiffs in their briefsrdquo
The court did not need a lecture from the undersigned that the purpose of the
recording of a Lis Pendens is to give ldquoConstructive Noticerdquo to the world especially to Pro
Value The court knew that the memorandum of law submitted by Pro Value was not worth
the paper it was written on as to its claim that Pro Value was a BFP That is the first thing
they teach law students in law school It is hornbook law as they say in law school The
office manager told Friedlander that she knew that Grossman had filed a lis pendens Not
only did Pro Value have ldquoconstructiverdquo notice they had actual notice Friedlander was
precluded from testifying that Pro Valuersquos attorney requested a copy of the complaint and
promised not to file an unlawful detainer suit against Grossman A short time thereafter on
3302010 an attorney named Bouzane filed the UD The promise made by an agent who
is authorized to speak is binding on his principal This attorney told Friedlander that his
client was in the room with him He believed him since he heard voices in the background
He justifiably relied on that representation of Pro Valuersquos attorney who was sitting in the
room with the attorney The courtrsquos refusal to permit Grossman to put on relevant
evidence is the sole reason for the so-called lack of evidence as enunciated by this
Court in its proposed Statement
Did the court really believe that Friedlander called Pro Value to talk about
settlement Hogwash The Office Manager lied through her teeth and Pro Value suborned
this perjury by objecting on the grounds of ldquosettlementrdquo Friedlander knew what he said to
her and she knew what she said to him His sworn testimony was totally different and
since she lied that she did not remember our conversation she was not in a position to
contradict his testimony Her choice would be to admit perjury to the court or commit
perjury by testifying to something he said which she did not remember Friedlander was
PROPOSED STATEMENT ON APPEAL-18-
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5
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7
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28
prepared to prove by his sworn testimony regarding some of the declarations of mailing in
the courtrsquos file that if they were mailed they were never received by me They would have
been impeached and I would file a complaint with the District Attorney to investigate this
perjury The conduct of Bouzane and his agents such as the process server were
designed to deprive people like Grossman of their homes and throw them out on the
street Perjury is being suborned The fraud on the court marched on
TITLE ISSUES
A qualified exception to the rule that title cannot be tried in an unlawful detainer
proceeding [see Evid Code sect 624 545[1][c]] is contained in CCP sect 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 sect 1161a Vella v Hudgins (1977) 20 C3d 251 255
Words and Phrases
The term duly implies that all of those elements necessary to valid sale exist
Kessler v Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title that is
duly perfected includes good record title but is not limited to good record title Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title is duly perfected
when all steps have been taken to make it perfect that is to convey to purchaser that
which he has purchased valid and good beyond all reasonable doubt Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837
Grossman filed his verified answer on 72310 Denied Par 6 Denied Par 7 alleging
fraud and a rigged sale Denied par 8 that he was served with a Notice to Quit Denied
Par 9 based on failure of service of notice to quit Denied Par 10 Denied paragraphs 11
and 12 First Affirmative Defense Failed to state a cause of action Second Affirmative
PROPOSED STATEMENT ON APPEAL-19-
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2
3
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5
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7
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11
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Defense Not properly verified by Pro Value only Bouzane Third Affirmative Defense No
Notice to Quit Fifth Affirmative Defense Denial of Due Process under the 14th
Amendment Sixth Affirmative Defense Denial of Procedural Due Process under the 14th
Amendment Seventh Affirmative Defense Denial of Equal Protection of the law under the
14 Amendmentth
FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT
1 Service of Notice to Quit
2 Compliance with the law regarding the TD sale
LEGAL ISSUES NOT DECIDED BY THE COURT
1 The two due process arguments under the 14 Amendmentth
2 The equal protection Argument under the 14 Amendmentth
3 Denial of Right to Trial by Jury
PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH
EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE
On 2202009 California enacted into law the California Foreclosure Prevention Act as
an amendment to CC Sec 2923 If Bayview took an assignment from a Lender who was not
the Lender as reflected by the Assignment that the Court wrongfully refused to admit into
evidence and gave it back to me until I requested that the Assignment be marked and that the
Courtrsquos minute order reflect that it was offered and refused on the grounds of relevancy and
no other ground That is reversible error A Trustee appointed by an Assignee without good
title is a nullity and every act that Seaside Trust took was a nullity That Assignment which
should have been admitted would prove the fact of nullity and Grossman would be entitled to
move for judgment when Pro Value rested We request the Court to reverse its original refusal
to admit that Assignment into evidence and then grant judgment to Grossman as the Trusteersquos
Deed is null and void That was my offer of proof of relevancy
PROPOSED STATEMENT ON APPEAL-20-
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2
3
4
5
6
7
8
9
10
11
12
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27
28
1 Under CC Sec 29235 the lender must contact the borrower At that point of time I
had given notice to Bayview that I was the attorney for the borrower Pro Value has offered no
evidence Grossman fell within the provisions of CC Sec 2923 as the TD offered into evidence
by Pro Value reflects that Grossman entered into the loan during the period from 112003 -
12312007
2 Pro Value offered no evidence that it complied with CC Sec 29236 offered a loan
modification plan to Grossman
3 Pro Value offered no evidence that it complied with CC Sec 2923 or that Bayview
was exempt
4 Pro Value offered no evidence that it complied with the provisions of HARP (12
USC Sec 1524) which was part of the ldquoeconomic stimulusrdquo to prevent foreclosures and
revitalize the housing sector
5 Pursuant to CC Sec 2924 the Trusteersquos Deed will presume the sale to be valid and
conclusively presumed to be valid if Pro Value was a BFP which it was not Pro Value failed to
prove its case for the following reasons (1) it was not the duly appointed Trustee (2) the
backdated and forged assignment allegedly was from the true lender after it went bankrupt
which required Bayview to record a new document appointing Seaside as its Trustee There is
no relation back case cited by Pro Value since it does not exist Even if it existed the law still
required the duly appointed Trustee under the new assignment to record the NOD and NOS
and comply with all of the other provisions of State and Federal Law which it could not and
did not do thereby making the Trusteersquos deed a ldquonullityrdquo without any presumptions of validity
Plaintiff claimed they have complied with CC Sec 2924 in paragraphs 4 thru 7 of
their complaint that they have met the burden of proof in that a sale had occurred and the
trustees Deed establishes this presumption that the sale was ldquoduly Perfectedrdquo and the Civil
has been complied with Defendant claimed that they did not and Plaintiff has submitted
to the court a certified copy of the Notice of Trustees Sale and asked the court to take
judicial notice of said document as well as the Trusteersquos Deed We requested the court to
PROPOSED STATEMENT ON APPEAL-21-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
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20
21
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23
24
25
26
27
28
reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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18
19
20
21
22
23
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28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
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2
3
4
5
6
7
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9
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was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
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2
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5
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foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
The undersigned spent his time researching the law as ldquoevictionsrdquo based on judicial
and non-judicial foreclosures sales are overwhelming our state and federal court systems
Having handled many ldquolis pendensrdquo cases ldquoconstructive noticerdquo based on a recorded ldquolis
pendens the undersigned will discuss the effect of the recordation of a lsquolis pendensrdquo on a
party claiming to be a bona fide purchaser (ldquoBFPrdquo) Simply put there is no such ldquoanimalrdquo
even though Pro Value asserts that it is a BFP Whether or not Pro Value is a BFP affects
presumptions rebuttable or conclusive Pro Valuersquos counsel misrepresented to the Court
that Pro Value was a BFP and the undersigned says ldquohogwashrdquo
Aside from the evidence and testimony the law is very unclear due to the recent
legislation passed by Congress and California to ldquoprotectrdquo homeowners from being
ldquotossedrdquo out on the street due to what the undersigned has read about the ldquounsavoryrdquo
foreclosure and eviction mills throughout this country
PROPOSED STATEMENT ON APPEAL-13-
1
2
3
4
5
6
7
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9
10
11
12
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19
20
21
22
23
24
25
26
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28
Simply put I place John Bouzane dba Fast Eviction Service in the category of an
ldquoeviction millrdquo We had a ldquoreasonablerdquo expectation that the ldquoattorney of recordrdquo would
appear at trial as the ldquotrial attorneyrdquo since Bouzane verified the UD complaint and
subjected himself to be called as a witness by the Defense
Counsel for Pro Value stated that the statute which permitted non-judicial
foreclosure is constitutional I know that since there is no ldquostate actionrdquo Grossman
challenges the Constitutionality of the ldquoevictionrdquo statutes since it requires ldquoState Actionrdquo to
evict a homeowner from their home after a non judicial sale That is an undecided issue
which the undersigned looks forward to present That is why Grossman requested to make
an evidentiary record so that the Court may decide the Constitutional issues There are
many attorneys in the ldquoborrowerrsquos barrdquo who await such a declaration of unconstitutionality
It is not a frivolous position Prior to Sniadach v Family Finance I was writing briefs that pre
judgment attachments without notice and a hearing violated the due process clause of
the 14 Amendment That case was decided by the US Supreme Court before anth
appellate court heard the same argument from the undersigned
FUNCTION OF THE JUDGE
The major feature of a bench trial is that the judge sits as the trier of fact The
Judge determines the admissibility weighs the evidence determines credibility and
renders judgment CCP Sec 6318 (a) Davis v Kahn (1970) 7 Cal App 3 868 874rd
Bullockrsquos Inc v Security First national Bank of Los Angeles (1958) 160 Cal App 2 277nd
285 Judges are precluded from conducting independent investigations outside the
courtroom because to do so would be a denial of due process denying to a litigant the
fair and impartial trial to which everyone is entitled Conservatorship of Schaeffer (2002)
98 Cal App 4 159 164 The general order of proceedings is set forth in CCP Sec 607th
6317
The Courtrsquos reference to ldquotenderrdquo in a non-lease situation raised a suspicion that
this Court referenced some of the proceedings in Grossman v Bayview where ldquoTenderrdquo
was made an issue by Schloss the attorney for Bayview and Seaside We requested the
PROPOSED STATEMENT ON APPEAL-14-
1
2
3
4
5
6
7
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11
12
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20
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23
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25
26
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Court to address why it referenced ldquotenderrdquo in the context of this type of unlawful detainer
case It did not do so Error
According to California Civil Handbook and Desktop Reference Thomas 2007 Ed
at P 874 ldquoThere is considerable controversy as to whether a court may reconsider its
prior ruling at any time-and if so in what manner the issue may be raisedrdquo WE RAISED IT
THROUGHOUT THE ENTIRE PROCEEDINGS WHICH THE TRIAL COURT IGNORED
See discussion in Kerns v CSE Ins Group (2003) 106 Cal App 4 368 383-389th
Defendant requested the court to reopen the case and grant a continuance if necessary
Thomas at P 875 The court had the inherent power it may be done on the courtrsquos own
motion when required by the interests of justice It failed to do so
This court made reversible error and denied Grossman a fair trial by ldquoguttingrdquo
Grossmanrsquos defense when it on its own motion sua sponte quashed the SDTs served on
the Seaside witnesses Grossman proved by competent evidence that the SDTs were duly
served on all of the Seaside witnesses in accordance to CCP Sec 1987 The Objections
admitted service the witnesses did not testify in their affidavits that ldquothey demanded
witnesses feesrdquo from the process server It was the witnesses burden of proof to declare
under oath that they demanded fees and were not paid It is common knowledge that
process servers are trained not to offer witness fees unless they are demanded If the
witnesses had testified that they demanded witness fees at the time they were served
then we would have produced affidavits from the process server that the fees were not
demanded
CCP Sec 19871 (a) provided for a motion The attorneys for the witnesses filed an
objection not a motion The witnesses did not follow the procedure set forth by law The
objections should have been summarily denied Instead the Court took the bench and sua
sponte quashed each of the subpoenas The court refused to allow the undersigned to
object to this unconstitutional procedure Subsection (b) of 19871 (b) provided ldquoon the
courtrsquos own motion after giving counsel notice and an opportunity to be heard or any
reason whatsoever for issuing this unlawful ldquosua sponterdquo order Grossmanrsquos counsel was
PROPOSED STATEMENT ON APPEAL-15-
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
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17
18
19
20
21
22
23
24
25
26
27
28
given no notice whatsoever refused Grossmanrsquos counsel an opportunity to be heard and
over his objection the court told him to ldquobe quiet and sit downrdquo which he did That order
was a blatant violation of CCP Sec 19871 (b) denied Grossman a fair trial and
evidenced a bias against either Grossman or his counsel or there may be an agenda in
that courthouse to ldquorailroad throughrdquo all of the UD cases since they were ldquoclogging uprdquo an
