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MYRIAM AGUILAR

1 13694 DEL HAVEN STREET


VICTORVILLE, CA 92392
2 TELEPHONE NO. (760)243-2698
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DEFENDANT IN PRO PER
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7 SUPERIOR COURT OF THE STATE OF CALIFORNIA


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FOR THE COUNTY OF SAN BERNARDINO
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FEDERAL NATIONAL MORTGAGE ) Case No.: UDVS904170


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ASSOCIATION, )
)
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) NOTICE OF MOTION AND MOTION
Plaintiff, ) FOR RELIEF PURSUANT TO THE
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) PROVISIONS OF CCP §473(b);
vs. ) MEMORANDUM OF POINTS AND
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) AUTHORITIES AND DECLARATION(S)
) IN SUPPORT THEREOF
15 MYRIAM AGUILAR, AND DOE 1 )
THROUGH 10, inclusive, )
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) Complaint Filed:
) Judge Assigned:
17 Defendants. ) Dept.:
) Trial Date: None
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) Date:
) Time:
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) Dept:
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24 TO THE HONOURABLE COURT, AND TO ALL PARTIES AND THEIR


25 RESPECTIVE ATTORNEYS OF RECORD:
26 PLEASE TAKE NOTICE that on______________________2010
27 at____________p.m., or as soon thereafter as the matter may be heard in department of the
28 above-entitled court, located at14455 Civic Drive Victorville, CA 92392, Defendant Myriam

Notice of Motion and Motion to Vacate Default and Default Judgment - 1


1 Aguilar-Melgarejo (“Aguilar”), will and hereby does move the Court for an Order to Set Aside
2 the default, default judgment, and judgment entered against her on February 25, 2010.
3 This motion will be made on the grounds that the order was taken against the Defendants
4 as a result of the mistake, inadvertence or excusable neglect of Defendant. The motion will be
5 based on this Notice of Motion, the accompanying Declaration of Myriam Aguilar-Melgarejo,
6 the attached Memorandum of Points and Authorities, and such other evidence, oral or
7 documentary, as maybe presented at the hearing of this motion.
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9 DATED: October 3, 2010 By:


Myriam Aguilar-Melgarejo, DFENDANT IN PRO PER
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Notice of Motion and Motion to Vacate Default and Default Judgment - 2


1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I.
3 INTRODUCTON
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This is an action for eviction after foreclosure on a note and deed of trust.
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6 II.
7 FACTS RELATED TO THIS MOTION
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Unbeknownst to Defendant Myriam Aguilar, the Plaintiff commenced this action on
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December 31, 2009. On or about September 11, 2009, Ms. Aguilar was approached by Joana
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Sosa, who lead her to believe that there was a significant amount of fraud throughout her
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mortgage and therefore, suggested that since she was a very wealthy investor who wished to help
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first language Spanish speaking Latino immigrants, and had a loan program; that within a six
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week period of time she would purchase her home in a short sale or by other means of
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negotiation with the bank and that she would then become the “new lender”. She offered
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Defendant a 5% fixed annual interest rate until the current market value of the home was paid
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off. Up until this point the payments on her Mortgage had been current.
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Because Ms. Sosa came highly recommended by number of people in the area who had
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just joined Ms. Sosa's program including a trusted friend who was English speaking Probation
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Officer for the State of California, defendant, Myriam Aguilar believed Ms. Sosa, and Defendant
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joined Ms. Sosa's program. Defendant signed a Power of Attorney allowing her to speak directly
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to the bank regarding her Mortgages; she also singed a payment plan in the form of a promissory
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note. In addition, defendant, Myriam Aguilar signed a Grant Deed transferring the title over to
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Ms. Sosa, so that she could hold the title jointly until the total amount on the Promissory Note
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was paid.
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Therefore, Defendant paid Ms. Sosa an upfront advance fee of $10,000.00 to commence
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the program with an agreement of monthly payments to follow.
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Notice of Motion and Motion to Vacate Default and Default Judgment - 3


