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Douglas D. Brunelle, Pro Per Renee C. Brunelle, Pro Per 8535 Paradise Valley Road Unit #29 Spring Valley, California 91977 Tel 619-871-2991

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO EAST COUNTY REGIONAL CENTER

FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff,

VS.

Case No.: 37-2012-00034472-CL-UD-EC DEFENDANT'S TRIAL BRIEF IMAGED FILE Trial Date: July 11, 2012 Trial Time: 8:30am Trial Dept: E-14

DOUGLAS D. BRUNELLE, RENEE C. BRUNELLE and Does 1-50, inclusive, Defendants.

Dated: July 4, 2012

[DEFENDANT'S TRIAL BRIEF]

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TABLE OF CONTENTS

INTRODUCTION I. SUMMARY OF ARGUMENT

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A) Attorney Verification Loses Rebuttable Presumption B) Trustee Deed Upon Sale violates CCC 2924b(b)(2) C) Failure to Comply with CCC 2924(a)(1)(C) D) Failure to Comply with CCC $2924a E) Subject Matter Exceeds Court's Jurisdictional Authority F) Tender Does Not Apply G) Allegations of Fraud Must Be Heard Before the Unlawful Detainer II. CONCLUSION III. PRAYER

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Cases

Asuncion v Superior Court (1980) 108 CA3d 141, 145-146, 166 CR 306 Bank of America v. LaIolla Group II, 129 Cal.App. 4th 706, 710,717 (5th Dist.
2005

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Bittleston Law etc. Agency v. Howard (1916) 172 Cal. 357, 360 [156 P. 515] Consolidated Theatres, Inc. v. Theatrical Stage Employees Union, Local 16
(1968) 69 Cal. 2d 713, 721

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Decamp v Kensington Corp (1978) 83 Cal. App.3d 268, 275 Evans v. Sup.Ct. (Robbins) (1977) 67 Ca1.App.3d 162, 169

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Hewitt v. Justice's Court, 131 Cal.App. 439, 443 [21 P.2d 641] Kartheiser v. Superior Court (1959) 174 Cal.App.2d 617, 620 Keiffer v. Bechtel Corp (1998) 65 Cal.App.4th 893, 896 Mofrriage of Oddino (1997) 16 Ca1.4th 67, 73 Mehr v Superior Court (1983) 139 CA3d 1044, 1049, 189 CR 138 Nineteenth Realty Co. v. Diggs, 134 Cal.App. 278, 289 [25 P.2d 522] Old National Financial Services, Inc. v. Seibert (1987) 194 Cal.App.3d
46Q, 465

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

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

al.App.4th 182, 187-188

Seidel' v. Anglo-California Trust Co., 55 Ca1.App.2d 913, 920 [132 P.2d 12] 10 Vella v. Hudgins (1977) 20 Ca1.3d 251, 255

Statutes California Evidence Code 403(a) California Evidence Code 500 California Evidence Code 1271 California Evidence Code 1530(a)(2) California Evidence Code 1561 California Civil Code 446 California Civil Code 2924 California Civil Code 2924(a)(1)(C) California Civil Code 2924H(b)2 California Code of Civil Procedure 1161 a California Code of Civil Procedure 1161a(b)(3) 8 7 8 7 8 5, 6 4, 5, 10, 12, 13, 14 11 9, 10 10, 13, 14, 15 4, 5, 10, 14

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Otier Authorities
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California Rules of Professional Conduct 5-210(c) Miller and Star 3 r1 10:220

INFTRODUCTION

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

than between landlord and tenant, and title is at issue.

Mehr v Superior Court

(1983) 139 CA3d 1044, 1049, 189 CR 138 (because of summary nature of unlawful detainer proceedings, it is unsuitable forum to try complicated ownership issues) '. Asuncion v Superior Court (1980) 108 CA3d 141, 145-146, 166 CR 306 (eviction of homeowners following foreclosure raises due process issues and must be heard in superior court).