over burdened court with limited funds due to the very meltdown caused by MERS and
their cohorts such as the Wall Street institutions We believe a former Chief Assistant US
Attorney Criminal Trials Division should have known better Grossman was entitled to the
evidentiary material that he subpoenaed was entitled to cross-examine Ms Weber to
whom Friedlander had corresponded with wrote letters to and Seaside plead the 5th
Amendment to discovery requests such as production of documents admissions that one
of the documents were backdated and forged and that crimes were committed Seaside
being a corporation was not permitted to assert the 5 Amendmentth
The following was the ldquooffer of proofrdquo of the relevancy of the Seaside witnesses
testimony and documents At the time that Bayview using MERS as its conduit was the
Assignee from a Lender who was not the lender of record by virtue of the TD introduced
into evidence by Pro Value The Assignor was a different entity than the Lender The
original Lender was bankrupt and therefore any agency that existed at the time that
Grossman signed the original TD was terminated by operation of law due to the
bankruptcy of the original lender Since Bayview was the Assignee of an entity other
than the original lender Bayview lacked both the power and authority to appoint Seaside
as Trustee Therefore any NOD and NOS issued by Seaside was void as a matter of
law That is the reason why a new backdated assignment was prepared by Seaside
signed by an ldquoallegedrdquo officer of MERS before a Notary was recorded on 382010 and the
sale took place on 392010 Since Pro Value was never a BFP due to the recording of
the lis pendens the Trusteersquos deed was void as a matter of law We demanded that this
court admit into evidence the assignment proving that Seaside was not a duly authorized
Trustee at the time they recorded the NOD and NOS Both the NOD and NOS were void
PROPOSED STATEMENT ON APPEAL-16-
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2
3
4
5
6
7
8
9
10
11
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23
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25
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27
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as a matter of law and so is the title of Pro Value This court committed error by not
admitting this evidence
In Alfaro v Community Housing Imp System amp Planning Assn Inc 171
CalApp4th 1356 (CalApp 6 Dist2009) The Court of Appeal in 2009 dealt with the
issue of the recording of a lis pendens and constructive notice and actual notice as
follows
ldquoOne of the central issues in this appeal is whether plaintiffs are chargeable withnotice of the deed restriction at an earlier time than its disclosure in the grant deeds Asexplained above the recording of a deed restriction is ordinarily regarded as imparting
iCivCode sect 1213constructive notice of its contents to subsequent purchasers (
Anderson supra 12 Cal4th 345 349 355 47 CalRptr2d 898 906 P2d 1314)Anderson supra 12 Cal4th 345 47 CalRptr2d 898 906 P2d 1314 went on to state onpage 355 47 CalRptr2d 898 906 P2d 1314 ldquoConstructive notice is ldquothe equivalent ofactual knowledge ie knowledge of its contents is conclusively presumed (4 WitkinSummary of Cal Law [ (9th ed 1987) ] Real Property sect 203 p 408 italics in original)rdquo
Defendants rely on Anderson as establishing that plaintiffs had constructive notice andFN21
actual knowledge of the deed restriction by virtue of its recording and by virtue of thisknowledge cannot successfully allege that defendants failed to disclose it
FN21 This quotation from Witkin is based on two cases AlhambraRedevelopment Agency v Transamerica Financial Services (1989) 212 CalApp3d1370 261 CalRptr 248 observed ldquoHere it is undisputed the Flemings properlyrecorded the contract thereby giving Transamerica constructive if not actual noticeof the contractrdquo ( Id at p 1377 261 CalRptr 248) Anderson v Willson (1920) 48CalApp 289 191 P 1016 stated ldquoWithout doubt the presumption of notice thusraised by this code provision is conclusive and incontrovertiblerdquo ( Id at p 293 191P 1016) Both cases concluded that a person with constructive notice did notqualify as a bona fide purchaser without notice Neither case attributed actualknowledge to the purchaser At most constructive notice has been conclusivelypresumed As we proceed to explain in the text there is a difference betweenactual and constructive notice
There was a caveat in Anderson however ldquo lsquoIf future takers purchase a piece ofproperty with notice of a restriction made by a predecessor then in the absence of duressor fraud they may ordinarily be thought to have bargained for the property with therestriction in mind and to have shown themselves willing to abide by itrsquo rdquo ( Andersonsupra 12 Cal4th at p 366 47 CalRptr2d 898 906 P2d 1314 emphasis added)
Plaintiffs argue that the doctrine of constructive notice does not apply to fraudcauses of action Bishop Creek Lodge v Scira (1996) 46 CalApp4th 1721 54CalRptr2d 745 ( Scira ) stated on page 1734 54 CalRptr2d 745 ldquoUnder a long line ofcases the fact that the victim had constructive notice of the truth from public records is nodefense to fraud The existence of such public records 1386 may be relevant to whetherthe victims reliance was justifiable but it is not by itself conclusive ( Seeger v Odell(1941) 18 Cal2d 409 414-417 115 P2d 977 [ ( Seeger ) ] Grange Co v Simmons(1962) 203 CalApp2d 567 576-577 21 CalRptr 757 Gross v Needham (1960) 184CalApp2d 446 460 7 CalRptr 664 Sullivan v Dunnigan (1959) 171 CalApp2d 662668 341 P2d 404 Regus v Schartkoff (1957) 156 CalApp2d 382 389 319 P2d 721 Schaefer v Berinstein (1956) 140 CalApp2d 278 296 295 P2d 113 Mills v
PROPOSED STATEMENT ON APPEAL-17-
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3
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7
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10
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12
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21
22
23
24
25
26
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Hellinger (1950) 100 CalApp2d 482 487 224 P2d 34 Barder v McClung (1949) 93CalApp2d 692 697 209 P2d 808 Stoll v Selander (1947) 81 CalApp2d 286 292 183P2d 935 Anderson v Thacher (1946) 76 CalApp2d 50 70 172 P2d 533)rdquo Therationale for this exception is ldquoThe purpose of the recording acts is to afford protection notto those who make fraudulent misrepresentations but to bona fide purchasers for valuerdquo (Seeger supra 18 Cal2d at p 415 115 P2d 977) Defendants do not discuss thisauthority cited by plaintiffs in their briefsrdquo
The court did not need a lecture from the undersigned that the purpose of the
recording of a Lis Pendens is to give ldquoConstructive Noticerdquo to the world especially to Pro
Value The court knew that the memorandum of law submitted by Pro Value was not worth
the paper it was written on as to its claim that Pro Value was a BFP That is the first thing
they teach law students in law school It is hornbook law as they say in law school The
office manager told Friedlander that she knew that Grossman had filed a lis pendens Not
only did Pro Value have ldquoconstructiverdquo notice they had actual notice Friedlander was
precluded from testifying that Pro Valuersquos attorney requested a copy of the complaint and
promised not to file an unlawful detainer suit against Grossman A short time thereafter on
3302010 an attorney named Bouzane filed the UD The promise made by an agent who
is authorized to speak is binding on his principal This attorney told Friedlander that his
client was in the room with him He believed him since he heard voices in the background
He justifiably relied on that representation of Pro Valuersquos attorney who was sitting in the
room with the attorney The courtrsquos refusal to permit Grossman to put on relevant
evidence is the sole reason for the so-called lack of evidence as enunciated by this
Court in its proposed Statement
Did the court really believe that Friedlander called Pro Value to talk about
settlement Hogwash The Office Manager lied through her teeth and Pro Value suborned
this perjury by objecting on the grounds of ldquosettlementrdquo Friedlander knew what he said to
her and she knew what she said to him His sworn testimony was totally different and
since she lied that she did not remember our conversation she was not in a position to
contradict his testimony Her choice would be to admit perjury to the court or commit
perjury by testifying to something he said which she did not remember Friedlander was
PROPOSED STATEMENT ON APPEAL-18-
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5
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7
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prepared to prove by his sworn testimony regarding some of the declarations of mailing in
the courtrsquos file that if they were mailed they were never received by me They would have
been impeached and I would file a complaint with the District Attorney to investigate this
perjury The conduct of Bouzane and his agents such as the process server were
designed to deprive people like Grossman of their homes and throw them out on the
street Perjury is being suborned The fraud on the court marched on
TITLE ISSUES
A qualified exception to the rule that title cannot be tried in an unlawful detainer
proceeding [see Evid Code sect 624 545[1][c]] is contained in CCP sect 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 sect 1161a Vella v Hudgins (1977) 20 C3d 251 255
Words and Phrases
The term duly implies that all of those elements necessary to valid sale exist
Kessler v Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title that is
duly perfected includes good record title but is not limited to good record title Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title is duly perfected
when all steps have been taken to make it perfect that is to convey to purchaser that
which he has purchased valid and good beyond all reasonable doubt Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837
Grossman filed his verified answer on 72310 Denied Par 6 Denied Par 7 alleging
fraud and a rigged sale Denied par 8 that he was served with a Notice to Quit Denied
Par 9 based on failure of service of notice to quit Denied Par 10 Denied paragraphs 11
and 12 First Affirmative Defense Failed to state a cause of action Second Affirmative
PROPOSED STATEMENT ON APPEAL-19-
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2
3
4
5
6
7
8
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10
11
12
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25
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Defense Not properly verified by Pro Value only Bouzane Third Affirmative Defense No
Notice to Quit Fifth Affirmative Defense Denial of Due Process under the 14th
Amendment Sixth Affirmative Defense Denial of Procedural Due Process under the 14th
Amendment Seventh Affirmative Defense Denial of Equal Protection of the law under the
14 Amendmentth
FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT
1 Service of Notice to Quit
2 Compliance with the law regarding the TD sale
LEGAL ISSUES NOT DECIDED BY THE COURT
1 The two due process arguments under the 14 Amendmentth
2 The equal protection Argument under the 14 Amendmentth
3 Denial of Right to Trial by Jury
PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH
EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE
On 2202009 California enacted into law the California Foreclosure Prevention Act as
an amendment to CC Sec 2923 If Bayview took an assignment from a Lender who was not
the Lender as reflected by the Assignment that the Court wrongfully refused to admit into
evidence and gave it back to me until I requested that the Assignment be marked and that the
Courtrsquos minute order reflect that it was offered and refused on the grounds of relevancy and
no other ground That is reversible error A Trustee appointed by an Assignee without good
title is a nullity and every act that Seaside Trust took was a nullity That Assignment which
should have been admitted would prove the fact of nullity and Grossman would be entitled to
move for judgment when Pro Value rested We request the Court to reverse its original refusal
to admit that Assignment into evidence and then grant judgment to Grossman as the Trusteersquos
Deed is null and void That was my offer of proof of relevancy
PROPOSED STATEMENT ON APPEAL-20-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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25
26
27
28
1 Under CC Sec 29235 the lender must contact the borrower At that point of time I
had given notice to Bayview that I was the attorney for the borrower Pro Value has offered no
evidence Grossman fell within the provisions of CC Sec 2923 as the TD offered into evidence
by Pro Value reflects that Grossman entered into the loan during the period from 112003 -
12312007
2 Pro Value offered no evidence that it complied with CC Sec 29236 offered a loan
modification plan to Grossman
3 Pro Value offered no evidence that it complied with CC Sec 2923 or that Bayview
was exempt
4 Pro Value offered no evidence that it complied with the provisions of HARP (12
USC Sec 1524) which was part of the ldquoeconomic stimulusrdquo to prevent foreclosures and
revitalize the housing sector
5 Pursuant to CC Sec 2924 the Trusteersquos Deed will presume the sale to be valid and
conclusively presumed to be valid if Pro Value was a BFP which it was not Pro Value failed to
prove its case for the following reasons (1) it was not the duly appointed Trustee (2) the
backdated and forged assignment allegedly was from the true lender after it went bankrupt
which required Bayview to record a new document appointing Seaside as its Trustee There is
no relation back case cited by Pro Value since it does not exist Even if it existed the law still
required the duly appointed Trustee under the new assignment to record the NOD and NOS
and comply with all of the other provisions of State and Federal Law which it could not and
did not do thereby making the Trusteersquos deed a ldquonullityrdquo without any presumptions of validity
Plaintiff claimed they have complied with CC Sec 2924 in paragraphs 4 thru 7 of
their complaint that they have met the burden of proof in that a sale had occurred and the
trustees Deed establishes this presumption that the sale was ldquoduly Perfectedrdquo and the Civil
has been complied with Defendant claimed that they did not and Plaintiff has submitted
to the court a certified copy of the Notice of Trustees Sale and asked the court to take
judicial notice of said document as well as the Trusteersquos Deed We requested the court to
PROPOSED STATEMENT ON APPEAL-21-
1
2
3
4
5
6
7
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9
10
11
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13
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22
23
24
25
26
27
28
reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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18
19
20
21
22
23
24
25
26
27
28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
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19
20
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was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
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19
20
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22
23
24
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26
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28
Simply put I place John Bouzane dba Fast Eviction Service in the category of an
ldquoeviction millrdquo We had a ldquoreasonablerdquo expectation that the ldquoattorney of recordrdquo would
appear at trial as the ldquotrial attorneyrdquo since Bouzane verified the UD complaint and
subjected himself to be called as a witness by the Defense
