Salvatore B. D'Anna. Petitioner, San Diego SuperiorCourt East County Division. Respondent, Greenpoint Mortgage Funding, Inc. Real Party in Interest

Transcription

1 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO APPELLATE DIVISION Salvatore B. D'Anna Petitioner, v. San Diego SuperiorCourt East County Division Respondent, Greenpoint Mortgage Funding, Inc. Real Party in Interest Appellate DivisionCase Nos.: To be Assigned Previous Appellate Case Nos.: Trial Court Case Nos.: PETITION FOR WRIT OF MANDAMUS FILED ON JUNE, 00 SALVATORE B. D ANNA, PETITIONER *IMMEDIATE STAY REQUESTED* Salvatore B. D Anna ¾ Kenwood Dr. Spring Valley, CA V: ( 0- F: ( - saldanna@gmail.com Defendant/Petitioner Salvatore B. D Anna, Pro Per

2 0 0 CERTIFICATE OF SERVICE I hereby certify that I am not a party to the above-entitled case; that on the date shown below I served a true and correct copy of this Petitioner s Writ of Mandamus on the parties shown below by placing a true copy in a separate envelope, addressed as shown below; each envelope was then sealed and, with postage fully prepaid, deposited in the United States Postal Services at Lemon Grove, California. Respondent: The Honorable Allen J. Preckel San Diego Superior Court East Couny Division Dept. 0 East Main Street, El Cajon, CA 00 San Diego Superior Court East Couny Division Dept. 0 East Main Street, El Cajon, CA 00 Counsel for Real Parties in Interest: Brian H. Tran Tami S. Crosby Bauer Bergstrom & Winters LLP E. Dyer Road, Suite 00 Santa Ana, CA 0 Date: June, 00 By: Frank D Anna, Jr. 0 CERTIFICATE OF SERVICE FOR WRIT OF MANDAMUS -

3 APPENDIX TO THE PETITION FOR WRIT OF MANDAMUS Salvatore B. D Anna submits the following documents in support of the petition for writ of mandamus.. PETITION FOR WRIT OF MANDAMUS, P.. MEMORANDUM IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS, P.. EXHIBIT A- JUNE, 00 ORDER, JUDGMENT, STATEMENT OF DECISION, P. 0-. EXHIBIT B- NOTICE OF DEFENDANTS [PROPOSED] STATEMENT OF DECISION P. -. EXHIBIT C- DEFENDANTS OBJECTION TO PLAINTIFF S [PROPOSED] STATEMENT OF DECISION, P. -. EXHIBIT D- LETTER TO HONORABLE ALLAN J. PRECKEL, PRESIDING JUDGE, P. -0. PETITIONER'S REQUEST FOR JUDICIAL NOTICE, P. APPENDIX TO THE PETITION FOR WRIT OF MANDAMUS

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11 0 0 0 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WRIT OF MANDATE I. INTRODUCTION A. Nature of case. This is a request for another Writ of Mandate to order the trial court to issue a proper Statement of Decision based on the issues to be decided in Petitioner s request under Code of Civil Procedure and ordered to be issued by the Superior Court Appellate Division when granting Petitioner s previous Writ of Mandamus in case # In granting Petitioner s Writ of Mandamus in case # , the Superior Court Appellate Division also ordered the trial court to calendar any request made by Petitioner for a hearing to stay judgment pending appeal. Instead, the trial court summarily denied any request for a stay and refused to calendar such a hearing. At issue is the right of possession to the property located at. El Cajon, CA 00 after a non judicial foreclosure sale under CCP a. A qualified exception to the rule that title cannot be tried in an unlawful detainer proceeding [see Evid Code ;.[][c]] is contained in CCP a. By extending the summary eviction remedy beyond the conventional landlord-tenant relationship to include purchasers of the occupied property, the statute provides for a narrow and sharply focused examination of title. A purchaser of the property as described in the statute, who starts an unlawful detainer proceeding to evict an occupant in possession, must show that he or she acquired the property at a regularly conducted sale and thereafter "duly perfected" the title [CCP a; Vella v. Hudgins ( 0 Cd,, CR, Pd ]. To this limited extent, as provided by the statute, title may be litigated in the unlawful detainer proceeding [ Cheney v. Trauzettel ( Cd,, Pd ]. Memorandum of Points and Authorities ISO Writ of Mandate

12 0 0 0 II. PROCEDURIAL HISTORY On April, 00, the Appellate Division of the San Diego Superior Court issued an Order granting Petitioner s Writ of Mandamus. The appellate division found that the trial court erred in failing to issue a statement of decision and directed the trial court to vacate its judgment and issue a statement of decision. On June, 00, the remitter issued. Prior to the remitter being issued by the appellate division, the court received the parties proposed statement of decision and objections to the opposing parties proposed statement of decision. In addition, the court also received Petitioner s letter to the court asking that either for a hearing to argue the proposed statements of decision or if the court decided the case in favor of plaintiff then Petitioner asked the court to schedule a hearing for a stay pending appeal. On June, 00, the trial court issued a document which Petitioner has not yet received by mail titled as follows: ORDER VACATING JUDGMENT ENTERED ON JULY, 00; STATEMENT OF DECISION; JUDGMENT; AND ORDER DENYING REQUEST TO STAY JUDGMENT PENDING APPEAL. Petitioner drove to the court house and obtained a copy of the decision which is the reason for the filing of the Writ of Mandamus for the second time. III. ARGUMENT A. When Statement of Decision Is Required Explaining Factual and Legal Basis as to Each Principal Controverted Issue Even though the Appellate Division ordered the trial court to issue a statement of decision that addressed the controverted issues to be decided that were properly requested by Petitioner. The trial court simply stated that the issues to be decided that Petitioner requested do not apply to cases of a summary nature such as unlawful detainer and that petitioner has failed to establish that. applies to unlawful detainer. Defendants have not shown that Plaintiff s compliance with Civil Code. is an issue that is properly raised in the summary proceeding of an unlawful detainer action. Thus no specific findings of whether or not Plaintiff complied with said code section will be made, as it is not a principal controverted issue before this court. From Page :0- of the June, 00 judgment attached as Exhibit A Memorandum of Points and Authorities ISO Writ of Mandate

