1 Martin S.

Friedlander (Bar # 36828)

10350 Wilshire Blvd.
2 Suite 603
Los Angeles, California 90024
3 Tel. (310) 435-1519
Fax (310) 278-7330
4

5 Attorneys for Defendant Anthony Grossman

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 FOR THE COUNTY OF LOS ANGELES

10

11 PRO VALUE PROPERTIES, INC., et al CASE NO. 10B01962

12 Plaintiff, GROSSMAN’S PROPOSED

STATEMENT ON APPEAL.
13 vs.

14 ANTHONY GROSSMAN; DOES 1 TO 10

JUDGE: Christine Ewell
15 Defendants.

16

17

18

19

20 INTRODUCTION

21 The Court’s statement of decision must explain the legal and factual basis of the

22 decision “as to each of the principal controverted issues” at trial as “listed in the Request”.

23 CCP Sec. 632. As shall be demonstrated below the Court failed in its duties. A “principal”

24 or material issue is one “which is relevant and essential to the judgment and closely and

25 directly related to the trial court’s determination of the ultimate issues in the case. Kuffel v.

26 Seaside Oil Co. 69 Cal. App. 3rd 555, 565 (1977) A statement of decision should set forth

27 ultimate facts rather than evidentiary facts. Lynch v. Cook 148 Cal. App. 3rd 1072 (1983). It

28 should provide a narrative explanation of the judge’s reasoning. People v. Casa Blanca

PROPOSED STATEMENT ON APPEAL

1 Convalescent Homes, Inc., 159 Cal. App. 3rd 509,524 (1984). The findings should not be

2 so “ultimate” that they are simply legal conclusions. E.g., findings that a “contract existed”

3 between the parties; or that “coverage existed” under an insurance policy. Such findings

4 “make it extremely difficult if not impossible for the reviewing court to ascertain the basis

5 for the trial court’s conclusion that “coverage existed”. Employers Cas. Co. V.

6 Northwestern Nat’l Ins. Group, Cal. App. 3rd 462, 473 (1980). Reversible error results

7 where a statement of decision “fails to make findings on a material issue which would fairly

8 disclose the trial court’s determination”. Sperber v. Robinson, 26 Cal. App. 4th 736, 745

9 (1994). Grossman’s objections should be “specific”. Ripani v. Liberty Loan Corp, 95 Cal.
10 App. 3rd 603, 615 (1979)

11 The undersigned contends that what this court conducted, calling it a “trial” was a

12 farce and certainly did not meet the minimum expectations of “Due Process of Law”

13 required by the 14th Amendment. This Court overruled Grossman’s request that all

14 witnesses take the witness stand as is required in every court that this writer attended over

15 his 40 year career and certainly every Federal Trial the Trial Court attended as a Chief

16 Prosecutor for the US Attorney’s office for the Central District of California, major crimes

17 division. This Court required both witnesses and attorneys to question the witness from the

18 counsel table, which demeaned the court process as we all have known it throughout

19 history. That irregular process prejudiced defense counsel since he had difficulty in

20 hearing the questions and answers, which proceeded in “machine gun” style, partially

21 precluding Evidence Code objections to be raised. This court arbitrarily denied Grossman

22 a jury trial as timely requested by Grossman, arbitrarily denied Grossman’s statutory and

23 constitutional right to enforce validly served Subpoenas to extremely important and

24 relevant witnesses who had first hand knowledge of the “irregularities” in the foreclosure

25 procedure leading to the illegal sale to Pro Value. The documents and testimony of the

26 Trustee who issued the NOS, NOD, and allegedly conducted the “sale” “rigged” in favor of

27 Pro Value would have defeated Pro Value’s case.

28 This Court “stifled” Grossman’s counsel from posing relevant questions to the

PROPOSED STATEMENT ON APPEAL

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1 witnesses, including his narrative, by admonishing counsel to “shoosh” as a polite way of

2 refusing to adhere to the Evidence Code and the Constitution. Friedlander was duly

3 “shooshed” under pain of contempt. This Court abused it power by stifling Defense

4 counsel. It appeared to defense counsel that this Court used “time constraints” to

5 “trump” justice and “due process”. No reasonable bench trial could have been

6 conducted in three 45 minute segments, especially one that required documentary

7 evidence that needed foundation and relevance. Friedlander thus made an offer of

8 proof but there was no court reporter to record that process to preserve the record

9 on appeal. Thus Friedlander, on almost a daily basis, submitted memorandums of

10 law to assist the court in following the law.

11 THE REQUEST FOR STATEMENT OF DECISION.

12

13 Pursuant to CCP Sec. 632 and CRC Rule 632, Defendant Anthony Grossman

14 requested in writing that the Court issue a written Statement of Decision explaining the

15 factual and legal basis for its decision with respect to the following controverted issues:

16 1. The factual and legal basis of this Court Quashing the Subpoenas served on the

17 Seaside witnesses, in a “sua sponte” manner, when the law required a Motion to quash,

18 not an objection. The court failed to do so.

19 2. The factual and legal basis as to whether or not Anthony Grossman was properly

20 served with a 3 day Notice to Quit as required by statute. To be discussed later.

21 3. The factual and legal basis as to whether or not Pro Value was a bona fide purchaser.

22 The court refused and failed to do so on the basis of relevancy based on the

23 evidence that it claims it properly excluded. However the court did receive in

24 evidence the Lis Pendens recorded by Grossman, which put Pro Value on

25 Constructive Notice, which, by itself would have precluded Pro Value from being a

26 BFP. The Court failed to deal with the legal consequences of that Lis Pendens in the

27 context of a BFP. Carleen Riojas, the office manager’s testimony was worthless.

28 She testified that she did not recall the telephone conversation that she had with

PROPOSED STATEMENT ON APPEAL

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1 Friedlander. Friedlander testified, without objection, that Riojas told him that she

2 was the office manager; that she pulled the Grossman file; that she knew, before

3 the sale that Grossman had recorded a Lis Pendens and that he had claims to the

4 property (actual notice); she testified that was a basis of a conversation with

5 Seaside, the Trustee, and the sales price was negotiated downward due to the

6 impediment prior to any actual sale which gives credence to Grossman’s claim that

7 the sale was rigged. Riojas was given an opportunity to change her testimony, but

8 she did not. Friedlander’s testimony puts the “lie” to Riojas’ testimony, and she was

9 anything but credible. Friedlander even offered into evidence a letter that he wrote
10 to Pro Value after his conversation with Riojas, which Friedlander testified that it

11 was his business practice over 40 years to reiterate a conversation in a letter to the

12 other side to memorialize that conversation for a trial to take place many months or

13 years later. Friedlander was not cross-examined.

14 The Trial Court deliberately refused to render a factual and legal basis as to

15 whether Pro Value was a BFP, and left it ambiguous. That is deliberate error and a

16 denial of due process.

