CASE NO. D IN THE COURT OF APPEALS FOR THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION ONE. Defendant/Plaintiff-Appellants, vs.

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1 CASE NO. D IN THE COURT OF APPEALS FOR THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION ONE PAMELA BENNETT and james bennett, Defendant/Plaintiff-Appellants, vs. BANK OF AMERICA, N.A. AND DEUTSCHE BANK NATIONAL TRUST COMPANY, Defendant/Cross-Plaintiff-Appellees. On Appeal from the San Diego County Superior Court Case No CU-FR-NC Honorable Jacqueline M. Stern, Judge appellants REPLY brief PAMELA BENNETT and JAMES BENNETT P.O. BOX RANCHO SANTA FE, CA Ph.(760)

2 CERTIFICATE OF INTERESTED PARTIES Pursuant to California rules of Court, Rule 8.208, Defendants/Plaintiffs - Appellants know of no entity or person that must be listed as an Interested Entities or Persons related to Pamela Bennett and James Bennett. /s/ Pamela Bennett and James Bennett Defendants/Plaintiffs - Appellants 2

3 TABLE OF CONTENTS DESCRIPTION: PAGE(S): TABLE OF AUTHORITIES I. INTRODUCTION...12 A. Both Respondent Briefs are Riddled with Lies...12 B. The Ex Parte Communication which changed the Defendants...14 C. Who is responsible for the change in Defendants - Stern and Ede?...16 D. Law Enforcement verifies the Ex Parte Communications...16 E. The Court refuses to walk-back its Ex Parte actions...19 II. THE TRIAL COURT LACKS JURISDICTION TO ENTERTAIN DEUTSCHE BANK S PARTICIPATION...20 A. The Trial Court Errored in allowing Deutsche Bank into the Bennett Complaint Because Bank of America s actions were never done for the for the benefit of Deutsche Bank as they were never Deutsche s Attorney in Fact Deutsche was never served with the Summon and Complaint therefore the Trial Court never gained Personal Jurisdiction over Deutsche Bank...25 B. Pursuant to CCP the Trial Court acted in excess of its jurisdiction in accepting and entertaining the Deutsche Bank Cross-Complaint...27 C. Pursuant to CCP 472 the Trial Court acted in excess of its jurisdiction in accepting and entertaining the Deutsche Bank amended Answer...29 D. The Trial Court Lacks Personal Jurisdiction to entertain Deutsche s Motion under 391 and it also acted in excess of the Jurisdiction set forth in 391 because Deutsche was not a Party nor a Defendant as is required and Defined in 391(e)

4 E. Deutsche Bank failed to prove the Bennetts qualify as Vexatious Litigants and just like the Trial Court they never identify which of the more than 60 exhibits specifically apply The Trial Court s determination that the Bennetts had no reasonable probability to prevail against the moving Defendant is laughable considering the Bennetts have already prevailed in both the Wrongful Foreclosure and Eviction (CR Vol. 24, pg 6091) Equally as laughable is the Trial Courts determination that Res Judicata prevents the Bennetts from prevailing The Trial Court is being disingenuous when stating that the Bennetts Complaint exceeds the Statute of Limitation based on the Notice of Default filing Date...48 III. THE COURT FAILED TO ADHERE TO SIMPLE STATUTES WHICH CLEARLY PROVE BANK OF AMERICA S ASSIGNMENT OF THE MORTGAGE AS VOID AB INITIO(see CCP 1971)...50 A. Bank of America s Assignment Violates Probate Code B. Bank of America s Assignment Violates CC 1091 and IV. THE COURT FAILED TO REALIZE BANK OF AMERICA S REFUSAL TO SURRENDER THE MORTGAGE AS PAYMENT MAKES THE FORECLOSURE EVIDENCE OF A THEFT OF THE BENNETT HOME FOR A LACK OF CONSIDERATION...56 V. DEUTSCHE S COMPLAINT, REQUEST FOR ATTORNEY FEES, AND OFFSET CONSTITUTES A WAIVER OF THE SECURITY UNDER CCP 726(a); THEREFORE, THEIR DEED OF TRUST MUST BE CANCELLED HEREIN...57 A. In filing their Cross Complaint against the Bennetts, the asking for Attorney s Fees, and the applying an approximate $900,000 offset on the Balance of the Bennett Mortgage, Deutsche Bank has Waived their right to pursue the Bennett Home as security for the Mortgage

5 VI. CONCLUSION...63 CERTIFICATE OF WORD COUNT CERTIFICATE OF SERVICE

6 COMMON LAW DIRECTIVES: TABLE OF AUTHORITIES Abelleira v. District Court of Appeal (1941) 17 Cal. 2d ,27 Bank of America vs Daily (1984), 152 Cal. App. 3d Brown v. First Nat. Bank, 137 Ind. 655, 37 N. E. 158, 24 L. R. A Burns v. Municipal Court (1961) 195 Cal. App. 2d ,23 Colby v. Title Ins. & Trust Co. 160 Cal Crew v. Pratt (1897) 119 Cal Crittenden v. Superior Court (1964) 61 Cal. 2d Ex Parte Bennett (1872) 44 Cal Fink v. Shemtov (2010) 180 Cal. App. 4th ,38,39,40 Golin v. Allenby (2010) 290 Cal.App.4th ,38 Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th

7 Gray v. Hall (1928) 203 Cal Hall v. Arnott (1889) 80 Cal Hardy v. Smith, 136 Mass Harrington v. Superior Court (1924) 194 Cal Henry v. State Bank of Laurens etc., 131 Iowa Hollywood Circle, Inc. v. Dept. of Alcoholic Beverage Control, 55 Cal.2d In re Hughes (1911) 159 Cal In re Jody R. (1990) 218 Cal. App. 3d James v. P.C.S. Ginning Co. (1969) 276 Cal.App.2d ,62 Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th ,49 John v. Superior Court (2016) 63 Cal. 4th ,38,39 Jones v. World Life Research Institute (1976) 60 Cal. App. 3d