Counsel for Pro Value stated that the statute which permitted non-judicial
foreclosure is constitutional I know that since there is no ldquostate actionrdquo Grossman
challenges the Constitutionality of the ldquoevictionrdquo statutes since it requires ldquoState Actionrdquo to
evict a homeowner from their home after a non judicial sale That is an undecided issue
which the undersigned looks forward to present That is why Grossman requested to make
an evidentiary record so that the Court may decide the Constitutional issues There are
many attorneys in the ldquoborrowerrsquos barrdquo who await such a declaration of unconstitutionality
It is not a frivolous position Prior to Sniadach v Family Finance I was writing briefs that pre
judgment attachments without notice and a hearing violated the due process clause of
the 14 Amendment That case was decided by the US Supreme Court before anth
appellate court heard the same argument from the undersigned
FUNCTION OF THE JUDGE
The major feature of a bench trial is that the judge sits as the trier of fact The
Judge determines the admissibility weighs the evidence determines credibility and
renders judgment CCP Sec 6318 (a) Davis v Kahn (1970) 7 Cal App 3 868 874rd
Bullockrsquos Inc v Security First national Bank of Los Angeles (1958) 160 Cal App 2 277nd
285 Judges are precluded from conducting independent investigations outside the
courtroom because to do so would be a denial of due process denying to a litigant the
fair and impartial trial to which everyone is entitled Conservatorship of Schaeffer (2002)
98 Cal App 4 159 164 The general order of proceedings is set forth in CCP Sec 607th
6317
The Courtrsquos reference to ldquotenderrdquo in a non-lease situation raised a suspicion that
this Court referenced some of the proceedings in Grossman v Bayview where ldquoTenderrdquo
was made an issue by Schloss the attorney for Bayview and Seaside We requested the
PROPOSED STATEMENT ON APPEAL-14-
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2
3
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5
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7
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Court to address why it referenced ldquotenderrdquo in the context of this type of unlawful detainer
case It did not do so Error
According to California Civil Handbook and Desktop Reference Thomas 2007 Ed
at P 874 ldquoThere is considerable controversy as to whether a court may reconsider its
prior ruling at any time-and if so in what manner the issue may be raisedrdquo WE RAISED IT
THROUGHOUT THE ENTIRE PROCEEDINGS WHICH THE TRIAL COURT IGNORED
See discussion in Kerns v CSE Ins Group (2003) 106 Cal App 4 368 383-389th
Defendant requested the court to reopen the case and grant a continuance if necessary
Thomas at P 875 The court had the inherent power it may be done on the courtrsquos own
motion when required by the interests of justice It failed to do so
This court made reversible error and denied Grossman a fair trial by ldquoguttingrdquo
Grossmanrsquos defense when it on its own motion sua sponte quashed the SDTs served on
the Seaside witnesses Grossman proved by competent evidence that the SDTs were duly
served on all of the Seaside witnesses in accordance to CCP Sec 1987 The Objections
admitted service the witnesses did not testify in their affidavits that ldquothey demanded
witnesses feesrdquo from the process server It was the witnesses burden of proof to declare
under oath that they demanded fees and were not paid It is common knowledge that
process servers are trained not to offer witness fees unless they are demanded If the
witnesses had testified that they demanded witness fees at the time they were served
then we would have produced affidavits from the process server that the fees were not
demanded
CCP Sec 19871 (a) provided for a motion The attorneys for the witnesses filed an
objection not a motion The witnesses did not follow the procedure set forth by law The
objections should have been summarily denied Instead the Court took the bench and sua
sponte quashed each of the subpoenas The court refused to allow the undersigned to
object to this unconstitutional procedure Subsection (b) of 19871 (b) provided ldquoon the
courtrsquos own motion after giving counsel notice and an opportunity to be heard or any
reason whatsoever for issuing this unlawful ldquosua sponterdquo order Grossmanrsquos counsel was
PROPOSED STATEMENT ON APPEAL-15-
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2
3
4
5
6
7
8
9
10
11
12
13
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given no notice whatsoever refused Grossmanrsquos counsel an opportunity to be heard and
over his objection the court told him to ldquobe quiet and sit downrdquo which he did That order
was a blatant violation of CCP Sec 19871 (b) denied Grossman a fair trial and
evidenced a bias against either Grossman or his counsel or there may be an agenda in
that courthouse to ldquorailroad throughrdquo all of the UD cases since they were ldquoclogging uprdquo an
over burdened court with limited funds due to the very meltdown caused by MERS and
their cohorts such as the Wall Street institutions We believe a former Chief Assistant US
Attorney Criminal Trials Division should have known better Grossman was entitled to the
evidentiary material that he subpoenaed was entitled to cross-examine Ms Weber to
whom Friedlander had corresponded with wrote letters to and Seaside plead the 5th
Amendment to discovery requests such as production of documents admissions that one
of the documents were backdated and forged and that crimes were committed Seaside
being a corporation was not permitted to assert the 5 Amendmentth
The following was the ldquooffer of proofrdquo of the relevancy of the Seaside witnesses
testimony and documents At the time that Bayview using MERS as its conduit was the
Assignee from a Lender who was not the lender of record by virtue of the TD introduced
into evidence by Pro Value The Assignor was a different entity than the Lender The
original Lender was bankrupt and therefore any agency that existed at the time that
Grossman signed the original TD was terminated by operation of law due to the
bankruptcy of the original lender Since Bayview was the Assignee of an entity other
than the original lender Bayview lacked both the power and authority to appoint Seaside
as Trustee Therefore any NOD and NOS issued by Seaside was void as a matter of
law That is the reason why a new backdated assignment was prepared by Seaside
signed by an ldquoallegedrdquo officer of MERS before a Notary was recorded on 382010 and the
sale took place on 392010 Since Pro Value was never a BFP due to the recording of
the lis pendens the Trusteersquos deed was void as a matter of law We demanded that this
court admit into evidence the assignment proving that Seaside was not a duly authorized
Trustee at the time they recorded the NOD and NOS Both the NOD and NOS were void
PROPOSED STATEMENT ON APPEAL-16-
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2
3
4
5
6
7
8
9
10
11
12
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23
24
25
26
27
28
as a matter of law and so is the title of Pro Value This court committed error by not
admitting this evidence
In Alfaro v Community Housing Imp System amp Planning Assn Inc 171
CalApp4th 1356 (CalApp 6 Dist2009) The Court of Appeal in 2009 dealt with the
issue of the recording of a lis pendens and constructive notice and actual notice as
follows
ldquoOne of the central issues in this appeal is whether plaintiffs are chargeable withnotice of the deed restriction at an earlier time than its disclosure in the grant deeds Asexplained above the recording of a deed restriction is ordinarily regarded as imparting
iCivCode sect 1213constructive notice of its contents to subsequent purchasers (
Anderson supra 12 Cal4th 345 349 355 47 CalRptr2d 898 906 P2d 1314)Anderson supra 12 Cal4th 345 47 CalRptr2d 898 906 P2d 1314 went on to state onpage 355 47 CalRptr2d 898 906 P2d 1314 ldquoConstructive notice is ldquothe equivalent ofactual knowledge ie knowledge of its contents is conclusively presumed (4 WitkinSummary of Cal Law [ (9th ed 1987) ] Real Property sect 203 p 408 italics in original)rdquo
Defendants rely on Anderson as establishing that plaintiffs had constructive notice andFN21
actual knowledge of the deed restriction by virtue of its recording and by virtue of thisknowledge cannot successfully allege that defendants failed to disclose it
FN21 This quotation from Witkin is based on two cases AlhambraRedevelopment Agency v Transamerica Financial Services (1989) 212 CalApp3d1370 261 CalRptr 248 observed ldquoHere it is undisputed the Flemings properlyrecorded the contract thereby giving Transamerica constructive if not actual noticeof the contractrdquo ( Id at p 1377 261 CalRptr 248) Anderson v Willson (1920) 48CalApp 289 191 P 1016 stated ldquoWithout doubt the presumption of notice thusraised by this code provision is conclusive and incontrovertiblerdquo ( Id at p 293 191P 1016) Both cases concluded that a person with constructive notice did notqualify as a bona fide purchaser without notice Neither case attributed actualknowledge to the purchaser At most constructive notice has been conclusivelypresumed As we proceed to explain in the text there is a difference betweenactual and constructive notice
There was a caveat in Anderson however ldquo lsquoIf future takers purchase a piece ofproperty with notice of a restriction made by a predecessor then in the absence of duressor fraud they may ordinarily be thought to have bargained for the property with therestriction in mind and to have shown themselves willing to abide by itrsquo rdquo ( Andersonsupra 12 Cal4th at p 366 47 CalRptr2d 898 906 P2d 1314 emphasis added)
Plaintiffs argue that the doctrine of constructive notice does not apply to fraudcauses of action Bishop Creek Lodge v Scira (1996) 46 CalApp4th 1721 54CalRptr2d 745 ( Scira ) stated on page 1734 54 CalRptr2d 745 ldquoUnder a long line ofcases the fact that the victim had constructive notice of the truth from public records is nodefense to fraud The existence of such public records 1386 may be relevant to whetherthe victims reliance was justifiable but it is not by itself conclusive ( Seeger v Odell(1941) 18 Cal2d 409 414-417 115 P2d 977 [ ( Seeger ) ] Grange Co v Simmons(1962) 203 CalApp2d 567 576-577 21 CalRptr 757 Gross v Needham (1960) 184CalApp2d 446 460 7 CalRptr 664 Sullivan v Dunnigan (1959) 171 CalApp2d 662668 341 P2d 404 Regus v Schartkoff (1957) 156 CalApp2d 382 389 319 P2d 721 Schaefer v Berinstein (1956) 140 CalApp2d 278 296 295 P2d 113 Mills v
PROPOSED STATEMENT ON APPEAL-17-
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10
11
12
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21
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23
24
25
26
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Hellinger (1950) 100 CalApp2d 482 487 224 P2d 34 Barder v McClung (1949) 93CalApp2d 692 697 209 P2d 808 Stoll v Selander (1947) 81 CalApp2d 286 292 183P2d 935 Anderson v Thacher (1946) 76 CalApp2d 50 70 172 P2d 533)rdquo Therationale for this exception is ldquoThe purpose of the recording acts is to afford protection notto those who make fraudulent misrepresentations but to bona fide purchasers for valuerdquo (Seeger supra 18 Cal2d at p 415 115 P2d 977) Defendants do not discuss thisauthority cited by plaintiffs in their briefsrdquo
The court did not need a lecture from the undersigned that the purpose of the
recording of a Lis Pendens is to give ldquoConstructive Noticerdquo to the world especially to Pro
Value The court knew that the memorandum of law submitted by Pro Value was not worth
the paper it was written on as to its claim that Pro Value was a BFP That is the first thing
they teach law students in law school It is hornbook law as they say in law school The
office manager told Friedlander that she knew that Grossman had filed a lis pendens Not
only did Pro Value have ldquoconstructiverdquo notice they had actual notice Friedlander was
precluded from testifying that Pro Valuersquos attorney requested a copy of the complaint and
promised not to file an unlawful detainer suit against Grossman A short time thereafter on
3302010 an attorney named Bouzane filed the UD The promise made by an agent who
is authorized to speak is binding on his principal This attorney told Friedlander that his
client was in the room with him He believed him since he heard voices in the background
He justifiably relied on that representation of Pro Valuersquos attorney who was sitting in the
room with the attorney The courtrsquos refusal to permit Grossman to put on relevant
evidence is the sole reason for the so-called lack of evidence as enunciated by this
Court in its proposed Statement
Did the court really believe that Friedlander called Pro Value to talk about
settlement Hogwash The Office Manager lied through her teeth and Pro Value suborned
this perjury by objecting on the grounds of ldquosettlementrdquo Friedlander knew what he said to
her and she knew what she said to him His sworn testimony was totally different and
since she lied that she did not remember our conversation she was not in a position to
contradict his testimony Her choice would be to admit perjury to the court or commit
perjury by testifying to something he said which she did not remember Friedlander was
PROPOSED STATEMENT ON APPEAL-18-
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prepared to prove by his sworn testimony regarding some of the declarations of mailing in
the courtrsquos file that if they were mailed they were never received by me They would have
been impeached and I would file a complaint with the District Attorney to investigate this
perjury The conduct of Bouzane and his agents such as the process server were
designed to deprive people like Grossman of their homes and throw them out on the
street Perjury is being suborned The fraud on the court marched on
TITLE ISSUES
A qualified exception to the rule that title cannot be tried in an unlawful detainer
proceeding [see Evid Code sect 624 545[1][c]] is contained in CCP sect 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 sect 1161a Vella v Hudgins (1977) 20 C3d 251 255
Words and Phrases
The term duly implies that all of those elements necessary to valid sale exist
Kessler v Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title that is
duly perfected includes good record title but is not limited to good record title Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title is duly perfected
when all steps have been taken to make it perfect that is to convey to purchaser that
which he has purchased valid and good beyond all reasonable doubt Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837
Grossman filed his verified answer on 72310 Denied Par 6 Denied Par 7 alleging
fraud and a rigged sale Denied par 8 that he was served with a Notice to Quit Denied
Par 9 based on failure of service of notice to quit Denied Par 10 Denied paragraphs 11
and 12 First Affirmative Defense Failed to state a cause of action Second Affirmative
PROPOSED STATEMENT ON APPEAL-19-
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2
3
4
5
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7
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Defense Not properly verified by Pro Value only Bouzane Third Affirmative Defense No
Notice to Quit Fifth Affirmative Defense Denial of Due Process under the 14th
Amendment Sixth Affirmative Defense Denial of Procedural Due Process under the 14th
Amendment Seventh Affirmative Defense Denial of Equal Protection of the law under the
14 Amendmentth
FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT
1 Service of Notice to Quit
2 Compliance with the law regarding the TD sale
LEGAL ISSUES NOT DECIDED BY THE COURT
