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Lore ith and mith, Pro Per 524 N. Encina, Visalia, CA 93291 550-734-7598

TULARE COUNTY SUPERIOR COURT '!!SAUA DIVISION

FILED

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OCT 11 2011
BY. LARAYNE CLEEK, CLERK

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SUPERIOR COURT OF CALIFORNIA COUNTY OF TULARE

VONN FREDERICK SMITH, LORETTA AND ALL UNKNOWN OCCUPANTS, Appellant, vs.

K SMITH:

Case No.: VCL143463 I 10-143463 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF TULARE APPELLATE DEPARTMENT APPELLANTS BRIEF APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA (L1MITEDJURISDICTION), TULARE COUNTY HONORABLE., JUDGE REID

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HSBC BANK OF USA, NATIONAL ASSOCIATION: OF TRUSTEE ON BEHALF OF CITIGROUP SHL1, Appellee

DEFENDANTS'S

IAPPELLANTS

OPENING BRIEF

TABLE OF CONTENTS INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .. 1 . .. 2 . . .................

STATEMENT OF CASE. . A. Nature of Action and Relief Sought B. Summary of Material Facts C. Judgment and Statement of Appealability. D. Standard of Review

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FACTS TRIAL COURT RULINGS. ARGUMENT I. DEFENDANTS ·CAN AND MUST" CHALLENGE THE VALIDITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . .

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OF THE SALE IN THE UNLAWFUL DETAINER

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II. PLAINTIFF FAILED TO MEET ITS BURDEN OF PRODUCING

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Appellants Brief - ~

EVIDENCE A. The Elements o~Plaintiff's Case In Chief Derive From

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Two Statutes: C.C.P.

§ 1161a and C.C. § 2924

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B. Plaintiff Is Required To Demonstrate Strict Compliance With These Statutes C. Plaintiff Failed To Present Evidence the Sale Was Held "In Accordance With" Civil Code 7

§ 2924

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D. Plaintiff Failed To Present Evidence That Its Title Has Been "Duly Perfected" E. Plaintiffs Failure to Present "Clear and Positive" Evidence of Assignment or Overcoming the Gap In Title Is Fatal To 9

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Plaintiffs Cause of Action

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F. The Recitation Language in the Trustee's Deed Is Insufficient .... III. DEFENDANTS

IS ENTITLED TO DISPUTE ELEMENTS OF THE

PLAINTIFF'S CAUSE OF ACTION NOTWITHSTANDING "TENDER" ISSUE A. "Tender" Arises From A Request For Equitable Relief B. The Present Unlawful Detainer Is Purely Statutory CONCLUSION

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TABLE OF AUTHOR IllES CASES Cockerell v. Title Insurance & Trust Co. (1954) 42 Cal.2d 284 Balassy v. Superior Court (1986) 181 Cal.App.3d 1148 Bank of America, N.A. v. La Jolla Group /I (2006) 129 Cal.App.4th 706 Berry v. Society of St. PiusX(1999) Cheney v. Trauzettel(1937) 69 Cal.App.4th 354 , 11 14 9 7 5,6 7

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9 Cal.2d 158

• 848:

Coppola v. Superior Court (1989) 211 Cal.App.3d

Appellants

Brief - •

2d 226 .2d 264 '.2d 701 Hewitt v. 14 7 13.App.2d Supp.. Title Ins.App. Fralick (1934) 2 CaL2d 221 Maron v.App. Kelley Superior Court (1959) 174 Cal. 344 Markham v. (1972) 27 CaLApp. Kessler v. Crummer v. 14 3 Vasey v.2d 179 Kelliher(1950) 101 Cal.2d 644 Kartheiserv.2d 69 Hocking v.3d 742 Wheeler v. City of Fountain Valley(1981) 127 Cal. 837 Kwok v. Whitehead(1964) 1 230 Cal.• .App. 9 5 Kelliherv. Calegaris ( 903) 139 Cal.2nd 348 11 11 1-3.3d 170 Parker v.App.App. (1933) 131 Cal.App. (1977) 70 Cal.App. 12 8 7. Bank of America (1936) 16 Cal.5. Upshaw(1952) 39 Cal..13 10 7 6 Gwin v.App. Bridge (1958) 161 Cal. Bergren (1982) 130 Cal. Coyne (1946) 75 Cal.2d 617 9 5 6 5 6 7 8 9 v. Howard(1968) 258 Cal. v. Vaughn (1948) 31 Cal.3d 596 10 11 12 13 14 15 16 17 iii 18 19 20 21 22 23 24 25 Civil Code § 2924(b) .2d 473 9 14 14 14 11 MCA Inc. & Trust Co.. Justice's Court of Brooklyn Tp. 10.App..8. Gregg (1993) 90 Cal.App.App.4. 439 Higgins v.8. 12 ~ 12 12 Appellants Brief .3d 99 13. (1951) 37 Cal. Civil Code § 1091 Civil Code § 1624 Civil Code § 2924 Civil Code § 2924(a)(1) Civil Code § 2924(a)(1)(C) Civil Code § 2924(c) STATUTES Leonard v. California Dance Co. Universal Diversified Enterprises Corp. 384 2 3 4 Heesy v.2d 341..

Civil Code § 2932. 7.'- 10.5 Civil Code § 2936 .12.__ . 11 9 5.14 7 7 2 7 2 3 4 Code of Civil Procedure § 1161a Code of Civil Procedure § 1161a(b) Code of Civil Procedure § 1161a(b)(3) Code of Civil Procedure § 904.2 Evidence Code 5 6 7 § 500 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appellants Brief .

TULARE COUNTY HONORABLE. SMITH denied those allegations in their Answer. Visalia. Pro Per 524 N.'under a power of sale contained in a deed of trust executed by Defendants or by a person through whom Defendants' claim a right to possession of the Property. JUDGE REID 7 8 9 10 11 12 13 14 15 HSBC BANK OF USA. page 1 #2. Encina. and whether the sale was "held in accordance with plaintiffs title to the premises is "duly perfected. K SMITH: Case No. County of Tulare. as TRUSTEE FOR CITIGROUP SHL 1 alleged that: "plaintiff is the owner of and entitled to immediate possession of the Property" [Complaint.23] 25 STATEMENT OF CASE ~ Appellants Brief . And that at that trustee's sale.P Code of Civil Procedure 2924" § 1161a. Appellant." and whether Defendants/Appellants VONN SMITH AND LORETTA SMITH appeals from the judgment entered against HSBC BANK OF USA 16 17 them in the underlying Unlawful Detainer action.: VCL143463 I 10-143463 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF TULARE APPELLATE DEPARTMENT APPELLANTS BRIEF APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA (LiMITEDJURISDICTION). In its Complaint plaintiff/Appellee. NATIONAL ASSOCIATION: OF TRUSTEE ON BEHALF OF CITIGROUP SHL 1. [Answer #1 . the Property was sold to them in accordance with Civil Code Section 2924. {Trustee's Deed Upon Sale • in the Official Records. & MRS.Loretta Smith and Vonn Smith. They further claimed that: "Plaintiffs title under the trustee's sale has been duly perfected 22 23 24 and is evidenced by a duly executed and recorded Trustee's Deed Upon Sale.1 .] and that.. vs. Appellee INTRODUCTION At issue in this appeal is whether the plaintiff produced at trial sufflclent evidence to carry its burden of proof under two elements of C.C." [Exhibit 1 of Unlawful Detainer Complaint] MR. LORETTA AND ALL UNKNOWN OCCUPANTS. "they acquired ownership of the Property by 18 19 20 21 purchasing the property at a trustees' sale on June 4th 2009. CA 93291 550-734-7598 ~ 2 3 4 SUPERIOR COURT OF CALIFORNIA COUNTY OF TULARE 5 6 VONN FREDERICK SMITH.