17 A bona fide purchaser is one who pays value for the property without notice of any

18 adverse interest or any irregularity in the sale proceeding. Nguyen v. Calhoun, 105 Cal.

19 App. 4th 428 (2003). The Lis Pendens gave “constructive notice” to the “world” including

20 Pro Value. Thus Pro Value was on “constructive notice. Friedlander testified that the office

21 manager told him that Pro Value had “actual notice”, a fact that has not been challenged

22 by Pro Value. Friedlander’s testimony established that not only did Pro Value have notice

23 of “irregularities” in the sale proceedings, but Pro Value participated in those irregularities

24 per Friedlander’s sworn testimony as to the arrangement of the price before the sale. Pro

25 Value offered no testimony whatsoever as to the actual sale and bidding.

26 The Trustee’s Deed should not have been admitted into evidence pursuant to

27 Judicial Notice, since it was “irregular” on its face. The Trial Court should have noted that

28 the “amount of the Unpaid Debt” was left blank. Both Bayview and Seaside knew or

PROPOSED STATEMENT ON APPEAL

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1 should have known what the “Unpaid Debt” was. The Trustee’s Deed was not an affidavit,

2 but a Notarial Acknowledgment that Elvia Bouche signed the document as Vice President

3 of Seaside. It doesn’t make the facts in that document “true”.

4 4. The factual and legal basis as to whether or not Bayview was an Assignee of the

5 Original Lender on the date that it substituted Seaside as Trustee of the Grossman TD.

6 The court deliberately failed to do so even after admitting into evidence the

7 “Allonge” which stated on its face that the Note that Grossman signed in favor of

8 the original lender was endorsed over to HSBC, an entity other than Bayview. That

9 Allonge was faxed to Friedlander by Northwestern Trustee, the prior Trustee

10 appointed by Bayview on a date prior to Seaside’s involvement, and puts the lie to

11 the backdated and forged Assignment referenced in Pro Value’s Exhibit 2. This

12 Court intentionally neglected to state that Exhibit 2 was recorded on 3/8/2010, one

13 day before the sale. This court covered up the fraud and perjury of Bayview and

14 Seaside by admitting that document into evidence and using that document to

15 support its decision. It was backdated to 6/10/2009, which could not have been

16 prepared by Seaside since Seaside was appointed on 8/3/2009 according to Exhibit

17 1.

18 Since Bayview did not own the note it could not enforce the security for a

19 note that it did not own. We will cite numerous authority in our brief, which will

20 include a reference to a recent decision of the Supreme Court of Massachusetts.

21 5. The factual and legal basis as to whether or not Seaside was a duly authorized Trustee

22 on the date that they recorded the Notice of Default and Notice of Sale. This court did

23 not answer that question. The evidence that it rejected reflected that on the date the

24 NOD and NOS was recorded Seaside was appointed by an entity other than the

25 original lender, rendering all recordings a “nullity”. Exhibit 2, recorded on 3/8/2010,

26 and back dated to 6/9/2010, was Bayview and Seaside attempt to “cover-up” the

27 invalidity of the prior recording of the NOD and NOS by Seaside. We have a

28 subornation of perjury here by Pro Value by offering into evidence it knew was

PROPOSED STATEMENT ON APPEAL

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1 “false’. Pro Value committed a fraud on the Trial Court, and put into disrespect the

2 “rule of law” which that Court swore to uphold.

3 6. The factual and legal basis as to whether or not the Lis Pendens recorded by Grossman

4 in December 2009 precluded the later Assignment recorded on March 8, 2010 from being

5 subject to the pending action in Department 53 of the LASC. The court failed and

6 refused to address that material issue of law and fact.

7 7. The factual and legal basis as to whether or not Seaside’s Trustee’s Deed was null and

8 void on the date that it was recorded. The court failed and refused to address that

9 material issue of law and fact.

10 8. The factual and legal basis as to whether or not the Trustee’s Deed passed legal title to

11 Pro Value. The court failed and refused to address that material issue of law and

12 fact.

13 9. The factual and legal basis as to whether or not the Assignment that was recorded by

14 Seaside on 3/8/2010 was backdated by Seaside and fraudulently signed by an alleged

15 officer of MERS on the date that it was notarized by the Florida notary. The court failed

16 and refused to address that material issue of law and fact.

17 10. The factual and legal basis as to whether or not Grossman received a “fair trial” as that

18 term is defined by the cases decided under the 14th Amendment. The court failed and

19 refused to address that material issue of law and fact. However Grossman addressed

20 that issue to the effect that he did not receive a “fair trial”.

21 11. The factual and legal basis as to whether or not Trustee and Bayview complied with

22 Federal and California law with respect to the Trustee’s sale allegedly conducted by the

23 Trustee and/or its agents. The court failed and refused to address that material issue

24 of law and fact. However Friedlander filed a Memorandum of Law that “Hearsay in a

25 Recorded Document” is still “hearsay” and inadmissable. Friedlander testified, under oath,

26 without objection, that the Trustee and Bayview did not comply with those requirements of

27 law. For example, Friedlander testified that CC Sec. 2923.5 was not complied with. There

28 was no testimony by Bayview or declaration signed and recorded by Bayview that Bayview

PROPOSED STATEMENT ON APPEAL

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1 complied with CC Sec. 2923.5 (a)(1), (2); (b); or c. The use of the word “declaration” in

2 subparagraph should be interpreted to mean a declaration by a mortgagee or beneficiary.

3 A declaration by a Trustee is rank hearsay rendering the entire NOD and NOS void

4 precluding a sale. Friedlander’s testimony was first hand knowledge and certainly trumped

5 “hearsay”. CC Sec. 2923.5 was not complied with per the testimony of Friedlander. The

6 Trustee’s declaration as to what Bayview told her is rank hearsay. It required a declaration

7 by Bayview. No such declaration was filed. CC Sec. 2923.54 (a) required a declaration

8 from the mortgage loan servicer (Bayview) in the Notice of Sale. It did not. The declaration

9 by the Trustee is not only rank hearsay but did not comply with the Civil Code and the
10 testimony of Friedlander trumps Pro Value on that issue.

11 12. The factual and legal basis as to whether or not Grossman prevailed on any one or

12 more of his affirmative defenses. . The court failed and refused to address that

13 material issue of law and fact

14 13. The factual and legal basis as to whether or not the California Unlawful Detainer

15 Statute is Unconstitutional under either one or more of the Constitutional defenses raised

16 by Grossman in his answer. . The court failed and refused to address that material

17 issue of law and fact.

18 Tender is not an issue in this UD case. It may be an issue in the main case entitled

19 Grossman v. Bayview. In any event Bayview did not own the Note, per the Allonge” and

20 therefore there was no duty to tender. Tender is a “red herring” irrelevant issue in this

21 case.

