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1 DEUTSCHE v. W.

CUTLIP
2
William. Cutlip
3 Chikako Cutlip
619 Union Ave
4 Campbell, CA, 95008
Phone Number: 408-614-1248
5
Self Represented
6
7 SUPERIOR COURT OF CALIFORNIA
8 COUNTY OF SANTA CLARA, CIVIL DIVISION
9 DOWNTOWN COURTHOUSE
10 )
11 Charlie Chiang et al
) Case Number:1-15-CV-285290
12 )
13 Plaintiff(s), NOTICE OF MOTION AND
)
MOTION TO DISMISS
14 ) BASED ON THE COURTS
vs.
15 ) TOTAL ABSENCE OF
JURISDICTION
16 ) MEMORANDUM OF POINT
William Cutlip,
17 ) AND AUTHORITIES IN
Chikako Cutlip SUPPORT
18 )
Defendant(s)
19 )
_________________________ JUDGE : Zayner
20 )
COURT ROOM 6
21 ) DATE : May 08 2018
22 TIME : 9:00 am
_____________
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MEMORANDUM OF POINT AND AUTHORITIES IN SUPPORT OF
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DEFENDANT’S MOTION TO DISMISS
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DEFENDANTS MOTION TO DISMISS
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````````````````````The notice of the motion to
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A Motion to dismiss in an unlawful detainer must designate a hearing date not less than three
4 nor more than seven days after the notice is filed. CCP §1167.4(a); Cal Rules of Ct 3.1327(a).
5 TO PLAINTIFF AND HIS ATTORNEY OF RECORD:
6 NOTICE IS HEREBY GIVEN that Defendant’s William Cutlip and Chikako Cutlip
7 (Collectively the Cutlip’s) challenge the subject-matter jurisdiction of this court, as well

8 as its personal jurisdiction over the Cutlip and request a Judgment dismissing this action.
These claims were presented in the Cutlip’s opposition to summary judgment and cross
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motion for summary judgment and were ignored mischaracterized and ommitted
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compelling the Cutlip’s to submit and are not untimely.
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The hearing will take place May 08, 2018 9:00 a.m., or as soon thereafter as the
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matter may be heard, in Department 6 of this Court, located at 191 North First Street, San
13 José, California.
14 I THE BASIS OF THE MOTION
15 The motion is based on two manifestly indefensible facts: 1st the fact Chiang’s
16 purported grant deed is void on its face for among other reason it fails to meet the
17 mandates of the California statute of frauds Section § 1091 and § 1095. Plaintiff’s failure

18 to have acquired a perfected title is a complete bar to this courts subject matter
jurisdiction and personal jurisdiction over the U.D defendants in an unlawful detainer
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five day summons. 2nd The California compulsory cross complaint statute bars Deutsche
20
and its assignee Chiang from asserting a claim to the Cutlip’s property.
21
II AS A PRELIMINARY MATTER THE CHIANG GRANT DEED IS NOT
22 PROOF OF PERFECTION OF TITLE UNDER THE PERFECTED TITLE
23 DOCTRINE
(“A restrictive jurisdictional prerequisite mandated by Unlawful detainer statute.”
24
Cal. Civ. P. § 1161a (b) (3) the Plaintiff must have acquired a duly perfected title.)”
25
Higgins v. Coyne, 75 Cal. App. 2d 69, 72-73 (Ct. App. (1946)
26 A perfect title must be one that is good and valid beyond all reasonable doubt. A
27 perfected tile must be free from litigation, palpable defects, and grave doubts; it should
28 consist of both legal and equitable titles, and deducible of record. [Turner v. McDonald,

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DEFENDANTS MOTION TO DISMISS
76 Cal. 177 (Cal. 1888)]. [Pearce v. Freeman, 122 Okla. 285 (Okla. 1927)].Bank of New
1
York Mellon v. Preciado , Superior Court Santa Clara County appellate div. (2013)
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CHIANG TOOK POSSESSION WITH ACTUAL NOTICE OF THE
5 CLAIMS OF THE CUTLIP’S AND IS NOT A BONA FIDE PURCHASER
WITHOUT NOTICES THIS COURT HAS DETERMINED.
6
Chiang purports to have obtained title during litigation in this instant action and
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for this reason alone Chiang’s title is not perfected barring this court from acquiring any
8 subject matter jurisdiction.
9 Attached hereto Ex. (A) Chiang’s purported grant deed dated September 16, 2015
10 twelve days after Deutsche filed this instant action. Pursuant to the perfected title doctrine
11 and controlling case law Chiang’s purported title (grant deed) is not proof of a perfected
12 title.

