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Defendant( s).

'I Timothy 1. McCandless, Esq., SBN 147715 -",

LAW OFFICES OF TIMOTHY L. MCCANDLESS; 1881 Business Center Drive, Suite 9A

2 -San Bernardino, CA 92408

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(909) 890-9192 Telephone (909) 382-9956 Facsimile

Attorney for Plaintiff 5 Anthony 1. Martin

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FTLEO

2UU JAM-3 AHIQ:.?6

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. C:l.[~K OflHE,Sl)PtlHORCOIlRT CPIJNT'{ Of$TI.N1SlAUr.

BY " • RHONaA BLOSSER.

,"",~~...,.,;=, =' "-,,-,-,,..._~ ............ -.' PErUT Y

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

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IN AND FOR THE COUNTY OF STANISLAUS MODESTO CITY TOWERS

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ANTHONY J. MARTIN,

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Plaintiff(s ),

VS.

14 DOWNEY SAVINGS AND LOAN' ASSOCIATION, F.A.; DSL SERVICE COMP ANY; FeI LENDER SERVICES, INC.; FEDERAL DEPOSIT INSURANCE CORPORATION,

1 7 RECEIVER OF DOWNEY SAVINGS AND LOAN ASSOCIATION, F.A., 18 NEWPORT BEACH, CALIFORNIA; U.S. BANK NATIONAL

19 ASSOCIATION, AS SUCESSOR IN INTEREST TO THE FEDERAL

20 DEPOSIT INSURANCE CORPORATION, INCLUDING

21 ASSIGNORS OR SUCCESSORS IN 22 INTEREST; and DOES 1 through 50, Inclusive,

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CASE NO: 655297

OPPOSITION TO U.S. BANK NATIONAL ASSOCIATION, ETC,;DSLSERVICES COMPANY AND FCI LENDER SERVICES, INC'S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

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DATE: January 14, 2011

TIME: 8:30AM

DEPT: 21

Complaint Filed: , June 25, 2010, Trial Date: None Set

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Plaintiff Anthony 1. Martin submits his Opposition to US BANK NATIONAL

ASSOCIATION, SUCCESSOR IN INTEREST TO THE FEDERAL DEPOSIT INSURANCE 28

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OPPOSITION TO DEMURRER

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CORPORATION AS RECEIVER FOR DOWNEY SAVINGS AND LOAN ASSOCIATION, F.A.; DSL SERVICES COMPANY AND FCI LENDER SERVICES, INC. 'S [hereinafter "US BANK & DSL & FCr'] Demurrer to Plaintiffs First Amended Complaint

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INTRODUCTION

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COMES NOW"PLAINTIFF, ANTHONY J. MARTIN, by and through his attorney of record, is a resident and owner of real property at 1312 Harbour Town Lane, Modesto CA

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95357,(subject property). Defendants claim in their Demurrer that Plaintiffs cause of actions all fail tostate facts sufficient to constitute a cause of action pursuant to CCP section 430.10(e). It is appalling, how, in light of the fact that, now, big banks that are displayed by the media finally admit that foreclosure documents were being signed off without review, Plaintiff further alleges that Defendants DOWNEY and DSL onMay 22,2009 recorded Tru-stee's Deed Upon Sale (See

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. Exhibit "F").· Plaintiff alleges that DOWNEY, a' defunct corporation and an inactive, dissolved 12

entity no longer in existence as of September 5, 2008, has no standing and no legal capacity as

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ofSepteinber5,2008 onward to order foreclosures, therefore such foreclosures are invalid, void and nulL

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. - In 'addition the Trustee's Deed Upon Sale was executed on May15, 2009 and notarized May

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19,2009, such act is in violation of the California Government Code Sections 8202,8214.1(1),

8214.1 (j), Plaintiff believes that person signing the documents requiring the Notary certification,

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18· must sign and appear before the Notary Public, date and sign the document in front of the

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Notary, providing the satisfactory evidence of the identity, than the Notary will date, sign and notarize the same document(s), neither before nor after placed Notary seal on the said document.