22 DEFENDANT WAS NOT PROPERLY SERVED.

23 All Pro Value offered was Bodine’s testimony for what it was. Process servers are

24 notorious for “sewer service”. Defense counsel has set aside quite a few, one of which

25 resulted in a published decision. Bodine testified that he was employed by Bouzane. The

26 Court may take judicial notice of the fact that on the day of the alleged service Bouzane

27 was under a 2 year suspension, stayed, for violation of the State Bar ethics. Bouzane

28 headed up an “Eviction Mill” by the name of “FAST EVICTION SERVICE” per Bodine’s

PROPOSED STATEMENT ON APPEAL

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1 testimony. One wonders why eviction is so fast? Neither Bodine nor Bouzane made any

2 effort to determine whether Grossman had a business address. Bodine testified that he

3 mailed the Notice to Grossman, but the return address was Fast Eviction Service and he

4 did not open its mail. Grossman testified he was an attorney. That he never saw a Notice

5 on his screen door and he received no such notice in the mail. The first time he saw such

6 a notice was when he was served a second time with the Summons and Complaint, the

7 first and second service being quashed. Grossman testified that he was looking out for

8 such a Notice since he found out that the Property had been sold and that he would be

9 receiving a Notice to Quit. What led the court to believe that Grossman’s testimony was
10 “less credible”. That statement brought into question the Court’s entire analysis of this

11 case. Grossman was an attorney testifying under oath while Bodine was a run of the mill

12 process server working for an attorney who had been disciplined by the State Bar. The

13 Court’s analysis is upside down in favor of pushing through a “flood” of evictions. We

14 believe that the service requirements of the service of a Notice to Quit after a Non-Judicial

15 sale should meet the same notice and due process requirements of Service of a

16 Summons and Complaint. To the extent that it doesn’t, we contend that portion of the UD

17 statute is unconstitutional under the 14th Amendment.

18 Joe Nocera, business reporter for the New York Times, wrote in the October 23,

19 2010 business section of the New York Times regarding the Bank of America and

20 Countrywide the following:

21 “But it simply does not follow that the Bank therefore has an absolute right

22 to take back the home. Under the law, it has to prove it has that right-by filing

23 documents that show that the owner of the mortgage has conveyed that right to it.

24 That’s why this affidavit scandal isn’t some legal nicety. It’s about the single most

25 important value of American jurisprudence: Due Process....” The Allonge proves that

26 Bayview did not own the Note and therefore did not have the right to enforce it by non-

27 judicial sale. The Allonge was admitted into evidence and it establishes Grossman’s

28 case for a defense judgment. The phony backdated assignment does not trump the

PROPOSED STATEMENT ON APPEAL

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1 Allonge.

2 RELEVANT PORTIONS OF GROSSMAN TRIAL BRIEF

3 § 2936. Assignment of debt carries security

4 Mortgage passes by assignment of debt. The assignment of a debt secured by mortgage

5 carries with it the security.
6 A mortgage being a mere security for debt, it is not transferable without
7 transfer of the debt. Johnson v. Razey (1919) 181 Cal. 342, 184 P. 657.
8
Debt and security are inseparable; the mortgage alone is not a subject of
9
transfer. Hyde v. Mangan (1891) 88 Cal. 319, 26 P. 180.
10

11 West's Ann.Cal.Civ.Code § 2937 provides: “Notices to borrower of transfer of service

12 by existing and new servicing agent of mortgage or deed of trust on single family

13 residential real property.

14 (a) The Legislature hereby finds and declares that borrowers or subsequent
15 obligors have the right to know when a person holding a promissory note, bond, or other
16 instrument transfers servicing of the indebtedness secured by a mortgage or deed of trust
17 on real property containing one to four residential units located in this state. The
18 Legislature also finds that notification to the borrower or subsequent obligor of the transfer
19 may protect the borrower or subsequent obligor from fraudulent business practices and
20 may ensure timely payments. It is the intent of the Legislature in enacting this section to
21 mandate that a borrower or subsequent obligor be given written notice when a person
22 transfers the servicing of the indebtedness on notes, bonds, or other instruments secured
23 by a mortgage or deed of trust on real property containing one to four residential units and
24 located in this state.
25
(b) Any person transferring the servicing of indebtedness as provided in subdivision
26
(a) to a different servicing agent and any person assuming from another responsibility for
27
servicing the instrument evidencing indebtedness, shall give written notice to the borrower
28

PROPOSED STATEMENT ON APPEAL

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1 or subsequent obligor before the borrower or subsequent obligor becomes obligated to

2 make payments to a new servicing agent.

3 © In the event a notice of default has been recorded or a judicial foreclosure

4
proceeding has been commenced, the person transferring the servicing of the
5
indebtedness and the person assuming from another the duty of servicing the
6
indebtedness shall give written notice to the trustee or attorney named in the notice of
7
default or judicial foreclosure of the transfer. A notice of default, notice of sale, or judicial
8
foreclosure shall not be invalidated solely because the servicing agent is changed during
9
the foreclosure process.
10
(d) Any person transferring the servicing of indebtedness as provided in subdivision
11

12 (a) to a different servicing agent shall provide to the new servicing agent all existing

13 insurance policy information that the person is responsible for maintaining, including, but

14 not limited to, flood and hazard insurance policy information.

15 (e) The notices required by subdivision (b) shall be sent by first- class mail, postage
16 prepaid, to the borrower's or subsequent obligor's address designated for loan payment
17 billings, or if escrow is pending, as provided in the escrow, and shall contain each of the
18 following:
19
(1) The name and address of the person to which the transfer of the servicing of the
20
indebtedness is made.
21

22 (2) The date the transfer was or will be completed.

23
(3) The address where all payments pursuant to the transfer are to be made.
24

25 (f) Any person assuming from another responsibility for servicing the instrument

26 evidencing indebtedness shall include in the notice required by subdivision (b) a statement

27 of the due date of the next payment.