13 III The failure of the U.D. plaintiff to prove perfection of title bars the U.D. court from
acquiring subject matter jurisdiction or personal jurisdiction over the defendants in an
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unlawful detainer five day summons. Greene v. Municipal Court (1975) 51 Cal. App. 3d
15
446, 451-452 [124 Cal. Rptr. 1
16
IV CHIANG’S PURPORTED GRANT DEED IS VOID ON IT’S FACE UNDER
17 THE CALIFORNIA STATUTE OF FRAUDS.
18 The Cutlip’s object to the introduction of Chiang’s grant deed into evidence or the
court taking judicial notice of Chiang’s purported grant deed on the basis, Chiang’s
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purported grant deed is void on its face under the California statute of frauds.
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An objection to evidence on grounds that evidence violates the statute of frauds is
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appropriate at any time during the proceedings. See (Carrier & Braddock v. S. W. Straus
22
& Co., 213 Cal. 508, 513 [2 P.2d 811]; fn. 2 see Pao Ch'en Lee v. Gregoriou, 50 Cal. 2d
23
502, 506 [326 P.2d 135].)
24 V THE CHIANG’S PURPORTED TITLE INSTRUMENT is Void under California
25 civil code of procedure §1624, 1971 and § 1091
26 Chiang’s purported title§ instrument is void on its face consequently the unlawful
27 detainer court is in the total absence of jurisdiction. The only order a court lacking
28 jurisdiction can make is one dismissing the action.

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DEFENDANTS MOTION TO DISMISS
EX. (A) Certified copy of Chiang’s purported grant deed showing it was executed by an
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agent for Deutsche. There is no reference to the agent’s written authority to sign nor is it
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attached to the instrument as required under the Statute of Frauds section § 1091.
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(Section §1091 of the California Civil Code) provides; An estate in real
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property, other than an estate at will or for a term not exceeding one year, can be
5 transferred only by operation of law, or by an instrument in writing, subscribed by the
6 party disposing of the same, or by his agent thereunto authorized by writing
7 (“The Supreme Court of California; The authority of an agent to execute for his
8 principal a conveyance of real estate must be in writing and a deed purporting to have
9 been executed by an agent without proof being made of the signers written authority is

10 void and inadmissible in evidence. (“ Videau v. Griffin et al. 21 Cal. 389(1863 )) id @


114.
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Chiang filed a purported grant deed into evidence as proof of its perfection of
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title. The grant deed is signed by Guirlene Dolcine as contract manager coordinator.
13
There is no evidence in the record Guirlene Dolcine ever had any authority in writing
14
from the Harborview mortgage loan trust 2007-7 or any other entity to execute the
15 purported grant deed to Chiang or any other entity. The certificate of the notary does not
16 show the existence of any such authority in writing, nor does the acknowledgment of the
17 existence of any. If any authority in fact existed it should have been produced. In the
18 absence of its production the presumption is that it did not exist and acknowledgement
19 by parole does not remove its insufficiency. (“ Videau v. Griffin et al. 21 Cal.

20 389(1863 )) id @ 114
VI (“THE GRANTOR WAS NOT PRESENT WHEN THE DEED WAS
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SIGNED, NOR IT’S CONSENT IN WRITING, THE DEED IS
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UNQUESTIONABLY VOID.”) CITING
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24 Harris v. Barlow•180 Cal. 142,  143 (Cal. 1919 Upton v. Aecher, 41 Cal. 85 [20

25 Sm.Rep. 266]. Wunderlin v. Cadogan et al., 50 Cal. 613 Harris v. Batlow et al,. 180 Cal

26 142 [179 P. 682]. And Jone v. Coulter, 75 Cal, App.540 [243 P. 487].Smith v lickerson .

