JOHN E. BOUZANE, SBN: 79804 LAW OFFICES OF JOHN E. BOUZANE 634 OAK COURT SAN BERANRDINO, CA 92410 (909) 889-5151 FAX: 909-889-3900 Attorneys for Plaintiff SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF STANISLAUS Case No.: 648068 PLAINTIFF'S REQUEST FOR AN EVIDENCE CODE § 402/403 HEARING U.S. BANK NATIONAL ASSOCIATION } vs. | TRC DATE: 8/5/10 Plaintiff, TIME: 8:30 A.M. ANTHONY J. MARTIN bert oe Defendants TO ALL INTERESTED PARTIES AND TO THEIR ATTORNEYS OF RECORD: Plaintiff, U. S. Bank National Association, etc. hereby submits the following request for an Evidence Code § 402/403 hearing on Defendant's Affirmative Defenses. This request is made on the grounds that Defendants have the burden to rebut | the presumption of validity afforded to trustee's deed upon sale. In the instant case, Defendant contends that Plaintiff does not have standing to bring this action REQUEST FOR EVIDENCE CODE 402/403 HEART3 uw 15 16 7 18 as 20 Plaintiff contends that its predecessor in interest, Downey Savings & Loan, acquired the subject property at a properly conducted Trustee’s sale, that the Trustee's | Deed Upon Sale was perfected and that Defendant's loan was sold to U.S. Bank National Association through the FDIC. Plaintiff also contends that (1) that under Evidence Code § 1600 the recorded trustee's deed is to be presumed to be valid; (2) that Defendant bears the burden of rebutting that presumption; (3) that Civil Code § 2924c holds that the trustee’s deed upon sale is presumptively presumed to be valid; and (4) that Defendants proffered Defenses are not relevant to the issues involved in this case. Plaintiffs believe that an Evidence Code § 402/403 hearing is appropriate in this case Plaintiff's also believe that Defendant, has the burden to disprove the validity of the Trustee's Deed Upon Sale, and that prior to allowing Defendant to argue it's affirmative defenses to the jury, it must first make an offer of proof showing that Defendant has a valid defense. This is not a question of fact to go before the jury but a question of law for the court to decide. Finally, Plaintiffs contend that the issues proffered by Defendant's answer are not| relevant to the issues of this post foreclosure unlawful delainer action and may also be cause significant confusion and increase in trial time. Dated: 8/3/10 Law Offices of John E. Bouzane By: John F/Bouzane REQUEST FOR ICE CODE 402/403 SEARING - 2” 18 19 20 MEMORANDUM OF POINTS AND AUTHORITES 1 ‘STATEMENT OF FACTS The following is a brief statement of facts that will be presented at the Evidence Code 402/403 hearing if the court grants this motion This is 2 post foreclosure unlawful detainer action brought pursuant to Code of Civil Procedure § 1161a. The salient facts of this action are (1) Downey Savings and Loan was the foreclosing beneficiary at a trustee's sale that was concluded on 6/15/09; (2) the Trustee's Deed was recorded on 5/22/09; (3) Defendant was lawfully served with a 3/90 Foreclosure Notice to Quit; and (4) on 41/21/08 Plaintiff, U.S. Bank National Association] acquired all loans and loan commitments of Downey Savings and Loan through an assumption agreement with the FDIC. " | AN EVIDENCE CODE § 402/403 HEARING IS PROPER BEFORE DEFENDANTS IS ALLOWED TO DISCUSS HIS AFFIRMATIVE DEFENSES Defendants’ challenge to this unlawful detainer case is that (1) Plaintiff does not have standing to bring this action; and (2) that the trustee's sale and trustee's deed is || invalid because of pre-sale procedural deficiencies Code of Civil Procedure § 402 states: “(a) When the existerice of a preliminary fact is disputed, its existence o nonexistence shall be determined as provided in this article. (b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury (©) A ruling on the admissibility of evidence implies whatever finding of fact id prerequisite thereto; a separate or formal finding is unnecessary unless required b) REQUEST FOR EVIDENCE CODE 402/403 HEARING - 319 a 12 statute. The purpose of a § 402/403 hearing is for the court to determine the admissibility of evidence, outside the hearing of the jury, by first determining whether the party preferring such evidence can prove the preliminary fact or facts upon which the admissibility of such evidence would rest. In the instant case Defendant contends that Plaintiff does not have standing to bring this action and the trustee's deed upon sale is in valid due to pre-sale procedural deficiencies. Plaintiff is requesting an Evidence Code § 402/403 hearing to determine if Defendant can produce any evidence in support of his contention. If not, then Defendant should be precluded from introducing any evidence on these issues and should be preciuded from arguing his allegation in front of the jury. Law Offices of John E. Bouzane By: von) Bouzane 7 ICE CODE 402/403 HEARING - 4 REQUEST FOR EV1DEPROOF OF SERVIC 1, Jack Golden, declare: Tam employed at 634 Oak Court, San Bernardino, California and 1 am not a party to this action and | am over the age of 18. On 8/4/10 I served Plaintiff's Request for an Evidence Code 402/403 hearing on the following interested parties Timothy L. McCandless, Esq Law Offices of Timothy L. McCandless 1881 Business Center Drive San Bernardino, CA 92410 _ By: Regular Mail __ By: Overnight mail to the above-named parties, 1 am familiar with the practices of the Law Offices of John E. Bouzane and I declare that on penalty of perjury that I deposited in the depository box for ON TRAC, a overnight mail service a sealed envelope containing the packages described above with instructions that said envelope be delivered (o the interested parties described above. __By faxing said documents to: J declare under penalty of perjury that the foregoing is true and correct | further declare that J am employed in the office of the member of the bar of this court at whose direction the service was made. _x_ By Personal Service. Temployed in the Office of a Member of Bar at whose direction these documents were served, Executed on 8/4/10 at San Bernardino, CA, 92410