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Defendant U.S. BANK filed a Motion for Summary Judgment in the Unlawful Detainer Case, case number 645068 which was heard on June 30, 2010, and was denied (See Exhibit "I" attached hereto and incorporated herein), namely to the gap in title and security instrument from DOWNEY trough FDIC to the U.S, BANK during the time of the foreclosure process, as well as missing evidence to show whether the Trustee, DSL, was authorized to act as U.S. BANK agent in continuing to pursue the sale once DOWNEY had lost its security interest. US BANK just did not meet their burden on the Motion for Summary Judgment." .

What is astonishing is t11at Plaintiffs F AC' s facts were all gleaned from what was recorded

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OPPOSITION TO DEMURRER

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On or about November 26, 2007, Defendants DOWNEY, DSLand FeI allege that Plaintiff became in default of his loan (See Exhibit "B"). However this default of the loan was occasioned by the high payments, the structure of the loan and interest rate. Furthermore,

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OPPOSITION TO DEMURRER

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at the Stanislaus Recorder's office .. Plaintiffs F AC pointed out various discrepancies) [See all exhibitsto Plaintiffs' FAC] of defendants' blatant disregard by not applying the laws - California Civil Code section 2923.5,2932.5, especially 2934 et seq. and 2924, 2924(b), to Plaintiffs mortgage problem regarding the subjectproperty.

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Thus, there are many violations of the Civil Codes Foreclosure laws of US BANK & DSL& FCr and they are clearly and succinctly outlined in the F AC which include the exhibits that prove their violation(s). As the violation of this statutory provision underpins all of Plaintiff's causes of action, Defendants' Demurrer in its entirety can be properly ovenuled by

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this Court.

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Furthermore, there is an inaccuracy as to Defendants Demurrerthat effects all opposition that may be entertained and stated by Plaintiff. It appears Defendants have demurred to the Complaint of Plaintiff and not the 1 st Amended Complaint filed October 26,2010. Itis clear that

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11 there is confusion of Defendant's pleadings:is page two (line 7) of the Demurrer states a . demurrer to Plaintiff s entire' 1 st Amended Complaint.

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PROCEDURAL HISTORY POINTS AND AUTHORITIES

The crux of this matter is that DOWNEY, a defunct corporation and an inactive, dissolved entity no longer in existence as of September 5,2008, has no standing and no legal capacity as of September 5, 2008 onward to order foreclosures, therefore such foreclosures are

invalid, void and null.

20 On or about February 9, 2006, Plaintiff executed loan documents apparently prepared by

. and tendered by DOWNEY intended to finance loan secured by the Property, Included in the 21

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loan documents was only purported application that was neither prepared by Plaintiff nor Was Plaintiff provided an opportunity to review such application.

DOWNEY prepared a Deed of Trust dated February 9, 2006 (See Exhibit "A"), a true and correct copy of the Deed provided to Plaintiff. Neither, DOWNEY nor any of their agents or employees explained to Plaintiff a...llY of the terms and conditions of the Deed or the Riders.

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Plaintiff was not in default because of the prior breach of the terms of the notes by Defendants, and each of them, and therefore, the performance of Plaintiff is excused. Defendants DO'VNEY, DSL and FCI on March 7,2008 recorded Notice of Trustee's Sale (See Exhibit "C").

On September 5, 2008, The United States of America before the Office of Thrift .

Supervision served an Order to Cease and Desist (See Exhibit "D") on. DOWNEY, precluding the bank from continuing its unsafe and unsound business practices. .

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Defendants, DOWNEY, DSL and FeI on OctoberZ'l, 2008 recorded a second Notice

of Trustee's Sale (See Exhibit "E"). In addition, the required Declaration of Due Diligence is

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.not attached to the Notice of Trustee's Sale, therefore making them VOID because the required

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"penalty of perjury" and signature of a person with "actual knowledge" is missing pursuant to California Civil Code Section 2923.5(b) or California Civil Code Section 2923.5(c) ..