1 The two due process arguments under the 14 Amendmentth
2 The equal protection Argument under the 14 Amendmentth
3 Denial of Right to Trial by Jury
PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH
EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE
On 2202009 California enacted into law the California Foreclosure Prevention Act as
an amendment to CC Sec 2923 If Bayview took an assignment from a Lender who was not
the Lender as reflected by the Assignment that the Court wrongfully refused to admit into
evidence and gave it back to me until I requested that the Assignment be marked and that the
Courtrsquos minute order reflect that it was offered and refused on the grounds of relevancy and
no other ground That is reversible error A Trustee appointed by an Assignee without good
title is a nullity and every act that Seaside Trust took was a nullity That Assignment which
should have been admitted would prove the fact of nullity and Grossman would be entitled to
move for judgment when Pro Value rested We request the Court to reverse its original refusal
to admit that Assignment into evidence and then grant judgment to Grossman as the Trusteersquos
Deed is null and void That was my offer of proof of relevancy
PROPOSED STATEMENT ON APPEAL-20-
1
2
3
4
5
6
7
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9
10
11
12
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26
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28
1 Under CC Sec 29235 the lender must contact the borrower At that point of time I
had given notice to Bayview that I was the attorney for the borrower Pro Value has offered no
evidence Grossman fell within the provisions of CC Sec 2923 as the TD offered into evidence
by Pro Value reflects that Grossman entered into the loan during the period from 112003 -
12312007
2 Pro Value offered no evidence that it complied with CC Sec 29236 offered a loan
modification plan to Grossman
3 Pro Value offered no evidence that it complied with CC Sec 2923 or that Bayview
was exempt
4 Pro Value offered no evidence that it complied with the provisions of HARP (12
USC Sec 1524) which was part of the ldquoeconomic stimulusrdquo to prevent foreclosures and
revitalize the housing sector
5 Pursuant to CC Sec 2924 the Trusteersquos Deed will presume the sale to be valid and
conclusively presumed to be valid if Pro Value was a BFP which it was not Pro Value failed to
prove its case for the following reasons (1) it was not the duly appointed Trustee (2) the
backdated and forged assignment allegedly was from the true lender after it went bankrupt
which required Bayview to record a new document appointing Seaside as its Trustee There is
no relation back case cited by Pro Value since it does not exist Even if it existed the law still
required the duly appointed Trustee under the new assignment to record the NOD and NOS
and comply with all of the other provisions of State and Federal Law which it could not and
did not do thereby making the Trusteersquos deed a ldquonullityrdquo without any presumptions of validity
Plaintiff claimed they have complied with CC Sec 2924 in paragraphs 4 thru 7 of
their complaint that they have met the burden of proof in that a sale had occurred and the
trustees Deed establishes this presumption that the sale was ldquoduly Perfectedrdquo and the Civil
has been complied with Defendant claimed that they did not and Plaintiff has submitted
to the court a certified copy of the Notice of Trustees Sale and asked the court to take
judicial notice of said document as well as the Trusteersquos Deed We requested the court to
PROPOSED STATEMENT ON APPEAL-21-
1
2
3
4
5
6
7
8
9
10
11
12
13
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23
24
25
26
27
28
reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
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2
3
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5
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was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
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Court to address why it referenced ldquotenderrdquo in the context of this type of unlawful detainer
case It did not do so Error
According to California Civil Handbook and Desktop Reference Thomas 2007 Ed
at P 874 ldquoThere is considerable controversy as to whether a court may reconsider its
prior ruling at any time-and if so in what manner the issue may be raisedrdquo WE RAISED IT
THROUGHOUT THE ENTIRE PROCEEDINGS WHICH THE TRIAL COURT IGNORED
See discussion in Kerns v CSE Ins Group (2003) 106 Cal App 4 368 383-389th
Defendant requested the court to reopen the case and grant a continuance if necessary
Thomas at P 875 The court had the inherent power it may be done on the courtrsquos own
motion when required by the interests of justice It failed to do so
This court made reversible error and denied Grossman a fair trial by ldquoguttingrdquo
Grossmanrsquos defense when it on its own motion sua sponte quashed the SDTs served on
the Seaside witnesses Grossman proved by competent evidence that the SDTs were duly
served on all of the Seaside witnesses in accordance to CCP Sec 1987 The Objections
admitted service the witnesses did not testify in their affidavits that ldquothey demanded
witnesses feesrdquo from the process server It was the witnesses burden of proof to declare
under oath that they demanded fees and were not paid It is common knowledge that
process servers are trained not to offer witness fees unless they are demanded If the
witnesses had testified that they demanded witness fees at the time they were served
then we would have produced affidavits from the process server that the fees were not
demanded
CCP Sec 19871 (a) provided for a motion The attorneys for the witnesses filed an
objection not a motion The witnesses did not follow the procedure set forth by law The
objections should have been summarily denied Instead the Court took the bench and sua
sponte quashed each of the subpoenas The court refused to allow the undersigned to
object to this unconstitutional procedure Subsection (b) of 19871 (b) provided ldquoon the
courtrsquos own motion after giving counsel notice and an opportunity to be heard or any
reason whatsoever for issuing this unlawful ldquosua sponterdquo order Grossmanrsquos counsel was
PROPOSED STATEMENT ON APPEAL-15-
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2
3
4
5
6
7
8
9
10
11
12
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14
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given no notice whatsoever refused Grossmanrsquos counsel an opportunity to be heard and
over his objection the court told him to ldquobe quiet and sit downrdquo which he did That order
was a blatant violation of CCP Sec 19871 (b) denied Grossman a fair trial and
evidenced a bias against either Grossman or his counsel or there may be an agenda in
that courthouse to ldquorailroad throughrdquo all of the UD cases since they were ldquoclogging uprdquo an
over burdened court with limited funds due to the very meltdown caused by MERS and
their cohorts such as the Wall Street institutions We believe a former Chief Assistant US
Attorney Criminal Trials Division should have known better Grossman was entitled to the
evidentiary material that he subpoenaed was entitled to cross-examine Ms Weber to
whom Friedlander had corresponded with wrote letters to and Seaside plead the 5th
Amendment to discovery requests such as production of documents admissions that one
of the documents were backdated and forged and that crimes were committed Seaside
being a corporation was not permitted to assert the 5 Amendmentth
The following was the ldquooffer of proofrdquo of the relevancy of the Seaside witnesses
testimony and documents At the time that Bayview using MERS as its conduit was the
Assignee from a Lender who was not the lender of record by virtue of the TD introduced
into evidence by Pro Value The Assignor was a different entity than the Lender The
original Lender was bankrupt and therefore any agency that existed at the time that
Grossman signed the original TD was terminated by operation of law due to the
bankruptcy of the original lender Since Bayview was the Assignee of an entity other
than the original lender Bayview lacked both the power and authority to appoint Seaside
as Trustee Therefore any NOD and NOS issued by Seaside was void as a matter of
law That is the reason why a new backdated assignment was prepared by Seaside
signed by an ldquoallegedrdquo officer of MERS before a Notary was recorded on 382010 and the
sale took place on 392010 Since Pro Value was never a BFP due to the recording of
the lis pendens the Trusteersquos deed was void as a matter of law We demanded that this
court admit into evidence the assignment proving that Seaside was not a duly authorized
Trustee at the time they recorded the NOD and NOS Both the NOD and NOS were void
PROPOSED STATEMENT ON APPEAL-16-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
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16
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18
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20
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22
23
24
25
26
27
28
as a matter of law and so is the title of Pro Value This court committed error by not
admitting this evidence
In Alfaro v Community Housing Imp System amp Planning Assn Inc 171
CalApp4th 1356 (CalApp 6 Dist2009) The Court of Appeal in 2009 dealt with the
issue of the recording of a lis pendens and constructive notice and actual notice as
follows
ldquoOne of the central issues in this appeal is whether plaintiffs are chargeable withnotice of the deed restriction at an earlier time than its disclosure in the grant deeds Asexplained above the recording of a deed restriction is ordinarily regarded as imparting
iCivCode sect 1213constructive notice of its contents to subsequent purchasers (
Anderson supra 12 Cal4th 345 349 355 47 CalRptr2d 898 906 P2d 1314)Anderson supra 12 Cal4th 345 47 CalRptr2d 898 906 P2d 1314 went on to state onpage 355 47 CalRptr2d 898 906 P2d 1314 ldquoConstructive notice is ldquothe equivalent ofactual knowledge ie knowledge of its contents is conclusively presumed (4 WitkinSummary of Cal Law [ (9th ed 1987) ] Real Property sect 203 p 408 italics in original)rdquo
Defendants rely on Anderson as establishing that plaintiffs had constructive notice andFN21
actual knowledge of the deed restriction by virtue of its recording and by virtue of thisknowledge cannot successfully allege that defendants failed to disclose it
FN21 This quotation from Witkin is based on two cases AlhambraRedevelopment Agency v Transamerica Financial Services (1989) 212 CalApp3d1370 261 CalRptr 248 observed ldquoHere it is undisputed the Flemings properlyrecorded the contract thereby giving Transamerica constructive if not actual noticeof the contractrdquo ( Id at p 1377 261 CalRptr 248) Anderson v Willson (1920) 48CalApp 289 191 P 1016 stated ldquoWithout doubt the presumption of notice thusraised by this code provision is conclusive and incontrovertiblerdquo ( Id at p 293 191P 1016) Both cases concluded that a person with constructive notice did notqualify as a bona fide purchaser without notice Neither case attributed actualknowledge to the purchaser At most constructive notice has been conclusivelypresumed As we proceed to explain in the text there is a difference betweenactual and constructive notice
There was a caveat in Anderson however ldquo lsquoIf future takers purchase a piece ofproperty with notice of a restriction made by a predecessor then in the absence of duressor fraud they may ordinarily be thought to have bargained for the property with therestriction in mind and to have shown themselves willing to abide by itrsquo rdquo ( Andersonsupra 12 Cal4th at p 366 47 CalRptr2d 898 906 P2d 1314 emphasis added)
Plaintiffs argue that the doctrine of constructive notice does not apply to fraudcauses of action Bishop Creek Lodge v Scira (1996) 46 CalApp4th 1721 54CalRptr2d 745 ( Scira ) stated on page 1734 54 CalRptr2d 745 ldquoUnder a long line ofcases the fact that the victim had constructive notice of the truth from public records is nodefense to fraud The existence of such public records 1386 may be relevant to whetherthe victims reliance was justifiable but it is not by itself conclusive ( Seeger v Odell(1941) 18 Cal2d 409 414-417 115 P2d 977 [ ( Seeger ) ] Grange Co v Simmons(1962) 203 CalApp2d 567 576-577 21 CalRptr 757 Gross v Needham (1960) 184CalApp2d 446 460 7 CalRptr 664 Sullivan v Dunnigan (1959) 171 CalApp2d 662668 341 P2d 404 Regus v Schartkoff (1957) 156 CalApp2d 382 389 319 P2d 721 Schaefer v Berinstein (1956) 140 CalApp2d 278 296 295 P2d 113 Mills v
PROPOSED STATEMENT ON APPEAL-17-
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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Hellinger (1950) 100 CalApp2d 482 487 224 P2d 34 Barder v McClung (1949) 93CalApp2d 692 697 209 P2d 808 Stoll v Selander (1947) 81 CalApp2d 286 292 183P2d 935 Anderson v Thacher (1946) 76 CalApp2d 50 70 172 P2d 533)rdquo Therationale for this exception is ldquoThe purpose of the recording acts is to afford protection notto those who make fraudulent misrepresentations but to bona fide purchasers for valuerdquo (Seeger supra 18 Cal2d at p 415 115 P2d 977) Defendants do not discuss thisauthority cited by plaintiffs in their briefsrdquo
The court did not need a lecture from the undersigned that the purpose of the
recording of a Lis Pendens is to give ldquoConstructive Noticerdquo to the world especially to Pro
Value The court knew that the memorandum of law submitted by Pro Value was not worth
the paper it was written on as to its claim that Pro Value was a BFP That is the first thing
they teach law students in law school It is hornbook law as they say in law school The
office manager told Friedlander that she knew that Grossman had filed a lis pendens Not
only did Pro Value have ldquoconstructiverdquo notice they had actual notice Friedlander was
precluded from testifying that Pro Valuersquos attorney requested a copy of the complaint and
promised not to file an unlawful detainer suit against Grossman A short time thereafter on
3302010 an attorney named Bouzane filed the UD The promise made by an agent who
is authorized to speak is binding on his principal This attorney told Friedlander that his
client was in the room with him He believed him since he heard voices in the background
He justifiably relied on that representation of Pro Valuersquos attorney who was sitting in the
room with the attorney The courtrsquos refusal to permit Grossman to put on relevant
evidence is the sole reason for the so-called lack of evidence as enunciated by this
Court in its proposed Statement
Did the court really believe that Friedlander called Pro Value to talk about
settlement Hogwash The Office Manager lied through her teeth and Pro Value suborned
this perjury by objecting on the grounds of ldquosettlementrdquo Friedlander knew what he said to
her and she knew what she said to him His sworn testimony was totally different and
since she lied that she did not remember our conversation she was not in a position to
contradict his testimony Her choice would be to admit perjury to the court or commit
perjury by testifying to something he said which she did not remember Friedlander was
PROPOSED STATEMENT ON APPEAL-18-
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2
3
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5
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7
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11
12
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prepared to prove by his sworn testimony regarding some of the declarations of mailing in
the courtrsquos file that if they were mailed they were never received by me They would have
been impeached and I would file a complaint with the District Attorney to investigate this
