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MYRIAM AGUILAR 13694 DEL HAVEN STREET VICTORVILLE, CA 92392 TELEPHONE NO. (760)243-2698
DEFENDANT IN PRO PER
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN BERNARDINO
FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff, vs. MYRIAM AGUILAR, AND DOE 1 THROUGH 10, inclusive, Defendants.
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Case No.: UDVS904170 NOTICE OF MOTION AND MOTION FOR RELIEF PURSUANT TO THE PROVISIONS OF CCP §473(b); MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION(S) IN SUPPORT THEREOF Complaint Filed: Judge Assigned: Dept.: Trial Date: None Date: Time: Dept:
TO THE HONOURABLE COURT, AND TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on______________________2010
at____________p.m., or as soon thereafter as the matter may be heard in department of the above-entitled court, located at14455 Civic Drive Victorville, CA 92392, Defendant Myriam
Notice of Motion and Motion to Vacate Default and Default Judgment - 1
and judgment entered against her on February 25. This motion will be made on the grounds that the order was taken against the Defendants as a result of the mistake. default judgment. will and hereby does move the Court for an Order to Set Aside the default. DATED: October 3. and such other evidence. DFENDANT IN PRO PER Notice of Motion and Motion to Vacate Default and Default Judgment . the accompanying Declaration of Myriam Aguilar-Melgarejo.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 Aguilar-Melgarejo (“Aguilar”). 2010 By: Myriam Aguilar-Melgarejo. the attached Memorandum of Points and Authorities.2 . inadvertence or excusable neglect of Defendant. The motion will be based on this Notice of Motion. 2010. as maybe presented at the hearing of this motion. oral or documentary.
2009. Defendant paid Ms. who lead her to believe that there was a significant amount of fraud throughout her mortgage and therefore. Sosa's program. Myriam Aguilar believed Ms. 2009.1 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 MEMORANDUM OF POINTS AND AUTHORITIES I. that within a six week period of time she would purchase her home in a short sale or by other means of negotiation with the bank and that she would then become the “new lender”. suggested that since she was a very wealthy investor who wished to help first language Spanish speaking Latino immigrants. Notice of Motion and Motion to Vacate Default and Default Judgment .000. INTRODUCTON This is an action for eviction after foreclosure on a note and deed of trust. On or about September 11. so that she could hold the title jointly until the total amount on the Promissory Note was paid. and Defendant joined Ms. defendant. Sosa came highly recommended by number of people in the area who had just joined Ms. Because Ms. Sosa. and had a loan program.3 . She offered Defendant a 5% fixed annual interest rate until the current market value of the home was paid off. she also singed a payment plan in the form of a promissory note. II. Sosa an upfront advance fee of $10. Aguilar was approached by Joana Sosa. defendant. Myriam Aguilar signed a Grant Deed transferring the title over to Ms. Up until this point the payments on her Mortgage had been current. In addition. the Plaintiff commenced this action on December 31. Ms. Therefore. FACTS RELATED TO THIS MOTION Unbeknownst to Defendant Myriam Aguilar.00 to commence the program with an agreement of monthly payments to follow. Sosa's program including a trusted friend who was English speaking Probation Officer for the State of California. Sosa. Defendant signed a Power of Attorney allowing her to speak directly to the bank regarding her Mortgages.
In fact.4 .C. Recently. sometime in February 2010. Aguilar and on or about February 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 Thereafter. Upon recently realizing what was happening. A true and correct copy of this letter is attached hereto as Exhibit “B”. Sosa. a written Notice of Breach of Contract and Notice of Demand have been sent to Joana Sosa.P. however. 2010. to assist her in unraveling the mess that had been created. including the Motion to Strike that was filed on or about January 6. demanding that she return the money that has been paid to her. Sosa that it was all part of the program. When she was served with a copy of the summons and complaint filed against her. DISCUSSION OF LAW THE COURT SHOULD GRANT DEFENDANT’S MOTION TO SET ASIDE THE DEFAULTAND DEFAULT JUDGMENT UNDER C. he proposed a Stipulation on behalf of the Defendant proposing key for cash alternative. . §473 (b) ON THE GROUNDS THAT THE DEFENDANT WAS SURPRISED TO FIND OUT THAT A COMPLAINT FOR UNLAWFUL DETAINER HAD BEEN FILED AGAINST HER Notice of Motion and Motion to Vacate Default and Default Judgment . Plaintiff’s never formally responded to the proposed terms. III. The Defendant being a woman of limited means was ignorant of the dealings that were happening around her. Ms. Attached please find a true and correct copy of a declaration from Hector Benjuema marked and entered as Exhibit “A”. Ms. 2010. Sosa used a number of deceptive practices for the sole purpose of delaying the foreclosure and eviction process. the Defendant contacted Hector Benjumea. nor did Plaintiff ever serve Attorney Benjumea with any notices in connection with the Unlawful Detainer action. Esq. It was then that she learned that she had in fact lost her property in a trustee sale and that there was a complaint filed against her for Unlawful Detainer. Mr. she was assured by Ms. Also attached hereto is Defendant’s “Proposed Answer” marked and entered as Exhibit”C”. failed to provide such proof. to not worry about to just continue to pay her monthly payments to her. Defendant began requesting documentation and proof that the transaction had been done. Benjumea was retained to represent Ms.