8 Jovine v. FHP, Inc. (1998) 64 Cal. App. 4th Langan v. Sankey, 55 Iowa, 52, [7 N. W. 393]...56 Leone v. Medical Board, 22 Cal.4th ,39,40 Lovett v. Carrasco (1998) 63 Cal. App. 4th Mahdavi v. Superior Court 166 Cal. App. 4th ,35,38,39,40 McCormick Harvester Mfg. Co. v. Miller, 54 Neb. 644, [74 N. W. 1061]...56 Mueller v. Elba Oil Co. (1942) 21 Cal. 2d Nguyen v. LaSalle Bank Nat l Ass n(e.d. Cal. October 13, 2009) 2009 U.S. Dist. LEXIS 99412, at * People v. Los Angeles, 133 Cal People v. National Automobile & Casualty Co. (2000) 82 Cal. App. 4th People v. Ruiz (1990) 217 Cal. App. 3d Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal. App. 4th ,34 8

9 Robinson v. Patterson, 71 Mich. 141, [39 N. W. 21]...56 Roseleaf Corp. v. Chierighino (1963) 59 Cal.2d Salter v. Ulrich (1943) 22 Cal.2d Schwenke v. J & P Scott, Inc. (1988) 205 Cal. App. 3d Shuster v. BAC Home Loans Servicing, LP, 211 Cal.App.4th Stanard v. Sampson, 23 Okla. 13, [99 Pac. 796]...56 Tensor Group v. City of Glendale, (1993) 14 Cal. Ap. 4th U. S. Financial v. Sullivan (Cal. App. 4th Dist. Jan. 29, 1974), 37 Cal. App. 3d Walker v. Community Bank (1974) 10 Cal.3d ,60 Wheeler v. Wheeler, 5 Lans. (N. Y.)

10 STATUTORY DIRECTIVES: CCP CCP ,36,37 CCP ,20,24,26,27,28,33,34,35,36,37,38,39,40,41,42,43 CCP CCP 396b...26 CCP CCP CCP ,26 CCP ,28 CCP CCP CCP 581d...62 CCP 725a...59 CCP ,58,59,61,62 CCP ,30 CCP ,26,28 CCP ,36,39,40,41,42,43 CCP CCP CC ,54,55 CC ,54,55 CC ,57 CC ,57 CC ,57 CEvid Code ,32 PC ,51,55 California Rules of Court, Rule 3.300(b)...48 Canon 3B(7)...17,19 SECONDARY DIRECTIVES: Hetland, Cal. Real Estate Secured Transactions (Cont.Ed.Bar 1970) s 6.18, pp ; Comment, Mortgages and Trust Deeds: Enforcement of a Secured Debt in California (1943) 31 Cal.L.Rev. 429,

11 3 Witkin, Summary of Cal.Law (8th ed. 1973) p

12 I. INTRODUCTION A. Both Respondent Briefs are Riddled with Lies. Both Deutsche Bank and Bank of America want to convince the Reviewing Court of facts which do not appear in the Record. More specifically, they want the Court to believe that Deutsche Bank was the Party sued, the Party filing all initial Documents prior to October 25, 2016, and the ultimate party conducting the Foreclosure and Eviction. These are lies. Deutsche Bank claims they were the Defendant that effectuated filings from the beginning of the Bennetts Action (See Deutsche ROB pages and CR Vol. 1, pg 43). In truth, Bank of America actually filed these documents which the record supports (See Deutsche Bank s References to the record in their Response Brief, pages each reference proves Bank of America filed each Document as a Defendant). Although Bank of America attempts to uphold the Deutsche Bank misrepresentations (BofA Response Brief, page 17), the Documents do not lie and nor does the Record. Both prove that Bank of America is the only Defendant filing Documents up and until October 25, 2016 when Deutsche Bank illegally changed places with them. The following portions of the record prove that Bank of America was the only Defendant and the only one filing documents and defending the litigation until October 25, 2016: 12

13 1. CR Vol. 1, page 66, the Summons does not list Deutsche Bank as the Defendant it lists Bank of America. 2. CR Vol. 1, page 76, the page bottom of the page lists Notice of Demurrer and Demurer of Defendant Bank of America, N.A.-filed by Bank of America. 3. CR Vol. 1, page 138, the page bottom of the page lists Notice of Motion and Motion of Defendant Bank of America. 4. CR Vol. 1, page 210, paragraph 6, as it relates to the Unlawful Detainer in Case Nos CL-UD-NC and No CL-UD-CTL, it states Unlawful Detainer Plaintiff BANK OF AMERICA, N.A.. Therefore, even the Unlawful Detainer Judgment in favor of Bank of America, which was overturned on July 20, 2015 in Register of Action # 33 (CR Vol. 5, pages ), lists Bank of America as the party filing the Unlawful Detainer against the Bennetts and not Deutsche Bank. 5. In CR Vol. 3, page 594, item 1a of the Case Management Statement, lists filed on behalf of Bank of America, N.A. not Deutsche Bank and at the top of the page it lists Michael Withem as attorney for Defendant Bank of America, N.A. not Attorney for Deutsche Bank as they claim in their Respondent s Brief on page CR Vol. 3, page 632, item 3a & b proves that only Bank of America was served. 7. CR Vol. 3, page 637, at the bottom of the page lists Notice of Demurrer and Demurrer of Defendant Bank of America, N.A. - filed by Bank of America. This belies the contention of Deutsche Bank that they filed this document (See Deutsche 13