perjury The conduct of Bouzane and his agents such as the process server were
designed to deprive people like Grossman of their homes and throw them out on the
street Perjury is being suborned The fraud on the court marched on
TITLE ISSUES
A qualified exception to the rule that title cannot be tried in an unlawful detainer
proceeding [see Evid Code sect 624 545[1][c]] is contained in CCP sect 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 sect 1161a Vella v Hudgins (1977) 20 C3d 251 255
Words and Phrases
The term duly implies that all of those elements necessary to valid sale exist
Kessler v Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title that is
duly perfected includes good record title but is not limited to good record title Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title is duly perfected
when all steps have been taken to make it perfect that is to convey to purchaser that
which he has purchased valid and good beyond all reasonable doubt Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837
Grossman filed his verified answer on 72310 Denied Par 6 Denied Par 7 alleging
fraud and a rigged sale Denied par 8 that he was served with a Notice to Quit Denied
Par 9 based on failure of service of notice to quit Denied Par 10 Denied paragraphs 11
and 12 First Affirmative Defense Failed to state a cause of action Second Affirmative
PROPOSED STATEMENT ON APPEAL-19-
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2
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Defense Not properly verified by Pro Value only Bouzane Third Affirmative Defense No
Notice to Quit Fifth Affirmative Defense Denial of Due Process under the 14th
Amendment Sixth Affirmative Defense Denial of Procedural Due Process under the 14th
Amendment Seventh Affirmative Defense Denial of Equal Protection of the law under the
14 Amendmentth
FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT
1 Service of Notice to Quit
2 Compliance with the law regarding the TD sale
LEGAL ISSUES NOT DECIDED BY THE COURT
1 The two due process arguments under the 14 Amendmentth
2 The equal protection Argument under the 14 Amendmentth
3 Denial of Right to Trial by Jury
PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH
EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE
On 2202009 California enacted into law the California Foreclosure Prevention Act as
an amendment to CC Sec 2923 If Bayview took an assignment from a Lender who was not
the Lender as reflected by the Assignment that the Court wrongfully refused to admit into
evidence and gave it back to me until I requested that the Assignment be marked and that the
Courtrsquos minute order reflect that it was offered and refused on the grounds of relevancy and
no other ground That is reversible error A Trustee appointed by an Assignee without good
title is a nullity and every act that Seaside Trust took was a nullity That Assignment which
should have been admitted would prove the fact of nullity and Grossman would be entitled to
move for judgment when Pro Value rested We request the Court to reverse its original refusal
to admit that Assignment into evidence and then grant judgment to Grossman as the Trusteersquos
Deed is null and void That was my offer of proof of relevancy
PROPOSED STATEMENT ON APPEAL-20-
1
2
3
4
5
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7
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1 Under CC Sec 29235 the lender must contact the borrower At that point of time I
had given notice to Bayview that I was the attorney for the borrower Pro Value has offered no
evidence Grossman fell within the provisions of CC Sec 2923 as the TD offered into evidence
by Pro Value reflects that Grossman entered into the loan during the period from 112003 -
12312007
2 Pro Value offered no evidence that it complied with CC Sec 29236 offered a loan
modification plan to Grossman
3 Pro Value offered no evidence that it complied with CC Sec 2923 or that Bayview
was exempt
4 Pro Value offered no evidence that it complied with the provisions of HARP (12
USC Sec 1524) which was part of the ldquoeconomic stimulusrdquo to prevent foreclosures and
revitalize the housing sector
5 Pursuant to CC Sec 2924 the Trusteersquos Deed will presume the sale to be valid and
conclusively presumed to be valid if Pro Value was a BFP which it was not Pro Value failed to
prove its case for the following reasons (1) it was not the duly appointed Trustee (2) the
backdated and forged assignment allegedly was from the true lender after it went bankrupt
which required Bayview to record a new document appointing Seaside as its Trustee There is
no relation back case cited by Pro Value since it does not exist Even if it existed the law still
required the duly appointed Trustee under the new assignment to record the NOD and NOS
and comply with all of the other provisions of State and Federal Law which it could not and
did not do thereby making the Trusteersquos deed a ldquonullityrdquo without any presumptions of validity
Plaintiff claimed they have complied with CC Sec 2924 in paragraphs 4 thru 7 of
their complaint that they have met the burden of proof in that a sale had occurred and the
trustees Deed establishes this presumption that the sale was ldquoduly Perfectedrdquo and the Civil
has been complied with Defendant claimed that they did not and Plaintiff has submitted
to the court a certified copy of the Notice of Trustees Sale and asked the court to take
judicial notice of said document as well as the Trusteersquos Deed We requested the court to
PROPOSED STATEMENT ON APPEAL-21-
1
2
3
4
5
6
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10
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25
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27
28
reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
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given no notice whatsoever refused Grossmanrsquos counsel an opportunity to be heard and
over his objection the court told him to ldquobe quiet and sit downrdquo which he did That order
was a blatant violation of CCP Sec 19871 (b) denied Grossman a fair trial and
evidenced a bias against either Grossman or his counsel or there may be an agenda in
that courthouse to ldquorailroad throughrdquo all of the UD cases since they were ldquoclogging uprdquo an
over burdened court with limited funds due to the very meltdown caused by MERS and
their cohorts such as the Wall Street institutions We believe a former Chief Assistant US
Attorney Criminal Trials Division should have known better Grossman was entitled to the
evidentiary material that he subpoenaed was entitled to cross-examine Ms Weber to
whom Friedlander had corresponded with wrote letters to and Seaside plead the 5th
Amendment to discovery requests such as production of documents admissions that one
of the documents were backdated and forged and that crimes were committed Seaside
being a corporation was not permitted to assert the 5 Amendmentth
The following was the ldquooffer of proofrdquo of the relevancy of the Seaside witnesses
testimony and documents At the time that Bayview using MERS as its conduit was the
Assignee from a Lender who was not the lender of record by virtue of the TD introduced
into evidence by Pro Value The Assignor was a different entity than the Lender The
original Lender was bankrupt and therefore any agency that existed at the time that
Grossman signed the original TD was terminated by operation of law due to the
bankruptcy of the original lender Since Bayview was the Assignee of an entity other
than the original lender Bayview lacked both the power and authority to appoint Seaside
as Trustee Therefore any NOD and NOS issued by Seaside was void as a matter of
law That is the reason why a new backdated assignment was prepared by Seaside
signed by an ldquoallegedrdquo officer of MERS before a Notary was recorded on 382010 and the
sale took place on 392010 Since Pro Value was never a BFP due to the recording of
the lis pendens the Trusteersquos deed was void as a matter of law We demanded that this
court admit into evidence the assignment proving that Seaside was not a duly authorized
Trustee at the time they recorded the NOD and NOS Both the NOD and NOS were void
PROPOSED STATEMENT ON APPEAL-16-
1
2
3
4
5
6
7
8
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11
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23
24
25
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28
as a matter of law and so is the title of Pro Value This court committed error by not
admitting this evidence
In Alfaro v Community Housing Imp System amp Planning Assn Inc 171
CalApp4th 1356 (CalApp 6 Dist2009) The Court of Appeal in 2009 dealt with the
issue of the recording of a lis pendens and constructive notice and actual notice as
follows
ldquoOne of the central issues in this appeal is whether plaintiffs are chargeable withnotice of the deed restriction at an earlier time than its disclosure in the grant deeds Asexplained above the recording of a deed restriction is ordinarily regarded as imparting
iCivCode sect 1213constructive notice of its contents to subsequent purchasers (
Anderson supra 12 Cal4th 345 349 355 47 CalRptr2d 898 906 P2d 1314)Anderson supra 12 Cal4th 345 47 CalRptr2d 898 906 P2d 1314 went on to state onpage 355 47 CalRptr2d 898 906 P2d 1314 ldquoConstructive notice is ldquothe equivalent ofactual knowledge ie knowledge of its contents is conclusively presumed (4 WitkinSummary of Cal Law [ (9th ed 1987) ] Real Property sect 203 p 408 italics in original)rdquo
Defendants rely on Anderson as establishing that plaintiffs had constructive notice andFN21
actual knowledge of the deed restriction by virtue of its recording and by virtue of thisknowledge cannot successfully allege that defendants failed to disclose it
FN21 This quotation from Witkin is based on two cases AlhambraRedevelopment Agency v Transamerica Financial Services (1989) 212 CalApp3d1370 261 CalRptr 248 observed ldquoHere it is undisputed the Flemings properlyrecorded the contract thereby giving Transamerica constructive if not actual noticeof the contractrdquo ( Id at p 1377 261 CalRptr 248) Anderson v Willson (1920) 48CalApp 289 191 P 1016 stated ldquoWithout doubt the presumption of notice thusraised by this code provision is conclusive and incontrovertiblerdquo ( Id at p 293 191P 1016) Both cases concluded that a person with constructive notice did notqualify as a bona fide purchaser without notice Neither case attributed actualknowledge to the purchaser At most constructive notice has been conclusivelypresumed As we proceed to explain in the text there is a difference betweenactual and constructive notice
There was a caveat in Anderson however ldquo lsquoIf future takers purchase a piece ofproperty with notice of a restriction made by a predecessor then in the absence of duressor fraud they may ordinarily be thought to have bargained for the property with therestriction in mind and to have shown themselves willing to abide by itrsquo rdquo ( Andersonsupra 12 Cal4th at p 366 47 CalRptr2d 898 906 P2d 1314 emphasis added)
Plaintiffs argue that the doctrine of constructive notice does not apply to fraudcauses of action Bishop Creek Lodge v Scira (1996) 46 CalApp4th 1721 54CalRptr2d 745 ( Scira ) stated on page 1734 54 CalRptr2d 745 ldquoUnder a long line ofcases the fact that the victim had constructive notice of the truth from public records is nodefense to fraud The existence of such public records 1386 may be relevant to whetherthe victims reliance was justifiable but it is not by itself conclusive ( Seeger v Odell(1941) 18 Cal2d 409 414-417 115 P2d 977 [ ( Seeger ) ] Grange Co v Simmons(1962) 203 CalApp2d 567 576-577 21 CalRptr 757 Gross v Needham (1960) 184CalApp2d 446 460 7 CalRptr 664 Sullivan v Dunnigan (1959) 171 CalApp2d 662668 341 P2d 404 Regus v Schartkoff (1957) 156 CalApp2d 382 389 319 P2d 721 Schaefer v Berinstein (1956) 140 CalApp2d 278 296 295 P2d 113 Mills v
PROPOSED STATEMENT ON APPEAL-17-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Hellinger (1950) 100 CalApp2d 482 487 224 P2d 34 Barder v McClung (1949) 93CalApp2d 692 697 209 P2d 808 Stoll v Selander (1947) 81 CalApp2d 286 292 183P2d 935 Anderson v Thacher (1946) 76 CalApp2d 50 70 172 P2d 533)rdquo Therationale for this exception is ldquoThe purpose of the recording acts is to afford protection notto those who make fraudulent misrepresentations but to bona fide purchasers for valuerdquo (Seeger supra 18 Cal2d at p 415 115 P2d 977) Defendants do not discuss thisauthority cited by plaintiffs in their briefsrdquo
The court did not need a lecture from the undersigned that the purpose of the
recording of a Lis Pendens is to give ldquoConstructive Noticerdquo to the world especially to Pro
Value The court knew that the memorandum of law submitted by Pro Value was not worth
the paper it was written on as to its claim that Pro Value was a BFP That is the first thing
they teach law students in law school It is hornbook law as they say in law school The
office manager told Friedlander that she knew that Grossman had filed a lis pendens Not
only did Pro Value have ldquoconstructiverdquo notice they had actual notice Friedlander was
precluded from testifying that Pro Valuersquos attorney requested a copy of the complaint and
promised not to file an unlawful detainer suit against Grossman A short time thereafter on
3302010 an attorney named Bouzane filed the UD The promise made by an agent who
is authorized to speak is binding on his principal This attorney told Friedlander that his
client was in the room with him He believed him since he heard voices in the background
He justifiably relied on that representation of Pro Valuersquos attorney who was sitting in the
room with the attorney The courtrsquos refusal to permit Grossman to put on relevant
evidence is the sole reason for the so-called lack of evidence as enunciated by this
Court in its proposed Statement
Did the court really believe that Friedlander called Pro Value to talk about
settlement Hogwash The Office Manager lied through her teeth and Pro Value suborned
this perjury by objecting on the grounds of ldquosettlementrdquo Friedlander knew what he said to
her and she knew what she said to him His sworn testimony was totally different and
since she lied that she did not remember our conversation she was not in a position to
contradict his testimony Her choice would be to admit perjury to the court or commit
perjury by testifying to something he said which she did not remember Friedlander was
PROPOSED STATEMENT ON APPEAL-18-
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2
3
4
5
6
7
8
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11
12
13
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17
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19
20
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23
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25
26
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28
prepared to prove by his sworn testimony regarding some of the declarations of mailing in
the courtrsquos file that if they were mailed they were never received by me They would have
been impeached and I would file a complaint with the District Attorney to investigate this
perjury The conduct of Bouzane and his agents such as the process server were
designed to deprive people like Grossman of their homes and throw them out on the
street Perjury is being suborned The fraud on the court marched on
TITLE ISSUES
A qualified exception to the rule that title cannot be tried in an unlawful detainer
proceeding [see Evid Code sect 624 545[1][c]] is contained in CCP sect 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 sect 1161a Vella v Hudgins (1977) 20 C3d 251 255
Words and Phrases
The term duly implies that all of those elements necessary to valid sale exist
