Statement of Decision Writ

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
After Entry of Judgement Without Statement of Decision

San Diego County Superior Court No. 2009-37-00033936
The Honorable Allan J. Preckel
APPENDIX
PETITION FOR WRIT OF MANDAMUS
SALVATORE B. D’ANNA, PETITIONER
Salvatore B. D‟Anna
3941 ¾ Kenwood Dr.
Spring Valley, CA 91977
V: (619) 602-6647
F: (619) 374-2268
Email: saldanna@gmail.com
Defendant/Petitioner
Salvatore B. D’Anna, Pro Per
1 Frank D’Anna, Pro Per
2 Salvatore B. D’Anna, Pro Per
3941 ¾ Kenwood Dr.
3
4
Telephone: (619) 602-6647
5
Fax: (619) 374-2268
6 Email: saldanna@gmail.com
7
Salvatore B. D’Anna for Plaintiff, Pro Per
8
9 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO

10
11 Greenpoint Mortgage Funding Inc. ) Case No. 37-2009-00033936

)
12 Plaintiffs, ) Proof of Service
)
13
v. )
14 )
Frank D’Anna, Salvatore B. D’Anna )
15 ) Case Filed: April 22, 2009
Defendants. ) Trial Date: June 24, 2009
16
) Dept. 12
17 _______________________________________________ ) Judge: Honorable Allan J. Preckel
18
PROOF OF SERVICE
19
I, Robert Janica, declare that:
20
I am at least 18 years of age and not a party to the above-entitled action. My business address is
21
7752 North Ave #104, Lemon Grove, California; I am employed San Diego County, California.
22
I served the foregoing Writ of Mandamus on July 16, 2009, by placing document in a sealed
23
envelope and depositing said envelope at the United States Post Office in Lemon Grove
24
California with postage fully prepaid to the following address:
25
Brian H. Tran, Esq. San Diego Superior Court
26 MILES, BAUER, BERGSTROM & WINTERS, LLP Clerk/Business Office
27 1665 Scenic Avenue, Suite 200 250 East Main Street
Costa Mesa, CA 92626 El Cajon, CA 92020
28
29 I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct. Service was made and this declaration executed on July 16, 2009 at Lemon
30
Grove, California
31 By_______________
Robert Janica
32
Proof of Service- 1
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.
1. PETITION FOR WRIT OF MANDAMUS, P. 1
2. MEMORANDUM IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS, P. 8
3. EXHIBIT A- ENVELOPE, MINUTE ORDER, NOTICE OF JUDGEMENT, MAILING, P. 16-20
4. EXHIBIT B- REPORTER’S TRANSCRIPT P. 21-41
5. EXHIBIT C- WRITTEN REQUEST FOR STATEMENT OF DECISION SUBMITTED AT TRIAL, P. 42-43
6. EXHIBIT D- DEFENDANT’S TRIAL BRIEF, P. 44-93
1. TRIAL BRIEF EXHIBIT A- NOTICE OF DEFAULT, P. 63-68

2. TRIAL BRIEF EXHIBIT B- NOTICE OF NON COMPLAIANCE WITH 2923.5, P. 69-82
3. TRIAL BRIEF EXHIBIT C- JAKE MAY FAXES WITH MOVE OUT AGREEMENT, P. 83-93
APPENDIX TO THE PETITION FOR WRIT OF MANDAMUS

1
2
3
4
5
6
7
8
1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WRIT OF

MANDATE
2
3 I. INTRODUCTION
4
A. Nature of case.
5
This is a request for a Writ of Mandate to order the trial court to issue a Statement of
6
7 Decision that was properly requested by Defendant. In addition, clarification should be
8 requested regarding the minute order entered on July 6, 2009 which appears to state that Plaintiff
9
was present at the hearing which Defendant was not made aware of or given Notice.
10
11 At issue is the right of possession to the property located at 644 Hillsview Rd. El
12
Cajon, CA 92020 after a non judicial foreclosure sale under CCP § 1161a. A qualified exception
13
14 to the rule that title cannot be tried in an unlawful detainer proceeding [see Evid Code § 624;
15 5.45[1][c]] is contained in CCP § 1161a. By extending the summary eviction remedy beyond
16
the conventional landlord-tenant relationship to include purchasers of the occupied property, the
17
18 statute provides for a narrow and sharply focused examination of title. A purchaser of the
19
property as described in the statute, who starts an unlawful detainer proceeding to evict an
20
occupant in possession, must show that he or she acquired the property at a regularly conducted
21
22 sale and thereafter "duly perfected" the title [CCP § 1161a; Vella v. Hudgins (1977) 20 C3d
23
251, 255, 142 CR 414, 572 P2d 28 ]. To this limited extent, as provided by the statute, title may
24
25 be litigated in the unlawful detainer proceeding [ Cheney v. Trauzettel (1937) 9 C2d 158, 159, 69
26 P2d 832 ].
27
28
B. THIS COURT SHOULD ISSUE A WRIT OF MANDATE COMPELLING
29 RESPONDENT TO ISSUE A STATEMENT OF DECISION BECAUSE RESPONDENT
IS AN INFERIOR TRIBUNAL HAVING A DUTY TO SO ACT, AND PETITIONER IS
30
BENEFICIALLY INTERESTED AND HAS NO PLAIN, SPEEDY, AND ADEQUATE
31 REMEDY IN THE ORDINARY COURSE OF LAW.
32
Memorandum of Points and Authorities ISO Writ of Mandate