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Oil November 21, 2008, the FDIC, sold the assets 6fDOWNEY to U.S. BANK, A true and correct copy of the Purchase and Assumption Agreement is attached hereto (See Exhibit "G").

The foregoing Purchase and Assumption Agreement sets forth on Page 11 at Paragraph 3.3 as follows:

"THE CONVEYANCE OF ALL ASSETS.,fNCLUDING REAL AND PERSONAL

- PROPERTY INTERESTS, PURCHASES BY THE ASSUMING BANK UNDER .THIS AGREEMENT SHALL BE MADE, AS NECESSARY, BY RECEIVER'S DEED OR . RECEIVER'S BILL OF SALE, "AS IS", "WHERE IS", WITHOUT RECOURSE AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, WITHOUT ANY WARRANTIES WHATSOEVER WITH RESPECT

. TO SUCH ASSETS, EXPRESS OR IMPLIED, WITH RESPECT TO TITLE,' ENFORDCEABLITY, COLLECTIBILITY, DOCUMENTATION OR FREEDOM FROM LIENS OR ENCUMBRANCES (IN WHOLE OR IN PART), OR ANY OTHER MATTERS." (Emphasis added.)

Defendants DOWNEY and DSL on May 22, 2009 and recorded the Trustee's Deed Upon Sale (See Exhibit "F"). DOWNEY, a defunct corporation and an inactive, dissolved entity no longer in existence as of September 5, 2008, has no standing and no legal capacity as of September 5, 2008 onward to order foreclosures, therefore such foreclosures are invalid, void and null.

. On November 6, 2009,Defendant U.S. BANK filed a Complaint for Unlawful Detainer (See Exhibit "H" attached hereto and incorporated herein), in which the U.S. BANK claims

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OPPOSITION TO DEMURRER

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right of the possession of the Subject Property. According to the Purchase and Assumption Agreement between FDIC and U.S. BANK (See Exhibit "G") of November 21,2008, then U.S. BANK was conveyed either a Receiver's Deed or Receiver's Bill of Sale alleged in Plaintiffs complaint, paragraph "20". The Receiver's Deed or Receiver's Bill of Sale was never recorded with the Office of the County Recorder is Stanislaus County. As of September 5, 2008, DOWNEY was no longer the ?ene~ciary of the Deed of Trust recorded on February 23, 2006 (See Exhibit "A"),'per the Order of Office of Thrift Supervision, (Order to Cease and Desist) (See Exhibit "C").

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In addition, the Office of the County Recorder of Stanislaus Countydoesn't contain any evidence that Defendants DSL and/or Fer where authorized to act as agents for the Defendant U.S. BANK in continuing to pursue the sale of the Subject Property once Defendant DOWNEY

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Defendant U.S. BANK filed Motion for Summary Judgment in the Unlawful Detainer Case, which was heard on June 30, 2010, ~d was denied (See Exhibit "I" attached hereto and incorporated herein), namely to the gap in title and security instrument from DOWNEY trough FDIC to the U.S. BANK during the time ofthe foreclosure process, as well as missing evidence to show whether the Trustee, DSL, was authorized to act as U.S. BANK agentin continuing to

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pursue the sale once DOWNEY had lost its security interest.

Defendants have yet to prove that they are in fact the party authorized with

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enforceability as a holder, with possession and control of the promissory note to conduct the

foreclosure which occurred onMay15, 2009. .