13 The trial court should explain to the appellate court why over a year after trial in this case and after having the opportunity to respond to previous request for a writ of mandate to order the trial court to issue a statement of decision based on Civil Code., it raised no objections to the controverted issues to be decided until the new judgment was issued on June, 00 which says that no statement of decision regarding. is required in a summary unlawful detainer case. In re Marriage of Hargrave ( Cal. App. d, 0 Cal. Rptr., was a proceeding for dissolution of marriage heard by a retired superior court judge sitting as referee. In determining the value of the goodwill of the husband's business, the referee rejected all the testimony on that subject and merely issued a statement of the valuation, with no discernible basis for the calculation. The wife appealed, assigning as error, inter alia, the trial court's failure to explain the basis for the valuation of the husband's goodwill. The court of appeal reversed, holding that Code Civ. Proc. imposes a duty on the trial court to explain the factual and legal basis for its decision as to each of the principal controverted issues at trial ( Cal. App. d, -. The goodwill value of the husband's business was undeniably a principal controverted issue in the case. The court noted that despite the wife's objection to the referee's terse statement of value, she was provided no explanation of the factual or legal basis of the referee's determination ( Cal. App. d,. Although family law courts are generally vested with wide discretion, the discretion intended is not a capricious or arbitrary discretion, but an impartial one, guided and controlled by fixed legal principles ( Cal. App. d, -. The referee's rejection of all the testimony on the subject of goodwill valuation left a record with no supporting evidence on that issue. At that point, he should have required the parties to furnish additional evidence or appointed his own expert to testify on that issue ( Cal. App. d,. (Although the trial commenced after the effective date of the amendment to Code Civ. Proc., each party submitted proposed findings of fact and conclusions of law. No one objected to the form of the proposals, and the court of appeal treated them as statements of decision ( Cal. App. d, 0-. The same is true in this case when the court reviewed the proposed statement of decisions submitted by Petitioner and Real Party in Interest and the court considered them in the decision, the fact that the issues addressed in the proposed statement of decision which did demonstrate that Civil Code. can be heard in a summary unlawful detainer case as it goes to the Memorandum of Points and Authorities ISO Writ of Mandate

14 0 0 0 question of title and if the trustee sale was conducted properly by statute which. is part of those statutes. Petitioner s Proposed Statement of Decision and Opposition to Real Parties Proposed statement of decision which the trial court adopted with the addition of part of the purported statement of decision is attached hereto as Exhibit B and made a part hereof. B. THE STATEMENT OF DECISION ISSUED BY THE COURT DOES NOT ADDRESS ANY OF THE ISSUES OUTLINED IN PETITIONER S [PROPOSED] STATEMENTOF DECISION WHICH THE COURT STATES THAT IT REVIEWED Petitioner objected to the Plaintiff s proposed statement of decision which is attached hereto as Exhibit C and made a part hereof. Plaintiff s Proposed Statement of Decision is insufficient to be deemed the decision that the court can adopt as its statement of decision because it does not address even one of the three controverted issues needed to be decided that were requested by Defendants at trial. The statement of decision must resolve these controverted issues that Defendants asked to be resolved in both their Trial Brief and their Request for a Statement of Decision:. Whether Greenpoint duly perfected title to Petitioner s home after the non judicialforeclosure sale.. Whether Greenpoint could have perfected title to Petitioner s home without compliance with Civil Code... Whether the Recorded Notice of Intention to Preserve Interest in Real Property due to non compliance with Civil Code. which attaches to any sale of the property is proof that Greenpoint could not have perfected title. In Miramar Hotel Corp. v. Frank B. Hall & Co. ( Cal. App. d, 0 Cal. Rptr., after a two-day trial on a cross complaint, the trial court took the matter under submission and subsequently issued a minute order entitled "Memorandum of Decision and Statement of Decision (Code Civ. Proc.." The memorandum listed findings that cross complainant did not justifiably rely on any representation or misrepresentation by cross defendant or its agents, that no implied or express contract was created, and that the cross complainant was not entitled to recover attorney's fees. Cross complainant filed a request for a formal statement of decision pursuant to Code Civ. Proc. as to certain principal Memorandum of Points and Authorities ISO Writ of Mandate

15 0 0 0 controverted issues and various evidentiary factual issues. The trial court entered judgment without issuing any formal statement of decision. Cross complainants appealed. The court of appeal reversed, noting that the Legislature, by its enactment of former Code Civ. Proc., and the Judicial Council, by its adoption of former Cal. Rules of Ct., Rule [now see Cal. Rules of Ct., Rule.0], created a comprehensive method for informing the parties and ultimately the appellate courts of the factual and legal basis for the trial court's decision ( Cal. App. d,. A properly prepared statement of decision may be vitally important to the litigants in framing the issues, if any, that need to be considered or reviewed on appeal. Although entitled "Statement of Decision," the minute order did not constitute a statement of decision within the meaning of Code Civ. Proc. because it failed to explain the factual and legal basis of the court's decision as to the principal controverted issues at trial, an essential element of a statement of decision. By labeling the minute order a statement of decision and ignoring cross complainants' request for the issuance of a statement, the trial court deprived cross complainants of an opportunity to make proposals and objections concerning the court's statement of decision, a vital aspect of the process. The requirements of former Cal. Rules of Ct., Rule [now see Cal. Rules of Ct., Rule.0], impose no substantial burden on the courts, because the trial court is specifically authorized to designate a party to prepare the statement of decision. The trial court is therefore required only to review the statement and any objections to it, and to make or order to be made any corrections, additions, or deletions it deems necessary or appropriate. The issuance of a statement of decision after timely request is clearly mandatory pursuant to Code Civ. Proc., and the trial court's failure to do so required reversal ( Cal. App. d,. By labeling the judgment and Order in this case as a statement of decision and failing to address any of the controverted issues that Petitioner requested in asking for a statement of decision, the trial court has not issued a proper statement of decision and another Writ must be granted that specifically instructs the trial court on how to properly issue a statement of decision in this case. C. LACK OF FINDING AMOUNTS TO REVERSIBLE ERROR Lack of Finding on Material Issues Amounts to Reversible Error. If the trial court fails to make findings on material issues that would fairly disclose a determination of the basis for the trial court's judgment, the failure amounts to reversible error ( Employers Casualty Memorandum of Points and Authorities ISO Writ of Mandate