14 Response Brief, pages where Deutsche continues to mislead this Court as to who actually filed documents). 8. CR Vol. 6, page 1243, at the bottom of the page it lists Declaration in Support of Demurrer and Motion to Strike of Defendant Bank of America. 9. CR Vol. 7, page 1534 at the bottom of the page lists Verified Answer of Defendant Bank of America-filed by Bank of America. Deutsche again lies about who filed this document when they say On August 25, 2016, Deutsche Bank filed its verified answer to the remaining claims in Plaintiffs FAC (See Deutsche Bank s Brief page 27). 10. CR Vol. 11, page top page # 2548/bottom page # 2573, at the bottom of the page of this document lists, for the first time, Deutsche Bank as Defendant and states Amended Verified Answer of Defendant Deutsche Bank National Trust Company. How does Deutsche file an Amended Answer without filing an answer? The truth is in the Record, and although it was illegal, Deutsche Bank entered this action through Unethical and Illegal Ex Parte Communications on October 25, 2016 by filing an Amendment to the Bank of America Verified Answer (CR Vol. 11, page 2548-Upper Number and 2616-Lower Number). B. The Ex Parte Communication which changed the Defendants. On October 25, 2016 between the hours of 7:55 a.m. and 9:37 a.m., through Ex Parte Communications with Deutsche Bank Attorney Jered T. Ede -- pretending to be Attorney for Bank of America -- the Court without Notice, Hearing, or Explicit 14

15 Order, Modified the Bennetts First Amended Complaint by replacing Defendant Bank of America with Deutsche Bank National Trust Company a Non-Party who, upon being added, immediately filed a Complaint against the Bennetts -- (CR Vol. 11, page 2548-Upper Number and 2616-Lower Number), filed an Amended Answer to the Bank of America Answer (CR Vol. 11, page top page # 2548 bottom page # 2573 and CR. Vol. 7, page 1534), and thereafter used the Vexatious Litigant Statutes in CCP 391 et. seq. to dismiss Bennett s First Amended Complaint (CR Vol 24, pages and Vol. 24, pages ). The Trial Court s Register of Actions at 7:55 am on October 25, 2016 is proof of this (Clerk s Record Vol. 24, page 6219-see lower right corner of the page contains the date and time). The Register of Action clearly lists Bank of America, N.A. as the Defendant and Jered T. Ede as their New Attorney (Ede substituted on October 20, 2016 in place of Michael Withem-See CR Vol. 8, pg 2009, items# 2a and 6). Clerk s Record Vol. 24, page 6226 is the same Court s Register of Action less than two hours later at 9:37 am - also on October 25, The Register of Actions now lists Deutsche Bank as the Defendant and Jered T. Ede is now listed as the Attorney for Deutsche Bank. One can clearly see this was done to hide Bank of America because Bank of America was retroactively removed from the beginning and replaced with Deutsche in the right-hand column of the Register of Actions. Deutsche attempts to take advantage of this on pages and Bank of America does the same on page 17 of its Brief. Neither realized that the Bennetts had saved copies of the Register of Actions at various dates and times. 15

16 Moreover, the Court is silent as to what happened to Bank of America. It does not explain who Deutsche Bank is and why there s no hearing related to this major event which completely Amended the Bennetts First Amended Complaint. C. Who is responsible for the change in Defendants - Stern and Ede? First, it s fair to say that the only one with access to the Register of Actions is the Court s Personnel. Moreover, it s also safe to assume that the only Court Employee who has the authority to unilaterally make such changes that are so blatantly against the Allegations that Bank of America is clearly the only Defendant alleged, served, and answered is the Judge. If the above were a mistake undertaken by any other Court Employee, the Judge would have Ordered a quick correction. That did not happen here. Therefore, what we see is a Judge and an opportunistic opposing Attorney undertaking to name a Plaintiff s Defendant and thereby modifying and amending the Plaintiff s Complaint without permission, hearing, or explicit Order. D. Law Enforcement verifies the Ex Parte Communications. The above conclusion is confirmed by Law Enforcement. After becoming suspicious, the Bennetts contacted Law Enforcement regarding what they thought to be a crime. After looking into the event, the investigating officer ed the Bennetts and explained she/he had spoken with Judge Stern, her Court Clerk Michael Garland, and the Supervisor in charge of Civil Record. (See marked as exhibit 1 - Un-Redacted Available upon request and approval by Law Enforcement for an in-camera review by the panel). 16

17 The above parties confirmed that the New Attorney updated the record (Jered T. Ede -See Substitution of Attorney CR Vol. 8, pg 2009 item# 6). Although they do not admit it, the update is believed to have been accomplished with the obvious assistance of the aforementioned parties. Otherwise, how did the parties know it was Jered T. Ede - the new Attorney - unless they observed or participated in the update. As explained below, whether they realize it or not, all of these participants engaged in Judicial Ex Parte Communications in violation of Canon 3B(7) of the California Code of Judicial Ethics: 1. October 20, 2016, Jered T. Ede replaces Michael Withem as Attorney for Bank of America. Volume 8, page 2009, items# 2a and 6 of the Clerk s Records proves Ede was substituted without signatures from the client - Bank of America or the previous Attorney - Michael Withem (See CCP 284(1)). 2. October 25, 2016, the Court s Register of Actions at 7:55 am lists Ede as attorney for Bank of America and the right-hand column lists Bank of America as filing all documents as Defendant up to that point (Clerk s Record Vol. 24, page 6219). 3. October 25, 2016, the Court s Register of Actions at 9:37 am now lists Deutsche Bank as the Defendant and the right-hand column now list Deutsche Bank as the party filing all document as Defendant. The Register of Action has now retroactively changed the filing party to Deutsche Bank. Also, it now lists Jered T. Ede as the Attorney for Deutsche Bank (Clerk s Record Vol. 24, page 6226). 17

18 4. April 4, 2017, less than six months after the Ex Parte change replacing Bank of America with Deutsche Bank, Deutsche files a Motion to declare the Bennetts Vexatious Litigants (CR Vol. 19 pg 4862 and pg 4889). 5. May 1, 2017, the Court declares the Bennetts Vexatious Litigants (CR Vol. 24, pg 6086). 6. July 9, 2018, Bank of America files its Response Brief. It uses the phony Register of Actions listing Deutsche Bank as the Defendant filing documents from the beginning as support of their comment that Deutsche [w]as the party with whom Appellants were litigating during the period prior to October 25, 2016 (See BofA Brief page 17, para# 2). 7. July 23, 2018, Deutsche Bank files it Response Brief and, also using the phony Register of Actions listing Deutsche as the Defendant filing documents from the beginning as support of their claim that On October 23, 2015, Deutsche Bank filed a demurrer and motion to strike portions of Plaintiff Pamela Bennett s Complaint. (1 CT ) Deutsche Bank filed a notice of related case regarding the unlawful detainer action on October 28, (1 CT ) (See Deutsche Brief page 24, para# 1). The Record proves the statements in both 6 and 7 above are untrue because when you look that the documents referenced you see that Bank of America, N.A. in truth filed these documents (1 CT (Notice of Demurrer filed by Defendant Bank of America) and 1 CT (Notice of Related Case filed by Defendant Bank of America). 18