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A different rule applies in an unlawful detainer action that is brought by the purchaser after a foreclosure sale. His or her right to obtain possession is based upon the presumption that the property has been "duly sold" by foreclosure proceedings, CCC 1161 a (b) (3) and therefore it is necessary that the plaintiff prove each of the statutory procedures has been complied with as a condition for seeking possession of the property.

In an unlawful detainer action, the Plaintiff must prove that it has duly complied with each of the statutory requirements for foreclosure, and the trustor can put these questions in issue in the unlawful detainer proceeding. Miller and Star 3 rd 10:220.

[DEFENDANT'S TRIAL BRIEF I

Plaintiff relies on one key element in its Unlawful Detainer the Trustee Deed Upon Sale, which inaccurately reflects "FEDERAL NATIONAL MORTGAGE ASSOCIATION (a/k/a "Fannie Mae") as the "foreclosing beneficiary" entitled to purchase the property through a credit bid which is in violation of CCC 2924. Defendant's allegations demonstrate that the Trustee Deed Upon Sale fraudulently names Federal National Mortgage Association as the beneficiary. Defendant herein alleges that CCC 1161a(b)(3), which mandates that the Plaintiff comply with CCC 2924 and duly perfect title, has been violated in that the Trustee Sale violated CCC 2924 and will not support an Unlawful Detainer action.

1. SUMMARY OF ARGUMENT
A. ATTORNEY VERIFICATION LOSES REBUTTABLE PRESUMPTION

When an attorney verifies the complaint, CCC 446 is clear that the pleadings "shall not otherwise be considered as an affidavit or declaration
establishing the facts therein alleged". Case law is clear that attorney verification

is to be discouraged and should receive a strict construction, and even when that strict construction is applied, no facts are established within the Complaint.

Getting verification from a party that resides in the next county is no longer a significant challenge. The Court, in Decamp v Kensington Corp., (1978) 83 Cal. App.3d 268, 275 clearly recognized the progression of our ability to communicate quickly and that the problems of distance no longer presented the impossibility of client verification, so much so that the Court proclaimed, "if the client can be

[DEFENDANT'S TRIAL BRIEF]

reached by mail, no such possibility exists... and the attorney verification is not
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allowed."
The attorney points out in his/her verification (s)he "read the foregoing

document and know its contents" and "I am in./brined and believe" and on that
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ground alleges that matters stated herein are true. His/Her verification is based on

"informed and believe" not personal knowledge. One can almost read into this
that the attorney is standing in the shoes of the Plaintiff and acting as a witness to the allegations of the Unlawful Detainer Complaint, and as such, at the minimum there should be a written authorization by the Plaintiff allowing the attorney to stand in their shoes and act as their "witness" (See California Rules of

Professional Conduct 5-2100)

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

(Bittleston Law etc. Agency v. Howard (1916) 172 Cal. 357, 360 [156 P.
515].) According to CCP 446 "When the verification is made by the attorney ....in those cases the pleadings shall not otherwise be considered as an affidavit or declaration establishing the facts therein alleged." (Emphasis added) Nowhere in the Plaintiff's pleadings is there a single declaration or affidavit by the Plaintiff on any of the alleged "facts". Every document completed is by some individual that is swearing under penalty of perjury, "upon information and

belief", not of personal knowledge. Unlawful Detainers, like foreclosures, are a *aconian and drastic measure whose serious nature should warrant more than

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a signature based on hearsay evidence', and every homeowner should be given the opportunity to either present competent evidence or cross examine the individuals who are "claiming the truthfulness" of recitals and "information and

belief".
The very nature of a "prima facie" case is such that a legal proceeding should commence in which the "prima facie" evidence is tested before a court ruling is made. By virtue of the attorney verification, Plaintiff willingly forgoes any "presumptions" and must therefore prove each "element" and "fact" that the recitals in the Trustee Deed Upon Sale is based on.

California Codes (evidence, civil and procedure) clearly state that business re ords are nothing more than hearsay unless and if they are supported by co npetent testimony, that rebuttable presumption is lost upon contest from the opposing party, that a party to the matter choosing to verify through their attorney

foregoes establishing the facts.