28

PROPOSED STATEMENT ON APPEAL

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1 (g) The borrower or subsequent obligor shall not be liable to the holder of the note,

2 bond, or other instrument or to any servicing agent for payments made to the previous
3 servicing agent or for late charges if these payments were made prior to the borrower or
4 subsequent obligor receiving written notice of the transfer as provided by subdivision (e)
5 and the payments were otherwise on time.
6
(h) For purposes of this section, the term servicing agent shall not include a
7
trustee exercising a power of sale pursuant to a deed of trust.
8
If the Trustees sale had occurred prior to Sept 6,2008 plaintiff would prevail but for
9
other procedural defects in the assignment of the Deed of Trust in Civil Code 2932.5
10
prior to sale.
11
A different rule applies in an unlawful detainer action that is brought by the
12
purchaser after a foreclosure sale. His or her right to obtain possession is based upon the
13
fact that the property has been “duly sold” by foreclosure proceedings, CC1161a (b) (3)
14
and therefore it is necessary that the plaintiff prove each of the statutory procedures has
15
been complied with as a condition for seeking possession of the property.
16
When the eviction is by a bona fide bidder at the sale the defendant has no
17
defenses to eviction. However as in this case a beneficiary that is the plaintiff in the
18
unlawful detainer action must prove that it has duly complied with each of the statutory
19
requirements for foreclosure, and the trustor can put these questions in issue in the
20
unlawful detainer proceeding. Miller and Star 3rd 10:220.
21
Additionally as of Sept 6, 2008 additional requirements for a duly perfected
22
foreclosure were added in 2923.5. What did SB 1137 do? SB 1137 added a number of
23
new code sections including Civil Code §§ 2923.5 and 2924.8 (which are the “notice
24
provisions” of SB 1137 and designated as sections 2 and 4, respectively). Section 2923.5
25
requires contact with, or due diligence to attempt to contact, the borrower before a notice
26
of default (“NOD”) may be recorded after 9-6-08 or continued where the notice of default
27
was recorded prior to 9-6-08 but the notice of sale (“NOS”) will not be recorded until after
28

PROPOSED STATEMENT ON APPEAL

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1 9-6-08. Section 2924.8 requires a new Notice of Sale to Resident to be posted on the

2 residential property and mailed to the resident of residential properties (in English and in 5

3 other languages) as part of the nonjudicial foreclosure process.

4 What Loans are Covered under new Civil Code § 2923.5? Civil Code § 2923.5 only

5 applies to: (1) Loans made from January 1, 2003, to December 31, 2007, inclusive

6 (“Covered Period”); and, (2) loans secured by residential real property that are for owner-

7 occupied residences. For purposes of § 2923.5, “owner-occupied” means that the

8 residence is the principal residence of the borrower. The words “made” and “principal

9 residence” are not defined in the statute, leaving uncertainty as to what these terms mean.
10 Further the statutory definition of “residential property” is not limited to 1-4 residential

11 properties. Therefore, if one unit in any residential property (e.g., an apartment building, a

12 residential unit in a mixed use commercial/residential property, etc) is owner-occupied as

13 the borrower’s principal residence, the borrower may be considered to be covered under

14 Section 2923.5. Lastly, while it appears that the legislature intended to cover loans that

15 were originally intended to be “owner occupied”, the timing of the owner occupancy is also

16 uncertain. Loans meeting the above requirements will be called “covered loans” in this

17 brief.

18 Any loan that was not made between January 1, 2003, through December 31,

19 2007, is not a “covered loan” and is not subject to the provisions of § 2923.5 (although it

20 still requires a “Notice of Sale to Resident” under certain circumstances discussed below).

21 Preconditions to Recording Notice of Default (“NOD”). A trustee, beneficiary, or

22 authorized agent may not file a notice of default (“NOD”) until: (1) 30 days after contact is

23 made with the borrower as required by section 2923.5(a); or, (2) 30-days after satisfying

24 the due diligence requirements of section 2923.5(g); or (3) after qualifying for one of the

25 exclusions under section 2923.5(h).

26 Contact with the Borrower (Before Foreclosure). The beneficiary or authorized

27 agent must contact the borrower in person or by telephone in order to: (1) Assess the

28 borrower’s financial situation; and, (2) Explore options for the borrower to avoid

PROPOSED STATEMENT ON APPEAL

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1 foreclosure. Since many lenders already have policies which may fulfill these

2 requirements, those policies should be reviewed as they are likely to fall short of some of

3 the new requirements.

4 Assessment of the Borrowers Financial Situation; Discussion of Options and Notice

5 of Borrower’s Right to Have a Meeting with Beneficiary or Agent. The assessment of the

6 borrower’s financial situation and discussion of options may occur during the first contact,

7 or at the subsequent meeting scheduled for that purpose. Civil Code § 2923.5 gives no

8 guidance as to what the lender or servicer must do in “assessing the borrower’s financial

9 situation. Similarly, there is no guidance as to what, if any, “options for the borrower to
10 avoid foreclosure” should be discussed.

11 During the initial contact, the beneficiary or authorized agent must advise the

12 borrower that he or she has the right to request a subsequent meeting and, if requested,

13 the beneficiary or authorized agent shall schedule the meeting to occur within 14 days.

14 (Civ. Code § 2923.5(a).) A beneficiary’s or authorized agent’s loss mitigation personnel

15 may participate by telephone during any contact required by this section. (Civ. Code §

16 2923.5(d)(2).)

17 The undersigned spent his time researching the law as “evictions” based on judicial

18 and non-judicial foreclosures sales, are overwhelming our state and federal court systems.

19 Having handled many “lis pendens” cases, “constructive notice” based on a recorded “lis

20 pendens the undersigned will discuss the effect of the recordation of a ‘lis pendens” on a

21 party claiming to be a bona fide purchaser (“BFP”) Simply put, there is no such “animal”

22 even though Pro Value asserts that it is a BFP. Whether or not Pro Value is a BFP affects

23 presumptions, rebuttable or conclusive. Pro Value’s counsel misrepresented to the Court

24 that Pro Value was a BFP, and the undersigned says “hogwash”.

25 Aside from the evidence and testimony, the law is very unclear due to the recent

26 legislation passed by Congress and California to “protect” homeowners from being

27 “tossed” out on the street, due to what the undersigned has read about the “unsavory”

28 foreclosure and eviction mills throughout this country.

PROPOSED STATEMENT ON APPEAL

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1 Simply put, I place John Bouzane dba Fast Eviction Service in the category of an

2 “eviction mill” We had a “reasonable” expectation that the “attorney of record” would

3 appear at trial as the “trial attorney” since Bouzane verified the UD complaint and

4 subjected himself to be called as a witness by the Defense.

5 Counsel for Pro Value stated that the statute which permitted non-judicial

6 foreclosure is constitutional. I know that, since there is no “state action”. Grossman

7 challenges the Constitutionality of the “eviction” statutes, since it requires “State Action” to

8 evict a homeowner from their home after a non judicial sale. That is an undecided issue,

9 which the undersigned looks forward to present. That is why Grossman requested to make
10 an evidentiary record so that the Court may decide the Constitutional issues. There are

11 many attorneys in the “borrower’s bar” who await such a declaration of unconstitutionality.

12 It is not a frivolous position. Prior to Sniadach v Family Finance I was writing briefs that pre

13 judgment attachments, without notice and a hearing, violated the due process clause of

14 the 14th Amendment. That case was decided by the US Supreme Court before an

15 appellate court heard the same argument from the undersigned.