16 0 0 0 Co. v. Northwestern Nat. Ins. Group (0 0 Cal. App. d,, Cal. Rptr. ; Vale v. Union Bank ( Cal. App. d 0, 0, Cal. Rptr.. Statute devolves on trial court the duty of finding facts and as such trial court cannot turn over to appellate court or to any other tribunal or person the duty of providing a Statement of Decision. Kaiser v. Mansfield (, Cal App th Dist Cal App d, Pd, Cal App LEXIS. The right to findings is a substantial right, guaranteed by statute for the benefit of the court and the parties. Davis v. Monte (, Cal App Cal App, P, Cal App LEXIS. In an unlawful detainer action such as the case at hand, trial court erred in refusing to issue a statement of decision when properly requested by the tenants. Espinoza v. Calva (00, th Dist 00 Cal App LEXIS. CCP requires the court, upon request, to issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial. Failure to determine a material issue in a statement of decision can, in some circumstances, be reversible error if there is evidence that would support a finding in the opposing party's favor. Triple A Management Co. v. Frisone (, Cal App th Dist Cal App th 0, Cal Rptr d, Cal App LEXIS. D. A WRIT OF MANDATE IS PROPER WHEN DIRECT APPEAL IS NOT AN ADEQUATE LEGAL REMEDY. Mandate Proper When Direct Appeal Is Inadequate Legal Remedy. While a direct appeal is generally an adequate remedy at law, it must be both adequate and "speedy" (see Code Civ. Proc. 0. If direct appeal is not speedy, a writ of mandate may issue ( Kawasaki Motors Corp. v. Superior Court (000 Cal. App. th 00, 0-0, 0 Cal. Rptr. d. In a nonjury trial, an appellant preserves the record by requesting and obtaining from the trial court a statement of decision pursuant to Code Civ. Proc.,. The statement of decision provides the trial court's reasoning on disputed issues and is the appellate court's touchstone to determine whether or not the trial court's decision is supported by the facts and the law. Slavin v. Borinstein (, Cal App d Dist Cal App th, 0 Cal Rptr d, Cal App LEXIS, review denied (, Cal Cal LEXIS. Petitioner cited the case of Old National Financial Services, Inc. v. Seibert ( Cal. App. d 0, Cal. Rptr., in his proposed statement of decision to establish that the Memorandum of Points and Authorities ISO Writ of Mandate

17 0 0 0 noncompliance with Civil Code. which is part of the statutory process for the sale of property in a nonjudicial foreclosure was proper in an unlawful detainer case and was litigated by the parties and included without objection in Petitioner s answer to the complaint. Old National Financial Services, Inc. v. Seibert ( Cal. App. d 0, Cal. Rptr., was a proceeding in unlawful detainer brought by the purchaser of real property at a trustee's sale under a deed of trust against the former owner. Although affirming a judgment for plaintiff for restitution and possession of the property, the court of appeal said that Code Civ. Proc. a makes the summary remedy of unlawful detainer available against persons holding over after the property has been sold under a power of sale in a trust deed (Code Civ. Proc. a(b(, and that under this provision, the remedy is afforded when the property has been sold in accordance with Civ. Code and the title under the sale has been duly perfected ( Cal. App. d 0,. The court explained that as a general rule, only claims bearing directly on the right to possession are involved in unlawful detainer proceedings, but that when title is acquired through proceedings described in Code Civ. Proc. a, courts must make a limited inquiry into the basis of the plaintiff's title ( Cal. App. d 0,. The court said that the plaintiff need only prove a sale in compliance with the statute and deed of trust, followed by purchase at the sale, and the defendant may raise objections only on that phase of the issue of title ( Cal. App. d 0,. The court added that matters affecting the validity of the trust deed or primary obligation itself, or other basic defects in the plaintiff's title, are neither properly raised in the summary proceeding for possession, nor concluded by the judgment, and that further, the pendency of another action concerning title is immaterial to the resolution of an unlawful detainer proceeding ( Cal. App. d 0,. Accordingly, for reasons discussed above, the court should have found that Greenpoint has not duly perfected title to the property located at Hillsview Rd. El Cajon, CA 00 due to non compliance with the newly enacted Civil Code.. The Declaration required by Civil Code. which was attached and recorded with the Notice of Default claimed to have negotiated with Mr. D Anna on July, 00 which was two years before the enactment of Civil Code. and at a time when Mr. D Anna was not in default and was paying his mortgage on time. The Notice of Default cannot be recorded until after compliance with Civil Code.. The Notice of Default was improperly recorded which makes the non-judicial foreclosure sale void as a matter of law. Memorandum of Points and Authorities ISO Writ of Mandate