dismissal. and that Default and Judgment have been entered against her. She was under the knowledge and belief that Ms.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 CCP § 473(b) provides as follow: “The court may. dismissal. the court shall. and is accompanied by an attorney's sworn affidavit attesting to his or her mistake. otherwise the application shall not be granted. surprise. ‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default’. CCP § 473(b) further provides as follow: “Notwithstanding any other requirements of this section." In the instant case.” Our Supreme Court has held that in light of this policy. or neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein. inadvertence. believed that by making the monthly payments to her that her property was secure. “Because the law favors disposing of cases on their merits. Notice of Motion and Motion to Vacate Default and Default Judgment . after the judgment. surprise. inadvertence. upon any terms as may be just. order. order. as outlined above. 980. any doubts as to whether relief should be granted should be resolved in favor of granting relief from default. Defendant Aguilar has no idea of that an unlawful detainer had been filed against her. and shall be made within a reasonable time. or other proceeding taken against him or her through his or her mistake. and which will result in entry of a default judgment. or excusable neglect. much less that her property had already been lost in a trustee sale. Sosa has purchased the property and therefore.” Rappleyea v. vacate any (1) resulting default entered by the clerk against his or her client. unless the court finds that the default or dismissal was not in fact caused by the attorneys mistake. it was to Defendant’s unexpected surprise that instant case had already progressed as far as it had. whenever an application for relief is made no more than six months after entry of judgment. inadvertence. relieve a party or his or her legal representative from a judgment.5 . 4th 975. or proceeding was taken. or (2) resulting default judgment or dismissal entered against his or her client. Therefore. surprise. Campbell (1994) 8 Cal. is in proper form. or neglect. in no case exceeding six months.
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 CONCLUSION The interests of justice will be served by the granting of this application.6 . DEFENDANT IN PRO PER Notice of Motion and Motion to Vacate Default and Default Judgment . DATED: October 3. 2010 By: __________ Myriam Teresa Aguilar.
in the City of Victorville. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed on October 3.1 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 DECLARATION OF MYRIAM TERESA AGUILAR I.7 . 3. thereby depriving me of due process of law. MYRIAM THERESA AGUILAR. ____________________________________ Myriam Theresa Aguilar.” and declare the facts therein to be true and correct. I am the Defendant in the above entitled action and if called as a witness. declare as follows: 1. I could and would testify competently to the matters set forth in this declaration. I am the author of the “Facts Related to this Motion. The failure to appear in this instant action and present evidence at the trial of this matter was a result of the surprise that Plaintiff’s counsel filed a complaint for Unlawful Detainer and subsequent Default and Judgment. County of San Bernardino. 2010. DECLARANT Notice of Motion and Motion to Vacate Default and Default Judgment .
: UDVS904170 [PROPOSED] ORDER Dated: Time: Dept: Having heard Defendant’s Motion for Order Vacating and Setting Aside Default and Default Judgment. (760) DEFENDANT IN PRO PER SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN BERNARDINO FEDERAL NATIONAL MORTGAGE ASSOCIATION. CA 92392 TELEPHONE NO. AND DOES 1 THROUGH 10. IT’S SO ORDERED Dated: By: _____________________________________ Superior Court Judge Notice of Motion and Motion to Vacate Default and Default Judgment . ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. inclusive. vs.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 MYRIAM AGUILAR 13694 DEL HAVEN STREET VICTORVILLE. which came on regularly on ___________________. The Court Orders that the Default and Default Judgment entered against Myriam Aguilar-Melgarejo be set aside. Defendants. Plaintiff.8 . MYRIAM AGUILAR MELGAREJO.
State of California. at Lake Elsinore. DECLARATION OF JOSE J. my business address is as follows: _____________________ _____________________________________________________________________________ On May _____. California _______________________________ Notice of Motion and Motion to Vacate Default and Default Judgment .m. LAW OFFICES OF LES ZIEVE 18377 BEACH BLVD. COUNTY OF SAN BERNARDINO I reside in the County of San Bernardino. Executed on March _____.m. ESQ. I am over the age of 18 years and not a party to the action. at approximately ______________a. AND [PROPOSED ORDER on interested as follows: LES ZIEVE. CA 92648  (BY MAIL) I caused such envelope with postage thereon fully prepaid to be deposited in the United States mail at Montclair. California.9 . 2010./p. [x] (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 2010. I faxed a copy of the above mentioned documents to fax number (818) 986-3875 . 2009. MEMORANDUM OF POINTS AND AUTHORITIES. I served the specified documents: NOTICE OF MOTION AND MOTION FOR ORDER VACATING AND SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT. MICHAEL GONZLAES. [ ] (BY FAX) On ______________________. VALDES.ESQ. STE.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 PROOF OF SERVICE STATE OF CALIFORNIA. 210 HUNTINGTON BEACH.
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