1 Thereafter, Defendant began requesting documentation and proof that the transaction had
2 been done, however, Ms. Sosa, failed to provide such proof. The Defendant being a woman of
3 limited means was ignorant of the dealings that were happening around her. When she was
4 served with a copy of the summons and complaint filed against her, she was assured by Ms. Sosa
5 that it was all part of the program, to not worry about to just continue to pay her monthly
6 payments to her. In fact, Ms. Sosa used a number of deceptive practices for the sole purpose of
7 delaying the foreclosure and eviction process, including the Motion to Strike that was filed on or
8 about January 6, 2010.
9 Upon recently realizing what was happening, sometime in February 2010, the Defendant
10 contacted Hector Benjumea, Esq. to assist her in unraveling the mess that had been created. It
11 was then that she learned that she had in fact lost her property in a trustee sale and that there was
12 a complaint filed against her for Unlawful Detainer. Mr. Benjumea was retained to represent
13 Ms. Aguilar and on or about February 11, 2010, he proposed a Stipulation on behalf of the
14 Defendant proposing key for cash alternative. Plaintiff’s never formally responded to the
15 proposed terms, nor did Plaintiff ever serve Attorney Benjumea with any notices in connection
16 with the Unlawful Detainer action. Attached please find a true and correct copy of a declaration
17 from Hector Benjuema marked and entered as Exhibit “A”.
18 Recently, a written Notice of Breach of Contract and Notice of Demand have been sent to
19 Joana Sosa, demanding that she return the money that has been paid to her. A true and correct
20 copy of this letter is attached hereto as Exhibit “B”. Also attached hereto is Defendant’s
21 “Proposed Answer” marked and entered as Exhibit”C”.
22 III.
23 DISCUSSION OF LAW
24 THE COURT SHOULD GRANT DEFENDANT’S MOTION TO SET ASIDE THE
25 DEFAULTAND DEFAULT JUDGMENT UNDER C.C.P. . §473 (b) ON THE GROUNDS
26 THAT THE DEFENDANT WAS SURPRISED TO FIND OUT THAT A COMPLAINT
27 FOR UNLAWFUL DETAINER HAD BEEN FILED AGAINST HER
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Notice of Motion and Motion to Vacate Default and Default Judgment - 4


1 CCP § 473(b) provides as follow:
“The court may, upon any terms as may be just, relieve a party or his or her legal
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representative from a judgment, dismissal, order, or other proceeding taken against him or her
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through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this
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relief shall be accompanied by a copy of the answer or other pleading proposed to be filed
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therein, otherwise the application shall not be granted, and shall be made within a reasonable
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time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was
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Our Supreme Court has held that in light of this policy, any doubts as to whether relief
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should be granted should be resolved in favor of granting relief from default. “Because the law
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favors disposing of cases on their merits, ‘any doubts in applying section 473 must be resolved in
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favor of the party seeking relief from default’.” Rappleyea v. Campbell (1994) 8 Cal. 4th 975,
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980.
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CCP § 473(b) further provides as follow:
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“Notwithstanding any other requirements of this section, the court shall, whenever an
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application for relief is made no more than six months after entry of judgment, is in proper form,
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and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence,
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surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client,
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and which will result in entry of a default judgment, or (2) resulting default judgment or
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dismissal entered against his or her client, unless the court finds that the default or dismissal was
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not in fact caused by the attorneys mistake, inadvertence, surprise, or neglect."
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22 In the instant case, as outlined above, Defendant Aguilar has no idea of that an unlawful
23 detainer had been filed against her, much less that her property had already been lost in a trustee
24 sale. She was under the knowledge and belief that Ms. Sosa has purchased the property and
25 therefore, believed that by making the monthly payments to her that her property was secure.
26 Therefore, it was to Defendant’s unexpected surprise that instant case had already
27 progressed as far as it had, and that Default and Judgment have been entered against her.
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Notice of Motion and Motion to Vacate Default and Default Judgment - 5


1 CONCLUSION
2 The interests of justice will be served by the granting of this application.
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5 DATED: October 3, 2010 By: __________


Myriam Teresa Aguilar, DEFENDANT IN PRO PER
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Notice of Motion and Motion to Vacate Default and Default Judgment - 6


1 DECLARATION OF MYRIAM TERESA AGUILAR
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3 I, MYRIAM THERESA AGUILAR, declare as follows:


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1. I am the Defendant in the above entitled action and if called as a witness, I could
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and would testify competently to the matters set forth in this declaration.
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7 3. I am the author of the “Facts Related to this Motion,” and declare the facts therein
8 to be true and correct. The failure to appear in this instant action and present evidence at the trial
9 of this matter was a result of the surprise that Plaintiff’s counsel filed a complaint for Unlawful
10 Detainer and subsequent Default and Judgment, thereby depriving me of due process of law.
11 I declare under penalty of perjury under the laws of the State of California that the
12 foregoing is true and correct and that this Declaration was executed on October 3, 2010, in the
13 City of Victorville, County of San Bernardino.
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16 Myriam Theresa Aguilar, DECLARANT
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Notice of Motion and Motion to Vacate Default and Default Judgment - 7


MYRIAM AGUILAR
1 13694 DEL HAVEN STREET
VICTORVILLE, CA 92392
2 TELEPHONE NO. (760)
3

5
DEFENDANT IN PRO PER
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7 SUPERIOR COURT OF THE STATE OF CALIFORNIA


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FOR THE COUNTY OF SAN BERNARDINO
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10 FEDERAL NATIONAL MORTGAGE ) Case No.: UDVS904170


ASSOCIATION, )
11 )
)
12 Plaintiff, ) [PROPOSED] ORDER
)
13 vs. ) Dated:
) Time:
14 ) Dept:
MYRIAM AGUILAR MELGAREJO, AND )
15 DOES 1 THROUGH 10, inclusive, )
)
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Defendants. )
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Having heard Defendant’s Motion for Order Vacating and Setting Aside Default and
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Default Judgment, which came on regularly on ___________________. The Court Orders that
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the Default and Default Judgment entered against Myriam Aguilar-Melgarejo be set aside.
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IT’S SO ORDERED
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25 Dated: By: _____________________________________


Superior Court Judge
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Notice of Motion and Motion to Vacate Default and Default Judgment - 8


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PROOF OF SERVICE
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3 STATE OF CALIFORNIA, COUNTY OF SAN BERNARDINO


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I reside in the County of San Bernardino, State of California; I am over the age of 18
5 years and not a party to the action; my business address is as follows: _____________________
_____________________________________________________________________________
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On May _____, 2010, I served the specified documents: NOTICE OF MOTION AND
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MOTION FOR ORDER VACATING AND SETTING ASIDE DEFAULT AND DEFAULT
JUDGMENT; DECLARATION OF JOSE J. VALDES, MEMORANDUM OF POINTS AND
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AUTHORITIES, AND [PROPOSED ORDER on interested as follows:

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LES ZIEVE,ESQ.
11 MICHAEL GONZLAES, ESQ.
12 LAW OFFICES OF LES ZIEVE
18377 BEACH BLVD. STE. 210
13 HUNTINGTON BEACH, CA 92648
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[] (BY MAIL) I caused such envelope with postage thereon fully prepaid to be deposited
16 in the United States mail at Montclair, California.
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[ ] (BY FAX) On ______________________, 2009, at approximately
18 ______________a.m./p.m. I faxed a copy of the above mentioned documents to fax number
(818) 986-3875 .
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[x] (STATE) I declare under penalty of perjury under the laws of the State of California
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that the foregoing is true and correct.
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Executed on March _____, 2010, at Lake Elsinore, California
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Notice of Motion and Motion to Vacate Default and Default Judgment - 9