18 0 0 0 D. TRIAL COURT REFUSED TO CALENDAR A HEARING FOR PETITIONER TO STAY JUDGMENT PENDING APPEAL AS ORDERED BY THE APPELLATE COURT IN GRANTING PETITIONER S WRIT OF MANDATE ON APRIL, 00 Petitioner asked the appellate court to issue an immediate stay pending appeal in his Writ of Mandamus filed on July, 00. The appellate court in their decision granting the writ petition denied the request for a stay pending appeal as premature. However, the appellate court stated that the trial court is directed to calendar any such requests to be heard by the trial court judge in accordance with Code of Civil Procedure section if an appeal is filed. On June, 00, Petitioner sent a letter to the Honorable Allan J. Preckel, Judge presiding asking for a hearing either on the submitted proposed statements of decisions of the parties or if the court renders judgment in favor of Plaintiffs a hearing to stay judgment pending appeal as ordered by the appellate division in granting the writ of mandate. The letter is attached hereto as Exhibit D and made a part hereof. The letter stated in pertinent part: As stated on page :-0 of the Order Granting Defendant s Petition for Writ of Mandate under the section titled Disposition: Petitioner s request for a stay pending appeal is denied as premature. However, the trial court is directed to calendar any such requests to be heard by the trial court judge in accordance with Code of Civil Procedure section if an appeal is filed. Defendants will immediately file a notice of appeal if judgment is entered for Plaintiff after a written statement of decision has been made. Therefore, should the court issue such a decision, Defendants request that such a hearing occur before Writ of Possession is issued by the court. The final determination of this case will benefit all future parties involved in an unlawful detainer lawsuit following a nonjudicial foreclosure and any such decision should be made with this in mind. Therefore, Defendants request that the court schedule a hearing on the proposed statement of decisions submitted, or if a statement of decision is written in favor of Plaintiff, that the court schedule a hearing date for a request of stay pending appeal prior to issuing any Writ of Possession. In the June, 00 Judgment, the trial court summarily denied Petitioner s request for a stay pending appeal claiming that it is unwarranted in direct contradiction to the order of the appellate court. Petitioner is entitled to a full hearing on the issue and it is an abuse of discretion to Memorandum of Points and Authorities ISO Writ of Mandate

19 0 0 0 summarily deny such a hearing when Petitioner has and can pay rent to the court pending resolution of the appeal. Under CCP, a request for stay of execution must first be directed to the judge who rendered the judgment. If the stay is denied, the tenant may file "forthwith" a petition for an extraordinary writ (of supersedeas to stay execution, or of mandate to set aside order denying the stay with the appropriate appeals court. CCP. Because the stay is equitable relief, in deciding whether to issue a stay, the court will look to the relative hardships (e.g., will the landlord lose a business opportunity, such as a potential sale, or will the other tenants be subjected to a continuing nuisance. Although the trial judge has discretion on whether to grant a stay pending appeal under CCP, a stay must be granted if the tenant shows extreme hardship and that the landlord would not be irreparably injured by a stay. CCP. The tenant may be able to obtain a stay even without a showing of extreme hardship. See, e.g., Green v Superior Court ( 0 Cd, CR 0 (writ issued and stay ordered (conditioned on payment of rent into court with no apparent showing of harm because of statewide importance of issues. If the trial court denies the tenant's motion to stay the judgment, the tenant may seek a writ of supersedeas in the appellate court staying execution of the trial court's judgment or a writ of mandate compelling the trial court to set aside its order denying the stay. CCP (a; Mehr v Superior Court ( CAd 0, CR. The appellate court may issue a temporary stay pending its determination of a petition for writ of supersedeas or stay during the appeal. Mleynek v Headquarters Cos. ( CAd,, 0 CR. A writ of mandate staying the trial court's judgment will not issue unless a clear abuse of discretion is shown to appear from the record, i.e., that there were no facts or circumstances to sustain the trial court's action in refusing the application for the stay. Candeias v Superior Court (0 CA 0, P. See also Schweiger v Superior Court (0 Cd 0,, 0 CR ; Kaiser v Hancock ( CA,, P. When the trial court has abused its discretion in denying a stay of execution of judgment pending appeal. See Candeias v Superior Court (0 CA 0, P ; /// /// /// Memorandum of Points and Authorities ISO Writ of Mandate

20 0 0 0 E. STAY IS NECESSARY SO PETITIONER DOES NOT LOSE HIS HOME If this stay and writ are not issued, Defendants may lose possession of their home and the statement of decision would be moot once they are thrown out of their home. Real Party in Interest, Greenpoint Mortgage Funding Inc. will suffer no prejudice by the issuance of a stay pending appeal issued by this court, because Petitioner is prepared to make monthly payments based upon the reasonable rental value and post an adequate undertaking if required. In the event that a stay pending appeal is not issued, the property will be lost forever, and cannot be easily replaced. On the other hand, the subject property will only sit in the nonperforming portfolio waiting to be sold in a market in which homes are not selling at any price, even if, the lenders were able to make loans on the property. Thus, in a practical sense, if the stay is granted, Real Party in Interest will at least have the benefit of receiving regular payments from the Petitioner on the property pending the determination of the appeal Prejudice is never presumed; rather it must be affirmatively demonstrated by the defendant in order to sustain his burdens of proof and the production of evidence on the issue. Miller v. Eisenhower Medical Center, (0 Cal.d,, Cal.Rptr.. III. CONCLUSION This court ordered the trial court to issue a statement of decision based on the controverted issues submitted to the court during trial as provided for in Code of Civil Procedure. Both the trial court and Real Party had the opportunity to object to the previous Writ of Mandate in case # based on this newly asserted reason that Civil Code. is not a controverted issue before the court. Both parties failed to make such an objection and now should be estopped from doing so in the purported statement of decision issued on June, 00. Code of Civil Procedure 0 allows the respondent or real party in interest, within days after service and filing of the petition, to file a preliminary opposition to the petition, which, under Cal Rules of Ct.0(g, may be filed 0 days after service of the petition and must include an opposing memorandum and state any material fact not stated in the petition. This opposition is not considered an answer to the petition but is an attempt to oppose issuance of the writ when the petition is clearly without merit. The court may issue the alternative writ without requiring this preliminary opposition. Cal Rules of Ct.0(g(. Memorandum of Points and Authorities ISO Writ of Mandate