27 96 Humph. 261) Fraudulent Conveyances and Contracts Section Six April 19, 1850.

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DEFENDANTS MOTION TO DISMISS
(Section §1091 of the California Civil Code) is part of California’s statute of
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frauds, (See 3 Miller & Starr, supra, Deeds, §8.27, p52 (“, if some other person executes
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a deed on behalf of the grantor, the grantor’s authorization must be in writing and
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attached to the deed . If this were not the law the statute would be rendered mute.)
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5 (“In a conveyance for which an agent thereunto authority must be authorized by

6 writing by the statute of frauds could sign instead his name to the implementing
document, without attaching its written authority "the Statute of Frauds would be
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deprived of its meaning and reduced to an absurdity." (Tate v. Shober (E.D. Pa. 1941) 41
8
F. Supp. 478, 481.) ( Upton v. Archer, 41 Cal. 85 [ 10 Am. Rep. 266]; Vaca Valley etc.
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R.R. v. Mansfield, supra [ 84 Cal. 560 ( 24 P. 145)]; Harris v. Barlow, 180 Cal. 142 [ 179
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P. 682]. See, also, Lund v. Thackery, 18 S.D. 113 [99 N.W. 856].)
11 VII (“THE FAILURE OF THE U.D. PLAINTIFF TO PROVE A PERFECTION OF
12 TITLE BARRES THE U.D. COURT FROM ACQUIRING SUBJECT MATTER
13 JURISDICTION and the unlawful detainer five day summons does not vest the court
14 with personal jurisdiction over a defendant”). Greene v. Municipal Court (1975) 51 Cal.
15 App. 3d 446, 451-452 [124 Cal. Rptr. 1

16 IIX THE PUPORTED GRANT DEED IS VOID FOR AMONG OTHER


REASONS IT FAILS TO COMPLY WITH THE CALIFIFORNIA STATUTE OF
17 FRAUDS Cal. C.C.P. § 1095
18 Cal. C.C.P. § 1095, provides” When an attorney in fact executes an instrument

19 transferring an estate in real property, he must subscribe the name of his Principal to it
and his own name as attorney in fact.”
20
For the purposes of Cal. C.C.P. § 1095, this instant case squares with Hodge v.
21
Hodge, 257 Cal. App. 2d 31 (Cal. Ct. App. (1967)
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In the case of Hodge v. Hodge, (1967) Mrs. Hodge wrote the name "Colman
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Hodge," on the deed but did not sign her own name as attorney in fact. The written name
24 of her husband was followed by the following words and figures in typewriting prepared
25 in a law office: "Colman Hodge, By Dorothy E. Hodge, Attorney in Fact as Per Power of
26 Attorney Recorded in Book 5018 [5019] at Page 803 Official Records of Sacramento
27 County. The court found this execution of the deed insufficient to comply with section §
28 1095 of the Civil Code requiring the name of the principle to be subscribed by the

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DEFENDANTS MOTION TO DISMISS
attorney in fact followed by the attorney in fact signature signed as attorney in fact.
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Hodge v. Hodge, 257 Cal. App. 2d 31 (1967), which says, the typewritten name of the
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principle is ineffective to meet the mandate of the statute of frauds for the principles
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name to be subscribed by the attorney in fact, if this is not followed exactly, the transfer
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is void.
5 (“We are also of the opinion that the failure to execute the deed in the manner
6 required by law invalidated the transaction”). In Mitchell v. Benjamin Franklin Bond &
7 Indem. Corp., 13 Cal. App. 2d 447, 448 [57.
8 A person signing for a corporation must be a duly authorized party or sign as
9 attorney in fact with the agents authorization attached.