on the grounds that plaintiff has failed to present evidence essential to this C. Smith 4 5 6 defendants exhibit A attached to response. [Assignment 10 11 12 13 of Deed of Trust attached.1 A. of USA did not have the power to set sale or foreclose on The Smiths property. Defendants do not seek affirmative 3 action. Trial Plaintiff submitted no evidence to show it was a party to the 2006 The plaintiff HSC Bank Nor did plaintiff submit 24 25 loan at the time of any notices of default or when a notice to set sale was issued. SMITH took out a mortgage in 2006 with QuickLoan Funding a for fraudulent a. not QuickLoan Funding or Mortgage Electronic Systems. 18 19 20 21 22 23 not true as the only "Beneficiary" Electronic Registration Systems. The Smiths merely prays that plaintiff take nothing as in the first trial that was held in this matter against the Smiths on February 10. the "beneficiary" under the 2006 Deed of Trust. the Owner and Beneficiary of the Deed of Trust. and that they are entitled to possession of the subject property. any evidence to show they had any legal authority to enforce the loan terms or to elect the power of sale Appellants Brief . but identifies plaintiff HSBC Bank of USA as the foreclosing beneflcrarv. named in the Deed of Trust number 2006-0101540 Plaintiff bases this contention on a Trustee's is Mortgage Deed Upon Sale. Nature of Action and Relief Sought Unlawful detainer action in-. Summary of Material Facts Defendants VONN SMITH AND LORETIA company that is now activities.2 . And.2010. The Plaintiff HSBC BANK OF USA alleges that it was the foreclosing beneficiary under the original deed of Trust number 2006-0101540.which plaintiff. where this same case was heard and the Smiths prevailed and were granted a Judgment in their favor that the Plaintiff HSBC take nothing by honorable Judge Paul Vortman. seeks possession of the subject property. was the Foreclosing Beneficiary and purchaser at a purported relief in this 2 trustee sale. defunct Corporation shut down by the board of Corporations 14 15 16 17 The Smith filed and adversary hearing against QuickLoan in US Bankruptcy Court and were "Mortgage Electronic Registration Systems" was listed as granted a default judgment against QuickLoan. Unlawful Detainer civil case 09-134741 HSBC Bank vs. Trial Exhibit] B. [Trial Exhibit Trustees Deed Upon Sale] The Trustee's Deed indicates the sale was based on the 2006 loan and Deed of Trust the Smiths had with QuickLoan Funding.C. that they were the This is purchaser at a 2009 trustee sale. § 1161a the foreclosing beneficiary listed in the 7 8 9 unlawful detainer in which plaintiff (HSBC BANK OF USA) was Trustee's Deed [Trial Exhibit Trustees Deed] but was not a party to the underlying loan until a little more than 30 days before the purported foreclosure took place.

and (3) whether plaintiff had "duly perfected" its title to the property. by the Honorable Judge Reid." 3 Accordingly. and. plaintiff could not meet its burden under C. Standard of Review Where an attack is made on the findings or judgment on the ground they are not supported by the 11 12 13 14 15 16 17 18 evidence. [C. MR. evidence by the Smiths Clearly show that Appellants Brief . The Trustee's Deed is nothing more than a "wild deed.3 . Code there is insufficient evidence to demonstrate the sale was held "in accordance with Civil 4 5 6 § 2924" or that plaintiffs title was "duly perfected" because there are no facts to prove HSBC BANK OF USA ever had authority to conduct the sale in the first place. The Smiths contended throughout the unlawful detainer 19 20 21 22 23 24 proceedings that piaintiff was never more than a stranger to tfie 2006 loan with QuickLoan funding (who assets are in receivership at this time by the California Board of Corporatlons). Judgment and Statement of Appealability The Superior Court of California.P § 1161a to prove the sale or that it was held "in accordance with C. or uncontradicted. of whether there is any that will sustain the findings made or the judgment Gregg (1993) 90 Cal.2011.C. § 2424(a)(1)(C) that plaintiff had no legal to forego other remedies and invoke the power of sale. there is an obvious gap in title to the loan..370-371] FACTS Defendants specifically denied in their Answer the allegations made by plaintiff in its Complaint concerning: (1) whether plaintiff owns the premises. The Trustee's Deed which plaintiff 25 submitted and the Court admitted into evidence states that HSBC BANK OF USA was the Foreclosing beneficiary. An appeal of a ruling by a superior court judge or other judicial officer in a limited civil case is to the appellate division of the superior court. as a result.2nd 348. County of Tulare. 7 8 9 entered judgment against the Defendants on January 14. (2) whether the sale was held in accordance with § 2924 of the Civil Code under power of sale contained in the Deed of Trust. C. 2011.1 2 with out first providing a demand for payment or produce 1 single loan document . SMITH filed his Notice of Appeal on January 18. § 2924" or that plaintiffs title had been "duly perfected. § 904. contradicted rendered. From the evidence before the Court.C.C." These contentions were no surprise to plaintiff at trial. authority to make the critical election under C.P. Plaintiff was a stranger to the loan when it supposedly elected to invoke the power of sale.2] 10 D. [Wheelerv.C. The Assignment of Deed of Trust submitted into. the power of reviewing courts begins and ends with a determination substantial evidence. & MRS.App. Limited Jurisdiction.

SMITH testified he never They took out a loan from QuickLoan Funding.4 . the foreclosing 18 19 20 21 22 beneficiary) and the original lender and beneficiary (QUICKLOAN FUNDING and MERS). but this The 4 5 6 acquire the property. SMITH authenticated 21 :9-23.. Smiths did not authorize this or agree to provide a deed of trust to HSBC Bank of USA and The Law Offices of Les Zieve had no power ot'attorney signature appears on many of the documents." It identifies the Trustee as "CHICAGO TITLE COMPANY A CALIFORNIA 16 17 and states that MERS is the "beneficiary" acting "solely as a nominee for Lender and Lender's successors and assigns.. this is not true. [RT identifies the Lender as "QUICKLOAN FUNDING A 1] The Deed of Trust CALIFORNIA CORPORATION. which the Court later admitted into evidence. The person whose 7 8 9 is not an employee of MERS but an but created the Employee of Regions Mortgage who has no assigned interest in the property whatsoever. ruled that Defendants' contentions regarding the gap in title between the. MRS. pages 1 & 2] Plaintiff submitted absolutely no evidence to overcome the obvious gap in title between itself (HSBC BANK OF USA. and was nothing more than a complete stranger to the 2006 loan with no authority to elect to conduct the sale. TRIAL COURT RULINGS The Court ruled on the first day of trial that Defendants could not defend on the merits because they had not tendered to plaintiff the full amount due on the loan. 10 11 The Trustee's Deed also identifies HSBC BANK OF USA as the foreclosing beneficiary: 'The grantee herein IS the foreclosing beneficiary: [Trial Exhibit Trustee's Deed) MR. & 12 13 14 15 borrowed money from HSBC BANK OF USA. Trial Exhibit the 2006 Deed of Trust. & MRS. nor did it produce any written evidence to explain how HSBC BANK OF USA became a successor beneficiary before any foreclosure proceedings commenced. MR. "Security' know as HSBC Bank of USA as Trustee for CitiGroup SHL 1 and receives quarterly dividends as do many other stock holders. from QuickLoan Khristi Matheny Funding or MERS. Vonn Frederick 2 The purported assignment claims that and Chicago Title Smith and Loretta K. [4:26-5:9] The Court consistently 23 24 25 . Smith husband and wife and Joint Tenants company as Trustee agreed to this assignment." CORPORATION.HSBC Bank of USA had no interest in the Loan prior to 4/23/2009. Plaintiff provided no testimony at trial concerning any assignment of the deed of trust to HSBC BANK OF USA. At the time of this assignment The Law 3 Offices of Les Zieve was the Trustee to Mortgage Electronic Systems and QuickLoan was a guise as they were working with Regions Mortgage to fraudulently Funding. Deed of Trust and the Trustee's Deed may Appellants Brief . [Trial Exhibit Deed of Trust.