21 0 0 0 The respondent or real party in interest, or both, may make a return after the alternative writ issues, within the time stated in the writ, or if no time is stated, 0 days after the writ is issued. Cal Rules of Ct.0(h. The return may be by demurrer or verified answer or both. Rule.0(h. However made, it usually is simply denominated "return." As stated above, if the trial court believed that the issue regarding Civil Code. was not an issue that could be heard in an unlawful detainer case and therefore the controverted issues requested to be answered by Petitioner would not be discussed as part of the decision, then that claim should have been made over a year ago and not when the court is called upon for a second time to issue a statement of decision on those specific issues including.. The trial court should once again be ordered to issue a Statement of Decision as required by statute. The statement of decision should resolve the controverted issues that Defendant asked be resolved in both the Trial Brief and the Request for a Statement of Decision which are stated below:. Whether Plaintiff duly perfected title to Defendant s home after the non judicial foreclosure sale.. Whether Plaintiff could have perfected title to Defendant s home without compliance with Civil Code... Whether the Recorded Notice of Intention to Preserve Interest in Real Property due to non compliance with Civil Code. which attaches to any sale of the property is proof that Plaintiff could not have perfected title. This court should order the trial court not to issue the writ of possession and instead to determine the fair market value for rent for Petitioner to pay to the court and grant Petitioner s request for a stay pending appeal based on rent to be paid to the court. Respectfully submitted, Dated: June, 00 By: SALVATORE B. D ANNA, Pro Per Memorandum of Points and Authorities ISO Writ of Mandate

22 0 0 0 VERIFICATION I, SALVATORE B. D ANNA, declare that I am the defendant in the above entitled action; I have read the foregoing writ of mandate and know the contents thereof. The same is true of my own knowledge, except as to those matters which are therein stated on information and belief, and, as to those matters, I believe it to be true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: June, 00 By: SALVATORE B. D ANNA, Pro Per Memorandum of Points and Authorities ISO Writ of Mandate

23 0 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO, EAST COUNTY DIVISION 0 GREENPOINT MORTGAGE FUNDING, INC., Cl-UD-EC PLAINTIFF, ORDER VACATING JUDGMENT v. ENTERED ON JULY, 00; STATEMENT OF DECISION; FRANK D'ANNA and SALVATORE B. D'ANNA, JUDGMENT; AND ORDER DENYING REQUEST TO STAY DEFENDANTS. JUDGMENT PENDING APPEAL II THE COURT FINDS AS FOLLOWS: II On April, 00, the Appellate Division of the San Diego Superior Court issued an 0 II Order granting Defendants' petition for writ of mandamus. The appellate division found the II trial court erred in failing to issue a statement of decision and directed the trial court to vacate II its judgment and issue a statement of decision. On June, 00, the remittitur issued. II Prior to the rernittitur being issued by tl"le appellate division, tl"lis court received tl"le II parties' proposed statements of decision and objections to the opposing party's proposed statement of decision. objections. / / / / / / / / / / The court has reviewed the proposed statements of decision and

24 " II July, 00 Judgment: II Based on the appellate division's ruling, the judgment entered by this court on July, 00, is hereby vacated. 'I Statement of Decision: II The above-entitled action came on regularly for a bench trial on June, 00, in "Department Twelve of the above-entitled court, the Honorable Allan J. Preckel, Judge II presiding. Plaintiff, Greenpoint Mortgage Funding, Inc., appeared and was represented by II Ryan Stocking: and Defendants, Frank D'Anna and Salvatore B. D'Anna, were present and appeared in propria persona. Oral and written arguments were received, evidence was. 0 presented, the matter was submitted for decision, and the court now makes the following 0 II Statement of Decision: II With regard to the issue of restitution and possession of the property located at II HILLSVIEW ROAD, EL CAJON, CA 00 ("Property", the court finds as follows: II. Plaintiff obtained title to Property at a Trustee's Sale on February, 00.. Title was duly perfected by recording a Trustee's Deed Upon Sale in the Office I' of the County Recorder in San Diego, California, on March, 00. II. Plaintiff served Defendants a three ( day Notice to Quit on March, 00.. More than three ( days elapsed and Defendants have failed and refused to II deliver up possession of the Property. II. Defendants have not shown that Plaintiff's compliance with Civil Code. II is an issue that is properly raised in the summary proceeding of an Unlawful Detainer action. II Thus, no specific findings of whether or not Plaintiff complied with said code section will be II made, as it is not a principal controverted issue before this court. II Judgment:.;,.. II Judgment is hereby ordered to be entered for Greenpoint Mortgage Funding, Inc. II against Frank D'Anna and Salvatore B. D'Anna in the amount of $0.00 past due rent; $0.00 II hold over damages; $.00 prejudgment costs; and $0.00 attorney fees. Possession of the II property is. awarded to Plaintiff. All unknown occupants are included in the judgment.