Kessler v Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title that is
duly perfected includes good record title but is not limited to good record title Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title is duly perfected
when all steps have been taken to make it perfect that is to convey to purchaser that
which he has purchased valid and good beyond all reasonable doubt Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837
Grossman filed his verified answer on 72310 Denied Par 6 Denied Par 7 alleging
fraud and a rigged sale Denied par 8 that he was served with a Notice to Quit Denied
Par 9 based on failure of service of notice to quit Denied Par 10 Denied paragraphs 11
and 12 First Affirmative Defense Failed to state a cause of action Second Affirmative
PROPOSED STATEMENT ON APPEAL-19-
1
2
3
4
5
6
7
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11
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23
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26
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28
Defense Not properly verified by Pro Value only Bouzane Third Affirmative Defense No
Notice to Quit Fifth Affirmative Defense Denial of Due Process under the 14th
Amendment Sixth Affirmative Defense Denial of Procedural Due Process under the 14th
Amendment Seventh Affirmative Defense Denial of Equal Protection of the law under the
14 Amendmentth
FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT
1 Service of Notice to Quit
2 Compliance with the law regarding the TD sale
LEGAL ISSUES NOT DECIDED BY THE COURT
1 The two due process arguments under the 14 Amendmentth
2 The equal protection Argument under the 14 Amendmentth
3 Denial of Right to Trial by Jury
PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH
EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE
On 2202009 California enacted into law the California Foreclosure Prevention Act as
an amendment to CC Sec 2923 If Bayview took an assignment from a Lender who was not
the Lender as reflected by the Assignment that the Court wrongfully refused to admit into
evidence and gave it back to me until I requested that the Assignment be marked and that the
Courtrsquos minute order reflect that it was offered and refused on the grounds of relevancy and
no other ground That is reversible error A Trustee appointed by an Assignee without good
title is a nullity and every act that Seaside Trust took was a nullity That Assignment which
should have been admitted would prove the fact of nullity and Grossman would be entitled to
move for judgment when Pro Value rested We request the Court to reverse its original refusal
to admit that Assignment into evidence and then grant judgment to Grossman as the Trusteersquos
Deed is null and void That was my offer of proof of relevancy
PROPOSED STATEMENT ON APPEAL-20-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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17
18
19
20
21
22
23
24
25
26
27
28
1 Under CC Sec 29235 the lender must contact the borrower At that point of time I
had given notice to Bayview that I was the attorney for the borrower Pro Value has offered no
evidence Grossman fell within the provisions of CC Sec 2923 as the TD offered into evidence
by Pro Value reflects that Grossman entered into the loan during the period from 112003 -
12312007
2 Pro Value offered no evidence that it complied with CC Sec 29236 offered a loan
modification plan to Grossman
3 Pro Value offered no evidence that it complied with CC Sec 2923 or that Bayview
was exempt
4 Pro Value offered no evidence that it complied with the provisions of HARP (12
USC Sec 1524) which was part of the ldquoeconomic stimulusrdquo to prevent foreclosures and
revitalize the housing sector
5 Pursuant to CC Sec 2924 the Trusteersquos Deed will presume the sale to be valid and
conclusively presumed to be valid if Pro Value was a BFP which it was not Pro Value failed to
prove its case for the following reasons (1) it was not the duly appointed Trustee (2) the
backdated and forged assignment allegedly was from the true lender after it went bankrupt
which required Bayview to record a new document appointing Seaside as its Trustee There is
no relation back case cited by Pro Value since it does not exist Even if it existed the law still
required the duly appointed Trustee under the new assignment to record the NOD and NOS
and comply with all of the other provisions of State and Federal Law which it could not and
did not do thereby making the Trusteersquos deed a ldquonullityrdquo without any presumptions of validity
Plaintiff claimed they have complied with CC Sec 2924 in paragraphs 4 thru 7 of
their complaint that they have met the burden of proof in that a sale had occurred and the
trustees Deed establishes this presumption that the sale was ldquoduly Perfectedrdquo and the Civil
has been complied with Defendant claimed that they did not and Plaintiff has submitted
to the court a certified copy of the Notice of Trustees Sale and asked the court to take
judicial notice of said document as well as the Trusteersquos Deed We requested the court to
PROPOSED STATEMENT ON APPEAL-21-
1
2
3
4
5
6
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28
reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
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2
3
4
5
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7
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11
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14
15
16
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20
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22
23
24
25
26
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28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
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9
10
11
12
13
14
15
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25
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28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
1
2
3
4
5
6
7
8
9
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11
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13
14
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28
was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
as a matter of law and so is the title of Pro Value This court committed error by not
admitting this evidence
In Alfaro v Community Housing Imp System amp Planning Assn Inc 171
CalApp4th 1356 (CalApp 6 Dist2009) The Court of Appeal in 2009 dealt with the
issue of the recording of a lis pendens and constructive notice and actual notice as
follows
ldquoOne of the central issues in this appeal is whether plaintiffs are chargeable withnotice of the deed restriction at an earlier time than its disclosure in the grant deeds Asexplained above the recording of a deed restriction is ordinarily regarded as imparting
iCivCode sect 1213constructive notice of its contents to subsequent purchasers (
Anderson supra 12 Cal4th 345 349 355 47 CalRptr2d 898 906 P2d 1314)Anderson supra 12 Cal4th 345 47 CalRptr2d 898 906 P2d 1314 went on to state onpage 355 47 CalRptr2d 898 906 P2d 1314 ldquoConstructive notice is ldquothe equivalent ofactual knowledge ie knowledge of its contents is conclusively presumed (4 WitkinSummary of Cal Law [ (9th ed 1987) ] Real Property sect 203 p 408 italics in original)rdquo
Defendants rely on Anderson as establishing that plaintiffs had constructive notice andFN21
actual knowledge of the deed restriction by virtue of its recording and by virtue of thisknowledge cannot successfully allege that defendants failed to disclose it
FN21 This quotation from Witkin is based on two cases AlhambraRedevelopment Agency v Transamerica Financial Services (1989) 212 CalApp3d1370 261 CalRptr 248 observed ldquoHere it is undisputed the Flemings properlyrecorded the contract thereby giving Transamerica constructive if not actual noticeof the contractrdquo ( Id at p 1377 261 CalRptr 248) Anderson v Willson (1920) 48CalApp 289 191 P 1016 stated ldquoWithout doubt the presumption of notice thusraised by this code provision is conclusive and incontrovertiblerdquo ( Id at p 293 191P 1016) Both cases concluded that a person with constructive notice did notqualify as a bona fide purchaser without notice Neither case attributed actualknowledge to the purchaser At most constructive notice has been conclusivelypresumed As we proceed to explain in the text there is a difference betweenactual and constructive notice
There was a caveat in Anderson however ldquo lsquoIf future takers purchase a piece ofproperty with notice of a restriction made by a predecessor then in the absence of duressor fraud they may ordinarily be thought to have bargained for the property with therestriction in mind and to have shown themselves willing to abide by itrsquo rdquo ( Andersonsupra 12 Cal4th at p 366 47 CalRptr2d 898 906 P2d 1314 emphasis added)
Plaintiffs argue that the doctrine of constructive notice does not apply to fraudcauses of action Bishop Creek Lodge v Scira (1996) 46 CalApp4th 1721 54CalRptr2d 745 ( Scira ) stated on page 1734 54 CalRptr2d 745 ldquoUnder a long line ofcases the fact that the victim had constructive notice of the truth from public records is nodefense to fraud The existence of such public records 1386 may be relevant to whetherthe victims reliance was justifiable but it is not by itself conclusive ( Seeger v Odell(1941) 18 Cal2d 409 414-417 115 P2d 977 [ ( Seeger ) ] Grange Co v Simmons(1962) 203 CalApp2d 567 576-577 21 CalRptr 757 Gross v Needham (1960) 184CalApp2d 446 460 7 CalRptr 664 Sullivan v Dunnigan (1959) 171 CalApp2d 662668 341 P2d 404 Regus v Schartkoff (1957) 156 CalApp2d 382 389 319 P2d 721 Schaefer v Berinstein (1956) 140 CalApp2d 278 296 295 P2d 113 Mills v
PROPOSED STATEMENT ON APPEAL-17-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Hellinger (1950) 100 CalApp2d 482 487 224 P2d 34 Barder v McClung (1949) 93CalApp2d 692 697 209 P2d 808 Stoll v Selander (1947) 81 CalApp2d 286 292 183P2d 935 Anderson v Thacher (1946) 76 CalApp2d 50 70 172 P2d 533)rdquo Therationale for this exception is ldquoThe purpose of the recording acts is to afford protection notto those who make fraudulent misrepresentations but to bona fide purchasers for valuerdquo (Seeger supra 18 Cal2d at p 415 115 P2d 977) Defendants do not discuss thisauthority cited by plaintiffs in their briefsrdquo
The court did not need a lecture from the undersigned that the purpose of the
recording of a Lis Pendens is to give ldquoConstructive Noticerdquo to the world especially to Pro
Value The court knew that the memorandum of law submitted by Pro Value was not worth
the paper it was written on as to its claim that Pro Value was a BFP That is the first thing
they teach law students in law school It is hornbook law as they say in law school The
office manager told Friedlander that she knew that Grossman had filed a lis pendens Not
only did Pro Value have ldquoconstructiverdquo notice they had actual notice Friedlander was
precluded from testifying that Pro Valuersquos attorney requested a copy of the complaint and
promised not to file an unlawful detainer suit against Grossman A short time thereafter on
3302010 an attorney named Bouzane filed the UD The promise made by an agent who
is authorized to speak is binding on his principal This attorney told Friedlander that his
client was in the room with him He believed him since he heard voices in the background
He justifiably relied on that representation of Pro Valuersquos attorney who was sitting in the
room with the attorney The courtrsquos refusal to permit Grossman to put on relevant
evidence is the sole reason for the so-called lack of evidence as enunciated by this
Court in its proposed Statement
Did the court really believe that Friedlander called Pro Value to talk about
settlement Hogwash The Office Manager lied through her teeth and Pro Value suborned
this perjury by objecting on the grounds of ldquosettlementrdquo Friedlander knew what he said to
her and she knew what she said to him His sworn testimony was totally different and
since she lied that she did not remember our conversation she was not in a position to
contradict his testimony Her choice would be to admit perjury to the court or commit
perjury by testifying to something he said which she did not remember Friedlander was
PROPOSED STATEMENT ON APPEAL-18-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
prepared to prove by his sworn testimony regarding some of the declarations of mailing in
the courtrsquos file that if they were mailed they were never received by me They would have
been impeached and I would file a complaint with the District Attorney to investigate this
perjury The conduct of Bouzane and his agents such as the process server were
designed to deprive people like Grossman of their homes and throw them out on the
street Perjury is being suborned The fraud on the court marched on
TITLE ISSUES
A qualified exception to the rule that title cannot be tried in an unlawful detainer
proceeding [see Evid Code sect 624 545[1][c]] is contained in CCP sect 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 sect 1161a Vella v Hudgins (1977) 20 C3d 251 255
Words and Phrases
The term duly implies that all of those elements necessary to valid sale exist
Kessler v Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title that is
duly perfected includes good record title but is not limited to good record title Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title is duly perfected
when all steps have been taken to make it perfect that is to convey to purchaser that
which he has purchased valid and good beyond all reasonable doubt Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837
Grossman filed his verified answer on 72310 Denied Par 6 Denied Par 7 alleging
fraud and a rigged sale Denied par 8 that he was served with a Notice to Quit Denied
Par 9 based on failure of service of notice to quit Denied Par 10 Denied paragraphs 11
and 12 First Affirmative Defense Failed to state a cause of action Second Affirmative
PROPOSED STATEMENT ON APPEAL-19-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Defense Not properly verified by Pro Value only Bouzane Third Affirmative Defense No
Notice to Quit Fifth Affirmative Defense Denial of Due Process under the 14th
Amendment Sixth Affirmative Defense Denial of Procedural Due Process under the 14th
Amendment Seventh Affirmative Defense Denial of Equal Protection of the law under the
14 Amendmentth
FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT
1 Service of Notice to Quit
2 Compliance with the law regarding the TD sale
LEGAL ISSUES NOT DECIDED BY THE COURT
1 The two due process arguments under the 14 Amendmentth
2 The equal protection Argument under the 14 Amendmentth
3 Denial of Right to Trial by Jury
PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH
EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE
On 2202009 California enacted into law the California Foreclosure Prevention Act as
an amendment to CC Sec 2923 If Bayview took an assignment from a Lender who was not
the Lender as reflected by the Assignment that the Court wrongfully refused to admit into
evidence and gave it back to me until I requested that the Assignment be marked and that the
Courtrsquos minute order reflect that it was offered and refused on the grounds of relevancy and
no other ground That is reversible error A Trustee appointed by an Assignee without good
title is a nullity and every act that Seaside Trust took was a nullity That Assignment which
should have been admitted would prove the fact of nullity and Grossman would be entitled to
move for judgment when Pro Value rested We request the Court to reverse its original refusal
to admit that Assignment into evidence and then grant judgment to Grossman as the Trusteersquos
Deed is null and void That was my offer of proof of relevancy