19 E. The Court refuses to walk-back its Ex Parte actions. Despite the Bennetts urgent requests, Judge Stern refused to walk back its Ex Parte actions by denying the Bennetts Motion (See Judge Stern s Order denying the Bennetts request in CR Vol. 16, pg 3866). What makes Judge Stern s refusal to walk back the actions so illogical is the fact that the peculiar act was contrary to Judge Stern s own May 6, 2016 Order restricting additional Parties and dismissing all other potential DOE Defendants (Clerk s Record Vol. 4, page 862, para. #3). A logical person would assume that one of the DOE Defendants dismissed included Deutsche Bank. This type of Communication is contrary Canon 3B(7)(no Judicial Ex Parte Comm.) and CCP 367 (Real Parties only). Bank of America, N.A. is the only Defendant who is alleged within the Bennetts Complaint, the only Defendant Served with the Summons and Complaint (CR Vol. 3, pages ), and the only Defendant who filed the initial Answer to the Complaint (CR Vol. 7, page 1534). Moreover, although the Court changed the Defendant to Deutsche Bank National Trust Company, Deutsche in their Complaint does not reference themselves as Defendants but rather Complainants and likewise list the Bennetts as their Defendants (See CR Vol. 11, top page # 2548/bottom page # 2617, lines 1-8). This confirms that the Bennetts are a Defendant and Deutsche Bank is a Plaintiff. Plaintiffs are not authorized by 391 to file the Motion the Court issued it Order on (CR Vol 24, pages and Vol. 24, pages ). 19

20 The above subject covers the most basic right a Plaintiff has. That is, to Name the Party that they believe has harmed them based on their observations and personal experiences. II. THE TRIAL COURT LACKS JURISDICTION TO ENTERTAIN DEUTSCHE BANK S PARTICIPATION. It is incumbent on the Reviewing Court to first determine if the Trial Court appropriately exercised jurisdiction when it: 1) allowed Deutsche, never being served with the Summon or Complaint, to participate without first gaining Personal Jurisdiction, 2) allowed Deutsche to file an Amended Answer over a year after the Complaint was filed and without ever filing an Initial Answer, 3) allowed Deutsche to file a Cross Complaint when no Complaint naming them as a Defendant was ever filed or served upon them and where their Cross- Complaint was not filed in accordance with California Statutes, and 4) allowed Deutsche to file, and the Court to entertained, a Motion pursuant CCP 391 et seq. naming the Bennetts as Vexatious Litigants. A. The Trial Court Errored in allowing Deutsche Bank into the Bennett Complaint Because Bank of America s actions were never done for the for the benefit of Deutsche Bank as they were never Deutsche s Attorney in Fact. 20

21 Bank of America s actions were never for the benefit of Deutsche Bank pursuant to a Deutsche Bank Power of Attorney. Deutsche is attempting to mislead the Reviewing Court in this respect by claiming that in accordance with Shuster v. BAC Home Loans Servicing, LP, 211 Cal.App.4th 505, fn. 1 Bank of America, N.A. is the successor Attorney in Fact to BAC by merger to BAC regarding the Deutsche Power of Attorney (Deutsche pg 62). However, a reading of Shuster reveals that the litigation did not refer to the Deutsche Power of Attorney at issue here. Indeed, Deutsche only presents an edited portion of the footnote it uses as support. Deutsche claims it states Bank of America, N.A. is the successor by merger to BAC (Deutsche pg 62). This is only half true because Deutsche fails to cite the entire footnote which states: BAC formerly was known as Countrywide Home Loans Servicing, LP, as servicer for HSBC Bank USA, N.A. Bank of America, N.A., is the successor by merger to BAC. See Shuster v. BAC Home Loans Servicing, LP, 211 Cal.App.4th 505, fn. 1. The full footnote presented above proves it does not relate to Bank of America, N.A. being a successor by merger to BAC regarding the Deutsche Power of Attorney which is subject of the instant Appeal. That case relates to mortgage servicing provided by BAC to HSBC Bank USA. It never once even mentions Deutsche Bank or its Power of Attorney. Despite the above, Deutsche believes Shuster v. BAC Home Loans Servicing, LP provides sufficient enough link between them and Bank of America to substantiate 21

22 the actions of Bank of America as being for the benefit of Deutsche Bank and Deutsche Bank therefore has the right to enter into the Bennett Litigation without ever being named as a Defendant, without ever being served with the Summon and Complaint, and without ever answering the Summon and Complaint within the 30- day mandate. In sum, they think Shuster allows them the right to skip all Statutory and Jurisdictional mandates. When thinking of Jurisdiction, in its broadest sense, it means the power to hear and determine causes. Jurisdiction is generally divided into two components: Subject Matter jurisdiction and Personal Jurisdiction. Subject matter jurisdiction is the authority of a court to try actions of the type or class to which a suit belongs. Personal Jurisdiction is the authority of a court over parties and properties. Jurisdiction is synonymous with constitutional and legislative directives set forth in the statutes and rules that govern the court s actions. It is the power of a court to hear and determine, or to act in a certain manner, and is synonymous with the power to render a valid judgment against a person. See Burns v. Municipal Court (1961) 195 Cal. App. 2d 596, 599, 16 Cal. Rptr. 64. The word "jurisdiction," in its judicial sense, means the power to hear and determine causes. See Mueller v. Elba Oil Co. (1942) 21 Cal. 2d 188, 206, 130 P.2d 961 ; Gray v. Hall (1928) 203 Cal. 306, , 265 P. 246 ; see also In re 22