10 ARTICLE 3. Proof and Acknowledgment of Instruments, § 1190 states in


pertinent; the certificate of acknowledgment of an instrument executed on behalf of an
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incorporated or unincorporated entity by a duly authorized person. “Duly authorized
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person,” with respect to a domestic or foreign corporation, includes the president, vice
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president, secretary, and assistant secretary of the corporation.
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The Chiang document is not signed or acknowledged by a duly authorized party
15 or by an attorney in fact. The acknowledgement is void the Chiang purported grant deed
16 is signed as contract manager not as attorney in fact and there is no attached
17 authorization. The purported grant deed is void under the statute of frauds section § §
18 1091, 1095. 1624.
19 The rule is thus enunciated in 15 California Jurisprudence, Second Edition,

20 Deeds, section 71, and page 470: "The manner of execution of a deed by an attorney in
fact for the grantor is prescribed by statute. He must subscribe the name of his principal
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to the instrument, and then his own as attorney in fact. If the instrument is not executed in
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this manner, it does not operate as a conveyance.
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Civ. Code, § 1095.)" [257 Cal. App. 2d 35] even if the transaction was honest and
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fair in its inception, and attempted consummation, it is ineffectual to transfer the
25 property therein described. The court also determined that even though the deed might
26 be valid outside California its void. The failure to execute the deed in the manner
27 required by law invalidated the transaction. In Mitchell v. Benjamin Franklin Bond &
28 Indem. Corp., 13 Cal. App. 2d 447, 448 [57 P.2d 185], 39].)

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DEFENDANTS MOTION TO DISMISS
IX THE SOLE CONSIDERATION BEFORE THE COURT IS WHETHER OR
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NOT THE LEGISLATIVE MANDATES HAVE BEEN COMPLIED WITH." It is
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obvious that the specific requirements of section, §§ 1095, 1091 and § 1624 of the Civil
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Code were not followed; and the deed being void, Chiang has no semblance of a right to
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the property; there is no proof of plaintiffs perfection of title in the record leaving this
5 court in the total absence of jurisdiction.
6 X THE DOCTRINE OF EQUITABLE CONVERSION IS INAPPLICABLE
7 In the absence of an agreement satisfying section § 1971, §1091 the plain
8 language of section §1971 and §1091cuts off a buyer’s acquisition of equitable title.
9 Here Summary judgment is improper “[w]here the evidence submitted by [the]

10 moving [party] does not support judgment in his favor . . . .” (Y.K.A. Industries, Inc. v.
Redevelopment Agency of City of San Jose (2009) 174 Cal.App.4th 339, 354.)
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BECAUSE THERE EXISTS A TRIABLE ISSUE OF MATERIAL FACT AS
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TO CHIANG’S TITLE, CHIANG IS NOT ENTITLED TO SUMMARY
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JUDGMENT.
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Chiang has had over a year to make the necessary inquiries and produce evidence
15 substantiating the signer’s authority, ample time if it existed and has not therefore the
16 presumption is that it does not exist and cannot be obtained.
17 Even if Chiang had the agents authorization in writing pursuant to Cal. C.C.P §
18 1091 Chiang doesn’t but even if he did the mere power [257 Cal. App. 2d 34] to convey
19 deeds by one who is a valid attorney in fact is in no proof of a right to do so, or that the

20 party purporting to convey has legal title. Moreover the document still fails under Cal
C.C .P. § 1095. That defect can’t be cured the deed is void.
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XI THE CALIFORNIA COMPULSORY CROSS COMPLAINT STATUTE Cal.
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C.C.P. § 426.30 BARS CHIANG’S CLAIM FOR UNLAWFUL DETAINER
23 IN THIS INSTANT CASE NO. 1-15-CV-285290
ESTOPPEL BY_RULE THE COMPULSORY CROSS COMPLAINT
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The sole issue here is whether the claim by Deutsche and its assignee based on
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possession of the subject property was the basis for a compulsory cross complaint in the
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earlier action under section 426.30 that section reads;
27
California Code of Civil Procedure C.C.P. § 426.30(a) if a party against whom a
28 complaint has been filed and served fails to allege in a cross complaint any related cause

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DEFENDANTS MOTION TO DISMISS
of action which (at the time of serving his answer to the complaint) he has against the
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plaintiff, such party may not thereafter in any other action assert against the plaintiff the
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related cause of action not pleaded.
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XII THERE IS NO REQUIREMENT THAT THE FIRST ACTION BE
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DECIDED ON THE MERITS; THE BAR APPLIES EVEN IF THE PRIOR
5 ACTION IS DISMISSED
6 The mandatory cross complaint provision is based on principles of waiver and
7 estoppel. It is clearly related to res judicata but is not as narrow or confined as that
8 doctrine. Thus there is no requirement that the first action be decided on the merits; the
9 bar applies even if the prior action is dismissed (see Currie Medical specialties, Inc V.