There.Zd 158. but must. But to the limited extent of proving deraignment provided for in the unlawful detainer statutes themselves the question of title not only may.App.2d 69. The burden of proof is on the purchaser to show to show the trust property had been duly sold to him and that his title was duly perfected.5 ." [Kartheiser v.2d 264. [Hewitt v.App. Trauzettel (1937) 9 Cal. 159-160] In an action for unlawful detainer. Trauzettel (1937) 9 Cal. 439. Coyne (1946) 75 Perhaps the most factually analogous Cal. 11:14- 25. 442-443] Plaintiff must "prove a sale in compliance with the statute and deed of trust.2d 617. but must. the property had been deeded to her before the sale.C. "not only may. 26:25-27:51 For this reason it appears the trial Court did not consider the issues Defendants was attempting to raise: that there was no evidence presented to demonstrate that plaintiff (HSBC BANK OF 3 USA) had authority to elect to conduct the Trustee Sale and therefore plaintiff did not meet its burden under C. "Hewitt and cneny' say: It is clear. 4 5 6 § 1161a (to prove sale "in accordance with C. 4:2-10. Superior Court (1959) 174 Cal." Title.P. (1933) 131 Cal. [Cheney v. 268] controlling authority is the case of Higgins v. followed by purchase at such sale and the Defendants may raise objections" on that phase of the issue of title. the LID Defendants alleged the trustee sale was a legal nullity because.P. DEFENDANTS ·CAN AND MUST" CHALLENGE THE VALIDITY 7 8 9 OF THE SALE IN THE UNLAWFUL DETAINER Plaintiff must "prove a sale in compliance with the statute and deed of trust. section 1161a requires proof that the 10 11 12 13 14 15 16 17 18 property was "duly sold in accordance with Section 2924 of the Civil Code. to the extent required by section 1161 a. 159-160] 6 perfected.") ARGUMENT I. be tried in such actions. of course. In other words. (RT 2:18-23. 620] The Defendants is entitled to dispute the validity of the trustees sale and place the purchaser's title in issue.C.App. 2924" and title "duly perfected. Wl7ltehead(1964) v.App. followed by purchase at such sale and the Defendants may raise objections" on that phase of the issue of title. inter alia. the UD Defendants contended the sale was invalid because the purported benefiCiary had no legal authority to conduct the sale in the first Appellants Brief .1 2 be appropriate elsewhere but had no place in an unlawful detainer hearings. 22 23 24 25 230 Cal. [Cheney [Crummer v. Justice's 19 20 21 Court of Brooklyn Tp. be tried in such actions if the provisions of the statutes extending the remedy beyond the cases where the conventional relation of landlord and tenant exists are not to be judicially nullified. that questions of title cannot generally be litigated i~ an of title in the manner expressly unlawful detainer action.2d 158.

City of Fountain Valley (1981) 127 Cal. PLAINTIFF FAILED TO MEET ITS BURDEN OF PRODUCING EVIDENCE Except as otherwise provided by law. under a power of sale contained in a deed of trust executed by such person. a finding thereon should be against the party having the burden of proof. but must. [Id. introduced of a party to sustain the burden of proof requires the production v. of title in the manner expressly provided for in the holding: To the limited extent of proving deraignment unlawful detainer statutes. The First District Court of Appeals reversed.1 2 place. Vaughn (1948) 31 Cal. & MRS.. and the title under the sale has been duly perfected. (3) Where the property has been sold in accordance with Section 2924 of the Civil Code. the question of title not only may. 74]1 Higgins is very similar to the present matter. Just like the Defendants in Higgins vs Coyne. @ p.P. the Defendants. II. despite the fact she had also attempted to raise other issues the outside the scope of the UD.IITH here contends that the sale was and is void because the party 10 11 12 13 14 15 16 17 18 who purportedly elected to invoke the power of sale did not have the legal power or authority to do so. The Defendants challenged the underlying legal right and power to conduct the sale. a person' who holds over and continues in possession of . a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting. [Evid. or a person under whom such person claims.3d of evidence for that no evidence is [Parker 99. [Heesy v. may be removed therefrom as prescribed in this chapter: .. Sf". The trial court rendered judgment for the plaintiff. The Elements of Plaintiffs Case In Chief Derive From 19 20 21 22 23 24 25 Two Statutes: C.App.. real property .. [Id.C.. § 2924 Code of Civil Procedure § 1161 a(b): In any of the following cases. 113] Where upon an issue. under the law laid down in the 4 5 6 7 8 9 Hewitt and Cheny cases. § 1161a ana C. [Emphasis added] Civil Code § 2924(a)(l)(C): of Default "shall" include: A statement The Notice setting forth the nature of each breach actually known to the beneficiary and of his or her election to sell or cause to be sotd the property to satisfy that obligation and Appellants Brief . was entitled to challenge the legality of those particular proceedings and to have that limited issue tried and determined in the justice's court. be tried in such actions .C.. @ p. 708-709] A..6 . MR. The appeals court held the Defendants was entitled to try the issue in the unlawful detainer. Code § 500] The obligation purpose.. 3 72] Since plaintiff alleged that his title to the property was deraigned and performed through proceedings had under a power of sale contained in a deed of trust.2d 701.

a stranger to the loan cannot elect to invoke the power of sale in the Deed of Trust.App. Superior Court (1989) 211 Cal. La Jolla Group /I (2006) 129 Cal. 868] C. was the electing party (HSBC BANK OF USA) a bona fide "beneficiary" under C.C.C.A.AppAth 706. [Emphasis added] B. Statutory provisions regarding the exercise of the power of sale provide substantive rights to the trustor and limit the power of sale for the protection of the trustor. [Coppola v. § 2924(a)(1)(C)] The language of this part of the statute stands in marked contrast to the other parts of the statute which provide for the ministerial aspects of § 2924 to be carried out by delegates 19 authorized of the beneficiary: "the trustee. The "electing beneficiary" must have legal power deriving from the original Note or Deed of Trust. This power is reserved exclusively for the "beneficiary.App.3d 848.4th 363] A non-judicial foreclosure sale under the power-of-sale in a deed of trust or mortgage must be conducted in strict compliance with its provisions and applicable statutory law. Plaintiff Failed To Present Evidence The Sale Was Held 9 "In Accordance With" Civil Code § 2924 10 11 12 One critical element about which plaintiff failed to present indispensable evidence was whether the party electing to conduct the sale had any authority to do so. Otherwise. 712] Here. In other words. the statute does not permit a sale to take place. mortgagee." [C. or beneficiary. [Berf}' v. Plaintiff Is Required To Demonstrate Strict Compliance With 2 These Statutes 3 The statutory situations in which the remedy of unlawful detainer is available are exclusive and the 354. Society of Sf. § 2924(a)(1)] But the statute empowers only the "beneficiary" 20 21 critical election of remedies and invoke the power of sale. v. Pius X (1999) 69 Cal.7 . § 2924(a)(1)(C)? The Notice of Default "shall" 13 14 15 16 17 18 include: A statement setting forth the nature of each breach actually known to the beneficiary and of his or her election to sell or cause to be sold the property to satisfy that obligation and any other obligation secured by the deed of trust or mortgage that is in default [Emphasis added] Under the statute. N. 4 5 6 7 8 statutory procedure must be strictly followed. [Bank i of America. plaintiff was not the original Appellants Brief ." [C.C. or any of their to make the agents. It is axiomatic that for the sale to have been held "in accordance with Section 2924" the party electing to conduct the sale must have had legal 22 23 24 25 authority to do so. The statute does not empower a stranger to elect the remedy of sale.any other obligation secured by the deed of trust or mortgage that is in default.