The promissory Note was made payable to DOWNEY. No recorded documents suggest that it has been endorsed by U.S. BANK or any other named entity. The Deed of Trust states that DOWNEY is the beneficiary of it. No recorded document suggests that DOWNEY transferred its beneficial interest to U.S. BANK. Transfers of mortgage paper may be made outright(sale) or by pledge (as security for a loan to the transferor). In either event, to perfect the transfer, the

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transferor should physically deliver the Note to the transferee. Without a physical transfer, a sale of the Note could be invalidated as fraudulent conveyance under California Civil Code Section 3440, and a transfer in pledge coud be invalidated as an unperfected under California Civil Code I Section 9313-9314, California Mortgages and Deeds of Trust, and Foreclosure Litigation, by Roger Bemhardt, Fourth Edition, Section 1.26. One without a pecuniary interest in the Mortgage

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OPPOSITION TO DEMURRER

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Loan- is not an oblige under the debt and, thus, has no legal standing to foreclose ab initio,

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Watkins v. Bryant (1891) 91C 492,27 P 7~_

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Due to the non-judicial foreclosure process set up by the California legislature more than one hundred years ago, at a time when the separation of a note from a deed, and the selling of notes as asset backed securities were completelyunheard of and unexpected, it was 'riot foreseen by the legislature that a party one day ordering a trustee to sell a prop erty by trustee, sale would not actually be the holder in due course of the note with the power of sale clause that allows the holder to order a trustee sale, Parties' who are now ordering trustees to sell deeds are rarely the

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holder in due course of that note, as is required by California Commercial Code 3301.

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Therefore, since the legislature did not foreseesuch an abuse of the non-judicial foreclosure sale process they created, the fraudulent lending industry now makes good use of tins oversight

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by ordering properties sold With'110 standing to do so, and these sales go largely unchallenged by

homeowners Who have no knowledge that fraud is being committed all them, andno opportunity to assert their rights and challenge the proceedings, because there is no due process, no hearing,

13. no day iri court afforded to the borrowers before theirhomes are sold.

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Under California law, an instrument (including a secured note) may only be enforced by the "holder" ofthe note Commercial Code 3301 (a). FOJ an instrument payable to an identified person, there, are two requirements for a person to qualify as a holder: (a) the person must be in' possession of the instrument, and (b) the instrument must be payable to that person:' Id.

Prior to May 15; 2009, DOWNEY also lack~d the power to issue any Trustees Deed Upo . Sale (See Exhibit "F"), (let alone a Notice of Trustee Sale), a prerequisite to conducting a Trustee Sale (see California Civil Code 2924(a)(1), infra), while in fact, on October 17, 2008, Defendants DOWNEY, DSL and/or FeI caused to be issued such unauthorized Notice of Trustee's Sale.

At the time of recording Notice of Trustee's Sale on October 17~ 2008 and Trustee's Deed Upon Sale May 15, 2009, DefendantDOWNEY was already in receivership of FDIC and thus lacked the essential authority and legal capacity to conduct such Sale.

(b) DOWNEY's L·ack of Capacity and Authority to Conduct Trustee Sales as of

September 5, 2008

Under California Code a/Civil Procedure Section 568 which governs the power ofreceivers,

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OPPOSITION TO DEMURRER

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onIya receiver, once appointed for a business entity, has the authority to commence an action on behalf of a dissolved entity:

"The receiver has, under the control of the court, power to bring and defend actions in his own name, as receiver; to take and keep possession of the

property, to receive rents, collect debts, to compound for and compromise the same, to make transfers, and generally to do such acts respecting the property

as the court may authorize."

Under 12.VSC 14_6J(d)(2)(C), only the receiver, FDIC ill the instant case, may initiate a Tru~tee Sale. DOWNEYlliuslacked the. capacity and authority to conduct RECORDATION OF Trustee's Sale as of September 5, 2008. Plaintiff therefore alleges that DOWNEY's-Tnistee's Deed Upon Sale was also in violation of the OTS Order, which appointed an FDIC Receiver

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who is the only person authorized to "manage ... and sell ..• the receivership assets" FDIC Strategic Plan, 2008-2013, FDIC Program 4.1, (See Exhibit "J" attached hereto and incorporated herein).

the foregoing Receiverships set forth on Page 21 at paragraph 4.1 as follows:

"In fulfilling its responsibilities to creditors of failed institutions, the FDIC, as receiver, manages and-sells the receivership assets using a variety of strategies and identifies and collects monies due to the receivership." (Emphasis added.)