23 Hughes (1911) 159 Cal. 360, 363, 113 P. 684 (jurisdiction, as applied to a particular claim or controversy, is the power to hear and determine that controversy); Crew v. Pratt (1897) 119 Cal. 139, 151, 51 P. 38 (jurisdiction to pronounce judgment or order under Code Civ. Proc. 1908, relating to conclusiveness and effect of judgment, refers to the court's right or power to adjudicate a point); Ex Parte Bennett (1872) 44 Cal. 84, 88 (jurisdiction is the power to hear and determine, but includes the power to do both, to hear without determining, or to determine without hearing); Burns v. Municipal Court (1961) 195 Cal. App. 2d 596, 599, 16 Cal. Rptr. 64 (jurisdiction is the power of a court to hear and determine, or to act in a certain manner, and is synonymous with the power to render a valid judgment against a person). Jurisdiction is, however, a term of large and comprehensive import and embraces every kind of judicial action. This would include the action affirming lower court decisions. Thus, every movement by a court is necessarily the exercise of jurisdiction. See Harrington v. Superior Court (1924) 194 Cal. 185, 188, 228 P. 15. Excess of jurisdiction refers to a situation in which a court has jurisdiction in the fundamental sense over the subject matter and the parties, but exercises that jurisdiction in an unauthorized manner, that is, in excess of the authority possessed. 23

24 See Abelleira v. District Court of Appeal (1941) 17 Cal. 2d 280, , 109 P.2d 942 ; In re Jody R. (1990) 218 Cal. App. 3d 1615, 1622, 267 Cal. Rptr. 746 ; People v. Ruiz (1990) 217 Cal. App. 3d 574, 584, 265 Cal. Rptr. 886 ; Jones v. World Life Research Institute (1976) 60 Cal. App. 3d 836, 846, 131 Cal. Rptr. 674 ; see also People v. National Automobile & Casualty Co. (2000) 82 Cal. App. 4th 120, , 97 Cal. Rptr. 2d 858 ; Lovett v. Carrasco (1998) 63 Cal. App. 4th 48, 54-55, 73 Cal. Rptr. 2d 496. An excess of Jurisdiction simply means a Trial Court has Subject Matter and Personal Jurisdiction but, in some way, allows filings and thereafter makes decisions which are inconsistent with Constitutional and Statutory Rules and Directives. For example, a court may grant relief that it is not authorized to grant, or it may act in the absence of certain procedural prerequisites. This is like what the Trial Court did in the instant Action by allowing a Plaintiff like Deutsche to file a 391 Motion which is only available for Defendants. Such acts are strictly in excess of jurisdiction, although in common usage they are frequently not distinguished from acts in which the court wholly lacks jurisdiction. See Abelleira v. District Court of Appeal (1941) 17 Cal. 2d 280, 288, 109 P.2d 942 ; People v. Nat'l Automobile and Casualty Ins. Co. (2000) 82 Cal. App. 4th 120, 125, 97 Cal. Rptr. 2d 858 ; Jovine v. FHP, Inc. (1998) 64 Cal. App. 4th 1506, 1527 n.26, 76 Cal. Rptr. 2d 322 ; see also Crittenden v. Superior Court (1964) 61 Cal. 2d 565, 567, 39 Cal. Rptr. 380, 393 P.2d 692 ; Schwenke v. J & P Scott, Inc. (1988) 205 Cal. App. 3d 71, 76, 252 Cal. Rptr. 91; Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal. App. 4th 1, 20, 84 Cal. Rptr. 24

25 2d 715 (granting relief that court under no circumstances has any authority to grant has been considered an aspect of fundamental jurisdiction for purposes of declaring a judgment or order void). In the instant case, seeing that Subject Matter Jurisdiction is already present, our first concern is whether the Trial Court appropriately exercised Personal Jurisdiction. If so, we thereafter look to see if it acted in Excess of its Jurisdiction in particular undertakings. 1. Deutsche was never served with the Summon and Complaint therefore the Trial Court never gained Personal Jurisdiction over Deutsche Bank. California Code of Civil Procedures Section (a) list one of the basic requirements necessary for a Court for the acquisition of Personal Jurisdiction. It states Except as otherwise provided by statute, the court in which an action is pending has jurisdiction over a party from the time summons is served on him as provided by Chapter 4 (commencing with Section ). If the Summons is not served, as is true here because the Bennetts never served Deutsche Bank, the Court never acquires Personal Jurisdiction. Clerk s Record Vol. 3, page 632, item 3a & b Bank of America was the only party served therefore the Court never gained Personal Jurisdiction over Deutsche. This is true even though Section (a) also states A general appearance by a party is equivalent to personal service of summons on such party. As it relates to a general appearance, CCP 1014 identifies those instances which defines a General Appearance. It states, A defendant appears in an action when 25

26 the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396b, [or] moves for reclassification pursuant to Section Section 1014 only applies to Defendants named as such. Although Deutsche Bank filed an Amended Answer it never filed an Answer as is required by 1014 and is not a named Defendant; therefore, they cannot be said to have made a general appearance equivalent to personal service of Summons. Indeed, CCP 391(e) defines a Defendant as "... a person (including corporation, association, partnership and firm or governmental entity) against whom a litigation is brought or maintained or sought to be brought or maintained. Deutsche Bank does not fit that definition because no one has brought or maintained or sought to [bring] or [maintain] a litigation against them. Therefore, there are no circumstances herein allowing Deutsche Bank to satisfy As a result, pursuant to CCP (a) the Trial Court never obtained Personal Jurisdiction over Deutsche Bank. Deutsche Bank was not named as a Defendant within the Summons or Complaint (CR Vol. 1, pages and Vol. 2, pages ), was not served with the Summons and Complaint (CR Vol. 3, pages ), and never Answered the Summon and Complaint or filed a Demurred within the 30-day mandate (CR Vol. 1, page 76 and CR Vol. 7, page 1534). Bank of America was Served (CR Vol. 3, page 632, item 3a & b), Demurred Twice (CR Vol. 1, page 76 and CR Vol. 7, page 1534), and Answered the Complaint (CR Vol. 7, page 1534). Deutsche came a year later and filed an Illegal Amended Answer to the Bank of America initial Answer (CR Vol. 11, page top page #