The original lender was QuickLoan Funding and the beneficiary was MERS. The purported assignment of a mortgage without an assignment of the debt secured is a legal nullity. it may not have 7 8 9 been necessary for plaintiff to prove it actually owned the Note at the time of election of sale. plaintiff had no more right to sell this propertythan did the Man in the Moon. title thus becomes an issue. the Note and Deed of Trust cannot be separated. Plaintiff provlded no evidence of any billing or request for Appellants Brief . But unless plaintiff proves who owned the Note at the time of election it is impossible to discern whether the sale was held in accordance with § 2924.. 837. [Kelley v. from the evidence at trial it would appear there is a gap in title the size of the Grand Canyon between the parties to the 2006 loan (QuickLoan/MERS) [Trial Exhibit 1] and the 2009 Trustee's Deed (HSBC BANK OF USA).2d Supp. Plaintiff/HSBC BANK OF USA lied and claimed 'WAS the foreclosmg beneficiary.8 . Bridge (1958) 161 CaLApp.e. "The assignment of a debt secured by mortgage carries with it the security.beneficiary. Kelliher (1950) 101 CaLApp.2d 226. Title Ins. Calegaris (1903) 139 Cal. of Trust was assigned prior to April 23. Plaintiff Failed To Present Evidence That Its Title Has Been "Duly Perfected" Plaintiff must prove affirmatively that the property was duly sold and that "the title under the sale has been duly perfected. 384. valid and good beyond all reasonable doubt. [Deed of Trust. 192] In order to carry it's burden to demonstrate the sale was held in accordance with the law. & Trust Co. Plaintiff provided no evidence the Note or Deed .. D. 232] Title is duly 19 perfected when all steps have been taken to make it perfect. Kessler v." On the contrary. to convey to the purchaser that which he has purchased. 2009." Contrary to the rule applying to unlawful detainer where the landlord-tenant involved. i. Trial Exhibit # 1] But according to the 2 Trustee's Deed. As a matter of law. Strictly speaking. 841] Here.C. There is absolutely no evidence plaintiff had any right to cause the sale to take place. [Kelliher relationship is v." 10 11 12 13 14 15 16 17 18 [C. plaintiff has failed to prove its title is "valid and good 20 21 22 23 24 25 beyond all reasonable doubt. According to the evidence at trial. (1951) 37 CaL2d644." [Trial 3 4 5 6 Trustees deed] But plaintiff failed to produce any evidence to bridge this obvious gap in title. § 2936] Assignment of the Note carries the mortgage (Deed of Trust) with it. 649] This includes good record title [Gwin v. plaintiff needed to present evidence at trial showing the party that elected to conduct the sale under § 2924(a)( 1)(C) had the requisite legal authority to do so. Upshaw (1952) 39 CaL2d 179. [Hocking v.

) The alleged foreclosure 10 11 12 13 of 6/4/09 could never have taken place without fraud. not MERS. We know plaintiff was the purported "foreclosing beneficiary. 11 Rather than "perfect title" what plaintiff has now is nothing more than a "wild deed.5] The plaintiff failed to produce such 4 5 6 documents from the Recorder's Office. Asset backed pass-through Certificates. The power of sale may only "be exercised by the assignee of the assignment" after it is "duly acknowledged and recorded." [C. on 7 8 9 4/23/09 (See evidence of Employee status of Khristi Matheny who was not authorized to sign for MERS. § 2932. or other legal documents which might have bridged this obvious gap in title.payment or any certified documents noticing The Smith's that any monies were owed to HSBC Bank of No loan USA. HSBC was assigned a deed of trust fraudulently by Regions Mortgage Employees. foreclosure) without of the members. MERS explains that it merely "immobilized occur. notarized and recorded. prior to any default notices. All such assignments are required by law to be written. Appellants Brief .' [Trustee's Deed.9 .C. Further MERS argues that it does not own the promissory notes the authorization 14 15 16 secured by the mortgages and has no right to payment made on the notes. HSBC Bank in its capacity as Trustee for the Citigroup Mortgage Loan Trust Inc. it would not have been an undue burden for plaintiff to present evidence of such authority at trial. Trial Exhibit] Plaintiff was supposed to have executed. In MERS v. 2 3 documents were ever entered into exhibit. Nebraska Banking MERS argued that is does not acquire mortgage loans and its therefore not a mortgage bank under 45-702(6) because it only hold legal title to members. mortgages contractually in a nominee capacity and is prohibited from exercisinq any rights with respect to the mortgages (ie. in fact there was no actual loan or billing or loan to default on." the mortgage lien while transfers of the promissory notes and servicing right continue to 17 E. 20 21 22 23 24 25 notarized & recorded the chain of title documents before conducting the sale.. Regions Mortgage througl) the Law Offices of Les Zieve filed a notice . Series 2007-SHL 1 was not the lender nor did the Smith's have any obligation to pay them anything as they were strangers to the loan and the note. Plaintiffs Failure to Present "Clear And Positive" Evidence of 18 19 Assignment or Overcoming the Gap In TItle Is Fatal To Plaintiffs Cause of Action If plaintiff really had possessed legal authority to elect the power of sale." which is probably uninsurable.

§ 2924.App.. The Recitation Language In the Trustee's Deed Is Insufficient Plaintiff argued at trial the recitation language in the trustee's deed is sufficient to carry its burden of proof as to whether the sale was held in compliance with C. 2008. subscribed by the party disposing of the same. but the measure of sufficiency requires that the evidence of assignment be "clear and positive . Meaning the note was fraudulently assigned to HSBC Bank on April 23.) The assignment of a contract required to be in writing under the statute of frauds must also be made by written instrument.C. 15 16 17 18 19 20 292 [plaintiffs failed to prove valid assignment of note and deed of trust to them . unless the assignment be by operation of law. And according to Civil Section code 2924 a total of 90 days must pass before a notice to set sale of property must occur. Such evidence must not only be 12 13 14 timely assignment sufficient to establish the fact of the assignment.2d 473.of Default claiming they were QuickLoan Fundings representatives on January 17.. Moreover. practices.2d 284. the recitation in Deed [Trial Exhibit] says nothing about whether the party electing to invoke the .C. power of sale had a legal right to do so. under the statute of frauds.. [C. Substitutions created a deed of trust on June 4.C.C. Title Insurance & Trust Co. it did not." (Cockerell v. 2009 and fraudulently 10 11 2009 totally by passing all Section 2924 or any other requirements. C. a purported assignment of the Note or Deed of Trust would be void if not in writing or by operation of law (C. 2 The sale never took place and a Federal Court Case ensued over whether or not Regions Mortgage had a 3 legal right. §§ 1091 & 1624. 2009. Maron v. no . All assignments of the Note and of the Trustee must be in writing and recorded. HSBC Bank did nothave the legal right to invoke the power of Appellants Brief .. not whether 21 22 23 24 25 plaintiff had the power to conduct the sale in the first place. [Civil Code § 2932.10 . The Smiths received a Default Judgment against their lender QuickLoan for fraudulent loan Before the loan could be voided by the Court Regions Bank and the Law Offices of Les Zieve 4 5 6 conspired to commit fraud and assigned HSBC Bank without authorities or powers and in another county created a trust Deed for HSBC Bank oiUSA. must prove their chain of title to the note in question. 2008. § 2924 permits such recitations concerning the notice requirements of the trustee sale process.. The Plaintiffs were assigned on April 23. the instant Trustee's § 2924(c)] Furthermore.485 [assiqnment of lease]) F. 7 8 9 demand for payment and no notices of Default and no notice that they were going to sell the property. This is not the case. (1954) 42 Cal. HSBC Bank of USA sent no notice they owned the note.. Regions Bank through the Law Offices of-Les Zieve filed a notice to set sale of the Smiths property for June 20. First.]) (Emphasis added.5] The burden of proving falls upon the party asserting rights thereunder. Howard(1968) 258 Cal.