9
1 When Writ of Mandate May Issue. A writ of mandate may issue from any court to any
2 inferior tribunal, corporation, board, or person to compel the performance of an act that the law
3 specifically enjoins as a duty from an office, trust, or station, or to compel the admission of a
4 party to the use and enjoyment of a right or office to which the party is entitled and from which
5 the party is unlawfully precluded. The writ must be issued on the verified petition of the party
6 beneficially interested, when there is no plain, speedy, and adequate remedy in the ordinary
7 course of the law (Code Civ. Proc. §§ 1085, 1086).
8 Defendant requested a Statement of Decision before submission of the case and during
9 trial as stated on Page 10 lines 7-16 of the Reporter's Transcript from trial which ends with the
10
following: THE COURT: -- "I'LL TAKE IT UNDER ADVISEMENT THAT YOU'RE
11
REQUESTING A STATEMENT OF DECISION". Also written Request for Statement of
12
Decision submitted during trial.
13
"Time of trial" as used in the provision of Code Civ. Proc., § 632, that in "municipal and
14
justice courts, findings and conclusions shall be deemed waived unless expressly requested by
15
one or more of the parties at the time of trial," means that period of time, in the court room,
16
during which the trial itself is taking place. It does not mean any time before judgment. The
17
legislative intent that the term be interpreted in its literal sense is shown by the statute's
18
companion provision for requesting findings in superior court "after" the court's announcement
19
of its intended decision. Moreover, the Judicial Council, which is charged with adopting rules
20
not inconsistent with statute to improve the administration of justice (Cal. Const., art. VI, § 6),
21
22 has, in Cal. Rules of Court, rule 520, interpreted the statute, consistently with its language, as
23 requiring that findings in a municipal court action be requested at the "trial" in the literal sense of
24 that term. Zenker-Felt Imports v. Malloy (1981, Cal App 1st Dist) 115 Cal App 3d 713, 171 Cal
25 Rptr 482, 1981 Cal App LEXIS 1388.
26
27 C. LACK OF FINDING AMOUNTS TO REVERSIBLE ERROR
28
29 Lack of Finding on Material Issues Amounts to Reversible Error. If the trial court
30
fails to make findings on material issues that would fairly disclose a determination of the basis
31
32 for the trial court's judgment, the failure amounts to reversible error ( Employers Casualty Co.

10
1 v. Northwestern Nat. Ins. Group (1980) 109 Cal. App. 3d 462, 474, 167 Cal. Rptr. 296 ; Vale v.
2
Union Bank (1979) 88 Cal. App. 3d 330, 340, 151 Cal. Rptr. 784 ).
3
4 Statute devolves on trial court the duty of finding facts and as such trial court cannot turn
5 over to appellate court or to any other tribunal or person the duty of providing a Statement of
6
Decision. Kaiser v. Mansfield (1956, Cal App 4th Dist) 141 Cal App 2d 428, 297 P2d 98, 1956
7
8 Cal App LEXIS 1864. The right to findings is a substantial right, guaranteed by statute for the
9 benefit of the court and the parties. Davis v. Monte (1927, Cal App) 81 Cal App 164, 253 P 352,
10
1927 Cal App LEXIS 785.
11
12 In an unlawful detainer action such as the case at hand, trial court erred in refusing to
13
issue a statement of decision when properly requested by the tenants. Espinoza v. Calva (2008,
14
15 4th Dist) 2008 Cal App LEXIS 2496. CCP § 632 requires the court, upon request, to issue a
16 statement of decision explaining the factual and legal basis for its decision as to each of the
17
principal controverted issues at trial. Failure to determine a material issue in a statement of
18
19 decision can, in some circumstances, be reversible error if there is evidence that would support a
20
finding in the opposing party's favor. Triple A Management Co. v. Frisone (1999, Cal App 5th
21
22 Dist) 69 Cal App 4th 520, 81 Cal Rptr 2d 669, 1999 Cal App LEXIS 55.
23
24 D. A WRIT OF MANDATE IS PROPER WHEN DIRECT APPEAL IS NOT
25 AN ADEQUATE LEGAL REMEDY.
26
Mandate Proper When Direct Appeal Is Inadequate Legal Remedy. While a direct
27
28 appeal is generally an adequate remedy at law, it must be both adequate and "speedy" (see Code
29
Civ. Proc. § 1086). If direct appeal is not speedy, a writ of mandate may issue ( Kawasaki
30
31 Motors Corp. v. Superior Court (2000) 85 Cal. App. 4th 200, 205-206, 101 Cal. Rptr. 2d 863 ).
32 In a nonjury trial, an appellant preserves the record by requesting and obtaining from the