California Civil Code 2924(a)(l) provides in pertinent part:

"(a) Every transfer of an interest in property, other than intrust, made only as asecurity for the performance of another act, is to be deemed a mortgage ...

Where, by a mortgage created after July 27, 1917, of any estate in real

property, other than an estate at will or fat years, less than two; or in any

transfer in trust made after July 27, 1917, of a like estate to secure the

performance of an obligation, a power of sale is conferred upon the mortgagee, trustee, or any other person, to be exercised after a breach of the obligation for

. which that mortgage or transfer is a security, the power shall not be exercised except where the mortgage or transfer is made pursuant to an order, judgment, or decree cif a court of record, or.to secure the payment of bonds or other evidences of indebtedness authorized ... until all of the following apply: (1) The trustee, mortgagee, or beneficiary, or any of their authorized agents shall first file for record, in the office of the recorder of each county wherein the mortgaged or trust property or some part or parcel thereof is situated, a notice of default." [Emphasis added].

DOWNEY issued or caused to be issue an unauthorized Notice of Trustee's Sale which in tum tainted the Trustees Sale itself and rendered it unauthorized as well.

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OPPOSITION TO DEMURRER

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Moreover, the purpose of the FDICPrbgram is to provide a procedural safeguard to "manage and maximize returns," "closely monitor [transactions] ... to ensure compliance with all legal requirements and promote efficient operation." FDIC Program Section 4. 1. TheFDIC's attorneys and investigators work together to assure valid claims arising from a failure of an insured institution are properly pursed. The team conducts a factual investigation of the events that contributed to losses at the institution as well as legal research and analysis of the facts and potential claims." FDIC Program Section 4.2 (SeeExhibit "J", page "22").

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No Receiver's Deed was ever recorded by U,S~ BANK as the new beneficiary of the

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. Deed of Trust executed by Plaintiff, in order to enforce the power of sale pursuant to California Civil Code Section 2924, the secured instrument must be properly acknowledged and recorded

pursuant to California Civil Code Section 2932.5.

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DOWNEY did not own a secured interest in the Subject Property after September 5, 2008, yet its agent DSL and/or Fer continued with the non-judicial foreclosure, and ultimately the Trustee's Deed Upon Sale was executed as though DOWNEY wasthe beneficiary, however,

that was not the correct state of affairs.

The agent DSL of DOWNEY was not lawfully empowered to executed a Trustee's Deed . Upon Sale once DOWNEY 110 longer owned a security interest, and u.s. BANK did not·reccinl..

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the Receiver's Deed.

Defendants' Lack Standing To Conduct A Non-Judicial Foreclosure

Pursuant To California Civil Code Section. 2932.5

. Defendants have no standing to enforce anon-judicial foreclosure. Defendants are strangers to this transaction; and have no authority to go forward with the foreclosure and

Trustee's Sale.

The Stanislaus County Recorder'S Office does notcontain any evidence of a recorded assignment from Defendant DOWNEY to any other Defendants. The Stanislaus County Recorder's Office does not contain any evidence of a recorded either a Receiver's Deed or Receiver's Bill of Sale from Defendant FDIC to any other Defendants. The power of sale may not be exercised by any of the Defendants since there was never an' acknowledged and recorded' assignment pursuant to California Civil Code Section 29!2.5.

Since the Defendants did not comply with California Civil Code Section 2932.5, the

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20 current mortgage foreclosure law. College Hospital Inc. v. Superior Court (1994) 8 CalAth 704,

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Notice of Default and/or Notice of Trustee's Sale provisions of California Civil Code Section

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2924 was likewise never complied with.