1 2 sale at the time of any notices of default and were strangers to the loan. or an agent of that substituted trustee. Les Zieve did not file any defaults that HSBC was referenced HSBC's Assignment fraudulently 10 of Deed of Trust. It is a conflict of interest for Les Zieve to serve as Trustee for QuickLoan and himself as Trustee for HSBC bank and Regions Mortgage their officially It makes for a suspicion that fraud exists. an agent of the named trustee.I which was sold to various investors. No loan documents or demands for amounts or loans existed to tender to HSBC Bank of USA.c. Since Regions Mortgage did not have a relief from stay and there is no assignment recorded in the county recorders office that Regions Mortgage had a right to initiate a foreclosure on behalf of QuickLoan. MERS or HSBC. any person designated in an executed substitution of trustee. § 2924.C. Appellants Brief . Regions Bank and HSBC Bank are in Violation of a Federal Discharge Injunction granted to the Smiths August 2008 with regards to the Loan from QuickLoan funding and other debts. The Loan the Smiths had was with QuickLoan Funding and that was discharged by a Federal Court Discharge Injunction. their act violated a Federal discharge injunction and is legally void. § 1161a and C. Regions Bank is the servicer for the security known as HSBC Bank of USA. Regions Bank through the Law Offices of Les Zieve initiated foreclosure on a Loan that did not originate with them and did not have the legal authority or power to sell the Smiths property. nor was there ever any contractual agreement between the Defendants and the plaintiffs. MERS and then assume unassigned servicer. The Original loan was discharged by the United States bankruptcy Court and Regions Bank as Service for HSBC Bank was noticed. therefore no notice of Default was served assigned as lender April 2009 and fraudulently foreclosed in June 2009 that time frame does not fulfill the requirements HSBC claimed that they had a duly perfected sale according to 2924 and they did not. DEFENDANTS IS ENTITLED TO DISPUTE ELEMENTS OF THE PLAINTIFF'S CAUSE OF ACTION N01WITHSTANDING "TENDER" ISSUE 15 16 17 18 It is unclear from the record what the trial court ultimately decided with regard to the issue of tender. 3 4 5 6 7 8 9 a notice of default according to Section California Civil Code Section 2924b (4) A "person authorized to record the notice of default or the notice of sale shall include an agent for the mortgagee or beneficiary. trustee for Citigroup Slll. The statutes cannot be reasonably interpreted to exempt plaintiff from having to prove the elements of its own case. In any event. 12 13 14 III. plaintiff must prove the elements of its cause of action under c. 19 20 21 22 23 24 25 On the day of trial the Court appeared to suggest Defendants could not challenge whether plaintiff had met it's burden of proof because Defendants had not tendered the full amount of the loan to plaintiff who had never made a demand for payment. The recitation is silent about the one issue before the courts whether the Section 2924(a)(1)(C) election was made by a true "beneficiary" Les Zieve was not authorized to file with power of election deriving from the 2006 Note or Deed of Trust.P.11 . whether or not Defendants tendered the loan amount. of section 2924 that represent the 90 days notice or 20 days notice to set sale.

3d 170.3d 24 25 the loan amount before plaintiff is required to prove the elements Appellants Brief . They were not seeking to invalidate the 2006 Note or Deed of Trust. the MCA decision states.A.2d 221.2d 264. the issue was whether the trial Court had abused it's discretion in "refusing to set aside the trustee's sale.P. supra. in Crummer v." [ld @ p. Unlike Crummer and MCA.App. 27 3 Cal.3d @ 177. Plaintiffs cause of action is purely statutory. appellant's "demand for a judgment cancelling the trustee's sale. "Some disposition on the part of (Defendants) to do equity by tendering the amount of the debt due is a prerequisite to a demand for a judgment canceling the trustee's sale. Leonard v. Universal 4 5 6 Diversified Enterprises Corp. [MCA. The "mode and measure of plaintiffs recovery" are limited by these statutes. The restraining order was set aside and the sale went forward. (1972) 27 Cal. The statutes prevail over inconsistent and procedure because of the special function of unlawful detainer general principles of law immediate actions to restore possession of real property.3d 1148.App. Calif Dance Co. citing Markham v." [MCA @ p. Universal Diversified Emerptises Corp.App. 268] There was an unlawful detainer action at issue. Whttehead(1964) 230 Cal.App.]) 8. (Vasey v.C. v. (emphasis added). (1977) 70 14 Cal. there is no request for equitable relief.344] There is no tender requirement contained in the unlawful detainer statute(s)." [Balassy v. § 1161a.App. "Tender" Arises From A Request For Equitable Relief' 2 The tender issue arises on1y in the context of an equitable claim. not seek affirmative relief.12 . Fralick (1934) 2 Cal. Superior Court (1986) 181 Cal. but the appellant had also made affirmative equitable claims on which she obtained a temporary restraining order ex parte restraining the sale. sought monetary damages and "that the trustee's sale be declared null and void. Inc. For example. UD plus equitable action for affirmative relief. 177] Again. The case was tried in the Superior Court. such relief is beyond the scope of this unlawful detainer. SMITH did not seek equitable relief.2d 341.3d 742. 747 [Unlawful detainer action may not be tried in conjunction with other causes or claims except perhaps by mutual consent of parties. Bergren (1982) 130 Cal. The requirement that a trustor seeking equitable relief to set aside a foreclosure sale must make a proper tender is based upon the principle that one seeking equity must do equity. 7481 Neither statute (C. 174] Citing Crummer." [MCA. Kwok v. The Present Unlawful Detainer Is Purely Statutory 7 8 9 10 11 12 13 14 15 Here.App.C.App. 1151] It is well established that unlawful detainer actions are wholly created and strictly controlled by statute in California. 225-227. The tender issue arises in those cases only as a result of the equitable cross-actions. v. the present case between plaintiff and the Smith's is purely statutory. Inc. presumably as a result of the equitable action. Defendants did 16 17 18 19 20 21 22 23 742. (1977) 70 Cal.. Nor did the pray for a judgment setting aside the 2009 trustee sale. MR. and Vasey v.3d 596. the tender requirement is applied only to the claim in equity. C." The MCA case is also a hybrid. California Dance Co.App. Bank of America (1936) 16 Cal. They merely denied elements of plaintiffs statutory cause of action. The Defendants there claimed the sale was improperly held. "It is well established in California that unlawful detainer actions are purely statutory. & MRS." [/d] The tender issue is mentioned only in the last five lines of the decision and only as a prerequisite to "her demand for a judgment cancelling the trustee sale. § 2924) contains a requirement that Defendants tender of the cause of action. Indeed. 599.

.13 . 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Dated this 17th day of January.P. which in most cases would be a recorded assignment before the notice of default dated January 17. Plaintiff brought itself within the requirements of Civil Code § 1161a. § 2924 and that title was duly perfected. evidence which was indispensable to its chosen cause of action. Plaintiff failed to present evidence on these two issues. ' and Vonn Smith Pro Se Defendants/Appellants. Such proof is routinely If HSBC 3 4 5 6 7 8 9 required in other contract actions where the plaintiff was not a party to the original transaction. Appellants Brief . BANK OF USA really did have legal authority to elect the power of sale then it would not have been an undue burden for plaintiff to present such evidence.O'" ~etta . ~L~ ir . plaintiff chose to accept the benefits of the summary proceeding in exchange for the obligation to strictly comply with the statute. The statute requires plaintiff demonstrate the sale was held in accordance with C. something more 2 than a complete stranger to the Smiths 2006 loan from QuickLoan Funding.C.2008 . 2011 ~.CONCLUSION What the plaintiff seeks here is proof the entity that purports to have sold his home is. In so doing.