11
1 trial court a statement of decision pursuant to Code Civ. Proc., § 632. The statement of decision
2
provides the trial court's reasoning on disputed issues and is the appellate court's touchstone to
3
4 determine whether or not the trial court's decision is supported by the facts and the law. Slavin v.
5 Borinstein (1994, Cal App 2d Dist) 25 Cal App 4th 713, 30 Cal Rptr 2d 745, 1994 Cal App
6
LEXIS 564, review denied (1994, Cal) 1994 Cal LEXIS 4674.
7
8 In Kawasaki Motors Corp. v. Superior Court (2000) 85 Cal. App. 4th 200, 101 Cal.
9 Rptr. 2d 863 , plaintiff entered into a dealer sales and service agreement with an automotive
10
dealer. Plaintiff later terminated the agreement, alleging the defendant dealer had breached the
11
12 contract. The defendant filed a protest with the New Motor Vehicle Board, which found that the
13
contract termination was justified. The defendant then filed a petition for a writ of mandate in the
14
15 superior court. Applying an independent judgment standard, the superior court granted the
16 petition and issued a writ directing the New Motor Vehicle Board to vacate its decision and
17
adopt a different decision. Plaintiff petitioned the court of appeal for a writ of mandate.
18
19 The court of appeal granted plaintiff's petition. Concluding that the trial court erroneously
20
applied an independent judgment standard rather than a substantial evidence standard, the court
21
22 of appeal issued a writ of mandate directing the superior court to vacate its decision and deny the
23 defendant dealer's petition ( 85 Cal. App. 4th 200, 203-206) . In response to an argument by
24
defendant that plaintiff's petition was improper in that a direct appeal was an adequate legal
25
26 remedy, the court of appeal determined that it would be intolerable to force plaintiff to maintain
27 its relationship with defendant, after the latter had breached its contract, for another two or more
28
years, the time it would require to complete an appeal. Accordingly, it found that, pursuant to
29
30 Code Civ. Proc. § 1086, the legal remedy was not sufficiently speedy and a writ could issue ( 85
31
Cal. App. 4th 200, 205-206) .
32

12
1 Whenever findings are required the judgment is not "rendered" until they are signed and
2
filed, but whenever they are waived or not required the judgment is rendered when it is entered
3
4 in the minutes. Aspegren & Co. v. Sherwood, Swan & Co. (1926) 199 Cal 532, 250 P 400, 1926
5 Cal LEXIS 301. Where findings are required and not waived a judgment cannot be entered until
6
they are made and filed with the clerk. Estate of Rosland (1946, Cal App) 76 Cal App 2d 709,
7
8 173 P2d 830, 1946 Cal App LEXIS 772. Therefore, Defendant cannot file for an appeal from a
9 judgment deemed not “rendered” and requiring Defendant to file an appeal which could take
10
months if not years is not an appropriate remedy when right to possession real property is at
11
12 issue and the ultimate outcome from the appeal will be remand.
13
14 D. Matter of First Impression in the Superior Court
15
This case is a matter of first impression in the Superior Court and no appellate decisions
16
have been decided on the consequences of non compliance with Civil Code 2923.5. The
17
Legislature was quite clear when they enacted the statute and specifically made compliance with
18
Civil Code 2923.5 a requirement before the Notice of Default could be recorded. The only case
19
that has been decided involving Civil Code 2923.5 is from the Bankruptcy Court [In re GANICE
20
MORGAN-AUSTIN, DARREN AUSTIN, Debtors. GANICE MORGAN-AUSTIN, DARREN
21
AUSTIN, Plaintiff, vs. PATELCO CREDIT UNION, Defendant.] decided on February 14, 2009.
22
The decision states the following:
23
24 Because of the national epidemic of foreclosures on home mortgages, in July
2008, the California legislature enacted emergency legislation, requiring lenders
25 to attempt to negotiate workout agreements on loan defaults before commencing
26 or continuing foreclosure proceedings. See Cal. Civ. Code §§ 2923.5, 2923.6,
2924.8, and 2929.3. The legislation was effective immediately. The legislation did
27 not require lenders such as Patelco, who had already recorded notices of default,
28 to re-record those notices after attempting to negotiate.
However, it did require such lenders, who had not yet recorded notices of sale, to
29 attempt to negotiate before recording a notice of sale. There is no dispute that
30 Patelco made no attempt to negotiate with the Debtors before recording Notice of
Sale on January 14, 2009.
31
32 Patelco contends that the legislation exempted them from any obligation to
negotiate with the Debtors before recording a Notice of Sale because the Debtors