California Evidence Code 500 states: Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting."

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

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

copy" however all the recording of the TDUS proves is it was recorded;
iWebster definition of Hearsay evidence: evidence based not on a witness's personal knowledge but on

another's statement not made under oath

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according to California Evidence Codes 403 2 and 1271 3 , the recording of the TDUS does not establish the proof of the

preliminary facts nor does it overcome

the hearsay rule of the recitals in the document unless and only if, there is competent testimony to support the facts asserted within the document. Neither an attorney nor a realtor can attest to and testify as to the validity and truthfulness of the contents and recitals of the documents. California Evidence Code 1561 requires Plaintiff to provide evidence about the source of information and how the TDUS was prepared; it is clear that the document was not prepared by Plaintiff but rather the improper Trustee cl4iming to have conducted the Trustee Sale. Defendant has the right to question the preparation and validity of the contents of the document.

Defendant hereby objects to the Trustee Deed Upon Sale being entered into evidence, as Defendants affirmative defense challenges the contents of the ddcuments as hearsay.
2alifornia Evidence Code 403 (a) states "The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact. and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact. when: (I) The relevance of the proffered evidence depends on the existence of the preliminary fact: (2) The preliminary fact is the personal knowledge of a witness concerning the subject matter of his testimony: (3) The preliminary fact is the authenticity of a writing; or (4) The proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself. 3California Evidence Code 1271: Evidence of a writing made as a record of an act. condition, or event is not made inadmissible by the hearsay rule when offered to prove the act. condition. or event if: (a) The writing was made in the regular course of a business: (b) The writing was made at or near the time of the act. condition. or event: (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation: and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

1DEFENDANT'S TRIAL BRIEF]

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B. TRUSTEE DEED UPON SALE VIOLATES CCC

2924(B)(2)

In Bank of America v. LaJolla Group II, 129 Cal.App. 4th 706, 710,717 (5th Dist. 2005) the Court found, "No statute creates a presumption conclusive or otherwise for any purchaser
bona tide or otherwise that any recitals in a

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truse'dnfctivaslehdnotrcuabsi."

In this matter Defendant's Deed of Trust (Certified copy of pages 1 and 2, and the signature page of the Deed of Trust, Instrument Number 2005-0984778, attached as "Exhibit A") reflects that the Lender is First National Bank of Arizona, MFRS is the "nominee" of the Lender and its successor and/or assigns, and the Trustee is First American Title Company.

In this matter Plaintiff relies on the recitals and "statutory presumption" of the Trustee Deed Upon Sale and Unlawful Detainer. "Statutory presumption" is

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afforded only to those Plaintiffs who verify the ,complaint, not to attorney verifications; and there is no evidence that First National Bank of Arizona or WRS has assigned the Note or Deed of Trust to Federal National Mortgage Msociation.
(2) to require the last and highest bidder to deposit. if not deposited previously, the full amount of the bidder's final bid in cash, a cashier's check drawn on a state or national bank. a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state. or a cash equivalent which has been designated in the notice of sale as acceptable to the trustee. immediately prior to the completion of the sale. the completion of the sale being so announced by the fall of the hammer or in another customary manner. The present beneficiary of the deed of trust under foreclosure shall have the right to offset his or her bid or bids only to the extent of the total amount due the beneficiary including the trustee's fees and expenses.

'DEFENDANT'S TRIAL BRIEF]

"Under such unlawful detainer statutes it has been held that title, to the extent required by section 1161a, 'not only may, but must, be tried in such actions if the provisions of the statutes extending the remedy beyond the cases where the conventional relation of landlord and tenant exists are not to be judicially nullified.' " (Seidell v. Anglo-California Trust Co., 55 Cal.App.2d 913, 920 [132 P.2d 12].) To same effect, see Hewitt v. Justice's Court, 131 Cal.App. 439, 443 [21 P.2d 641]; Kartheiser v. Superior Court (1959) 174 Cal.App.2d 617, 620; See also Nineteenth Realty Co. v. Diggs, 134 Cal.App. 278. 289 [25 P.2d 522]

Furthermore, Kessler reaffirmed the jurisdiction of the unlawful detainer court to hear equitable defenses, specifically noting that the validity of the sale and trustee's deed are properly raised as defense in an action under CCP 1161a(b)(3) Id at 840.