even though full payment was demanded.3791 loan No.r I I 0Il~ 15-Fili-'c008. 1Il.14 . You may not have· tooay the entire unpaid portion of your account...EJ !:l~l"~~. but you must pay all amounts in default at the time payment is made. the bene1iciary or mortgagee may require as a condition of reinstafement that you provide reliable written evidenC€ that you paid all se'oior liens. (1) provide additional time in which. pay taxes on the property" provide insurance on uie property.es Zieve 17682 Beach BNd.he amount or if your 18 19 tor any other for payment to stop reason.\} I 1 I1fC I f I rn: WHEN RECOP<OED MAll TO: 4 5 6 Law Offices of Les Zi~ve 17682 Beach Blvd.'~"'l\._1J. payments 16 17 to cure the default by transfer of the property or otherwise. However. No sale date may be set untit three months from the date Ihis notice of default may be recorded {whiph dale of recordation appears on thisrrotice]. CA 92647 358.7920. Suite 204 Huntington Beach.1 light to tJring your account in good standing by paying all of your past due payments plus permitted costs vane expenses within the tlme permitted by law for reinstatemen-t of your account. or both (1) and (2)_ you must pay. In ad<Jition.50 as of 1117/2008 . If you fail to make future payments on the loan. the beneficiary Of mortgagee may rnsisl that you do so in order to reinstate your account in good. standing. or (2) estabJish a schedule of in order 10 cure your default.677.. '". 20 21 22 23 Huntington Beach. SER'l1 Cf 21Z10B-0011C!91 II~ DffiC'ial '~~tiM tllUnty &f ~ 2 3 REcoROINGRl:OUESflOO T m r t1l0n h j2. you and your beneficiary or mort9age~ may mutually ag(ee 1n writing prior to fhe lime the notice of sale is posted (which may not be eanier than the three month period Slated above) to. or to arrange property is in foreclosure To find out t.96014547 lui3M' II. contact: the foreclosure..: 18.. Upon your written request the beneftdary or mortgagee wiil give you a written itemization of the entire amount you must pay. While your property is tn foreclosure. and hazard insurance premiums. or pay other obligations as requirw in the note and deed of trust or mortgage. IRS ~P 1 !If 2 TS t-ro: 8738 7 8 9 NOTICE OF DEFAULT AND ELECTION TO SELL UNDER DEED OF TRUST 10 11 12 13 14 15 and you may have the fega.and will increase until your account becomes current. Regions Mortgage as ~rvicer CIO Law Offices of t.. which is normally five business days poor to the date set for the ~Ie of YOUT property. ATTN: FORECLOSURE DE?. among other things.' 1mIIHII 111111HIfII ft ffll~U ~ sv. property taxes. you still must pay other obligations (such as insurance and taxes) required by your note and deed of trust Of mortgage. CA 92647 24 25 Appellants Brief . YOUR PAYMENTS IT MAY BE SOLD WITHOUT ANY COURT ACTION. IMPORTANT NOTICE IF YOUR PROPERTY IS rN FORECLOSURE BECAUSE yOU ARE BEHIND IN This amount is $20. Suite 204 714-848.

RICK SMITH AND lOREnA K. 23 24 25 Appellants Brief . to pay the remaining principal sum of the flote(S) secured by the Deed of Trust. eA 92647 Automated Sale Information Line: 818-487-8009 or www. UNLESS YOU TAKE ACTION TO PROTECT YOUR PROPERTY. or savings association. HUSBAND AND WIFE AS JOINT TENANTS OU~fAppointed Trustee: LAW Of ACES OF lES ZlEVE Oe-~ of Trust recorded 1012120.00 PM prace of Safe: AT THE NORTH FRONT ENTRANCE TO THE TUlARE CITY H'ALL. or encumbrances. it is possible that at tne time of the sale the opening bid may be less than the tolal deOt owed. 14 15 Trustor VONN FREDE.06as Instrument No . CA 91647flRST M'lERlCAN 176Pll Bt~li BI\'d.1 2 3 1_ • {REC0RClNG REQUESTED Low Otriees <>f Les Zi.1J__~ __ an8 Loan No. Ch8lgesand expenses of the Trustee (or the: (olal amount (at the time of the initial publication of the Notice of Sale) reasonably e$llmaxed 10 be set forth below. as provided in the note(s). KERN AVE. cas!)ier's check drawn on a s1a.e'>e BYj liB Ull tiDI RIIUDltIIlti III 2008-0035798 RECOR.~ or national bank.nccrrectness of the street address Of other common designation. California. of all righi.gfllA 8""~h. wi" be made.85 Note: Because !he Beneficiary reserves the right 10 bid less than the tola! deb! cwed. No.96014547 elm Recol'l!.LOCATEO AT: 41'1 E.al ~ords C8<mty Qf GliEOOfiY B. CAUFORNIA Amount of unpaid balance and other charges: 5197.052. ~ClJtdPrf (WHEN RECORDED MAIL T(». 18. directions to the location oflhe property may be obtained by sending a written request 10 the beneficiary wiftlm 10da'ls of the date of first publication of this Notice of Sale. expressed or !mplied.IC SALE. ~ru:\ I I I I ~ IPS IMWII 2Hay-316 I PaF 1 of l NOTICE 'OF TRUSTEE'S SALE YOU ARE IN DEFAULT UNDER A DEED OF TRUST DATED 9125f2006. but without covenant or warranty. as Trustee 17682 Beaeh Blvd.each. YOU SHOULD CONTACT A LAWYER.eUtep.com For Non-Automated Sale Information. Street Address or other common designation of real 524 NORTH ENCI~tA STREET property: VISAUA. SMfTH. . If no street address or other commoo designation is shown.2000 LAW OFFICES OF lES ZIEVE..I Uti· Olfius of Le! zi eve fluotil.. check: drawn by a state or fedBraJ credit union. shown above.119 TITlE COMP /IrS AN AOOJMMODATION ONI.615120CB a12. G101540 in book . if any. advances. Date (]f SaIe.Y lulill"p 4 5 6 7 8 9 10 11 12 13 T.ostandpub.page of Offlcia! Records in me office of the Recorder of Tulare County. interest !hereon.. under Ihe terms of the Deed of Trust.S. The sale. TUlARE.is state will be held by the duly appointed trustee as Shown belo'#. possession. or a check drawn by a Sl?te or federal savings and loan ass:ociation. wittJ interest and late charges thereon.15 . caD: 114-848-9272 Cb"""'~'OIfiU' THIS FIRM 1$ A nEMPTf~ TO COlLECTA O€ST AND ANY INFORMATION WE OBTAINED WIll BE USED FOR THAT PURPOSE. fees. sale 10 the highest btloer for cash.. Suitr 2Q4 I I E fEE 9. and interest conveyed to and now held by the trustee in the Ilereinafter described propertyunder and pU!'$uant to a Deed of Trustdesclibed below.2C{)6.DlNG REQUESTED BY Dffici. IF YOU NEED AN EXPLANATION OF THE NATURE OF THE PROCEEDING A public auction AGAINST YOU. ti~le. ~S ?314"1. or s'OV'1ngs baM specified in seenen 5-102 of the Financial Cooe and autOOrized to do bus mess in tt". regarding litle. 16 17 18 19 20 21 22 Dated: May 16. California 93291 APN Ii: ()94-lS4-OO1 The un<!ersigned Trustee d'lSclaims any llaailily fur 3roJ i. The amount may be greater on the day of safe. IT MAY BE SOLD AT A PUBl. Sutta 204 Huntington B.