16 FUNCTION OF THE JUDGE

17 The major feature of a bench trial is that the judge sits as the trier of fact. The

18 Judge determines the admissibility, weighs the evidence, determines credibility, and

19 renders judgment. CCP Sec. 631.8 (a); Davis v. Kahn (1970) 7 Cal. App. 3rd 868, 874;

20 Bullock’s Inc v. Security First national Bank of Los Angeles (1958) 160 Cal. App. 2nd 277,

21 285. Judges are precluded from conducting independent investigations outside the

22 courtroom, because to do so would be a denial of due process, denying to a litigant the

23 fair and impartial trial to which everyone is entitled. Conservatorship of Schaeffer (2002)

24 98 Cal. App. 4th 159, 164. The general order of proceedings is set forth in CCP Sec. 607,

25 631.7.

26 The Court’s reference to “tender” in a non-lease situation raised a suspicion that

27 this Court referenced some of the proceedings in Grossman v. Bayview, where “Tender”

28 was made an issue by Schloss, the attorney for Bayview and Seaside. We requested the

PROPOSED STATEMENT ON APPEAL

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1 Court to address why it referenced “tender” in the context of this type of unlawful detainer

2 case. It did not do so. Error.

3 According to California Civil Handbook and Desktop Reference, Thomas, 2007 Ed.

4 at P. 874, “There is considerable controversy as to whether a court may reconsider its

5 prior ruling at any time-and if so, in what manner the issue may be raised.” WE RAISED IT

6 THROUGHOUT THE ENTIRE PROCEEDINGS WHICH THE TRIAL COURT IGNORED.

7 See discussion in Kerns v. CSE Ins. Group (2003) 106 Cal. App. 4th 368, 383-389.

8 Defendant requested the court to reopen the case and grant a continuance, if necessary.

9 Thomas at P. 875. The court had the inherent power, it may be done on the court’s own
10 motion, when required by the interests of justice. It failed to do so.

11 This court made reversible error and denied Grossman a fair trial by “gutting”

12 Grossman’s defense when, it, on its own motion, sua sponte quashed the SDTs served on

13 the Seaside witnesses. Grossman proved by competent evidence that the SDTs were duly

14 served on all of the Seaside witnesses in accordance to CCP Sec. 1987. The Objections

15 admitted service; the witnesses did not testify in their affidavits that “they demanded

16 witnesses fees” from the process server. It was the witnesses burden of proof to declare,

17 under oath, that they demanded fees and were not paid. It is common knowledge that

18 process servers are trained not to offer witness fees unless they are demanded. If the

19 witnesses had testified that they demanded witness fees at the time they were served,

20 then we would have produced affidavits from the process server that the fees were not

21 demanded.

22 CCP Sec. 1987.1 (a) provided for a motion. The attorneys for the witnesses filed an

23 objection; not a motion. The witnesses did not follow the procedure set forth by law. The

24 objections should have been summarily denied. Instead, the Court took the bench and sua

25 sponte quashed each of the subpoenas. The court refused to allow the undersigned to

26 object to this unconstitutional procedure. Subsection (b) of 1987.1 (b) provided “on the

27 court’s own motion after giving counsel notice and an opportunity to be heard, or any

28 reason whatsoever for issuing this unlawful “sua sponte” order. Grossman’s counsel was

PROPOSED STATEMENT ON APPEAL

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1 given no notice whatsoever, refused Grossman’s counsel an opportunity to be heard; and

2 over his objection the court told him to “be quiet and sit down,” which he did. That order

3 was a blatant violation of CCP Sec. 1987.1 (b); denied Grossman a fair trial; and

4 evidenced a bias against either Grossman or his counsel, or there may be an agenda in

5 that courthouse to “railroad through” all of the UD cases since they were “clogging up” an

6 over burdened court, with limited funds, due to the very meltdown caused by MERS and

7 their cohorts, such as the Wall Street institutions. We believe a former Chief Assistant US

8 Attorney, Criminal Trials Division, should have known better. Grossman was entitled to the

9 evidentiary material that he subpoenaed; was entitled to cross-examine Ms. Weber to

10 whom Friedlander had corresponded with, wrote letters to, and Seaside plead the 5th

11 Amendment to discovery requests, such as production of documents, admissions that one

12 of the documents were backdated and forged, and that crimes were committed. Seaside,

13 being a corporation was not permitted to assert the 5th Amendment.

14 The following was the “offer of proof” of the relevancy of the Seaside witnesses

15 testimony and documents. At the time that Bayview, using MERS, as its conduit , was the

16 Assignee from a Lender who was not the lender of record by virtue of the TD introduced

17 into evidence by Pro Value. The Assignor was a different entity than the Lender. The

18 original Lender was bankrupt, and therefore any agency that existed at the time that

19 Grossman signed the original TD was terminated by operation of law due to the

20 bankruptcy of the original lender. Since Bayview was the Assignee of an entity other

21 than the original lender, Bayview lacked both the power and authority to appoint Seaside

22 as Trustee. Therefore any NOD and NOS issued by Seaside was void as a matter of

23 law. That is the reason why a new backdated assignment was prepared by Seaside

24 signed by an “alleged” officer of MERS before a Notary was recorded on 3/8/2010 and the

25 sale took place on 3/9/2010. Since Pro Value was never a BFP, due to the recording of

26 the lis pendens, the Trustee’s deed was void as a matter of law. We demanded that this

27 court admit into evidence the assignment proving that Seaside was not a duly authorized

28 Trustee at the time they recorded the NOD and NOS. Both the NOD and NOS were void

PROPOSED STATEMENT ON APPEAL

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1 as a matter of law, and so is the title of Pro Value. This court committed error by not

2 admitting this evidence.

3 In Alfaro v. Community Housing Imp. System & Planning Ass'n, Inc. 171
4 Cal.App.4th 1356, (Cal.App. 6 Dist.,2009.) The Court of Appeal in 2009 dealt with the
5 issue of the recording of a lis pendens and constructive notice and actual notice as
6 follows:
7 “One of the central issues in this appeal is whether plaintiffs are chargeable with
notice of the deed restriction at an earlier time than its disclosure in the grant deeds. As
8 explained above, the recording of a deed restriction is ordinarily regarded as imparting
constructive notice of its contents to subsequent purchasers. (i.Civ.Code, § 1213;
9
Anderson, supra, 12 Cal.4th 345, 349, 355, 47 Cal.Rptr.2d 898, 906 P.2d 1314.)
10 Anderson, supra, 12 Cal.4th 345, 47 Cal.Rptr.2d 898, 906 P.2d 1314, went on to state on
page 355, 47 Cal.Rptr.2d 898, 906 P.2d 1314: “Constructive notice is “the equivalent of
11 actual knowledge; i.e., knowledge of its contents is conclusively presumed.' (4 Witkin,
Summary of Cal. Law [ (9th ed. 1987) ] Real Property, § 203, p. 408, italics in original.)”
FN21
12 Defendants rely on Anderson as establishing that plaintiffs had constructive notice and
actual knowledge of the deed restriction by virtue of its recording and, by virtue of this
13 knowledge, cannot successfully allege that defendants failed to disclose it.