13
1 were at that time still debtors in a bankruptcy case. The specific provision upon
which they rely is Cal. Civ. Code § 2923.5(h)(3) which states as follows: (h)
2
Subdivisions (a), (c), and (g) shall not apply if any of the following occurs:
3 ....
4 ....
(3) The borrower has filed for bankruptcy, and the proceedings have not been
5 finalized.
6
It is undisputed that the Debtors' bankruptcy case was still pending at the time
7 Patelco recorded the Notice of
8 Sale. The Debtors contend that the exemption did not apply because the
bankruptcy case had been finalized as to Patelco. Patelco had obtained relief
9 from the automatic stay and had never filed a proof of claim in the case.
10 Patelco contends that the phrase is clear and exempts it from compliance unless
the bankruptcy case has been dismissed.
11
12 There is some appeal to the Debtors' argument. The exemption may have been
13 created in recognition of the difficulty created by the automatic stay with respect
communications between creditors and debtors. Once the automatic stay has been
14 vacated, the Debtors contend, the exemption no longer serves any purpose. On
15 the other hand, Patelco argues instead that the exemption reflects the legislature's
recognition that the bankruptcy process provides an adequate opportunity for
16 negotiation.
17
The Court has no way to determine the legislature's intent in this regard. It can
18 only construe the statutory language as it would be commonly understood. Doing
19 so, the Court finds Patelco's construction of the language more plausible.
Therefore, the Court concludes that Patelco did not violate Cal. Civ. Code §
20
2924.8 when it recorded the Notice of Sale without first attempting to negotiate
21 with the Debtors.
22
E. STAY IS NECESSARY SO DEFENDANT DOES NOT LOSE HIS HOME
23
24 If this stay and writ are not issued, Defendants may lose possession of their home and the
25 statement of decision would be moot once they are thrown out of their home. In addition, when
26
Defendant asked the Clerk in Department 12 for a date to request a stay of judgment, he was told
27
28 they only hear trials even after Defendant informed the clerk that the stay motion must be heard
29
by the original trial judge. The clerk from Department 12 , when asked for a copy of the
30
31 Statement of Decision stated that she did not enter the decision for this case and therefore had no
32 access to the contents of any such determination.

14
1 III. CONCLUSION
2
Plaintiff is not entitled to possession of the property because Plaintiff cannot prove that
3
4 they duly perfected title without first proving that they complied with Civil Code Section 2923.5
5 which is a prerequisite to the recording of the Notice of Default which makes the entire non
6
judicial foreclosure void an initio.
7
8 Defendant has a right to request a new trial and/or to request that the court set aside the
9 judgment and enter a new and different judgment based on the statement of decision of the court.
10
Defendant would be prejudice and the resources of the appellate court wasted if Defendant is
11
12 required to file an appeal just to have the court remand back to the superior court to issue the
13
statement of decision.
14
15 If a stay and writ are not issued, Defendants may lose possession of their home and the
16 statement of decision would be moot once they are thrown out of their home. In addition,
17
because of the irregularity of the mailing date and actual receipt of the judgment, the 15 day
18
19 deadline to request a new trial has been substantially shortened. The minute order was issued on
20
July 6, 2009. The Judgment was issued on July 8, 2009, but the postmark states that it was
21
22 mailed on July 14, 2009.
23 The trial court should be ordered to issue a Statement of Decision as required by statute.
24 The statement of decision should resolve the controverted issues that Defendant asked be
25 resolved in both the Trial Brief and the Request for a Statement of Decision which are stated
26 below:
27
28 1. Whether Plaintiff duly perfected title to Defendant’s home after the non
judicial foreclosure sale.
29
2. Whether Plaintiff could have perfected title to Defendant’s home without
30 compliance with Civil Code 2923.5.
31 3. Whether the Recorded Notice of Intention to Preserve Interest in Real
Property due to non compliance with Civil Code 2923.5 which attaches to any
32 sale of the property is proof that Plaintiff could not have perfected title.