or the enUty upon behalf of wnicl1 tne person(s) acted. (seal) 22 23 24 25 f'-·t ~ . as Trustee.nJ{f\(!(It a. in the office of the County Recorder of Tulare County. . National Association Mortgage Loan Trust Series 2007-SHL1 of trustee on behalf of the holders of Citigroup 12 13 aU bf:neficial interest under that certain Deed of Trust dated: 9/25/2006 executed by VONN FREDERICK SMITH AND LORETTA K. on 101212006. i!IllIOCII!m.' 1 Appellants Brief . HUSBAND AND WIFE AS JOINT TENANTS. California together with the Promissory Note secured by said Deed of Trust and also all rights accrued or to accrue under said Deed of Trust..aibed to the within inst.I< ( inslrtJil1e11t I .: 1896014547 7 8 9 15 ?37C-f1- ~ TS No. 8738 ASSIGNMENT OF DEED OF TRUST For Value Received.ia 4 5 6 W. executed the On.son(s) whOse oame{s} islam 5ub?. and !hat by hislhe!:lttleii' Signature{s} on the lnstrumerrt the person{s).acuteU tile Hm'$ In. SMJTH.b-H t'". and recorded as Instrument No. in Book. (he undersigned corporation hereby grants.-e- M p.. and transfers 10: 10 11 HSBC Bank of USA.cerJfy under PENALlY OF PERJURY mder 100 laWS of the Slate 01 California thai. to CHICAGO TITLE COMPANY. proved to me on the basis of satis1actory eYidE..hen Recorded Regions Mortgage Mail To: RrC'Jl'l1eri Offi~ial Rmmls CUllll'tf of fu1an &lIHll!IY B.16 . MS ~40t-3476 I t DJF I Page 1 of 1 .. By: MORTGAGE ELECTRONIC REGISTRATION SYSTEMS.ice to be toe pe.. as Truslorts). j:.. .before LoM tlGtC..hi$]herll~f authorized eapacily(ies}. 4/2-3!~ 4"lJh«ywho . INC as nominee byOU!CK LOAN FUNDING.1 l1lI111III JHti f lH 111111IJlfI ~I I Requested ~d P~md 2 3 iYPJ' 2f2'(2). 2006-0101540.:?-00Z6038 by: I U.tedgOO to me thui helshellhey e. fiRST AMERICAN TITLE INSURANCE CflMPAlW Loan No. AS lENDER..E elm lIeC1lrd~r e8:9llAlt ~ I~ I I I I FEE 215 Fcm. Page of Official Records.lSt Street Hilttiesb.. B \ RECORDINGRWUESTED BY.c..'\d acl<l"I(N. 14 15 16 17 18 19 20 21 -~ me. assigns.tfI'!l... the fufegafng par69raph is w(\ and correct.~It~ personally appeared.

CA 92647 es T(lJstee under said Deed of Trust.ir."\: h-:rb v \\110IlfCNOOIo!'TiIlon the basis of safisfactot'/ ~idenc.n the in5!ru~ On J)el'SO@ ~. .at by hislhe1'tlleir sigr.: 1890014547 TS No. CA 92647 t8..inlnstl'tr. and QUICK LOAN FUNDING. Oaea- ZIEVE..-u (0 malnet heIshaI1hey e..Dnlll" I I I I 2 3 • FlHST AMfRICAN TITLE ... 9 10 California. '1(~ . in book .JRiI . CHICAGO TITLE COMPANY was the onginal Trustee.l€nt and adt'lIlWIedgeril!l. 19 before me. SMITH.Pi1ge of Official Records 01 Tulare County..nfily upon beIlalf of w.)'11"9.~.:.. the undersigned desres to suosuane a new Trustee under said Deed of Trust in piace and instead of $aid o<iginal Trustee. AS LENDER..e and/or neuter. yapPeared ~hr .e same in hlS>'heil't.....~ IPS (Ha~ I I Pagt I If l t 02n No. the u. INC was the origflal Beneficiary under that certain Deed of Trust dated 912. Law Offici's Qf Les Zieve 4 5 6 17682 Beach Blvd.s) on!hg iflsaumenllhe nersDilfs~ or 100 e...e. VONN FREDERICK SMITH AND LORETTA K.au'oIlOlized ~ty(jesl.0. LAW OFFICES OF LES MORTGAGE ELECTRONIC INC. tQ be \he P£!"".. NOW. the undersigned hereby SUDslilUles 17682 Beach Blvd. ~_ Nl>lary f'ttbJic.2O\0 WiTNESS rrrt hand and off1cil1 seal 22 23 24 25 Appellants Brief . 2000-01015040.. \\.ecu:eti l~... the masculine gender includes the femir. and WHEREAS.n(') wlme name(s I i!Ja(~lub5crilX!d to lhe ".'1ictl1lle person{sl ac:ed..SANTA ANA (CalNv) AND wHEN RECORDeD MArl TO: I RffFIE p"" .17 . Suile. in the marine. Suite 20'~ Huntington Beach. (If Successor Trustee.4. tt.-la-.I:r v'('!~ 6 / .' in said Deed of Trust provided. INhenever the context hereof so requires. L'lereunllef.\-1 20 21 ~~-:B~"1r ttl' ~ aPlRESJUKE t5. -. e~ecu!.: 8738 7 8 SUBSTITUTION OF TRUSTEE WHEREAS. and 11 12 13 14 15 16 17 18 WHEREAS.2V4 Huntington Boacb. R!:'-SOR1)lNG REQUESft:O BY: 1111 I UII 111111lI 1J1!11I11I III H v 200B-0035797 ~!!d Official R2l'cnis COIiilt"y of fularr ~L~I CI fl"k 1!!(:. REGISTRATION SYSTEMS...512006 and recorded an 10/212006 as la$lNment No. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS. HUSBAND AND WIFE AS JOINT TENANTS was the original Trustor. THEREFORE..1defsigned is the presen! Bel1ef!Ciat'1under sai<l Deed of Trust.aitore'. a'ld the singular f\llmber \nclLKIes lh-e pI\Jr..

00 'THIS TRANSACTION IS SXEMPT FROM THE REQU!REMENTS OF THE REVENUE AND TAXATION COOE. • Page of Official records. Trustee having compfled with all applicab~ staMor{ requiremeflls of me State of Caiifornla and performed all duties required by lhe Deed of Trust including sending a Notice of Default and ElerJion to Seli -Mthin ten days aJtet its reco. STATE OF CALIFORNIA.c!l1g and a Notice of Safe at least twenty days prior to tne Sale Date by certified mail. AS PER MAP RECORDED IN BOOK 3" PAGE 48 OF MAPS. National Association Mortgage Loan Trost Series 2007 -SHU of trustee on behalf of the holders of Citigroup 15 16 17 18 19 (herein called Grantee) but without covenant Of warranty. EXCEPTING THEREFROM THE EAST 8 FEET THEREOF CONVEYED TO THE CITY Of VISALIA. State of CALIFORNIA.3" The Gralltee Herein WAS TM Foreclosing genl!flCiary_ The Amcuni aIThe Ullpai:! Denl was $217.eld by it as Trustee under the Deed of Trust in and to !he property situated in the ccuni-._9yJ ct. Instrument number 2000-0101540.. COUNTY OF TULARE.18 . California under the au1hority and powers vested ill the Trustee desIgnated in ~ Deed of Trust or as tile duly appointed Trustee. HUSBAND AND WIFE AS JOINT TENANTS as 'r rustor. TULARE COUNTY RECORDS. 'defau:t having occurred under the Deed of Trust pursuant to the Notice of Default and Election to Seu under the Deed aI Trust recorded on 10/2120Q6. lla:eAI 1&-1~ .CK SMITH AND LOREn A K. expressed or implied.354-001 TRUSTEE'S DEED UPON SALE Transfer Tax: $1). California 93291 This ccnveyance is made i{1 compliance wilh Ihe terms and pfOvisicms of !he Deed of Trust executed by VONN FREDER.ularty described or as dU~1appointed Trustee) does hereby GRANT and CONVEY to HSBCBank of USA. dated 9[2512006 of the Official Records in the office of the Recorder of Tulare.. 001181111111111111111 2009-0·0. ___ n.00 Said Property Is In The City o: VlSAUA. au right title anrllnterest conveyed to and OO'H r.. Boo!<.341. REcoonING R~I:H . MS 39401·3476 Td~ 6l!!IDIY 8. SECTION 4l!O.750. 524 NORTH ENelNA STREET VISALIA. ~I Clt"'!lecardtr I SfRII£Y IOlN: lU8 1 t . IN THE CITY OF VISALIA. as Trustee. (wI\ereas so de$:gnatea in the Deed of Trust hereunder more parti. County of Tula(e 12 13 14 LAW OFFICES OF LES ZlEV'E. described as foUows: THE SOUTH 55 FEET OF LOT 7 IN BLOCK 76 OF AUGHINBAUGH'S ADDITION TO THE CITY Of VISALIA..36 The Amount Paid By The Gl1ll1lee Was 578. postage pre-p2id to each person entitled to nobce in compliance with Callfomia Civil Code 2S24b 20 21 22 23 24 25 Appellants Brief .: 094. of Tulare.N.0S0 IltctIWd Official lI!cords Cmtt? of I lIE!: FEE I lUll 2 3 ----- 4 5 6 7 ANO V'lHEN H2COOOEO TO: Regions Mortgage 215 Forrest Street Hat:liesoorg.3E. . SMITH. t Pi§! I Df l I llR Ts#:snB Loan Ii: 1S960U547 Order #: 35t1:l'791 8 9 10 11 AP.