25 II Plaintiff has waived all monetary damages. II Stay of Judgment Pending Appeal: II Defendants filed a letter requesting a hearing for a stay of judgment pending appeal II pursuant to Code of Civil Procedure (a be calendared before the trial court in the II event judgment is entered on behalf of Plaintiff. The court has read and considered II Defendants' letter and Defendants' arguments as to why a stay is necessary in this case. II The court finds that a stay of the enforcement of judgment is not warranted. Accordingly, II Defendants' request for a hearing and request for a st~ment pending appetal are hereby DENIED.. 0 IT IS SO ORDERED. DATED: r J~ OF THE SUPERIOR CO~~ 0

26 0 0 0 Frank D Anna, Pro Per Salvatore B. D Anna, Pro Per ¾ Kenwood Dr. Spring Valley, CA Telephone: ( 0- Fax: ( - saldanna@gmail.com SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO EAST COUNTY DIVISION Greenpoint Mortgage Funding, Inc., vs. Plaintiff, Frank D Anna, Salvatore B. D Anna Defendant Case No.: NOTICE OF DEFENDANTS [PROPOSED] STATEMENT OF DECISION Trial Date: June, 00 Judge: Hon. Allan J. Preckel Dept: NOTICE OF DEFENDANTS PROPOSED STATEMENT OF DECISION Frank D Anna and Salvatore B. D Anna, Defendants in the above-entitled action hereby submit the attached Proposed Statement of Decision which states the factual and legal bases for the trial court s findings and conclusions regarding the controverted issues decided at trial. Dated: May, 00 Respectfully submitted, By: Frank D Anna, Pro Per By: Salvatore B. D Anna, Pro Per NOTICE OF DEFENDANT S [PROPOSED] STATEMENT OF DECISION -

27 0 0 0 CERTIFICATE OF SERVICE I hereby certify that I am not a party to the above-entitled case; that on the date shown below I served a true and correct copy of this shown below by placing a true copy in a separate envelope, addressed as each envelope was then sealed and, with postage fully prepaid, deposited in the United States Postal Services at Lemon Grove, California. The Honorable Allan J. Preckel San Diego Superior Court East Couny Division Dept. 0 East Main Street, El Cajon, CA 00 San Diego Superior Court East Couny Division Dept. 0 East Main Street, El Cajon, CA 00 Brian H. Tran Bauer Bergstrom & Winters LLP, Suite 00, CA Date:, 0 By: CERTIFICATE OF SERVICE OF DEFENDANT'S [PROPOSED] STATEMENT OF DECISION

28 0 0 0 Frank D Anna, Pro Per Salvatore B. D Anna, Pro Per ¾ Kenwood Dr. Spring Valley, CA Telephone: ( 0- Fax: ( - saldanna@gmail.com SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO EAST COUNTY DIVISION Greenpoint Mortgage Funding, Inc., vs. Plaintiff, Frank D Anna, Salvatore B. D Anna Defendant BACKGROUND Case No.: DEFENDANTS [PROPOSED] STATEMENT OF DECISION Trial Date: June, 00 Judge: Hon. Allan J. Preckel Dept: Plaintiff Greenpoint Mortgage Funding, Inc. ("Greenpoint filed this unlawful detainer action on April, 00 after placing a credit bid at the non-judicial foreclosure auction held on February, 00. Greenpoint seeks a declaration from this court that it is entitled to possession of the property by virtue of a recorded Trustee s Deed for the property located at Hillsview Rd. El Cajon, CA 00 after a non judicial foreclosure sale under CCP a. Defendants Frank D Anna and Salvatore B. D Anna ( D Anna opposed the unlawful detainer by claiming as an affirmative defense that Greenpoint had not purchased the property at a duly elected sale and could not have perfected title to the property due to non-compliance with the newly enacted Civil Code. which required Greenpoint to attempt to negotiate with D Anna at least 0 days prior to filing the Notice of Default. Civil Code. also required that Greenpoint sign a declaration stating that they contacted the borrower to assess his financial situation to try to avoid foreclosure. This matter was originally brought before this court for trial on June, 00. After a short trial, the matter was taken under submission and subsequently on July, 00 by minute [Proposed] Statement of Decision -

29 0 0 0 order, judgment of possession was ordered for Greenpoint. On July, 00 final judgment in favor of Greenpoint was entered and mailed to the parties. Thereafter, on July, 00, D Anna petitioned the Superior Court Appellate Division for a Writ of Mandamus to order the trial court to issue a statement of decision addressing all controverted issues which D Anna claimed he properly requested per CCP. Greenpoint was asked by the trial court to file a preliminary response to D Anna s Writ of Mandamus. The preliminary response filed by Greenpoint stated that Greenpoint had complied with Civil Code. as stated in their declaration attached to the Notice of Default by negotiating with D Anna in July 00. The Superior Court Appellate Division granted D Anna s Writ of Mandamus and ordered this court to issue a statement of decision. The fact that a trial court has issued a statement of intended decision does not satisfy the statutory requirement of Code Civ. Proc., (either party may orally request statement of decision prior to time that matter is submitted to court. A court is not bound by its statement of intended decision and may enter a wholly different judgment than that announced. Neither an oral expression nor a written opinion can restrict the power of the judge to declare his or her final conclusion in his or her findings of fact and conclusions of law. The findings and conclusions constitute the final decision of the court and an oral or written opinion cannot be resorted to for the purpose of impeaching or gainsaying the findings and judgment. A statement of decision allows the trial court to review its memorandum of intended decision and to make corrections, additions, or deletions it deems necessary or appropriate. Such statement thus enables a reviewing court to determine what law the trial court employed. It is the statement of decision which allows the court to place upon the record its view of facts and law of the case. Wurzl v. Holloway (, Cal App d Dist Cal App th 0, Cal Rptr d, Cal App LEXIS. The findings of fact and conclusions of law constitute the decision. Coveny v. Hale ( Cal, Cal LEXIS 0. A clerk's entry in the minutes is not part of the decision required by this section. Delger v. Jacobs (, Cal App Cal App, P, Cal App LEXIS. A minute entry made shortly after trial by a judge is merely evidence of the intention of the court as to its decision. Bastajian v. Brown ( Cal d 0, 0 Pd, Cal LEXIS. A minute order is not the decision of the court when findings are required; the written findings and conclusions constitute the final decision of the court. Perry v. Perry (, Cal App d Dist 0 Cal App d, Cal Rptr, Cal App LEXIS. [Proposed] Statement of Decision -