Defendants violated State laws which were specifically enacted to protect such abusive, deceptive, and unfair conduct by Defendants, and that Defendants cannot legally enforce a non-. judicial foreclosure.

III.

. LEGAL ARGUMENT

A. PRINCIPLES OF LAW REGARDING DEMURRERS TO COMPLAINTS MILITATE AGAINST SUSTAINING DEFENDANTS' MOTION AND DISMISSING PLAINTIFF'S CAUSES OF ACTION

"[A] general demurrer should not be sustained if the pleading, liberally construed, states a cause of action on any theory." . Covo v. Lubue (1963)220 'Cal.App.Zd 2 18,221. "A demurrer challenges only the legal sufficiency of the

. complaint, not 'the truth of its factual allegations or the plaintiffs ability to prove those allegations." Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal.App.zl" 726, 732. "We therefore treat as true all of the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law." Id. atpp. 732-733.

"We can also consider the factsappearing in exhibits attached to the complaint." Id.at p. 733. "We are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded." Ibid.

In the instant case, Plaintiff sF AC is legally sufficient because it is "'substantiated,' that

719. Plaintiff's FAC is replete with material factual allegations regarding the deficiencies in Defendants' conduct regarding the foreclosure of the subject property. These allegations, which whether fact-specific are sufficiently pleaded, and not contentions, deductions or conclusions of fact or law. "However; contrary to the suggestion by amicus curiae that the court may require fact-specific pleading, the well-settled rule is otherwise except in pleading fraud," Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Ca1.4th 26, "46-47.

Furillermore, this Court can properly authorize Plaintiffs to submit an amended

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Complaint with necessary exhibits. "Defendant's demurrer to the complaint was overruled and

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OPPOSITION TO DEMURRER

"The function of a demurrer islofesfthe sufficiency of the complaintbyraising questions oflaw. [Citation.] The complaint must be given a reasonable interpretation and read as a whole with its parts considered in their context. [Citation.], A'general demurrer admits the truth of all material factual allegations of the complaint; plaintiff's ability to prove the allegations, or the possible difficulty in making such proof, does not concern the reviewing court. [Citation.] 'As a reviewing court we are not bound by the construction placed by the trial court _?n the pleadings but must make our own independent judgment thereon, even as to matters not 11 expressly ruled upon by the trial court.' [Citation. r (Aragon-Haas _v • Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238-239; Blankv. Kirwan (1985) 39 Cal.3d 311,318.)

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an answer was filed, together with numerous exhibits." Hardy v. Admiral Oil Co. (1961) 56 Ca1.2d 836, 839. "Even where the defect is one of substance, a demurrer should notbe sustained without leave to amend if there is a possibility that subsequent amendments will supply omitted allegations and the plaintiff has not had a fair opportunity to do so." Covo.supra, at p. 221.

Finally, it is necessary to construe Plaintiffs F AC liberally; assuming the truth of the facts pleaded, to' determine that the causes of action have been stated sufficiently to withstand demurrer.

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STANDARD OF REVIEW

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"'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.].... When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether' there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]" (Blank v. Kirwan, Supra, 39 Cal.3d at p. 318.)

Based on these overarching principles, Defendants' Demurrer to each of the causes of .', action in Plaintiffs PAC call be properly overruled bythis Court.

B. TENDER IS NOT NECESSARY IN THE FACE OF A FRAUDULENT FORECLOSURE.

Following Defendants' theory of tender, a fraudulent foreclosure cannot be set aside unless the victim of the fraud is able to tender the entire amount of the loan. Nothing could be further

from the tr ... uth. If Plaintiff s allegations of fraud are deemed to be true for purposes of a

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demurrer, sufficient facts have been alleged. ~he demurrer stage is not a forum for weighing the I

< facts. To be certain the intent of Civil Code section 2924 Was never to countenance-a fraud.

PLAINTIFF CAN AMEND THE COMPLAINT TO ALLEGE ADDITIONAL FACTS

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IF NECESSARY.