27 bottom page # 2573). There are no Statutes allowing a Non-Party and Non- Defendant to amend an Answer filed by another party. Because of this lack of Personal Jurisdiction, the Judgment the Court issued in favor of Deutsche Bank relative to CCP 391 et seq. is Void Ab Initio (CR Vol. 24, pg ). B. Pursuant to CCP the Trial Court acted in excess of its jurisdiction in accepting and entertaining the Deutsche Bank Cross-Complaint. As described above, an act in Excess of jurisdiction refers to a situation in which a court has jurisdiction in the fundamental sense over the subject matter and the parties, but exercises that jurisdiction in an unauthorized manner, that is, in excess of the authority possessed. Abelleira v. District Court of Appeal (1941) 17 Cal. 2d 280, , 109 P.2d 942. In the following analysis we assume that the Trial Court had Personal Jurisdiction over Deutsche Bank. Despite the assumption, the Trial Court would have still acted in Excess of its Jurisdiction by allowing Deutsche to file a Cross-Complaint in violation of the Statute governing its filing. The filing of a Cross-Complaint is governed by CCP CCP states (a)a party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint; (b)any other cross-complaint may be filed at any time before the court has set a date for trial; and (c)a party shall obtain leave of court to file any cross-complaint except one 27

28 filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action. First, Deutsche s filing of the Cross Complaint violates CCP (a) because the Cross-Complaint was not filed on August 25, 2016 at the same time as the Bank of America Answer (Bank of America Answer - CR. Vol. 7, page 1534: the Cross Complaint dated October 25, Vol. 11, page 2548-Upper Number and 2616-Lower Number). Second, Deutsche s Cross Complaint also violates CCP (b) because the Trial Date was set when the Complaint was filed (See Court Order Dated May 6, 2016 in CR. Vol. 4, page 862, para.#6). Third, and finally, Deutsche Bank s Cross Complaint also violates CCP 428.5(c) because Deutsche never obtained an order from the Court to become a party or to file the Cross-Complaint. Let us not forget that Cross-Complaints are reserved for Defendants who have made a proper appearance. Deutsche is not a Defendant as defined in 391(e). In accordance with 391(e), a Defendant is a person (including corporation, association, partnership and firm or governmental entity) against whom a litigation is brought or maintained or sought to be brought or maintained. Likewise, Deutsche has not made a proper appearance as is mandated by CCP As a corollary to the above, that no Jurisdiction existed for Deutsche to file their Cross-Complaint, is the fact that there was no Jurisdiction for the Bennetts to file their Cross-Complaint against Bank of America. A Cross-Complaint can only be filed in response to a complaint being filed (see (a)). If allowing the 28

29 Deutsche Cross-Complaint filing without having a Complaint filed against them was an error, then the filing of the Bennetts Cross-Complaint was also an Error. Therefore, the Court Errored in Sustaining the Bank of America Demurrer without leave to amend (CR Vol. 23, pgs ). The proper action by the Court relative to the Bennett Cross-Complaint against Bank of America (see CR Vol. 16, pg 3869) should have been to remove Deutsche from the proceedings and to make inquiry whether the Bennetts wanted to incorporate any allegations therein as an Amendment to their First Amended Complaint (FAC). If not, then to dismiss the Bennett Cross Complaint. And, if the Bennetts wanted to incorporate additional allegations from their Cross-Complaint then issue a Proper Ruling on the Bennetts request to incorporate those allegations from the Cross-Complaint into the FAC or, better yet, an SAC(Second Amended Complaint). C. Pursuant to CCP 472(a) the Trial Court acted in excess of its jurisdiction in accepting and entertaining the Deutsche Bank Amended Answer. Deutsche Bank s filing of an Amended Answer still violates CCP 472(a) and CCP 1005(b). Therefore, the Trial Court acted in excess of its Jurisdiction by allowing the filing and for issuing Orders related thereto. Bank of America filed its initial Verified Answer on August 25, 2016 (CR Vol. 7, page 1534). The Bennetts filed their Demurrer to the Bank of America Verified Answer on September 6, 2016 (CR Vol. 8, page 1828). Deutsche Bank filed their Amended Verified Answer on October 25, 2016 ( CR Vol. 11, upper page number 29

30 is 2548 and the lower page number is 2573). Sections 472(a) and 1005(b) govern the filing of Deutsche s Amended Verified Answer. As pertinent to the case at bar, Section 472(a) states A party may amend its pleading once without leave of the court at any time... after a demurrer is filed but before the demurrer is heard if the amended... answer is filed and served no later than the date for filing an opposition to the demurrer. A party may amend the complaint, cross-complaint, or answer after the date for filing an opposition to the demurrer, upon stipulation by the parties. The Bennetts never stipulated with either Bank of America or Deutsche Bank for the filing of any Amendment let alone an Amended Verified Answer by a Non- Party Amending the Pleadings of a legitimate Party - Bank of America. In accordance with CCP 472(a), the Trial Court only had Jurisdiction to allow an Amended Answer, such as filed by Deutsche, if it was filed and served no later than the date for filing an opposition to the Bennetts Demurrer to Bank of America s Initial Answer. The filing of the related Opposition Papers is governed by CCP 1005(b). Therefore, in accordance with 1005(b) All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days... before the hearing. The Hearing for the Bennett s Demurrer was set for November 4, 2016 (CR Vol. 8, page 1828, lines 15-17). Therefore, to be timely and to vest the Court Jurisdiction, Deutsche s Amended Answer had to have been filed no later than October 24, It was not. It was filed on October 25, 2016 (CR Vol. 11, upper page number is 2548 and the lower page number is 2573). 30