:r""F. ...~. Ey: ~-<~:{J.."".a .~ 21 22 23 24 25 Appellants Brief .. .'--__ -"":~-::~. ..~ :"~·]:r..156..• t.r ~':.:ti: .: '-:_' -."" t .------'''------~.hi~hoa' h'ddef of .. I ·t. ·-v w·~! -~ ' ..-r'"?'.J.~~ j ---_. '. I"-". .1 2 3 IS II 8738 i....C.·~..~~.110:.:>che.3C10ry 1le<!lhe ehat!of ~:)..4W~(..':?!.""~...::'-"." L.:~ \-.. and jle posting 0: copies of Notice of Trustee's Sale have been complied with.'. personal ctelivery and publi~lion of copies of Notice of Default and Ejection to Sell under Deed of Trust and Notice Trustee's Saie.!D"'" ~.:"?2"..-<.L.'~''v I J'.. r:-. '.0.· rm 3X'J "j~~~.:-~'f' -r:--.... .---------------: rt:t~:... .'~S1'P ~ '~~".i ~"....:s.C~C~l1.. . ." .~:·lll . . -:-~'.~i~: TFQ"'V4C'Ji. ..'£ • ----_.. . ._--___ T~a~~~~ .. -H=""'LE A IP='CF J... ~/..):<""..c ::n.t:'":" s e." .. o RI5.. r '-!l. c~:J~l. ~.~".._t.."' .~-{ _t~ -"~:':+ ~~ .g the mailing. (.' ~~..j~~r":..~:. ::.jl""·"'·~!_' . ~ h·. J -----~Zp. '...'.: i' ted of by its l....'_1i~ "}r. .1'.19 .~ c ~ ...._·Fl·_·'· Sf"i"f -.......:c.l-P" '."f~~ .f.f. I 1..... in compliance with said Notice of Trustee's sale and in exercise of ils powers Im~er said Deed of Trust sold seld real orooertv at ~ubl....:~ .~11 #: 18S6014547 Older It aS83191 TRUSTEE'S DEED UPON SALE 4 5 6 All reqUirements per Calffarnia Statutes regardir..!.::1" .. ~. !-:-'-:.'~.... 20 .".r<lflt.!..."-/ -~" ..1\~:: Lnn .'.··'..FU.r ..:~.': '_..rt.~-c._••"i-f" t":~.YIt \IO.~.~. ~ c _1 .._3~ .. r'1- __:AL::..<!t...-.~~ ~(~ 16 17 .!..H<:li ..-..("r · p_OP.L.0'' 12 13 14 15 ~-·""1.e ..<f.~~.._·_l ... ~t':'CI "" tro~ c~n~~ ::::~~ . 6~ • 2.!':lr':~~ j ".'"..Y.:~::..-:~. 7 8 9 10 EMIZEO RECE\P1S ...o~)>....ctiJ:l!} nn FJAJ?OMI (:.:".. i .T.: 1~ e t:t" ~C:£i'-.~' _! /l '"'1I..'-:~ .~ P~-~2()..o:.'::''''''''."<..~.: ... t: ~·yv._~' F...-:-.s ..''-_.. H j~ n -.(".tmtrr "":!!.~: 'IS'" ! t!}0"~" ._~::-':..:.a:.../..' (.".- 18 19 _--=_:~~ ..:'.·~:.."?....:ec.:''":1(I{j( 1:1: pq.. -1...-.~~:t. Trustee. .. \.Ji'--r~ 11 4' :..r_....AJ.'S~'l-a '.."-..L'· j p. ~<"..."..~ l C .. ~.-' ~-----~-._r~· r < _!::t.:.. ""'2'::'(J1S4522293...=~r-:-..lC~:i~~~~.~]:__ i J .·0. ::.... ~_G ..

VONN FREDERICK SMITH. JUDGE REID 8 9 10 11 12 13 14 15 16 ) HSBC BANK OF USA. pro per are appellants in the above entitled appeal. Smith. LORETTA K SMITH) AND ALL UNKNOWN OCCUPANTS. ) Appellee ) ) I Loretta K. ) Appellant. We declare and certify under the Laws of the State of California that the foregoing is true and correct. / _ 20 21 22 23 24 25 SUPERIOR COURT OF CALIFORNIA COUNTY OF TULARE .~ . _i I . NATIONAL ASSOCIATION ) OF TRUSTEE ON BEHALF OF CITIGROUP SHL 1.. ) Case No.: VCL143463 I 10-143463 ) ) IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF TULARE APPELLATE DEPARTMENT APPELLANTS BRIEF DECLARATION: APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA (LiMITEDJURISDICTION). CA 93291 . Telephone: (559)734-7598 3 SUPERIOR COURT OF CALIFORNIA COUNTY OF TULARE 4 5 6 7 vs. and as to those matters I believe it to be true. The same is true of our knowledge. TULARE COUNTY HONORABLE. +----=-' /---=---O _. 17 18 19 Signed:~~ Dated: / D -II - 2OI( Signed: ~ Ie . Dated_V----'-U_. Smith. except as to those matters which are stated on information and belief. Encina Street Visalia. Smith and Vonn F. PRO PER 524 N. We have read the foregoing brief and know the contents thereof.2 Loretta K. smith and Vonn F..

I am employed at~-..( --- /1 -f'... h"-' /1uI ~.._.--_ . LORETTA K SMITH) AND ALL UNKNOWN OCCUPANTS..Lt!jll j / II· ... NATIONAL ASSOCIATION ) OF TRUSTEE ON BEHALF OF CITIGROUP SHL 1.{/ .. Pro Per 524 N.mmt $I. vs. The Law Offices of Les Zieve. Visalia. otI :I'd 7cl1 I served the within documents: Proof of Service of the above captioned documents 16 17 On the interested parties in this action: In clo: HSBC Bank of USA.1.-. CA 92648 By Mail (Code Civ. CA 93291 550-734-7598 3 SUPERIOR COURT OF CALIFORNIA COUNTY OF TULARE 4 5 6 7 8 9 10 11 VONN FREDERICK SMITH.. ) Appellee 12 13 14 15 I am over the age of eighteen years and not a party to the within action.._1 7 / _ v Applellants Brief .:. JUDGE REID HSBC BANK OF USA.1 .b On .- - /1'/ / f--. Proc.__.~ .'--+1t_.. Suite 21 D. ) Appellant. ) ) Case No.. Huntington Beach.v-L--Il _. 1013 (a) -I deposited such envelope(s) for 18 19 20 processing in a United States Postal Office BO~ 21 22 23 24 25 Signed: "--'---. TULARE COUNTY HONORABLE. ~ /Fit \ J~ //1._~V.. Dated:.: VCL143463 I 10-143463 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF TULARE APPELLATE DEPARTMENT APPELLANTS BRIEF APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT OFTHE STATE OF CALIFORNIA (L1MITEDJURISOICTION).:...t._ -.2 Loretta Smith and Vonn Smith.. Encina.__ \. _f_. 18377 Beach Blvd. Jkiv who's business address is: jar $.<V.. .

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