30 0 0 0 DISCUSSION In July 00, the Governor of California signed into law SB, intended to ameliorate the deleterious effects on the state economy and local economies and the California housing market resulting from the foreclosures of residential properties in unprecedented numbers resulting from subprime lending practices. In SB, the Legislature found and declared ( that residential property foreclosures increased seven fold from 00 to 00; ( that more than, properties were lost to foreclosure in California in 00; and ( that, loans went into default, the first step in the foreclosure process. SB modified the foreclosure process to require mortgagees, beneficiaries, or authorized agents to provide notice to borrowers and explore options that could avoid foreclosure. Effective September, 00, a mortgagee, trustee, beneficiary, or authorized agent may not file a notice of default pursuant to Civ. Code until 0 days after the mortgagee, beneficiary, or authorized agent has contacted the borrower in person or by telephone in order to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure. A notice of default filed pursuant to Civ. Code must include a declaration from the mortgagee, beneficiary, or authorized agent that it has contacted the borrower, tried with due diligence to contact the borrower, or the borrower has surrendered the property to the mortgagee, trustee, beneficiary, or authorized agent. On October, 00 Greenpoint recorded a Notice of Default in the San Diego County Recorder s Office. The Declaration of compliance with newly enacted Civil Code. was attached to the Notice of Default stated that Greenpoint contacted D Anna on July, 00 to discuss his financial situation to avoid foreclosure. On February, 00 D Anna had a Notice of Intention to Preserve Interest in Real Property recorded in the San Diego County Recorder s Office due to Greenpoint s alleged non compliance with Civil Code.. On February, 00 D Anna sent a Notice of Non Compliance which included a copy of the recorded Notice of Intention to Preserve Interest recorded on February, 00 to all parties involved in this matter including two Certified Letters to Greenpoint and two Certified Letters as well as a fax to the Trustee conducting the non judicial foreclosure sale. All parties sent Notice of Non Compliance ignored it and proceeded to sell D Anna s property on February, 00 [Proposed] Statement of Decision -

31 0 0 0 where Greenpoint purchased the property with a credit bid of $0,0.00. Shortly thereafter, Greenpoint served D Anna with this unlawful detainer lawsuit filed on April, 00. Nature of the Case At issue in this case is the right of possession to the property located at Hillsview Rd. El Cajon, CA 00 after a non judicial foreclosure sale under CCP a. A qualified exception to the rule that title cannot be tried in an unlawful detainer proceeding [see Evid Code ] is contained in CCP a. By extending the summary eviction remedy beyond the conventional landlord-tenant relationship to include purchasers of the occupied property, the statute provides for a narrow and sharply focused examination of title. A purchaser of the property as described in the statute, who starts an unlawful detainer proceeding to evict an occupant in possession, must show that he or she acquired the property at a regularly conducted sale and thereafter "duly perfected" the title [CCP a; Vella v. Hudgins ( 0 Cd,, CR, Pd ]. To this limited extent, as provided by the statute, title may be litigated in the unlawful detainer proceeding [ Cheney v. Trauzettel ( Cd,, Pd ]. Under this section, which was added to the code in, an action in unlawful detainer by a purchaser at a trustee's sale under a deed of trust is a proper proceeding to remove persons from the demised premises; and, the remedy being purely statutory, if the determination of the question of title to realty becomes necessary, the legislature had the right to provide for the trial of that issue in such a proceeding. Nineteenth Realty Co. v. Diggs ( Cal App, P d, Cal App LEXIS. The title of a purchaser at a sale under a trust deed is involved in an action in unlawful detainer brought by him to the limited extent that he must prove his acquisition of title by purchase at the sale, and the defendant may attack the sufficiency of the sale. Cheney v. Trauzettel ( Cal d, Pd, Cal LEXIS ; Delpy v. Ono (, Cal App Cal App d 0, 0 Pd 0, Cal App LEXIS ; Defenses challenging the legality of the note, deed of trust, and the sale are proper in an unlawful detainer action under Code of Civil Procedure Section a(b( ( Seidell v. Anglo-California Trust Co. ( Cal. App. d,, P.d. Old National Financial Services, Inc. v. Seibert ( Cal. App. d 0, Cal. Rptr., was a proceeding in unlawful detainer brought by the purchaser of real property at a trustee's sale under a deed of trust against the former owner. Although affirming a judgment for [Proposed] Statement of Decision -

32 0 0 0 plaintiff for restitution and possession of the property, the court of appeal said that Code Civ. Proc. a makes the summary remedy of unlawful detainer available against persons holding over after the property has been sold under a power of sale in a trust deed (Code Civ. Proc. a(b(, and that under this provision, the remedy is afforded when the property has been sold in accordance with Civ. Code and the title under the sale has been duly perfected ( Cal. App. d 0,. The court explained that as a general rule, only claims bearing directly on the right to possession are involved in unlawful detainer proceedings, but that when title is acquired through proceedings described in Code Civ. Proc. a, courts must make a limited inquiry into the basis of the plaintiff's title ( Cal. App. d 0,. The court said that the plaintiff need only prove a sale in compliance with the statute and deed of trust, followed by purchase at the sale, and the defendant may raise objections only on that phase of the issue of title ( Cal. App. d 0,. The court added that matters affecting the validity of the trust deed or primary obligation itself, or other basic defects in the plaintiff's title, are neither properly raised in the summary proceeding for possession, nor concluded by the judgment, and that further, the pendency of another action concerning title is immaterial to the resolution of an unlawful detainer proceeding ( Cal. App. d 0,. Accordingly, for reasons discussed above, the court finds that Greenpoint has not duly perfected title to the property located at Hillsview Rd. El Cajon, CA 00 due to non compliance with the newly enacted Civil Code.. The Declaration required by Civil Code. which was attached and recorded with the Notice of Default claimed to have negotiated with Mr. D Anna on July, 00 which was two years before the enactment of Civil Code. and at a time when Mr. D Anna was not in default and was paying his mortgage on time. The Notice of Default cannot be recorded until after compliance with Civil Code.. The Notice of Default was improperly recorded which makes the non-judicial foreclosure sale void as a matter of law. RULING. Judgment for defendants.. The court declares the rights and obligations of the parties as follows: a. Civil Code., effective September, 00, states that a mortgagee, trustee, beneficiary, or authorized agent may not file a notice of default pursuant to Civ. Code until 0 days after the mortgagee, beneficiary, or authorized agent has contacted the borrower in person or by telephone in order to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure. [Proposed] Statement of Decision -