31 Deutsche Bank inadvertently admits this failure to vest the Trial Court s Jurisdiction. In their Opposition to the Bennetts Demurrer to Bank of America s initial Verified Answer, Deutsche Bank inadvertently states The hearing date on [Bennetts ] Demurrer is November 4, Accordingly, the last date to file an opposition to [Bennetts ] Demurrer is October 24, Deutsche Bank is therefore entitled to file an Amended Verified Answer as a matter of right up to and including October 24, 2016 (CR Vol. 11, Top page # 2548, Lower page # 2627, lines 13-21). Here Deutsche admits their Verified Amended Answer did not vest the Court s Jurisdiction because it was filed after the deadline on October 24, This is fatal to the Court s Jurisdiction because Deutsche did not file the Amended Answer until October 25, 2016 (CR Vol. 11, upper page number is 2548 and the lower page number is 2573). The Amended Answer was untimely. It did not vest the Court s Jurisdiction. Moreover, Bank of America s involvement in no way excuses Deutsche Bank from its legal obligations of filing an Answer within the 30-day period given for a response to a Summons. Bank of America cannot now say that they weren t the only initial party litigating against the Bennetts thus allowing Deutsche Bank to piggy back on their Verified Answer. Indeed, California Evidence Code, Section 623 prevents Bank of America from contradicting their admissions that they were the only party filing documents as a Defendant up and until October 25, 2016 when Deutsche made it illegal entry into the litigation. 31

32 Section 623 is clear and states: Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it. Bank of America cannot now say they are not the Defendant (See BofA Response Brief page 17) after they filed documents saying they are and after leading the Bennetts and the Court to believe that they were the only Defendants (See BofA Verified Answer CR Vol. 7, page 1534 where at the bottom of the page Bank of America states they are Defendants). As shown above one can see some of the filings in which Bank of America referred to themselves as being the initial and at that point the only Defendant. They cannot pretend here on Appeal that these filings never happened. Neither Deutsche Bank nor Bank of America explain what Statutes allows a Non- Party to file a Cross Complaint or what Statute allows a Court to Amend a Complaint to Re-Name a Plaintiff s Defendant against the Plaintiff s clear explicit intentions laid out in their Complaint. In pages of their Response Brief, Deutsche seeks to make fools not only of the Bennetts but also the Reviewing Court by pretending to be the Defendant filing documents when in truth they were filed by Bank of America. From the filing of the initial Complaint on July 22, 2015 until October 25, 2016 the Bennetts were prosecuting a Complaint against Bank of America, N.A. This is supported by the Courts Register of Actions which was changed. On October 25, 32

33 2016, at the bottom of the page of the Court s own Register of Action, the time is listed at 7:55 am. The Court s Register of Action lists Bank of America as the only Defendant (CR Vol. 24, pages 6219). Mysteriously, on October 25, 2016 at the bottom of the page the time is listed at 9:37 am, less than two hours later the Defendant was changed to Deutsche Bank National Trust Company (CR Vol. 24, page 6226). On November 4, 2016, Bennetts applied ex parte for an order striking Deutsche Bank s Answer and other documents and generally objecting to Deutsche Bank s participation in the lawsuit. (CR Vol. 12, pgs ) Deutsche Bank opposed the request. (CR Vol. 15, pgs ) On November 17, 2016, the Trial Court denied Bennetts ex parte application to strike all documents filed by Deutsche Bank, finding that this was an inappropriate ex parte application. (CR Vol. 16, pg 3866.)( ROB page 30-31). CCP 436 belies this conclusion. It allows a Court under terms it deems proper to strike Deutsche s Filings as was requested by the Bennetts. See CCP 436(b). D. The Trial Court Lacks Personal Jurisdiction to entertain Deutsche s Motion under 391 and it also acted in excess of the Jurisdiction set forth in 391 because Deutsche was not a Party nor a Defendant as is required and Defined in 391(e). The Trial Court acted without Personal Jurisdiction over Deutsche Bank. Deutsche Bank was not named as a Defendant within the Summons and Complaint (CR Vol. 2, pages ), it was not served with the Summons and Complaint (CR Vol. 3, pages ), and it never Answered the Summon and Complaint through 33

34 Demurrer or an Answer (CR Vol. 1, page 76 and CR Vol. 7, page 1534). Instead it filed an Illegal Amended Answer (CR Vol. 11, upper page number is 2548 and the lower page number is 2573). Moreover, the Trial Court acted in Excess of its Jurisdiction because it never followed the clear mandates of CCP 391 et seq. Motions under CCP only allow defendants who are involved in litigation with a plaintiff who is a vexatious litigant to move the court for an order requiring the plaintiff to furnish security (Mahdavi v. Superior Court (2008) 166 Cal. App. 4th 32, 38-39). The Section (391.1) has two prerequisites: 1) that the moving party be a Defendant and 2) the party being asked to provide security be their Plaintiff. In our case the Moving party is not a Defendant and their opponent was not their Plaintiff; therefore, the Court lacked Jurisdiction to hear the Motion. Mahdavi v. Superior Court (2008) 166 Cal. App. 4th 32, Deutsche Bank was not a Defendant and therefore in entertaining Deutsche s CCP 391 Motion the Court was acting in excess of its Statutory Jurisdiction. Likewise, the Judgment which it issued in favor of Deutsche is Void as a matter of Law (CR Vol. 24, pg 6090) [See Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal. App. 4th 1, 20, 84 Cal. Rptr. 2d 715 (granting relief that court under no circumstances has any authority to grant has been considered an aspect of fundamental jurisdiction for purposes of declaring a judgment or order void)]. E. Deutsche Bank failed to prove the Bennetts qualify as Vexatious Litigants and just like the Trial Court they never identify which of the more than 60 exhibits specifically apply. 34