14 FN21. This quotation from Witkin is based on two cases. Alhambra

Redevelopment Agency v. Transamerica Financial Services (1989) 212 Cal.App.3d
15 1370, 261 Cal.Rptr. 248 observed, “Here, it is undisputed the Flemings properly
recorded the contract, thereby giving Transamerica constructive, if not actual notice
16 of the contract.” ( Id. at p. 1377, 261 Cal.Rptr. 248.) Anderson v. Willson (1920) 48
Cal.App. 289, 191 P. 1016 stated: “Without doubt, the presumption of notice thus
17 raised by this code provision is conclusive and incontrovertible.” ( Id. at p. 293, 191
P. 1016.) Both cases concluded that a person with constructive notice did not
18 qualify as a bona fide purchaser without notice. Neither case attributed actual
knowledge to the purchaser. At most, constructive notice has been conclusively
19 presumed. As we proceed to explain in the text, there is a difference between
actual and constructive notice.
20 There was a caveat in Anderson, however. “ ‘If future takers purchase a piece of
property with notice of a restriction made by a predecessor, then, in the absence of duress
21 or fraud, they may ordinarily be thought to have bargained for the property with the
restriction in mind, and to have shown themselves willing to abide by it.’ ” ( Anderson,
22 supra, 12 Cal.4th at p. 366, 47 Cal.Rptr.2d 898, 906 P.2d 1314; emphasis added.)
23 Plaintiffs argue that the doctrine of constructive notice does not apply to fraud
causes of action. Bishop Creek Lodge v. Scira (1996) 46 Cal.App.4th 1721, 54
24 Cal.Rptr.2d 745 ( Scira ) stated on page 1734, 54 Cal.Rptr.2d 745: “Under a long line of
cases, the fact that the victim had constructive notice of the truth from public records is no
25 defense to fraud. The existence of such public records *1386 may be relevant to whether
the victim's reliance was justifiable, but it is not, by itself, conclusive. ( Seeger v. Odell
26 (1941) 18 Cal.2d 409, 414-417, 115 P.2d 977 [ ( Seeger ) ] ...; Grange Co. v. Simmons
(1962) 203 Cal.App.2d 567, 576-577, 21 Cal.Rptr. 757 ...; Gross v. Needham (1960) 184
27 Cal.App.2d 446, 460, 7 Cal.Rptr. 664 ...; Sullivan v. Dunnigan (1959) 171 Cal.App.2d 662,
668, 341 P.2d 404 ...; Regus v. Schartkoff (1957) 156 Cal.App.2d 382, 389, 319 P.2d 721
28 ...; Schaefer v. Berinstein (1956) 140 Cal.App.2d 278, 296, 295 P.2d 113 ...; Mills v.

PROPOSED STATEMENT ON APPEAL

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1 Hellinger (1950) 100 Cal.App.2d 482, 487, 224 P.2d 34 ...; Barder v. McClung (1949) 93
Cal.App.2d 692, 697, 209 P.2d 808; Stoll v. Selander (1947) 81 Cal.App.2d 286, 292, 183
2 P.2d 935 ...; Anderson v. Thacher (1946) 76 Cal.App.2d 50, 70, 172 P.2d 533....)” The
rationale for this exception is, “The purpose of the recording acts is to afford protection not
3 to those who make fraudulent misrepresentations but to bona fide purchasers for value.” (
Seeger, supra, 18 Cal.2d at p. 415, 115 P.2d 977.) Defendants do not discuss this
4 authority, cited by plaintiffs, in their briefs.”

5 The court did not need a lecture from the undersigned that the purpose of the
6 recording of a Lis Pendens is to give “Constructive Notice” to the world, especially to Pro
7 Value. The court knew that the memorandum of law submitted by Pro Value was not worth
8 the paper it was written on, as to its claim that Pro Value was a BFP. That is the first thing
9 they teach law students in law school. It is hornbook law as they say in law school. The
10 office manager told Friedlander that she knew that Grossman had filed a lis pendens. Not
11 only did Pro Value have “constructive” notice, they had actual notice. Friedlander was
12 precluded from testifying that Pro Value’s attorney requested a copy of the complaint and
13 promised not to file an unlawful detainer suit against Grossman. A short time thereafter on
14 3/30/2010, an attorney named Bouzane filed the UD. The promise made by an agent who
15 is authorized to speak is binding on his principal. This attorney told Friedlander that his
16 client was in the room with him. He believed him since he heard voices in the background.
17 He justifiably relied on that representation of Pro Value’s attorney who was sitting in the
18 room with the attorney. The court’s refusal to permit Grossman to put on relevant
19 evidence is the sole reason for the so-called lack of evidence as enunciated by this
20 Court in its proposed Statement.
21 Did the court really believe that Friedlander called Pro Value to talk about
22 settlement. Hogwash. The Office Manager lied through her teeth, and Pro Value suborned
23 this perjury by objecting on the grounds of “settlement”. Friedlander knew what he said to
24 her and she knew what she said to him. His sworn testimony was totally different, and
25 since she lied that she did not remember our conversation, she was not in a position to
26 contradict his testimony. Her choice would be to admit perjury to the court or commit
27 perjury by testifying to something he said which she did not remember. Friedlander was
28

PROPOSED STATEMENT ON APPEAL

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1 prepared to prove by his sworn testimony regarding some of the declarations of mailing in

2 the court’s file that if they were mailed, they were never received by me. They would have

3 been impeached and I would file a complaint with the District Attorney to investigate this

4 perjury. The conduct of Bouzane and his agents, such as the process server, were

5 designed to deprive people like Grossman of their homes and throw them out on the

6 street. Perjury is being suborned. The fraud on the court marched on.

7 TITLE ISSUES

8 A qualified exception to the rule that title cannot be tried in an unlawful detainer

9 proceeding [see Evid Code § 624; 5.45[1][c]] is contained in CCP § 1161a. By extending
10 the summary eviction remedy beyond the conventional landlord-tenant relationship to

11 include purchasers of the occupied property, the statute provides for a narrow and sharply

12 focused examination of title. A purchaser of the property as described in the statute, who

13 starts an unlawful detainer proceeding to evict an occupant in possession, must show that

14 he or she acquired the property at a regularly conducted sale and thereafter "duly

15 perfected" the title [CCP § 1161a; Vella v. Hudgins (1977) 20 C3d 251, 255.