15
1 This court should order the trial court not to issue the writ of possession until the
2
Statement of Decision is made and Defendant is given the full 15 days allowed by statute to
3
4 request a new trial or move to set aside the judgment and enter a new and different judgment
5 whenever court draws incorrect legal conclusion or render erroneous judgment upon facts found
6
by it to exist.
7
8
9 Respectfully submitted,
10
11 Dated: July 16, 2009
12
13
By: ________________________
15
16 VERIFICATION
17
18
I, Salvatore B. D’Anna, declare that I am the defendant in the above entitled action; I have read
19 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
20 to those matters, I believe it to be true. I declare under penalty of perjury under the laws of the
21 State of California that the foregoing is true and correct.
22
Dated: July 16, 2009
23
24
By: _____________________
26
27
28
29
30
31
32

16
EXHIBIT A
Superior Court of California
County of San Diego c
East County Division w
250 East Main Street
....
IX $OO.46Q
E! Cajon, California 92020-3941 VL' '""'" SE9.llI.CE. REQIJES1el <), u
to-
%
IX_
Il.u,.
17
ESAOPAl SiS77 IIll"Il,IlI,IIlI",Il'IlIIl,1l1l1l'1l1,1 ,111ll 111 111 111 11 11 11

18 _I

East County
250 East Main Street
EI Cajon,CA 92020
SHORT TITLE: Greenpoint Mortgage Funding Inc vs. D'Anna
CASE NUMBER:
CLERK'S CERTIFICATE OF SERVICE BY MAIL
37 -2009-00033936-CL-UD-EC
I certify that I am not a party to this cause. I certify that a true copy of the NOTICE OF ENTRY OF JUDGMENT
was mailed following standard court practices in a sealed envelope with postage fully prepaid, addressed as
indicated below. The mailing and this certification occurred at EI Cajon, California, on 07/09/2009.
Clerk of the Court, by: Y Brennan , Deputy

Salvatore B D'Anna Brian H Tran
3941 3/4 Kenwood Drive Miles, Bauer, Bergstrom & Winters LLP
Spring Valley, CA 91977 1665 Scenic Avenue # 200
Costa Mesa, CA 92626
Frank D'Anna
3941 3/4 Kenwood Drive
Pag.: 2
CLERK'S CERTIFICATE OF SERVICE BY MAIL
V3 1013a (June 2004) Code of Civil Procedure. § CCP1013(a)
19
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SAN DIEGO
EAST COUNTY
MINUTE ORDER
Date: 07/06/2009 Time: 10:00:00 AM Dept: E-12
Judicial Officer Presiding: Judge Allan J. Preckel

Clerk: Angela Narducci,Yolanda Brennan
BailifflCourt Attendant: R. Desorosiers

ERM: Not Recorded
Case Init. Date: 04/22/2009

Case No: 37-2009-00033936-CL-UD-EC Case Title: Greenpoint Mortgage Funding Inc vs. D'Anna
Case Category: Civil - Limited Case Type: Unlawful Detainer - Residential
Event Type: Unlawful Detainer Court Trial

Moving Party: Greenpoint Mortgage Funding Inc
Causal Document & Date Filed:Request to Set Case for Trial (At Issue Memorandum), 06/08/2009
Appearances:
Greenpoint Mortgage Funding Inc is present as Plaintiff
The Court, having taken the above-entitled matter under submission on 06/24/2009 and having fully
considered the arguments of all parties, both written and oral, as well as the evidence presented, now
rules as follows:
The Court finds judgment for Greenpoint Mortgage Funding Inc against Frank D'Anna in the amount of:
$00.00 past due rent, $00.00 hold over damages, $365.00 pre judgment costs and $00.00 attorney fees.
Possession of the premises is awarded. All unknown occupants are included in the judgment. Plaintiff
has waived all monetary damages
Date: 07/06/2009 MINUTE ORDER Page: 1
Dept: E-12 Calendar No.:
20
i
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FOR COURT USE ONL Y
STREET ADClRESS; 250 East Main Street
MAILING ADDRESS; 250 East Main Street
CITY AND Z:PCCDE; EI Cajon,CA 92020
8q;.,\>:~ ~,":' \.':=' ::ast C:::ur'ty
~ --.;:, ~,~- == 3'"'38;":':"": \fc:i;!sge =:... ... _"-;: '-
I
I
"'rank D'Anna eLal. I Jui 08, 2009
: DEFENDANT:
SHORT TITLE: Greenpoint Mortgage Funding Inc vs. D'Anna
CASE Nur':3::::::.
NOTICE OF ENTRY OF JUDGMENT j37-2009-C::;:33336-CL-UD-EC
You and each of you will please take notice:
That on 07/06/2009 the attached Judgment IIvas entered, Pursuant to Code of Civil
Procedure Section §1952 exhibits wii' be destroyed 60 days after final determinatior of the case, unless you
re:JUest them returned.
CLERK OF THE SUPERIOR COURT
Date: 071'. 8/2009 By: y~