PROPOSED STATEMENT ON APPEAL-20-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 Under CC Sec 29235 the lender must contact the borrower At that point of time I
had given notice to Bayview that I was the attorney for the borrower Pro Value has offered no
evidence Grossman fell within the provisions of CC Sec 2923 as the TD offered into evidence
by Pro Value reflects that Grossman entered into the loan during the period from 112003 -
12312007
2 Pro Value offered no evidence that it complied with CC Sec 29236 offered a loan
modification plan to Grossman
3 Pro Value offered no evidence that it complied with CC Sec 2923 or that Bayview
was exempt
4 Pro Value offered no evidence that it complied with the provisions of HARP (12
USC Sec 1524) which was part of the ldquoeconomic stimulusrdquo to prevent foreclosures and
revitalize the housing sector
5 Pursuant to CC Sec 2924 the Trusteersquos Deed will presume the sale to be valid and
conclusively presumed to be valid if Pro Value was a BFP which it was not Pro Value failed to
prove its case for the following reasons (1) it was not the duly appointed Trustee (2) the
backdated and forged assignment allegedly was from the true lender after it went bankrupt
which required Bayview to record a new document appointing Seaside as its Trustee There is
no relation back case cited by Pro Value since it does not exist Even if it existed the law still
required the duly appointed Trustee under the new assignment to record the NOD and NOS
and comply with all of the other provisions of State and Federal Law which it could not and
did not do thereby making the Trusteersquos deed a ldquonullityrdquo without any presumptions of validity
Plaintiff claimed they have complied with CC Sec 2924 in paragraphs 4 thru 7 of
their complaint that they have met the burden of proof in that a sale had occurred and the
trustees Deed establishes this presumption that the sale was ldquoduly Perfectedrdquo and the Civil
has been complied with Defendant claimed that they did not and Plaintiff has submitted
to the court a certified copy of the Notice of Trustees Sale and asked the court to take
judicial notice of said document as well as the Trusteersquos Deed We requested the court to
PROPOSED STATEMENT ON APPEAL-21-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Hellinger (1950) 100 CalApp2d 482 487 224 P2d 34 Barder v McClung (1949) 93CalApp2d 692 697 209 P2d 808 Stoll v Selander (1947) 81 CalApp2d 286 292 183P2d 935 Anderson v Thacher (1946) 76 CalApp2d 50 70 172 P2d 533)rdquo Therationale for this exception is ldquoThe purpose of the recording acts is to afford protection notto those who make fraudulent misrepresentations but to bona fide purchasers for valuerdquo (Seeger supra 18 Cal2d at p 415 115 P2d 977) Defendants do not discuss thisauthority cited by plaintiffs in their briefsrdquo
The court did not need a lecture from the undersigned that the purpose of the
recording of a Lis Pendens is to give ldquoConstructive Noticerdquo to the world especially to Pro
Value The court knew that the memorandum of law submitted by Pro Value was not worth
the paper it was written on as to its claim that Pro Value was a BFP That is the first thing
they teach law students in law school It is hornbook law as they say in law school The
office manager told Friedlander that she knew that Grossman had filed a lis pendens Not
only did Pro Value have ldquoconstructiverdquo notice they had actual notice Friedlander was
precluded from testifying that Pro Valuersquos attorney requested a copy of the complaint and
promised not to file an unlawful detainer suit against Grossman A short time thereafter on
3302010 an attorney named Bouzane filed the UD The promise made by an agent who
is authorized to speak is binding on his principal This attorney told Friedlander that his
client was in the room with him He believed him since he heard voices in the background
He justifiably relied on that representation of Pro Valuersquos attorney who was sitting in the
room with the attorney The courtrsquos refusal to permit Grossman to put on relevant
evidence is the sole reason for the so-called lack of evidence as enunciated by this
Court in its proposed Statement
Did the court really believe that Friedlander called Pro Value to talk about
settlement Hogwash The Office Manager lied through her teeth and Pro Value suborned
this perjury by objecting on the grounds of ldquosettlementrdquo Friedlander knew what he said to
her and she knew what she said to him His sworn testimony was totally different and
since she lied that she did not remember our conversation she was not in a position to
contradict his testimony Her choice would be to admit perjury to the court or commit
perjury by testifying to something he said which she did not remember Friedlander was
PROPOSED STATEMENT ON APPEAL-18-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
prepared to prove by his sworn testimony regarding some of the declarations of mailing in
the courtrsquos file that if they were mailed they were never received by me They would have
been impeached and I would file a complaint with the District Attorney to investigate this
perjury The conduct of Bouzane and his agents such as the process server were
designed to deprive people like Grossman of their homes and throw them out on the
street Perjury is being suborned The fraud on the court marched on
TITLE ISSUES
A qualified exception to the rule that title cannot be tried in an unlawful detainer
proceeding [see Evid Code sect 624 545[1][c]] is contained in CCP sect 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 sect 1161a Vella v Hudgins (1977) 20 C3d 251 255
Words and Phrases
The term duly implies that all of those elements necessary to valid sale exist
Kessler v Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title that is
duly perfected includes good record title but is not limited to good record title Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title is duly perfected
when all steps have been taken to make it perfect that is to convey to purchaser that
which he has purchased valid and good beyond all reasonable doubt Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837
Grossman filed his verified answer on 72310 Denied Par 6 Denied Par 7 alleging
fraud and a rigged sale Denied par 8 that he was served with a Notice to Quit Denied
Par 9 based on failure of service of notice to quit Denied Par 10 Denied paragraphs 11
and 12 First Affirmative Defense Failed to state a cause of action Second Affirmative
PROPOSED STATEMENT ON APPEAL-19-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Defense Not properly verified by Pro Value only Bouzane Third Affirmative Defense No
Notice to Quit Fifth Affirmative Defense Denial of Due Process under the 14th
Amendment Sixth Affirmative Defense Denial of Procedural Due Process under the 14th
Amendment Seventh Affirmative Defense Denial of Equal Protection of the law under the
14 Amendmentth
FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT
1 Service of Notice to Quit
2 Compliance with the law regarding the TD sale
LEGAL ISSUES NOT DECIDED BY THE COURT
1 The two due process arguments under the 14 Amendmentth
2 The equal protection Argument under the 14 Amendmentth
3 Denial of Right to Trial by Jury
PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH
EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE
On 2202009 California enacted into law the California Foreclosure Prevention Act as
an amendment to CC Sec 2923 If Bayview took an assignment from a Lender who was not
the Lender as reflected by the Assignment that the Court wrongfully refused to admit into
evidence and gave it back to me until I requested that the Assignment be marked and that the
Courtrsquos minute order reflect that it was offered and refused on the grounds of relevancy and
no other ground That is reversible error A Trustee appointed by an Assignee without good
title is a nullity and every act that Seaside Trust took was a nullity That Assignment which
should have been admitted would prove the fact of nullity and Grossman would be entitled to
move for judgment when Pro Value rested We request the Court to reverse its original refusal
to admit that Assignment into evidence and then grant judgment to Grossman as the Trusteersquos
Deed is null and void That was my offer of proof of relevancy
PROPOSED STATEMENT ON APPEAL-20-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 Under CC Sec 29235 the lender must contact the borrower At that point of time I
had given notice to Bayview that I was the attorney for the borrower Pro Value has offered no
evidence Grossman fell within the provisions of CC Sec 2923 as the TD offered into evidence
by Pro Value reflects that Grossman entered into the loan during the period from 112003 -
12312007
2 Pro Value offered no evidence that it complied with CC Sec 29236 offered a loan
modification plan to Grossman
3 Pro Value offered no evidence that it complied with CC Sec 2923 or that Bayview
was exempt
4 Pro Value offered no evidence that it complied with the provisions of HARP (12
USC Sec 1524) which was part of the ldquoeconomic stimulusrdquo to prevent foreclosures and
revitalize the housing sector
5 Pursuant to CC Sec 2924 the Trusteersquos Deed will presume the sale to be valid and
conclusively presumed to be valid if Pro Value was a BFP which it was not Pro Value failed to
prove its case for the following reasons (1) it was not the duly appointed Trustee (2) the
backdated and forged assignment allegedly was from the true lender after it went bankrupt
which required Bayview to record a new document appointing Seaside as its Trustee There is
no relation back case cited by Pro Value since it does not exist Even if it existed the law still
required the duly appointed Trustee under the new assignment to record the NOD and NOS
and comply with all of the other provisions of State and Federal Law which it could not and
did not do thereby making the Trusteersquos deed a ldquonullityrdquo without any presumptions of validity
Plaintiff claimed they have complied with CC Sec 2924 in paragraphs 4 thru 7 of
their complaint that they have met the burden of proof in that a sale had occurred and the
trustees Deed establishes this presumption that the sale was ldquoduly Perfectedrdquo and the Civil
has been complied with Defendant claimed that they did not and Plaintiff has submitted
to the court a certified copy of the Notice of Trustees Sale and asked the court to take
judicial notice of said document as well as the Trusteersquos Deed We requested the court to
PROPOSED STATEMENT ON APPEAL-21-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
prepared to prove by his sworn testimony regarding some of the declarations of mailing in
the courtrsquos file that if they were mailed they were never received by me They would have
been impeached and I would file a complaint with the District Attorney to investigate this
perjury The conduct of Bouzane and his agents such as the process server were
designed to deprive people like Grossman of their homes and throw them out on the
street Perjury is being suborned The fraud on the court marched on
TITLE ISSUES
A qualified exception to the rule that title cannot be tried in an unlawful detainer
proceeding [see Evid Code sect 624 545[1][c]] is contained in CCP sect 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 sect 1161a Vella v Hudgins (1977) 20 C3d 251 255
Words and Phrases
The term duly implies that all of those elements necessary to valid sale exist
Kessler v Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title that is
duly perfected includes good record title but is not limited to good record title Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837 Title is duly perfected
when all steps have been taken to make it perfect that is to convey to purchaser that
which he has purchased valid and good beyond all reasonable doubt Kessler v
Bridge (1958 Cal App Dept Super Ct) 161 Cal App 2d Supp 837
Grossman filed his verified answer on 72310 Denied Par 6 Denied Par 7 alleging
fraud and a rigged sale Denied par 8 that he was served with a Notice to Quit Denied
Par 9 based on failure of service of notice to quit Denied Par 10 Denied paragraphs 11
and 12 First Affirmative Defense Failed to state a cause of action Second Affirmative
PROPOSED STATEMENT ON APPEAL-19-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Defense Not properly verified by Pro Value only Bouzane Third Affirmative Defense No
Notice to Quit Fifth Affirmative Defense Denial of Due Process under the 14th
Amendment Sixth Affirmative Defense Denial of Procedural Due Process under the 14th
Amendment Seventh Affirmative Defense Denial of Equal Protection of the law under the
14 Amendmentth
FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT
1 Service of Notice to Quit
2 Compliance with the law regarding the TD sale
LEGAL ISSUES NOT DECIDED BY THE COURT
1 The two due process arguments under the 14 Amendmentth
2 The equal protection Argument under the 14 Amendmentth
3 Denial of Right to Trial by Jury
PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH
EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE
On 2202009 California enacted into law the California Foreclosure Prevention Act as
an amendment to CC Sec 2923 If Bayview took an assignment from a Lender who was not
the Lender as reflected by the Assignment that the Court wrongfully refused to admit into
evidence and gave it back to me until I requested that the Assignment be marked and that the
Courtrsquos minute order reflect that it was offered and refused on the grounds of relevancy and
no other ground That is reversible error A Trustee appointed by an Assignee without good
title is a nullity and every act that Seaside Trust took was a nullity That Assignment which
should have been admitted would prove the fact of nullity and Grossman would be entitled to
move for judgment when Pro Value rested We request the Court to reverse its original refusal
to admit that Assignment into evidence and then grant judgment to Grossman as the Trusteersquos
Deed is null and void That was my offer of proof of relevancy
PROPOSED STATEMENT ON APPEAL-20-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 Under CC Sec 29235 the lender must contact the borrower At that point of time I
had given notice to Bayview that I was the attorney for the borrower Pro Value has offered no
evidence Grossman fell within the provisions of CC Sec 2923 as the TD offered into evidence
by Pro Value reflects that Grossman entered into the loan during the period from 112003 -
12312007
2 Pro Value offered no evidence that it complied with CC Sec 29236 offered a loan
modification plan to Grossman
3 Pro Value offered no evidence that it complied with CC Sec 2923 or that Bayview
was exempt
4 Pro Value offered no evidence that it complied with the provisions of HARP (12
USC Sec 1524) which was part of the ldquoeconomic stimulusrdquo to prevent foreclosures and
revitalize the housing sector
5 Pursuant to CC Sec 2924 the Trusteersquos Deed will presume the sale to be valid and
conclusively presumed to be valid if Pro Value was a BFP which it was not Pro Value failed to
prove its case for the following reasons (1) it was not the duly appointed Trustee (2) the
backdated and forged assignment allegedly was from the true lender after it went bankrupt
which required Bayview to record a new document appointing Seaside as its Trustee There is
no relation back case cited by Pro Value since it does not exist Even if it existed the law still
required the duly appointed Trustee under the new assignment to record the NOD and NOS
and comply with all of the other provisions of State and Federal Law which it could not and
did not do thereby making the Trusteersquos deed a ldquonullityrdquo without any presumptions of validity
Plaintiff claimed they have complied with CC Sec 2924 in paragraphs 4 thru 7 of