16 Words and Phrases

17 The term "duly" implies that all of those elements necessary to valid sale exist.
18 Kessler v. Bridge (1958, Cal App Dep't Super Ct) 161 Cal App 2d Supp 837. Title that is
19 "duly perfected" includes good record title, but is not limited to good record title. Kessler v.
20 Bridge (1958, Cal App Dep't Super Ct) 161 Cal App 2d Supp 837. Title is "duly perfected"
21 when all steps have been taken to make it perfect, that is, to convey to purchaser that
22 which he has purchased, valid and good beyond all reasonable doubt. Kessler v.
23 Bridge (1958, Cal App Dep't Super Ct) 161 Cal App 2d Supp 837.
24 Grossman filed his verified answer on 7/23/10. Denied Par. 6. Denied Par. 7 alleging
25 fraud and a rigged sale. Denied par. 8 that he was served with a Notice to Quit. Denied
26 Par 9 based on failure of service of notice to quit. Denied Par. 10. Denied paragraphs 11
27 and 12. First Affirmative Defense. Failed to state a cause of action. Second Affirmative
28

PROPOSED STATEMENT ON APPEAL

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1 Defense. Not properly verified by Pro Value, only Bouzane. Third Affirmative Defense. No

2 Notice to Quit. Fifth Affirmative Defense. Denial of Due Process under the 14th

3 Amendment. Sixth Affirmative Defense. Denial of Procedural Due Process under the 14th

4 Amendment. Seventh Affirmative Defense. Denial of Equal Protection of the law under the

5 14th Amendment.

6 FACTUAL ISSUES ERRONEOUSLY TRIED BY THE COURT

7 1. Service of Notice to Quit.

8 2. Compliance with the law regarding the TD sale.

9 LEGAL ISSUES NOT DECIDED BY THE COURT.

10 1. The two due process arguments under the 14th Amendment

11 2. The equal protection Argument under the 14th Amendment.

12 3. Denial of Right to Trial by Jury.

13

14

15
PLAINTIFF DID NOT AFFIRMATIVELY PROVE THAT IT HAS COMPLIED WITH
16
EACH OF THE STATUTORY REQUIREMENTS FOR FORECLOSURE.
17

18 On 2/20/2009 California enacted into law the California Foreclosure Prevention Act as

19 an amendment to CC Sec. 2923. If Bayview took an assignment from a Lender who was not

20 the Lender as reflected by the Assignment that the Court wrongfully refused to admit into

21 evidence and gave it back to me until I requested that the Assignment be marked and that the

22 Court’s minute order reflect that it was offered and refused on the grounds of relevancy, and

23 no other ground. That is reversible error. A Trustee appointed by an Assignee without good

24 title is a nullity and every act that Seaside Trust took was a nullity. That Assignment, which

25 should have been admitted, would prove the fact of nullity, and Grossman would be entitled to

26 move for judgment when Pro Value rested. We request the Court to reverse its original refusal

27 to admit that Assignment into evidence and then grant judgment to Grossman as the Trustee’s

28 Deed is null and void. That was my offer of proof of relevancy.

PROPOSED STATEMENT ON APPEAL

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1 1. Under CC Sec. 2923.5 the lender must contact the borrower. At that point of time I

2 had given notice to Bayview that I was the attorney for the borrower. Pro Value has offered no

3 evidence. Grossman fell within the provisions of CC Sec. 2923 as the TD offered into evidence

4 by Pro Value reflects that Grossman entered into the loan during the period from 1/1/2003 -

5 12/31/2007.

6 2. Pro Value offered no evidence that it complied with CC Sec. 2923.6; offered a loan
7 modification plan to Grossman.
8
3. Pro Value offered no evidence that it complied with CC Sec. 2923 or that Bayview
9
was exempt.
10
4. Pro Value offered no evidence that it complied with the provisions of HARP, (12
11
USC Sec. 1524), which was part of the “economic stimulus” to prevent foreclosures and
12
revitalize the housing sector.
13

14 5. Pursuant to CC Sec. 2924 the Trustee’s Deed will presume the sale to be valid and

15 conclusively presumed to be valid if Pro Value was a BFP, which it was not. Pro Value failed to

16 prove its case for the following reasons: (1) it was not the duly appointed Trustee; (2) the

17 backdated and forged assignment allegedly was from the true lender, after it went bankrupt,

18 which required Bayview to record a new document appointing Seaside as its Trustee. There is

19 no relation back case cited by Pro Value since it does not exist. Even if it existed, the law still

20 required the duly appointed Trustee under the new assignment to record the NOD and NOS

21 and comply with all of the other provisions of State and Federal Law, which it could not, and

22 did not do, thereby making the Trustee’s deed a “nullity” without any presumptions of validity.

23 Plaintiff claimed they have complied with CC Sec. 2924 in paragraphs 4 thru 7 of
24 their complaint that they have met the burden of proof in that a sale had occurred and the
25 trustees Deed establishes this presumption that the sale was “duly Perfected” and the Civil
26 has been complied with. Defendant claimed that they did not and Plaintiff has submitted
27 to the court a certified copy of the Notice of Trustees Sale and asked the court to take
28 judicial notice of said document as well as the Trustee’s Deed. We requested the court to

PROPOSED STATEMENT ON APPEAL

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1 reverse its prior ruling admitting the Trustee’s Deed into evidence and to deny its

2 admission on the grounds of relevancy since pro Value has not, and can not establish that

3 Bayview, acting as the assignee of an alleged lender that was never in title, duly appointed

4 Seaside as Trustee. Seaside has never been appointed Trustee by any assignee that was

5 in title on the day of the recordation of the Substitution of Trustee.

6 If the Trustees sale had occurred prior to Sept 6,2008 plaintiff would prevail but for

7 other procedural defects in the assignment of the Deed of Trust in Civil Code 2932.5

8 prior to sale.

9 A different rule applies in an unlawful detainer action that is brought by the

10 purchaser after a foreclosure sale. His or her right to obtain possession is based upon the

11 fact that the property has been “duly sold” by foreclosure proceedings, CC1161a (b) (3)

12 and therefore it is necessary that the plaintiff prove each of the statutory procedures has

13 been complied with as a condition for seeking possession of the property.

14 When the eviction is by a bona fide bidder at the sale the defendant has no

15 defenses to eviction. However as in this case a beneficiary that is the plaintiff in the

16 unlawful detainer action must prove that it has duly complied with each of the statutory

17 requirements for foreclosure, and the trustor can put these questions in issue in the

18 unlawful detainer proceeding. Miller and Starr 3rd 10:220.