Y. Br.,na" ,Deputy
Page: 1
NOTICE OF ENTRY OF JUDGMENT
21
EXHIBIT B
22
1 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 IN AND FOR THE COUNTY OF SAN DIEGO
4 DEPARTMENT E-12 HON. ALLAN J. PRECKEL, JUDGE
5
GREENPOINT MORTGAGE FUNDING, )
6 INC., )
)
7 PLAINTIFF, )
)
8 VS. ) CASE NO. 2009 000 33936
)
9 FRANK D'ANNA AND SALVATORE B. )
D'ANNA, )
10 )
DEFENDANTS. )
11 )
________________________________)
12
13 REPORTER'S TRANSCRIPT OF PROCEEDINGS
14 JUNE 24, 2009
15 PAGES 1 THROUGH 16
16
APPEARANCES:
17
FOR THE PLAINTIFF: MILES, BAUER, BERGSTROM & WINTERS LLP
18 BY: RYAN W. STOCKING, ESQ.
1665 SCENIC AVENUE, SUITE 200
19 COSTA MESA, CA 92626
20
FOR THE DEFENDANTS: SALVATORE B. D'ANNA, PRO PER
21 FRANK D'ANNA, PRO PER
3941 3/4 KENWOOD DRIVE
22 SPRING VALLEY, CA 91977
23
24
25
CYNTHIA DEPWEG, CSR NO. 3280, RPR, CRR
26 OFFICIAL COURT REPORTER
SUPERIOR COURT
27 EL CAJON, CALIFORNIA 92020
28
23
1 INDEX OF EXHIBITS IDENTIFIED
2 JUNE 24, 2009
3 GREENPOINT MORTGAGE VS. D'ANNA, CASE NO. 2009 000 33936
4 PLAINTIFF'S EXHIBITS PAGE
5 1 NOTICE OF TRIAL . . . . . . . . 2
6 2 TRUSTEE'S DEED UPON SALE . . . 3
7 3 NOTICE TO QUIT AND PROOFS . . . 6

OF SERVICE
8
4 NOTICE OF TRUSTEE SALE, . . . .15
9 ASSIGNMENT OF DEED OF
TRUST, SUBSTITUTION OF
10 TRUSTEE, AND DEED OF TRUST
11
12
13 DEFENSE EXHIBITS PAGE
14 A 3/17/09 FAX TO MR. MAY . . . . 4
15 B MR. MAY'S RESPONSE TO . . . . . 4

3/17/09 FAX
16
C MOVE-OUT AGREEMENT . . . . . . 4
17
E NOTICE OF DEFAULT . . . . . . . 8
18
F CERTIFIED LETTER OF NON . . . . 8
19 COMPLIANCE
20 G PLAINTIFF'S RESPONSE TO . . . . 9
INTERROGATORIES
21
H PLAINTIFF'S RESPONSE FOR . . . 9
22 PRODUCTION OF DOCUMENTS
23 I RENTAL RATES FOR A . . . . . .10