35 Assuming arguendo that the Court gained Personal Jurisdiction over the actions of Deutsche and that Deutsche was a true Defendant as defined in 391(e), their illconceived Section 391 Motion fails because 391(a) defines a Vexatious Litigant as one who engages to file Civil Actions and not the Bankruptcy Actions Deutsche and the Court uses to satisfy 391(a). Indeed, 391(a) requires these Civil Actions to be Finally Determined not dismissed without prejudice where the issues may be reconsidered. Moreover, 391(a) does not encompass Appeals and Writ filings which clearly do not satisfy CCP 1049 definition of being Finally Determined. Likewise, as determined in Fink v. Shemtov (2010) 180 Cal. App. 4th 1160, 1172 ( A summary denial of such a writ petition therefore cannot constitute a final determination of litigation within the meaning of section 391, subdivision (b)(1) [or (b)(2)] ); Mahdavi v. Superior Court 166 Cal. App. 4th 41-42( In appealing from a ruling in a case that he did not initiate, [Defendant] cannot be said to be maintaining the litigation any more than any defendant can be considered to be maintaining litigation by seeking to defend himself through the filing of pleadings and motions in the trial court ); and John v. Superior Court (2016) 63 Cal. 4th 91 (Defendants seeking Appellate Review on Appeals or Writs not considered to be maintaining litigation). Writs and Appeals cannot constitute final determinations within the meaning of 391 subdivision (b1) or (b2) nor can they constitute the maintenance of litigation as required in 391(a). Therefore, the Exhibits used by the Court to conclude the Bennetts are Vexatious Litigants cannot be Substantial Evidence as is required by the Court in Golin v. Allenby (2010) 290 Cal.App.4th 616, 636 stating the court of appeal will uphold the [Vexatious] ruling [only] if it is supported by substantial evidence. Bankruptcies, Writs, Appeals and generally not fitting the definition 35

36 of finality as defined in CCP 1049 because the actions were dismissed without prejudice does not provide substantial evidence as required by the Golin Court supra. Substantial Evidence must conform to applicable law and the Deutsche s Exhibit do not. Besides, the Court s Order is deeply confusing because it states: [Deutsche s] Motions to declare James and Pamela Bennett Vexatious Litigants are granted pursuant to CCP 391.1(b). There is no such Statute CCP 391.1(b) as referenced by the Court. Therefore, the Judgment is based on a Statute that does not exist (CR Vol. 24, pg 6090, para# 3). Moreover, the Court went on to say:... based on [Deutsche s] Request for Judicial Notice of exhibits 1,2, 11-16, 21, 22, 25, 26, 29-32, 35-58, and 68 and based on the instant complaint and the first amended complaint, that Plaintiffs fit the above definitions and are vexatious litigants (CR Vol. 24, page 6090). First and foremost, Deutsche Bank is not a party and it is not a Defendant thus making the Motion contrary to Spirit as well as the explicit Mandates of CCP (Moving Party must be Defendant). Moreover, Deutsche is not and could not be considered a Real Party seeing that they Claim that Bank of America was their Attorney in Fact who took ownership of the Mortgage through the Assignment in Clerk s Record Vol. 2, page 348. If the Assignment is true, that means in accordance with CCP 367 that Bank of America became the owner of the Mortgage and is therefore the Real Party. If, however the Assignment is a phony, then Deutsche Bank retains ownership and is 36

37 in accordance with 367 is the Real Party. Either way the 391 Motion and the Order from the Court supporting Deutsche s entry into this Action are both illconceived and illegal because Deutsche is not the true Defendant. In arriving at the decision to name the Bennetts Vexatious Litigants, the Court used Litigations which only applied to James Bennett s wife Pamela to qualify him and vice versa with Pamela Bennett. Moreover, the Court used Case Information Sheets, Amendments to Complaints, Bankruptcy Actions and Writs to satisfy 391 s requirement that the Litigations as defined in 391(a) were finally determined adversely to the Non-Moving Party - the Bennetts. The Court even based its decision on an Exhibit 68 which does not exist, except within the Court s mind, but is not based in reality because it does not appear any place in the Court s Records (CR Vol. 24, pg 6090). A review of the Record the Trial Court uses to qualify the Bennetts as Vexatious appears below. It is ripe with Bankruptcies, Writs, Unconcluded Appeals, and the inclusion of Exhibits that make it not only hard to understand but virtually impossible to relate them to 391. For example, the Court uses Exhibits 1 and 2 as satisfying 391. Although we don t know how or why these exhibits fit the requirements of 391, we do know that they appear to be Court Dockets or Register of Actions which tell us absolutely nothing relative to 391. There is no judgment presented, and if there were, there is no indication that the judgment was averse to the Bennetts, and there is nothing indicating this was a final decision. 37

38 In short, these Exhibits lack the required substantial evidence that would lead a rational person to believe that this is in anyway related to 391 or its requirements. See Golin v. Allenby (2010) 290 Cal.App.4th 616, 636. Next, we look at Exhibits which appear to relate to a Los Angeles Superior Court Case Numbered BC Exhibit 11(CR Vol. 20, pg 4963) appears to be the initiation of the Complaint while exhibits 12(CR Vol. 20, pg 4977), 13(CR Vol. 20, pg 4987), and 14(CR Vol. 20, pg 4997) are various amendments to the same complaint. Exhibit 15 is a dismissal against James Bennett while Exhibit 16(CR Vol. 20, pg 5009) is a dismissal against Pamela Bennett. None of these exhibits qualify as satisfying 391(b)(1) or (b)(2) because there is no evidence that any of these exhibits constitutes final determinations that are averse to either James or Pamela. Moreover, Exhibits 15 and 16, the dismissals, do not explain whether these two Trial Court dismissals were appealed to the California Supreme Court and if so what occurred. Neither the Court nor Deutsche in their response explain how these exhibits apply. Therefore, there is simply insufficient evidence that these even apply let alone qualify as SUBSTANTIAL EVIDENCE for their use and consideration. Next, we look at more Exhibits the Court used to qualify the Bennetts as Vexatious. The next Exhibits all appear to be Writs, and their related Court Orders, challenging various lower Court rulings. These Exhibits can easily be eliminated by following the Rulings in Fink v. Shemtov, Mahdavi v. Superior Court, John v. Superior Court and Leone v. Medical Board infra. 38