10 Bowen , 136 CA3d 774, 186 CR 543 (1982) ata (Conopco Inc v. Roll int’l 231 F3 82,
90-91 (2d Cir 2000)
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The principle of the California compulsory cross complaint statute operates to
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demand of a defendant that all his defenses to the cause of action urged by the plaintiff be
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asserted under the penalty of forever losing the right to thereafter so urge them.' “In Price
15 v. Sixth District Agricultural Assn., 201 Cal. 502, 511 [258 P. 387]
16 California courts have adopted the expansive logical relation test of united artist
17 (Ranchers Bank v. Pressman (1971) 19 Cal. App. 3d 612[97 Cal. Rptr. 781; Saunders v
18 New Capitol for Small Businesses Inc., Supra, 231 Cal asp. 2d 324). The case law
19 dictates the waiver provision of 426.30 is mandatory, the policy in favor of hearing all

20 related claims in a single action is controlling(Sylvester v. Saulsburg252 Cal app. 2d


185(60 cal. Rptr. 218]; Brenner v Mitchum, Jones & Templeton, Inc. (9th Cir. (1974) 494
21
F.3d 881.)
22
On January 25, 2012 William J. Cutlip’s and Chikako K. Cutlip collectively (Plaintiffs’
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(The Cutlip’s)) filed a complaint in the Santa Clara County Superior Courts Unlimited
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Civil Division case No. 1-12-cv-217452. The Cutlip’s complaint alleged several causes of
25 action and named several defendants including Deutsche Bank National Trust Company
26 as trustee for the Harborview mortgage backed loan trust 2007-7. (Deutsche)
27 On September 05, 2012 The Cutlip’s filed their second amended complaint .The
28 Cutlip’s complaint alleged several causes of action including Quiet title to the property

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DEFENDANTS MOTION TO DISMISS
commonly known as 619 Union Avenue Campbell California, (Campbell Property).
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Deutsche was named as defendant. The Cutlip’s claimed to be the owners in fee by way
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of a deed of trust in their name recorded in the county land record on April 18, 2007 the
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only properly recorded entity in the county records and their title is superior to all others.
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The Cutlip’s action was not purely declaratory; the Cutlip’s sought damages for
5 Deutsche unlawful conduct. The Cutlip’s also alleged a tortious interference with a
6 contract, unjust enrichment and breach of contract, cancellation of an instrument.
7 Exhibit (B) certified copy of the Cutlip’s second amended complaint filed September 05,
8 2012 page 2:26-29 The Cutlip’s sought damages.
9 By filing the complaint to quiet title, the Cutlip’s commenced litigation concerning

10 the rights of the respective parties to the real property. When made defendants in the
action, Deutsche was required to assert any claim which they might have to the subject
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property arising out of the Cutlip’s Deed of trust(Code Civ. Proc., § 426.10-426.70
12
XIIV ANY CLAIM THAT DEUTSCHE HAD ON THE PROPERTY WOULD
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HAVE BEEN THE PROVINCE OF A COMPULSORY CROSS COMPLAINT IN
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THE QUIET TITLE ACTION.
15 The long settled definitive purpose of a quiet title action is to resolve adverse
16 claims to property Castro v. Barry (1889) 79 c 443). The ultimate fact to be found is the
17 ownership of the property or an interest in it Rahlves & Rahlves v Ambort (1953) 118
18 ca2d 465) On October 03, 2012 Deutsche filed its demurrer to the Cutlip second
19 amended complaint EX( C) Certified copy Deutsche demurrer to the Cutlip second