THREE-BEDROOM
24 ////
25 ////
26 ////
27 ////
28 ////
24
1 INDEX OF EXHIBITS RECEIVED
2 JUNE 24, 2009
3 GREENPOINT MORTGAGE VS. D'ANNA, CASE NO. 2009 000 33936
5 PLAINTIFF'S EXHIBITS PAGE
6 1 AND 2 . . . . . . . . . . . . . . . . . .5
7 4 . . . . . . . . . . . . . . . . . . . 16
10
11 DEFENSE EXHIBITS PAGE
12 A, B, AND C . . . . . . . . . . . . . . . .5
13 E . . . . . . . . . . . . . . . . . . . .8
14 F . . . . . . . . . . . . . . . . . . . .8
15 G AND H . . . . . . . . . . . . . . . . . .9
16 I . . . . . . . . . . . . . . . . . . . 10
17
18
19
20
21
22
23
24
25
26
27
28
1 25
1 EL CAJON, CA WEDNESDAY, JUNE 24, 2009 11:30 A.M.
3 --OOO--
4 (ALL PARTIES AND WITNESSES WERE DULY SWORN.)
5 THE BAILIFF: REMAIN SEATED. COME TO ORDER.
6 THIS COURT IS NOW IN SESSION.
7 THE COURT: LADIES AND GENTLEMEN, GOOD MORNING,
8 AND THANK YOU FOR YOUR PATIENCE. WE'RE ON THE RECORD IN
9 THE CASE OF GREENPOINT MORTGAGE FUNDING VERSUS D'ANNA,
10 CASE ENDING NO. 33936. THE DELAY HAS BEEN OCCASIONED BY
11 MY DESIRE TO REVIEW THE FILE TO THE EXTENT THAT TIME
12 PERMITTED ME TO DO SO.
13 I HAVE REVIEWED PERTINENT PORTIONS OF THE
14 FILE, INCLUDING THE COMPLAINT, THE ANSWER THERETO, THE
15 DEFENDANTS' TRIAL BRIEF, AND VARIOUS AND SUNDRY OTHER
16 FILINGS OR PORTIONS OF THE SOMEWHAT VOLUMINOUS COURT FILE.
17 AND THE GENTLEMAN ON MY LEFT, IF YOU WOULD
18 STATE YOUR APPEARANCE, COUNSEL, FIRST OF ALL.
19 MR. STOCKING: GOOD MORNING. RYAN STOCKING FOR
20 THE PLAINTIFF, GREENPOINT MORTGAGE.
21 THE COURT: AND THE GENTLEMAN WITH YOU.
22 MR. STOCKING: THIS IS MY WITNESS, MY FIRST
23 WITNESS.
24 THE COURT: WHO IS?
25 MR. STOCKING: JAKE MAY.
26 THE COURT: ALL RIGHT. AND AT DEFENSE COUNSEL
27 TABLE, WE HAVE?
28 MR. SALVATORE D'ANNA: SALVATORE D'ANNA AND

2 26
1 FRANK D'ANNA, PRO PER.
2 THE COURT: I'M SORRY. THE GENTLEMAN WITH YOU
3 IS WHO?
4 MR. SALVATORE D'ANNA: FRANK D'ANNA.
5 THE COURT: HE'S YOUR BROTHER?
6 MR. SALVATORE D'ANNA: YES.
7 THE COURT: AND THEN WE HAVE ONE OTHER
8 PROSPECTIVE WITNESS FOR THE PLAINTIFF. THAT'S MR. HOWELL?
9 MR. STOCKING: YES, YOUR HONOR.
10 THE COURT: THEN, MR. STOCKING, ON BEHALF OF THE
11 PLAINTIFF, YOU MAY PROCEED.
12 MR. STOCKING: THANK YOU, YOUR HONOR. YOUR
13 HONOR, THIS IS A POST-FORECLOSURE EVICTION --
14 (COURT REPORTER INTERRUPTION.)
15 MR. STOCKING: YOUR HONOR, THIS IS A
16 POST-FORECLOSURE EVICTION. AND TO BEGIN ITS CASE, THE
17 PLAINTIFF WOULD FIRST LIKE TO INTRODUCE BY REFERENCE TO
18 THE COURT'S FILE THE NOTICE OF TRIAL AS PLAINTIFF'S
19 EXHIBIT 1.
20 THE COURT: AGREED.
21 (WHEREUPON, PLAINTIFF'S EXHIBIT NO. 1,
22 NOTICE OF TRIAL, WAS MARKED FOR
23 IDENTIFICATION.)
24 MR. STOCKING: NEXT, I WOULD LIKE TO ADMIT AS
25 PLAINTIFF'S EXHIBIT NO. 2 THE CERTIFIED COPY OF THE
26 TRUSTEE'S DEED UPON SALE CORRESPONDING TO THE PROPERTY AT
27 644 HILLSVIEW ROAD, EL CAJON, CALIFORNIA, 92020, WHICH WAS
28 RECORDED MARCH 6, 2009, WITH THE COUNTY OF SAN DIEGO.

3 27
1 THE COURT: ALL RIGHT. IT WILL BE SO MARKED.
3 TRUSTEE'S DEED UPON SALE, WAS MARKED FOR
4 IDENTIFICATION.)
5 MR. STOCKING: NEXT, YOUR HONOR, THE PLAINTIFF
6 WOULD LIKE TO CALL THE PROPERTY MANAGER, JAKE MAY.
7 THE COURT: VERY WELL.
9 DIRECT EXAMINATION
10 BY MR. STOCKING:
11 Q. MR. MAY, WERE YOU HIRED BY THE PLAINTIFF TO
12 MANAGE THE PROPERTY LOCATED AT 644 HILLSVIEW ROAD, EL
13 CAJON, CALIFORNIA, 92020?
14 A. I WAS.
15 Q. IS THE PROPERTY STILL OCCUPIED?
16 A. IT IS.
17 Q. DO THE OCCUPANTS CONTINUE TO BE IN POSSESSION
18 WITHOUT YOUR PERMISSION?
19 A. THAT'S CORRECT.
20 Q. IS IT CORRECT THE PLAINTIFF IS WAIVING ALL
21 MONETARY DAMAGES?
22 A. CORRECT.
23 Q. ARE YOU REQUESTING THAT THIS COURT RESTORE
24 POSSESSION OF THE PREMISES TO THE PLAINTIFF?
25 A. PLEASE.
26 Q. THANK YOU, MR. MAY.
27 MR. STOCKING: YOUR HONOR, I HAVE NO FURTHER
28 QUESTIONS FOR THIS WITNESS.

