THE LAW OFFICES OF TIMOTHY MCCANDLESS 1 Timothy McCandless, Esq. (SBN 147715) n) Mona Patel. Esq. (SBN 263114) 13240 Amargosa Road Victorville, California 92392 (760) 298-2057 Telephone (909) 494-4214 Facsimile C) PADILLA Attorney for Defendants, Hermenegildo J. Caparas and Juanita R. Caparas SUPERIOR COURT OF THE STATE OF CALIFORNIA 23 AGH COUNTY OF CONTRA COSTA DEUTSCHE BANK NATIONAL TRUST | Case No.: PS09-1331 COMPANY. Plaintiffs, | DEFENDANT'S OPPOSITION TO DEFENDANT DEUTSHE BANK v. NATIONAL TRUST COMP. — gy | TOSTRIKE OF PLAINTIFF’ HERMENEGILDO J, CAPARAS AND | COMPLAINT; MEMORANDUM OF TUANITAR. CAPARAS| | POINTS AND AUTHORITIES IN SUPPORT THEREOF Defendants, | and DOES I through XX inclusive Defendants. Date: November 25, 2009 Dept: TRA TO THE COURT, ALL PARTIES HEREIN, AND THEIR ATTORNEYS OF RECORD: Defendants, Hermenegildo J, Caparas and Juanita R. Caparas, (hereinafter “Defendants”) hereby files their Opposition to Plaintiff Deutsche Bank National Trust Company"s Motion to Strike the answer to the Unlawful Detainer Complaint to he heard on November 25, 2009 at 2:30 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE27 28 pam, in Department TBA of the above-entitled court located at 45 Civic Avenue, Pittsburg, California 94565. Plaintiff's complaint follows an invalid foreclosure sale of Defendant's, which utterly failed to comply with the statutory requirements of California law. Defendants have sufficiently pleaded the specific affirmative defenses involving a eviction proceeding. Dated: November 12, 2009 Timothy L. McCandless, Esq. “Attomey for Defendants, Hermenegildo J. Caparas and Juanita R. Caparas 2 0f7 DEFENDANTS? OPPOSITION TO PLAINTIFF'S MOTION TO STRIKEm4 2 MEMORANDUM OF POINTS AND AUTHORITIES L ST [ENT OF FACTS Defendants, Hermenegildo J. Caparas and Juanita R. Caparas, (“Defendants”) hereby files their Opposition to Plaintiff Deutsche Bank National Trust Company’s Motion to Strike as to the affirmative defenses on the answer for Unlawful Detainer Complaint. Defendants requests| ‘that the affirmative defenses that are sufficiently pled by Plaintiff Deutsche Bank National Trust ‘Company in their Motion to Strike should be overrruled. u. DEFENDANTS HAVE ADEQUATELY PLEADED THE AFFIRMATIVE DEFENSES AND IS WITHIN THE SCOPE OF THE UNLAWFUL DETAINER PROCEEDING 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 “duly sold” 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 30f7 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE2» a n B u 23 2 2 3 10:220 By virtue of the fact that an unlawful detainer involves a forfeiture of the tenant's right to possession, the courts strictly construe the statutory proceedings which regulate it. Kwok v. Bergren, (1982) 130 Cal.App.3d 596, 600,181 Cal.Rptr. 795. The failure of plaintiff to perform ‘a condition precedent, to wit, failure to give defendant notice and a reasonable period to cure a breach of the terms and conditions, cancels the performance of defendant, until the condition precedent is performed according to the terms of the Deed of Trust. In the absence of proof that plaintiff timely performed the condition precedent giving defendant a chance to cure his breach of the terms and conditions of the Deed of Trust, plaintiff cannot proceed with the present action, The plaintiff is a stranger who is not in privity with the tenant/owner, and he must prove that he is authorized by the statute to prosecute an unlawful detainer proceeding pursuant to a properly conducted foreclosure sale. Therefore, the tenant can raise the limited defense that the foreclosure sale is invalid because it was not processed in compliance with the statutes regarding foreclosures, and the plaintiff has the burden of proof that the foreclosure statutes were satisfied by performance of all of the notices and procedures required. Such irregularities should constitute sufficient grounds to set aside the entire non- judicial foreclosure process. Therefore, the affirmative defenses raised in Defendants’ answer to the Unlawful Detainer proceeding belong in the correct pleading. 40f7 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE,2 2B uM 5 28 INCLUSION For the reasons stated above, Plaintiff's Motion to Strike must be denied in its entirety, To the extent that this Court does grant any portion of the Motion to Strike, Defendants respectfully requests that this Court grant it leave to amend to conform their pleadings to 1 Dated: Novebmer 12, 2009 ‘mothy L. McCandless, Esq. Attomey for Defendants, Hermenegildo J. Caparas and Juanita R. Caparas DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE2s 6 7 28 Proof of Service I, Bernie Kimmerle, declare: 1am a citizen of the United States and I am employed in the County of San Bemardino, State of California; I am over the age of 18 years and not a party to this action; my business address is 13420 Amargosa Rd, Victorville, CA. 92392 On November 17, 2009 I served the foregoing document(s) described: PLAINTIFF'S OPPOSITION TO DEFENDAND WELLS FARGO BANK Which were served upon: Michael L. Withem (SBN 83002) ROSENTHAL, WITHEM & ZEFF 16027 Ventura Boulevard, Suite 201 Encino, California 91 436-2763 Telephone: (8 1 8) 789-77 11 Facsimile: (8 18) 986-3875 Attorneys for Plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY In the following manner of service: | |BY PERSONAL SERVICE. I personally delivered the documents to the persons at the address listed above (1) Foraparty represented by an attorney, delivery was made to the attomey or at the attorney's office by leaving the documents, in an envelope or package clearly labeled to identify the attomey being served, with a receptionist or an individual in charge of the office, between the hours of nine in the morning and five in the evening, (2) For a party, delivery was made to the party or by leaving| the documents at the party's residence with some person not younger than 18 years of age between the hours of eight in the moming and six in the evening. 1x BY UNITED STATES MAIL. enclosed the documents in a sealed envelope or package addressed to the person(s) above. 6 of 7 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE( x] deposited the sealed envelope withthe United States Postal Service, with the postage fully repaid. (x ] placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for ‘mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid, | ] BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED. Tenclosed the documents in a sealed envelope or package addressed to the person(s) above. I [deposited these papers with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident of or employed in the county where the notice was mailed. T used certified mail and requested a return receipt. | |BY FAX TRANSMISSION. Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the person(s) at the fax numbers listed above. No error was reported by the fax ‘machine that I used. A copy of the record of the fax transmission, which I printed out, is attached, Executed on November 17, 2009, at Victorville, California. Bemie Kimmerle DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE.