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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
This motion will be made on the grounds that the order was taken against the Defendants as a result of the mistake. will and hereby does move the Court for an Order to Set Aside the default. default judgment. DFENDANT IN PRO PER Notice of Motion and Motion to Vacate Default and Default Judgment . oral or documentary. inadvertence or excusable neglect of Defendant. the accompanying Declaration of Myriam Aguilar-Melgarejo. DATED: October 3. 2010.2 . as maybe presented at the hearing of this motion. 2010 By: Myriam Aguilar-Melgarejo. and such other evidence.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”). the attached Memorandum of Points and Authorities. The motion will be based on this Notice of Motion. and judgment entered against her on February 25.
Defendant signed a Power of Attorney allowing her to speak directly to the bank regarding her Mortgages. Sosa came highly recommended by number of people in the area who had just joined Ms. so that she could hold the title jointly until the total amount on the Promissory Note was paid. Sosa.3 . 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”. defendant. She offered Defendant a 5% fixed annual interest rate until the current market value of the home was paid off. suggested that since she was a very wealthy investor who wished to help first language Spanish speaking Latino immigrants. who lead her to believe that there was a significant amount of fraud throughout her mortgage and therefore. 2009. Sosa an upfront advance fee of $10. II. and Defendant joined Ms. defendant.00 to commence the program with an agreement of monthly payments to follow. Because Ms. Sosa. Defendant paid Ms. Aguilar was approached by Joana Sosa. Ms.000. she also singed a payment plan in the form of a promissory note. Myriam Aguilar believed Ms. Notice of Motion and Motion to Vacate Default and Default Judgment . In addition. Therefore. Up until this point the payments on her Mortgage had been current. Myriam Aguilar signed a Grant Deed transferring the title over to Ms. 2009. Sosa's program. On or about September 11. INTRODUCTON This is an action for eviction after foreclosure on a note and deed of trust. and had a loan program. FACTS RELATED TO THIS MOTION Unbeknownst to Defendant Myriam Aguilar.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. Sosa's program including a trusted friend who was English speaking Probation Officer for the State of California. the Plaintiff commenced this action on December 31.
2010. Esq. Ms. Upon recently realizing what was happening. Defendant began requesting documentation and proof that the transaction had been done. When she was served with a copy of the summons and complaint filed against her. Mr. In fact. Sosa. the Defendant contacted Hector Benjumea. Sosa used a number of deceptive practices for the sole purpose of delaying the foreclosure and eviction process.C. sometime in February 2010. III. nor did Plaintiff ever serve Attorney Benjumea with any notices in connection with the Unlawful Detainer action. Sosa that it was all part of the program. The Defendant being a woman of limited means was ignorant of the dealings that were happening around her. 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. he proposed a Stipulation on behalf of the Defendant proposing key for cash alternative. Ms. Benjumea was retained to represent Ms. demanding that she return the money that has been paid to her. to assist her in unraveling the mess that had been created. DISCUSSION OF LAW THE COURT SHOULD GRANT DEFENDANT’S MOTION TO SET ASIDE THE DEFAULTAND DEFAULT JUDGMENT UNDER C. 2010. Recently. Also attached hereto is Defendant’s “Proposed Answer” marked and entered as Exhibit”C”. a written Notice of Breach of Contract and Notice of Demand have been sent to Joana Sosa. Attached please find a true and correct copy of a declaration from Hector Benjuema marked and entered as Exhibit “A”. she was assured by Ms. including the Motion to Strike that was filed on or about January 6. failed to provide such proof. A true and correct copy of this letter is attached hereto as Exhibit “B”. §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 .4 .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. Aguilar and on or about February 11. Plaintiff’s never formally responded to the proposed terms. .P. however. to not worry about to just continue to pay her monthly payments to her.
" In the instant case. 4th 975. or neglect. inadvertence. inadvertence. “Because the law favors disposing of cases on their merits. Campbell (1994) 8 Cal. and which will result in entry of a default judgment. surprise. 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 CCP § 473(b) provides as follow: “The court may. Sosa has purchased the property and therefore. Defendant Aguilar has no idea of that an unlawful detainer had been filed against her. and is accompanied by an attorney's sworn affidavit attesting to his or her mistake. Therefore. after the judgment. order.5 . unless the court finds that the default or dismissal was not in fact caused by the attorneys mistake. and shall be made within a reasonable time. upon any terms as may be just. or proceeding was taken. dismissal.” Rappleyea v. any doubts as to whether relief should be granted should be resolved in favor of granting relief from default. as outlined above. vacate any (1) resulting default entered by the clerk against his or her client. and that Default and Judgment have been entered against her. or excusable neglect. otherwise the application shall not be granted. whenever an application for relief is made no more than six months after entry of judgment. 980. ‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default’. Notice of Motion and Motion to Vacate Default and Default Judgment . relieve a party or his or her legal representative from a judgment. order. or other proceeding taken against him or her through his or her mistake. inadvertence. or neglect. She was under the knowledge and belief that Ms. CCP § 473(b) further provides as follow: “Notwithstanding any other requirements of this section.” Our Supreme Court has held that in light of this policy. dismissal. surprise. surprise. is in proper form. it was to Defendant’s unexpected surprise that instant case had already progressed as far as it had. the court shall. much less that her property had already been lost in a trustee sale. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein. or (2) resulting default judgment or dismissal entered against his or her client. believed that by making the monthly payments to her that her property was secure.
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. DATED: October 3.6 . DEFENDANT IN PRO PER Notice of Motion and Motion to Vacate Default and Default Judgment . 2010 By: __________ Myriam Teresa Aguilar.
I am the Defendant in the above entitled action and if called as a witness.7 . 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. declare as follows: 1.1 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. MYRIAM THERESA AGUILAR. DECLARANT Notice of Motion and Motion to Vacate Default and Default Judgment . I am the author of the “Facts Related to this Motion. ____________________________________ Myriam Theresa Aguilar. in the City of Victorville. I could and would testify competently to the matters set forth in this declaration. 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.” and declare the facts therein to be true and correct. thereby depriving me of due process of law. 3. 2010. County of San Bernardino.
The Court Orders that the Default and Default Judgment entered against Myriam Aguilar-Melgarejo be set aside. IT’S SO ORDERED Dated: By: _____________________________________ Superior Court Judge Notice of Motion and Motion to Vacate Default and Default Judgment . Defendants. vs. (760) DEFENDANT IN PRO PER SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN BERNARDINO FEDERAL NATIONAL MORTGAGE ASSOCIATION. Plaintiff.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. MYRIAM AGUILAR MELGAREJO. inclusive.8 . AND DOES 1 THROUGH 10.: UDVS904170 [PROPOSED] ORDER Dated: Time: Dept: Having heard Defendant’s Motion for Order Vacating and Setting Aside Default and Default Judgment. which came on regularly on ___________________. CA 92392 TELEPHONE NO. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.
210 HUNTINGTON BEACH./p. ESQ. at Lake Elsinore. LAW OFFICES OF LES ZIEVE 18377 BEACH BLVD. COUNTY OF SAN BERNARDINO I reside in the County of San Bernardino. California _______________________________ Notice of Motion and Motion to Vacate Default and Default Judgment . I served the specified documents: NOTICE OF MOTION AND MOTION FOR ORDER VACATING AND SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT. California. my business address is as follows: _____________________ _____________________________________________________________________________ On May _____. [x] (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. DECLARATION OF JOSE J. 2010. at approximately ______________a.9 . I faxed a copy of the above mentioned documents to fax number (818) 986-3875 . AND [PROPOSED ORDER on interested as follows: LES ZIEVE. MEMORANDUM OF POINTS AND AUTHORITIES. CA 92648  (BY MAIL) I caused such envelope with postage thereon fully prepaid to be deposited in the United States mail at Montclair. STE. VALDES. 2009. State of California. 2010. [ ] (BY FAX) On ______________________. Executed on March _____.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.ESQ.m. I am over the age of 18 years and not a party to the action.m. MICHAEL GONZLAES.
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