20 amended complaint.
On November 03, 2012 Deutsche filed its reply in support of demurrer to the Cutlip’s
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Second amended complaint. EX (D) Certified copy Deutsche reply in support of
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demurrer to the Cutlip’s second amended complaint.
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XIV JUDICIAL SIGNIFICANCE: DEUTSCHE DOES NOT STATE A CLAIM
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FOR TITLE OR RIGHT OF POSSESSION
25 Deutsche failed to state a claim to the Cutlip property nowhere in its demurrer or its
26 reply does Deutsche even superficially attempt to set up title in itself or claim a right to
27 possession in itself. It is undisputed that Deutsche did not file a cross complaint.
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DEFENDANTS MOTION TO DISMISS
Deutsche did not pray for relief in the property. There is but one prayer, to be dismissed
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with prejudice and attorneys fees.
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Deutsche does not allege that the Campbell property was an asset of the
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Harborview Mortgage backed Loan Trust Pass-Through Certificate 2007-7 or that
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Deutsche had an assignment of the beneficiary right title or interest under the Cutlip’s
5 deed of trust.
6 Consequently Deutsche and its assignee Chiang are estopped from asserting a claim
7 to the Campbell property in this current unlawful detainer action. see Al Holding Co. v
8 O'Brien & Hicks, Inc 75 CA4th 1310, 89 CR2d918 (1999) assignor and assignee barred
9 for assignors failure to file a related cause of action cross complaint in the prior action.

10 A cross complaint is compulsory IE mandatory when a party against whom a


complaint has been filed has any related cause of action against the plaintiff at the time of
11
service of its answer.
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A Defendant that fails to file a cross complaint based on those related causes of
13
action may not bring those claims later in another action against the plaintiff.
14
C.C.P. 426.30 (a) related cause of action “is defined as” a cause of action which
15 arises out of the same transaction, occurrence, or series of transactions or occurrences as
16 the cause of action which the plaintiff alleges in his complaint C.C.P. 426.10 see Align
17 Tech. Inc v Tran 2009 179 CA 4th 949, 959 employees demurrer sustained because
18 employers claims which were logically related had not been raised in prior action.
19 Code Civ. Proc., § 426.30, subd. (a).) This is a related claim containing the same

20 property and parties as the Quiet title filed by the Cutlip’s on January 25, 2012 In the
Superior Court of California Santa Clara county case number 1-12-cv-217452. Among
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other causes of action the quiet title concerned the same basic cause of action the right to
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possession of the subject property.
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The Deutsche claim for possession of the Campbell property against the Cutlip’s, was
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a mandatory IE: a compulsory cross complaint arising out of the transaction on which the
25 Cutlip’s quiet title cause of action was founded, the present suit on that claim is barred.
26 Medical Specialties, Inc. V. Bowen , 136 CA3d 774, 186 CR543(1982) Align Technology
27 Inc. v Tran 179 CA4th 949, 962-65, 102 CR3d 343, 353-56 (2009)
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DEFENDANTS MOTION TO DISMISS
XV CONTROLLING CASE LAW FOR THE ASSIGNEE IS BARRED FROM
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ASSERTING A CLAIM If the defendant omits to set up cross complaint upon a cause
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arising out of the transaction set forth in the complaint as the foundation of the plaintiff's
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claim, neither he nor his assignee can afterwards maintain an action against the plaintiff
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thereof." Al Holding Co. V. O'Brien | 89 Cal.Rptr.2d 918 (1999)
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The Cutlip’s believe based on the facts asserted herein and pray for equal protection
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under the law and natural Justice IN THE ALTERNATIVE THE Cutlip’s pray the case be
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dismissed for lack of jurisdiction.
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Respectfully submitted
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William Cutlip Chikako Cutlip
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13 William Cutlip and Chikako Cutlip certify that to the best of the their knowledge,
14 information, and belief, formed after an inquiry reasonable under the circumstances: (1)it
15 is not being presented for any improper purpose, such as to harass, cause unnecessary
16 delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other
17 legal contentions are warranted by existing law or by a non-frivolous argument for

18 extending, modifying, or reversing existing law or for establishing new law; (3) the
factual contentions have evidentiary support or, if specifically so identified, will likely
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have evidentiary support after a reasonable opportunity for further investigation
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DEFENDANTS MOTION TO DISMISS

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