In an action for unlawful detainer, section 1161a requires proof that the property was -duly sold in accordance with Section 2924 of the Civil Code." Title, to the extent required by section 1161a, "not only may, but must, be tried in such actions." Kartheiser v. Superior Court (1959) 174 Call. App. 2d 617, 620.

As such, the Trustee Deed Upon Sale naming "Federal National Mortgage Association" as the foreclosing beneficiary who did a credit bid is in direct violation of CCC 2924h(b)(2) and therefore possession MUST BE DENIED.

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C.

FAILURE TO COMPLY WITH CALIFORNIA CIVIL CODE

2924(A)(1)(C)

Plaintiff has the burden to demonstrate the sale was held in accordance with the law, Plaintiff is required to present evidence at trial showing the party that elected to conduct the sale under CCC 2924(a)(1)(C) had the requisite legal

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authority to do so. The "electing beneficiary" must have legal power deriving from the original Note or Deed of Trust. Otherwise, the statute does not permit a sale to take place. In this matter, First National Bank of Arizona is the named 1,6nder on the Note and Deed of Trust; Defendant denies Federal National Mortgage Association has any rights to the Note and Deed of Trust. Plaintiff has provided no evidence that Federal National Mortgage Association became the "foreclosing beneficiary". The statute does not empower a stranger to elect the remedy of sale.

D.

FAILURE TO COMPLY WITH CCC

2924A

Any notices listing Northwest Trustee Services as the trustee were improper and incorrect, making the recitals in regards to the Notices defective.

E. SUBJECT MATTER EXCEEDS COURTS JURISDICTIONAL AUTHORITY

Subject matter jurisdiction is always at issue, whether or not raised in the tri 1 court. See Consolidated Theatres, Inc. v. Theatrical Stage Employees Union,

Local 16 (1968) 69 Cal. 2d 713, 721; San Joaquin County Human Services Agency v. Marcus W. (2010) 185 Cal.App.4th 182, 187-188; Marriage of Oddino
(1997) 16 Ca1.4th 67, 73; Keilfrr v. Bechtel Corp. (1998) 65 Cal.App.4th 893, 896.

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The Unlawful Detainer Court is a Limited Jurisdiction and as such lacks the
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jurisdiction in which to award title. If the Unlawful Detainer Court recognizes that title is at issue and needs to be awarded not just determined, then the Unlawful Detainer Court is obligated to reclassify the case to the unlimited jurisdiction, or stay the proceeding until the final outcome of the issues of title are . resolved. "If the court in which the action is filed does not have the power to adjudicate the action, the proceedings are void." Marlow v. Campbell (1992) 7 Cal.App.4th 921, 928, 9 Cal.Rptr.2d 516, 520.

Defendant hereby does allege that the Trustee Deed Upon Sale is fatally defective and the Trustee Sale should be canceled and set aside. Defendant realizes this is beyond this courts jurisdiction and respectfully requests this matter be remanded to the appropriate Unlimited Jurisdiction Court.

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F. TENDER IS NOT REQUIRED FOR DETERMINING POSSESSION

There is no tender required to determine possession. Tender is only required to determine and return title. Stating that a Plaintiff has not perfected title is not the same as awarding title to the Defendant.

The Unlawful Detainer Court is asked to listen to evidence as to WHY the Plaintiff has not perfected title and has not complied with CCC 2924 statute upon which to base the Unlawful Detainer Complaint and to recognize the issue of title is being litigated in the Supreme Court Of The State Of New York, County Of New York, Index No. 151436/2012 (Attached as "Exhibit B"). The Court's or4 job is to determine if title has been duly perfect and if CCC 2924 has been followed the law does not allow for the Unlawful Detainer court to award the

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title to defendant. As such the Unlawful Detainer Court would be in error in demanding tender in order for Defendant to be heard on the affirmative defense that Plaintiff has not followed CCC 2924 and duly perfected title as required by CCC 1161(b)(3) upon which to support the Unlawful Detainer.