their complaint that they have met the burden of proof in that a sale had occurred and the
trustees Deed establishes this presumption that the sale was ldquoduly Perfectedrdquo and the Civil
has been complied with Defendant claimed that they did not and Plaintiff has submitted
to the court a certified copy of the Notice of Trustees Sale and asked the court to take
judicial notice of said document as well as the Trusteersquos Deed We requested the court to
PROPOSED STATEMENT ON APPEAL-21-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Defense Not properly verified by Pro Value only Bouzane Third Affirmative Defense No
Notice to Quit Fifth Affirmative Defense Denial of Due Process under the 14th
Amendment Sixth Affirmative Defense Denial of Procedural Due Process under the 14th
Amendment Seventh Affirmative Defense Denial of Equal Protection of the law under the
14 Amendmentth
FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT
1 Service of Notice to Quit
2 Compliance with the law regarding the TD sale
LEGAL ISSUES NOT DECIDED BY THE COURT
1 The two due process arguments under the 14 Amendmentth
2 The equal protection Argument under the 14 Amendmentth
3 Denial of Right to Trial by Jury
PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH
EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE
On 2202009 California enacted into law the California Foreclosure Prevention Act as
an amendment to CC Sec 2923 If Bayview took an assignment from a Lender who was not
the Lender as reflected by the Assignment that the Court wrongfully refused to admit into
evidence and gave it back to me until I requested that the Assignment be marked and that the
Courtrsquos minute order reflect that it was offered and refused on the grounds of relevancy and
no other ground That is reversible error A Trustee appointed by an Assignee without good
title is a nullity and every act that Seaside Trust took was a nullity That Assignment which
should have been admitted would prove the fact of nullity and Grossman would be entitled to
move for judgment when Pro Value rested We request the Court to reverse its original refusal
to admit that Assignment into evidence and then grant judgment to Grossman as the Trusteersquos
Deed is null and void That was my offer of proof of relevancy
PROPOSED STATEMENT ON APPEAL-20-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 Under CC Sec 29235 the lender must contact the borrower At that point of time I
had given notice to Bayview that I was the attorney for the borrower Pro Value has offered no
evidence Grossman fell within the provisions of CC Sec 2923 as the TD offered into evidence
by Pro Value reflects that Grossman entered into the loan during the period from 112003 -
12312007
2 Pro Value offered no evidence that it complied with CC Sec 29236 offered a loan
modification plan to Grossman
3 Pro Value offered no evidence that it complied with CC Sec 2923 or that Bayview
was exempt
4 Pro Value offered no evidence that it complied with the provisions of HARP (12
USC Sec 1524) which was part of the ldquoeconomic stimulusrdquo to prevent foreclosures and
revitalize the housing sector
5 Pursuant to CC Sec 2924 the Trusteersquos Deed will presume the sale to be valid and
conclusively presumed to be valid if Pro Value was a BFP which it was not Pro Value failed to
prove its case for the following reasons (1) it was not the duly appointed Trustee (2) the
backdated and forged assignment allegedly was from the true lender after it went bankrupt
which required Bayview to record a new document appointing Seaside as its Trustee There is
no relation back case cited by Pro Value since it does not exist Even if it existed the law still
required the duly appointed Trustee under the new assignment to record the NOD and NOS
and comply with all of the other provisions of State and Federal Law which it could not and
did not do thereby making the Trusteersquos deed a ldquonullityrdquo without any presumptions of validity
Plaintiff claimed they have complied with CC Sec 2924 in paragraphs 4 thru 7 of
their complaint that they have met the burden of proof in that a sale had occurred and the
trustees Deed establishes this presumption that the sale was ldquoduly Perfectedrdquo and the Civil
has been complied with Defendant claimed that they did not and Plaintiff has submitted
to the court a certified copy of the Notice of Trustees Sale and asked the court to take
judicial notice of said document as well as the Trusteersquos Deed We requested the court to
PROPOSED STATEMENT ON APPEAL-21-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 Under CC Sec 29235 the lender must contact the borrower At that point of time I
had given notice to Bayview that I was the attorney for the borrower Pro Value has offered no
evidence Grossman fell within the provisions of CC Sec 2923 as the TD offered into evidence
by Pro Value reflects that Grossman entered into the loan during the period from 112003 -
12312007
2 Pro Value offered no evidence that it complied with CC Sec 29236 offered a loan
modification plan to Grossman
3 Pro Value offered no evidence that it complied with CC Sec 2923 or that Bayview
was exempt
4 Pro Value offered no evidence that it complied with the provisions of HARP (12
USC Sec 1524) which was part of the ldquoeconomic stimulusrdquo to prevent foreclosures and
revitalize the housing sector
5 Pursuant to CC Sec 2924 the Trusteersquos Deed will presume the sale to be valid and
conclusively presumed to be valid if Pro Value was a BFP which it was not Pro Value failed to
prove its case for the following reasons (1) it was not the duly appointed Trustee (2) the
backdated and forged assignment allegedly was from the true lender after it went bankrupt
which required Bayview to record a new document appointing Seaside as its Trustee There is
no relation back case cited by Pro Value since it does not exist Even if it existed the law still
required the duly appointed Trustee under the new assignment to record the NOD and NOS
and comply with all of the other provisions of State and Federal Law which it could not and
did not do thereby making the Trusteersquos deed a ldquonullityrdquo without any presumptions of validity
Plaintiff claimed they have complied with CC Sec 2924 in paragraphs 4 thru 7 of
their complaint that they have met the burden of proof in that a sale had occurred and the
trustees Deed establishes this presumption that the sale was ldquoduly Perfectedrdquo and the Civil
has been complied with Defendant claimed that they did not and Plaintiff has submitted
to the court a certified copy of the Notice of Trustees Sale and asked the court to take
judicial notice of said document as well as the Trusteersquos Deed We requested the court to
PROPOSED STATEMENT ON APPEAL-21-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
reverse its prior ruling admitting the Trusteersquos Deed into evidence and to deny its
admission on the grounds of relevancy since pro Value has not and can not establish that
Bayview acting as the assignee of an alleged lender that was never in title duly appointed
Seaside as Trustee Seaside has never been appointed Trustee by any assignee that was
in title on the day of the recordation of the Substitution of Trustee
If the Trustees sale had occurred prior to Sept 62008 plaintiff would prevail but for
other procedural defects in the assignment of the Deed of Trust in Civil Code 29325
prior to sale
A different rule applies in an unlawful detainer action that is brought by the
purchaser after a foreclosure sale His or her right to obtain possession is based upon the
fact that the property has been ldquoduly soldrdquo by foreclosure proceedings CC1161a (b) (3)
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
been complied with as a condition for seeking possession of the property
When the eviction is by a bona fide bidder at the sale the defendant has no
defenses to eviction However as in this case a beneficiary that is the plaintiff in the
unlawful detainer action must prove that it has duly complied with each of the statutory
requirements for foreclosure and the trustor can put these questions in issue in the
unlawful detainer proceeding Miller and Starr 3 10220 rd
Additionally as of Sept 6 2008 additional requirements for a duly perfected
foreclosure were added in 29235 What did SB 1137 do SB 1137 added a number of
new code sections including Civil Code sectsect 29235 and 29248 (which are the ldquonotice
provisionsrdquo of SB 1137 and designated as sections 2 and 4 respectively) Section 29235
requires contact with or due diligence to attempt to contact the borrower before a notice
of default (ldquoNODrdquo) may be recorded after 9-6-08 or continued where the notice of default
was recorded prior to 9-6-08 but the notice of sale (ldquoNOSrdquo) will not be recorded until after
9-6-08 Section 29248 requires a new Notice of Sale to Resident to be posted on the
residential property and mailed to the resident of residential properties (in English and in 5
other languages) as part of the nonjudicial foreclosure process
PROPOSED STATEMENT ON APPEAL-22-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
What Loans are Covered under new Civil Code sect 29235 Civil Code sect 29235 only
applies to (1) Loans made from January 1 2003 to December 31 2007 inclusive
(ldquoCovered Periodrdquo) and (2) loans secured by residential real property that are for owner-
occupied residences For purposes of sect 29235 ldquoowner-occupiedrdquo means that the
residence is the principal residence of the borrower The words ldquomaderdquo and ldquoprincipal
residencerdquo are not defined in the statute leaving uncertainty as to what these terms mean
Further the statutory definition of ldquoresidential propertyrdquo is not limited to 1-4 residential
properties Therefore if one unit in any residential property (eg an apartment building a
residential unit in a mixed use commercialresidential property etc) is owner-occupied as
the borrowerrsquos principal residence the borrower may be considered to be covered under
Section 29235 Lastly while it appears that the legislature intended to cover loans that
were originally intended to be ldquoowner occupiedrdquo the timing of the owner occupancy is also
uncertain Loans meeting the above requirements will be called ldquocovered loansrdquo in this
brief
Any loan that was not made between January 1 2003 through December 31
2007 is not a ldquocovered loanrdquo and is not subject to the provisions of sect 29235 (although it
still requires a ldquoNotice of Sale to Residentrdquo under certain circumstances discussed below)
Preconditions to Recording Notice of Default (ldquoNODrdquo) A trustee beneficiary or
authorized agent may not file a notice of default (ldquoNODrdquo) until (1) 30 days after contact is
made with the borrower as required by section 29235(a) or (2) 30-days after satisfying
the due diligence requirements of section 29235(g) or (3) after qualifying for one of the
exclusions under section 29235(h)
Friedlander posed to the Court the following question How would the Trustee be in
a position of first hand personal knowledge to attest to compliance with the new California
and Federal Law to put a halt to foreclosures The only entity that would know those facts
based on first hand knowledge would be Bayview not the Trustee That put a donut hole
in all non-judicial sales followed by evictions in California
PROPOSED STATEMENT ON APPEAL-23-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
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Contact with the Borrower (Before Foreclosure) The beneficiary or authorized
agent must contact the borrower in person or by telephone in order to (1) Assess the
borrowerrsquos financial situation and (2) Explore options for the borrower to avoid
foreclosure Since many lenders already have policies which may fulfill these
requirements those policies should be reviewed as they are likely to fall short of some of
the new requirements
Assessment of the Borrowers Financial Situation Discussion of Options and Notice
of Borrowerrsquos Right to Have a Meeting with Beneficiary or Agent The assessment of the
borrowerrsquos financial situation and discussion of options may occur during the first contact
or at the subsequent meeting scheduled for that purpose Civil Code sect 29235 gives no
guidance as to what the lender or servicer must do in ldquoassessing the borrowerrsquos financial
situation Similarly there is no guidance as to what if any ldquooptions for the borrower to
avoid foreclosurerdquo should be discussed
During the initial contact the beneficiary or authorized agent must advise the
borrower that he or she has the right to request a subsequent meeting and if requested
the beneficiary or authorized agent shall schedule the meeting to occur within 14 days
(Civ Code sect 29235(a)) A beneficiaryrsquos or authorized agentrsquos loss mitigation personnel
may participate by telephone during any contact required by this section (Civ Code sect
29235(d)(2))
Plaintiff offered no admissible evidence that it complied with these new
legislative provisions
THE LAW ON SERVICE OF NOTICE TO QUIT
1 Service of Notice
Proper service on the tenant of a valid notice to quit is a prerequisite
to a judgment declaring a landlordrsquos right to possession Liebovich v Shahrokhkhany
(1997) 56 CA4th 511 513 65 CR2d 457 (3-day notice to pay rent or quit) The landlord
must allege and prove proper service of the required notice a court may not issue a
judgment for possession in the landlordrsquos favor without evidence that the required notice
PROPOSED STATEMENT ON APPEAL-24-
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was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
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was properly served 56 CA4th at 513 When the fact of service is contested compliance
with one of the statutory methods for service must be shown 56 CA4th at 514 Affidavits
of service may not be relied on at trial to prove the notice to quit was served in accordance
with the statutory requirements the testimony of the person who made the service is
required (56 CA4th at 514) unless service was made by a sheriff marshal or registered
process server (see Evid C sect647 Govt C sectsect26662 71265) Code of Civil Procedure
sect1162 does not require reasonable diligence in attempting personal service before
substituted service may be used Nourafchan v Miner (1985) 169 CA3d 746 750ndash751
215 CR 450 For example if the tenant is not at home or at his or her usual place of
business when personal service is attempted the notice may be served by substituted
service without making further attempts at personal service Substituted service must be
attempted however before service by posting and mailing Hozz v Lewis (1989) 215
CA3d 314 317ndash318 263 CR 577 A person using the posting and mailing method of
service must first have determined that the tenantrsquos residence and business cannot
be ascertained or that a person of suitable age and discretion cannot be found
there Highland Plastics Inc v Enders (1980) 109 CA3d Supp 1 6 167 CR 353 The
issue of ldquosuitable agerdquo depends on the facts of the case See Lehr v Crosby (1981) 123
CA3d Supp 1 6 177 CR 96 (16-year old child was found to be of ldquosuitable agerdquo)
Insufficient service Under CCP sect1162(3) posting of the notice without also mailing the
notice does not constitute sufficient service Jordan v Talbot (1961) 55 C2d 597 609 12
CR 488 Service of a 3-day notice to quit by certified mail return receipt requested is not
by itself a sufficient method of service under either CCP sect1162(2) or CCP sect1162(3)
Liebovich v Shahrokhkhany supra 56 CA4th at 516
Dated February 13 2011
Respectfully submitted
____________________________
Martin S Friedlander Esq
PROPOSED STATEMENT ON APPEAL-25-