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AS TO THE FIRST CAUSE OF ACTION FOR QUIET TITLE AND THE SECOND, CAUSE OF ACTION TO SET ASIDE FORECLOSURE

(Against U.S. BANK and DOES 1 through SO) -

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As shown 011 plaintiffs F AC,Defendants unlawfully initiated a non-judicial foreclosure against Plaintiff and the Property in violation of, inter alia, - California Civil Code Section 2924(a)(J)(C). Defendants failed to comply with new foreclosure laws - California Civil Code

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Stemming from the radicalshiftiumortgage foreclosure law as embodied in Senate Bill 1137 - New foreclosure laws,Plaintiffis not required to tender the entire amount borrowed. Such drastic prerequisite to foreclosure relief would defeat the purpose of the Bill in lessening the burden on delinquent borrowers. California cases denying quiet title claims where the borrower does not offer to reimburse the lender for the unpaid debt do not govern disposition of cases originating in violations ·of Section 2923.5. Therefore, it is proper for this Court to determine that title is properly quieted in Plaintiff's name.

Consequently, Defendants engaged in a fraudulent foreclosure of the Subject Property in that Defendants did not have the legal authority to foreclose on the Subject Property and, alternatively, if they had the legal authority, they failed to comply with Civil Code Sections 2923.5 and 2923.6.

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DSL-andior Fe I, purportedly acting as the agent of the "current" but unascertained beneficiary offue Deed.wrongfully and without privilege, caused a Notice of Trustee's Sale to

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be r~corded against the Property on October 21, 2008 (See Exhibit "E") and at which time DO\VNEY and/or U.S BANK unlawfully claimed to be beneficiary of any deed of trust upon the Property. Plaintiff alleges that DOWNEY, a defunct corporation and an inactive, dissolved entity no longer in existence as of September 5, 2008, has no standing and no legal capacity as of September 5,2008 onward to order foreclosures.

The agent DSL of DOWNEY was not lawfully empowered to execute a Trustee's Deed upon Sale once DOWNEY no longer owned a security interest, and U.S. BANK did not record the Receiver's Deed. DOWNEY, DSL, FeI, U.S. BANK arid one or more of the Doe defendants slandered Plaintiff's title to the Pr~perty because California Civil Code Section - 2924(a)(J)(C) was violated, and such acts were not privileged.

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OPPOSITION TO DEMURRER

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THIRD CAUSE OF ACTION SLANDER OF TItLE. (Against all defendants)

It has been ascertained that there is an inaccuracy in Defendants Demurrer to Plaintiff s Complaint. l.", the Demurre~ states clearly on its face that their demurrer is to Plaintiffs Complaint. The preceding pages of their demurrer state that they are demurring: to the Plaintiffs 6 . entire 1 st Amended Complaint (page 2, line 7). There is a contradiction here. It appears that

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9. such an inaccuracy as the remaining causes of action differ from that Of the Complaint and the 1 st Amended Complaint. Defendants have demurred to a cause of action no longer at issue.

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Therefore, no opposition can be concluded atthis time.

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FOURTH CAUSE OF ACTION FRAUD

(Against all defendants)

It has been ascertained that there is an inaccuracy in Defendants Demurferto Plaintiff's Complaint. 1st, the Demurrer states clearly on its face that their demurrer is to Plaintiff's Complaint. The preceding pages of their demurrer state that they are demurring to the Plaintiffs

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18 . entire i st Amended Complaint (page 2, line 7). There is a contradiction here. It appears that Defendants have demurred to Plaintiff's complaint as they demurrer to eleven causes of action. Plaintiffs 1 st Amended Complaint has eight causes of action. Plaintiff cannot properly oppose such an inaccuracy as the remaining causes of action differ from that of the Complaint and the 1 st

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Amended Complaint.

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VII.