33 b. A notice of default filed pursuant to Civ. Code must include a declaration from the mortgagee, beneficiary, or authorized agent that it has contacted the borrower, tried with due diligence to contact the borrower, or the borrower has surrendered the property to the mortgagee, trustee, beneficiary, or authorized agent. c. Code Civ. Proc. a makes the summary remedy of unlawful detainer available against persons holding over after the property has been sold under a power of sale in a trust deed (Code Civ. Proc. a(b(, and that under this provision, the remedy is afforded when the property has been sold in accordance with Civ. Code and the title under the sale has been duly perfected ( Cal. App. d 0,. The court explained that as a general rule, only claims bearing directly on the right to possession are involved in unlawful detainer proceedings, but that when title is acquired through proceedings described in Code Civ. Proc. a, courts must make a limited inquiry into the basis of the plaintiff's title ( Cal. App. d 0,. d. The Declaration recorded by Greenpoint with the Notice of Default stated that Greenpoint contacted Mr. D Anna on July, 00 to discuss his financial situation and options to avoid foreclosure. Testimony during trial demonstrated that the Mr. D Anna was not in default or late on any payments in July 00. e. Evidence during trial submitted by Defendants established that Greenpoint was informed of their non-compliance with Civil Code. before the foreclosure sale took place. Greenpoint knew or should have known that they could not have complied with Civil Code. two years before the statute was signed into law and at a time when Mr. D Anna was not in default. f. Compliance with Civil Code. is a prerequisite to the filing of the Notice of Default under Civil Code. The Notice of Default cannot be filed under Civil Code until the requirements included in Civil Code. have been completed. Non compliance with Civil Code. makes the entire non- foreclosure sale invalid which entitles Defendants to remain in possession of the property at Hillsview Rd El Cajon, CA 00. g. Greenpoint could not have perfected title by purchasing the property at an authorized trustee sale because the trustee sale was not authorized under the statutes. Therefore, Greenpoint is not entitled to possession of the premises by unlawful detainer pursuant to Code Civ. Proc. a(b( and judgment for possession is awarded to the Defendants. [Proposed] Statement of Decision -

34 0 0 0 Pursuant to California Rule of Court. 0(c this proposed tentative decision will be the statement of decision unless, within ten days, either party specifies controverted issues or makes proposals not covered in this tentative decision. Dated: By: Honorable Allen J. Preckel [Proposed] Statement of Decision -

35 0 0 0 CERTIFICATE OF SERVICE I hereby certify that I am not a party to the above-entitled case; that on the date shown below I served a true and correct copy of this Objection and Opposition to Proposed Statement of Decision on the shown below by placing a true copy in a separate envelope, addressed as shown below; each envelope was then sealed and, with postage fully prepaid, deposited in the United States Postal Services at Lemon Grove, California. The Honorable Allan J. Preckel San Diego Superior Court East Couny Division Dept. 0 East Main Street, El Cajon, CA 00 San Diego Superior Court East Couny Division Dept. 0 East Main Street, El Cajon, CA 00 Brian H. Tran Tami S. Crosby Bauer Bergstrom & Winters LLP E. Dyer Road, Suite 00 Santa Ana, CA 0 Date: May, 00 By: Frank D'Anna Jr. CERTIFICATE OF SERVICE OF DEFENDANT'S [PROPOSED] STATEMENT OF DECISION

36 0 0 0 Frank D Anna, Pro Per Salvatore B. D Anna, Pro Per ¾ Kenwood Dr. Spring Valley, CA Telephone: ( 0- Fax: ( - saldanna@gmail.com SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO EAST COUNTY DIVISION Greenpoint Mortgage Funding, Inc., vs. Plaintiff, Frank D Anna, Salvatore B. D Anna Defendant Case No.: NOTICE OF DEFENDANTS OBJECTION TO PLAINTIFF S [PROPOSED] STATEMENT OF DECISION AND OPPOSITION TO PLAINTIFF S OBJECTIONS TO DEFENDANTS [PROPOSED STATEMENT OF DECISION. Trial Date: June, 00 Judge: Hon. Allan J. Preckel Dept: NOTICE OF DEFENDANTS OBJECTION TO PLAINTIFF S [PROPOSED] STATEMENT OF DECISION AND OPPOSITION TO PLAINTIFF S OBJECTIONS TO DEFENDANTS [PROPOSED] STATEMENT OF DECISION. Frank D Anna and Salvatore B. D Anna, Defendants in the above-entitled action hereby object to Plaintiff s Proposed Statement of Decision which does not explain the factual and legal basis for the court s decision as to each of the principal controverted issues at trial requested Defendants when they asked for the Statement of Decision. Defendants also file herewith their opposition to Plaintiff s objections to Defendants Proposed Statement of Decision. Dated: May, 00 Respectfully submitted, By: Frank D Anna, Pro Per By: Salvatore B. D Anna, Pro Per NOTICE OF DEFENDANTS OBJECTION TO PLAINTIFF S [PROPOSED] STATEMENT OF DECISION AND OPPOSITION TO PLAINTIFF S OBJECTIONS TO DEFENDANTS [PROPOSED] STATEMENT OF DECISION.-