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G.

ALLEGATIONS OF FRAUD MUST BE HEARD BEFORE THE UNLAWFUL DETAINER

In an unlawful detainer action the Plaintiff is seeking to establish their right to possession under CCP Sec. 1161 a, under which Plaintiff is obligated to show it has perfected title. An "eviction after foreclosure . . . sale under CCP Sec. 1161a requires the purchaser seeking eviction to have 'duly perfected' title. Thus, in Sec. 1161a UDs, a plaintiff's lack of perfected title is a defense." Friedman, Garcia & Flagarty, Landlord-Tenant (The Rutter Group) Sec. 8:388, citing Vella v. Hudgins (1977) 20 Ca1.3d 251, 255 and Evans v. Sup.Ct. (Robbins) (1977) 67 Cal.App.3d 162, 169.

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The Vella court states: "A qualified exception to the rule that title cannot be tried in unlawful detainer is contained in Code of Civil Procedure section 1161a, which extends the summary eviction remedy beyond the conventional landlordtenant relationship to include certain purchasers of property . . . . CCP Section 1161a provides for a narrow and sharply focused examination of title." Vella, supra, 20 Ca1.3d 251 at 255.

Because of its summary character, an unlawful detainer action is not a suitable vehicle for trying complicated ownership issues involving allegations of rand. Mehr v Superior Court (1983) 139 CA3d 1044, 1049, 189 CR 138. See

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Berry v Society of Saint Pius X (1999) 69 CA4th 354, 363, 81 CR2d 574 (title cannot generally be tried in unlawful detainer action); Asuncion v Superior Court
(1980) 108 CA3d 141, 145-146, 166 CR 306 (eviction of homeowners following foreclosure raises due process issues and cannot be heard as part of summary unlawful detainer proceeding). Issues extrinsic to the right of possession are generally excluded even though they arise out of the parties' landlord-tenant relationship. E.S. Bills, Inc. v Tzucanow (1985) 38 C3d 824, 830, 215 CR 278;

Saberi v Bakhliari (1985) 169 CA3d 509, 515, 215 CR 359. (Emphasis added)
For these reasons, justice demands that the unlawful detainer action be stayed until the allegations of fraud are heard in the related case.

II. CONCLUSION Defendant adamantly denies that Respondent "acquired the property in

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accordance with CCC 2924 and duly perfected title". CCC 1161a(b)(3) is clear that Plaintiff must prove compliance with CCC 2924 and having had duly perfected title beyond all reasonable doubt.

The fundamental issue in an unlawful detainer proceeding is the plaintiffs right to possession. (See Old National Financial Services, Inc. v. Seibert (1987) 194 Cal.App.3d 460, 465.) But where, as here, the unlawful detainer action is brought pursuant to Code of Civil Procedure section 1161a, subdivision (b)(3) the Plaintiff must show "[w]here the property has been sold in accordance with Section 2924 of the Civil Code, under a power of sale contained in a deed of trust . and the title under the sale has been duly perfected." A purchaser of the

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ly

prbperty as described in the statute, who starts an unlawful detainer proceeding to evict an occupant in possession, must show that he or she acquired the property at

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a regularly conducted sale and thereafter "duly perfected" the title [CCP 1161a; Vella v. Hudgins (1977) 20 C3d 251, 255, 142 CR 414, 572 P2d 28 ]. Here Plaintiff relies on the defective Trustee Deed Upon Sale and possession therefore, MUST BE DENIED.

III.

PRAYER

1. That this Court will deny Plaintiff possession of Defendant's property. 2. That the matter be stayed until the final outcome of the litigation on title is resolved. 3. That the Plaintiff be ordered to pay Defendant all costs in this matter.

D4te:

1-1 eat)

DEFENDANT, in pro per

'AR-ez-ruzsz_ C DEFENDANT, in pro per

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