19 Additionally as of Sept 6, 2008 additional requirements for a duly perfected

20 foreclosure were added in 2923.5. What did SB 1137 do? SB 1137 added a number of

21 new code sections including Civil Code §§ 2923.5 and 2924.8 (which are the “notice

22 provisions” of SB 1137 and designated as sections 2 and 4, respectively). Section 2923.5

23 requires contact with, or due diligence to attempt to contact, the borrower before a notice

24 of default (“NOD”) may be recorded after 9-6-08 or continued where the notice of default

25 was recorded prior to 9-6-08 but the notice of sale (“NOS”) will not be recorded until after

26 9-6-08. Section 2924.8 requires a new Notice of Sale to Resident to be posted on the

27 residential property and mailed to the resident of residential properties (in English and in 5

28 other languages) as part of the nonjudicial foreclosure process.

PROPOSED STATEMENT ON APPEAL

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1 What Loans are Covered under new Civil Code § 2923.5? Civil Code § 2923.5 only

2 applies to: (1) Loans made from January 1, 2003, to December 31, 2007, inclusive

3 (“Covered Period”); and, (2) loans secured by residential real property that are for owner-

4 occupied residences. For purposes of § 2923.5, “owner-occupied” means that the

5 residence is the principal residence of the borrower. The words “made” and “principal

6 residence” are not defined in the statute, leaving uncertainty as to what these terms mean.

7 Further the statutory definition of “residential property” is not limited to 1-4 residential

8 properties. Therefore, if one unit in any residential property (e.g., an apartment building, a

9 residential unit in a mixed use commercial/residential property, etc) is owner-occupied as

10 the borrower’s principal residence, the borrower may be considered to be covered under

11 Section 2923.5. Lastly, while it appears that the legislature intended to cover loans that

12 were originally intended to be “owner occupied”, the timing of the owner occupancy is also

13 uncertain. Loans meeting the above requirements will be called “covered loans” in this

14 brief.

15 Any loan that was not made between January 1, 2003, through December 31,

16 2007, is not a “covered loan” and is not subject to the provisions of § 2923.5 (although it

17 still requires a “Notice of Sale to Resident” under certain circumstances discussed below).

18 Preconditions to Recording Notice of Default (“NOD”). A trustee, beneficiary, or

19 authorized agent may not file a notice of default (“NOD”) until: (1) 30 days after contact is

20 made with the borrower as required by section 2923.5(a); or, (2) 30-days after satisfying

21 the due diligence requirements of section 2923.5(g); or (3) after qualifying for one of the

22 exclusions under section 2923.5(h).

23 Friedlander posed to the Court the following question. How would the Trustee be in

24 a position of first hand personal knowledge to attest to compliance with the new California

25 and Federal Law to put a halt to foreclosures. The only entity that would know those facts

26 based on first hand knowledge would be Bayview, not the Trustee. That put a donut hole

27 in all non-judicial sales followed by evictions in California.

28

PROPOSED STATEMENT ON APPEAL

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1 Contact with the Borrower (Before Foreclosure). The beneficiary or authorized

2 agent must contact the borrower in person or by telephone in order to: (1) Assess the

3 borrower’s financial situation; and, (2) Explore options for the borrower to avoid

4 foreclosure. Since many lenders already have policies which may fulfill these

5 requirements, those policies should be reviewed as they are likely to fall short of some of

6 the new requirements.

7 Assessment of the Borrowers Financial Situation; Discussion of Options and Notice

8 of Borrower’s Right to Have a Meeting with Beneficiary or Agent. The assessment of the

9 borrower’s financial situation and discussion of options may occur during the first contact,
10 or at the subsequent meeting scheduled for that purpose. Civil Code § 2923.5 gives no

11 guidance as to what the lender or servicer must do in “assessing the borrower’s financial

12 situation. Similarly, there is no guidance as to what, if any, “options for the borrower to

13 avoid foreclosure” should be discussed.

14 During the initial contact, the beneficiary or authorized agent must advise the

15 borrower that he or she has the right to request a subsequent meeting and, if requested,

16 the beneficiary or authorized agent shall schedule the meeting to occur within 14 days.

17 (Civ. Code § 2923.5(a).) A beneficiary’s or authorized agent’s loss mitigation personnel

18 may participate by telephone during any contact required by this section. (Civ. Code §

19 2923.5(d)(2).)

20 Plaintiff offered no admissible evidence that it complied with these new

21 legislative provisions.

22 THE LAW ON SERVICE OF NOTICE TO QUIT

23 1. Service of Notice

24 Proper service on the tenant of a valid notice to quit is a prerequisite

25 to a judgment declaring a landlord’s right to possession. Liebovich v Shahrokhkhany

26 (1997) 56 CA4th 511, 513, 65 CR2d 457 (3-day notice to pay rent or quit). The landlord

27 must allege and prove proper service of the required notice; a court may not issue a

28 judgment for possession in the landlord’s favor without evidence that the required notice

PROPOSED STATEMENT ON APPEAL

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1 was properly served. 56 CA4th at 513. When the fact of service is contested, compliance

2 with one of the statutory methods for service must be shown. 56 CA4th at 514. Affidavits

3 of service may not be relied on at trial to prove the notice to quit was served in accordance

4 with the statutory requirements; the testimony of the person who made the service is

5 required (56 CA4th at 514), unless service was made by a sheriff, marshal, or registered

6 process server (see Evid C §647; Govt C §§26662, 71265). Code of Civil Procedure

7 §1162 does not require reasonable diligence in attempting personal service before

8 substituted service may be used. Nourafchan v Miner (1985) 169 CA3d 746, 750–751,

9 215 CR 450. For example, if the tenant is not at home or at his or her usual place of
10 business when personal service is attempted, the notice may be served by substituted

11 service without making further attempts at personal service. Substituted service must be

12 attempted, however, before service by posting and mailing. Hozz v Lewis (1989) 215

13 CA3d 314, 317–318, 263 CR 577. A person using the posting and mailing method of

14 service must first have determined that the tenant’s residence and business cannot

15 be ascertained or that a person of suitable age and discretion cannot be found

16 there. Highland Plastics, Inc. v Enders (1980) 109 CA3d Supp 1, 6, 167 CR 353. The

17 issue of “suitable age” depends on the facts of the case. See Lehr v Crosby (1981) 123

18 CA3d Supp 1, 6, 177 CR 96 (16-year old child was found to be of “suitable age”).

19 Insufficient service. Under CCP §1162(3), posting of the notice without also mailing the

20 notice does not constitute sufficient service. Jordan v Talbot (1961) 55 C2d 597, 609, 12

21 CR 488. Service of a 3-day notice to quit by certified mail, return receipt requested, is not,

22 by itself, a sufficient method of service under either CCP §1162(2) or CCP §1162(3).

23 Liebovich v Shahrokhkhany, supra, 56 CA4th at 516.

24 Dated: February 13, 2011

25 Respectfully submitted,

26

27 ____________________________

28 Martin S. Friedlander, Esq.

PROPOSED STATEMENT ON APPEAL

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