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FIFTH CAUSE OF ACTION

VIOLATION OF BUSINESS AND PROFESSIONS CODE 17200 (Against all Defendants)

It has been ascertained that there is an inaccuracy in Defendants Demurrer to Plaintiff's

Complaint. 1 st, the D~mmTer states clearly on its face that their demurrer is to Plaintiff's. Complaint. The preceding pages of their demurrer state that they are demurring to the Plaintiffs

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~--"'-'~ .. -"." . (Against all Defendants) .. . _

Ithas been ascertained that there is an inaccuracy in Defendants Demurrer to ~laintifrs.

.. \ . " .

Complaint, 1st, the Demurrer states clearly on its face that their demurrer is to Plaintiff's

Complaint Theprecedingpages of their demurrer state that they are demurring to the Plaintiff's entire 1st Amended Complaint (page 2, line 7). There is a contradiction here. It appears that Defendants have demurred to Plaintiffs complaint as they demurrer to eleven causes of action. Plaintiff s 1 st knerided Complaint has eight causes of action: Plaintiff cannot properly oppose such an inaccuracy as the remaining causes of action differ from that of the Complaint and the 18t Amended Complaint

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entire 15t Amended Complaint (page 2, line 7). There is a contradiction here. It appears that Defendants have demurred to Plaintiff's complaint as they demurrer to eleven causes of action. Plaintiff s l5t Amended Complaint has eight causes of action. Plaintiff cannot properly oppose such an inaccuracy as the remaining causes of action dif~er from that of the Complaint and the 1st Amended Complaint.

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VIII.

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SIXTH CAUSE OF ACTION DECLARATORY RELIEF

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VIIII.

SEVENTH CAUSE OF ACTION . FOR INJUNCTIVE RELIEF

(Against U.S. BANK and any Defendant clainring an interest in the Property)

It has been ascertained that there is an inaccuracy in Defendants Demurrer to Plaintiff's Complaint. 1 S\ the De~nurrer states clearly on its face that their demurrer is to Plaintiff's Complaint. The preceding pages of their demurrer state that they are demurring to the Plaintiff's entire 1 st Amended Complaint (page 2, line 7). There is a contradiction here. It appears that Defendants have demurred to Plaintiff's complaint as they demurrer to eleven causes of action. Plaintiffs 1st Amended Complaint has eight causes of action. Plaintiff cannot properly oppose such an inaccuracy as the remaining causes of action differ from that of the Complaint and the 1 st Amended Complaint.

x.

EIGHTH CAUSE OF ACTION

13-32

OPPOSITION TO DEMURRER

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INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (Against all Defendants)

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It has been ascertained that there is an inaccuracy in Defendants Demurrer to Plaintiff s Complaint. 1 st, the Demurrer states clearly on its face that their demurrer is to Plaintiffs Complaint. The preceding pages of their demurrer state that they are demurring to the Plaintiffs entire 15t Amended Complaint (page 2, line 7). There is a contradiction here. It appears that Defendants have demurred toPlaintiff's complaint as they demurrer to eleven causes of action. Plaintiff's 1 st. Amended Complaint has eight causes of action, Plaintiff cannot properly oppose

7 ···suchan inaccuracy as the remaining causes ofaction di_ffeIJmmthat of the Complaint and the 15t

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Amended Complaint.

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As to the remaining causes of action (9 thru 11) that Defendants have Demurred, Plaintiffs 1 "Amended Complaint does not list a cause of action past Cause of Action number eight. Therefore, Plaintiff cannot adequately oppose remaining causes of action that are

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inacc~ate and appear tobemisleading and "a mishmash of "cut and pasted" and or not properly

read and drafted.

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully requests that this Court oyerrule the Demurrer to his complaint asJo all causes of action set forth against Defendants.

DATED: December 30, 2010

LAW OFFICES OF TIMOTln:- L. MCCANDLESS

aj·4t:;l2~

Timothy L. McCandless, Esq.

Attorney for Plaintiff Anthony J. Martin

14-32

OPPOSITION TO DEMURRER

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