4 28
1 THE COURT: MR. D'ANNA, DO YOU HAVE QUESTIONS OF
2 MR. MAY?
3 MR. SALVATORE D'ANNA: ONLY A FEW DOCUMENTS,
4 YOUR HONOR, JUST TO SUBMIT THAT WERE CORRESPONDENCE
5 BETWEEN THE DEFENDANTS AND MR. MAY, INCLUDING A -- AS
6 EXHIBIT A, A FAX THAT WAS SENT TO MR. MAY ON MARCH 17TH,
7 WHICH WAS AN OFFER TO VACATE AND RIGHT TO REPURCHASE.
8 (WHEREUPON, DEFENSE EXHIBIT A, 3/17/09
9 FAX TO MR. MAY, WAS MARKED FOR
10 IDENTIFICATION.)
11 MR. SALVATORE D'ANNA: AND EXHIBIT B IS A
12 RESPONSE FROM MR. MAY REGARDING SAID LETTER.
13 (WHEREUPON, DEFENSE EXHIBIT B, MR. MAY'S
14 RESPONSE TO 3/17/09 FAX, WAS MARKED FOR
15 IDENTIFICATION.)
16 MR. SALVATORE D'ANNA: EXHIBIT C IS A MOVE-OUT
17 AGREEMENT THAT WAS ACTUALLY BETWEEN COUNTRYWIDE AND TO US,
18 THE DEFENDANT, NOT GREENPOINT. AND THE -- THOSE ARE THE
19 THREE DOCUMENTS THAT I WOULD JUST LIKE TO -- TO VERIFY
20 THAT HE RECEIVED THOSE AND SUBMIT THEM TO THE COURT.
21 (WHEREUPON, DEFENSE EXHIBIT C, MOVE-OUT
22 AGREEMENT, WAS MARKED FOR
23 IDENTIFICATION.)
24 THE COURT: MR. STOCKING, DO YOU HAVE ANY
25 QUARREL WITH THE COURT'S RECEIPT OF THOSE EXHIBITS?
26 MR. STOCKING: NOT ESPECIALLY. THEY SEEM TO BE
27 OUTSIDE THE UNLAWFUL DETAINER, THE SCOPE OF THE UNLAWFUL
28 DETAINER; SO --
5 29
1 THE COURT: WELL, I'M NOT GOING TO GENERATE A
2 DECISION THIS MORNING -- AT LEAST I DON'T EXPECT TO -- BUT
3 RATHER TAKE THE MATTER UNDER SUBMISSION SO THAT I CAN MORE
4 FULLY REVIEW THE FILE AND EXHIBITS AND CONSIDER THE
5 TESTIMONY OFFERED AT THIS TRIAL.
6 SO WITH THAT IN MIND, A, B, AND C WILL BE
7 RECEIVED AS WELL AS PLAINTIFF'S 1 AND 2.
8 (WHEREUPON, DEFENSE EXHIBITS A, B, AND C
9 WERE RECEIVED IN EVIDENCE.)
10 (WHEREUPON, PLAINTIFF'S EXHIBIT NOS. 1
11 AND 2 WERE RECEIVED IN EVIDENCE.)
12 THE COURT: MR. STOCKING, ANYTHING FURTHER WITH
13 RESPECT TO MR. MAY'S TESTIMONY?
14 MR. STOCKING: NO, I'M THROUGH WITH MR. MAY FOR
15 NOW.
16 THE COURT: ALL RIGHT. YOU MAY PROCEED.
17 MR. STOCKING: NEXT, YOUR HONOR, THE PLAINTIFF
18 WOULD LIKE TO CALL RAYMOND HOWELL.
19 THE COURT: GIVE ME JUST A MOMENT BEFORE YOU
20 PROCEED.
21 MR. STOCKING: NO PROBLEM.
22 (PAUSE IN THE PROCEEDINGS.)
23 THE COURT: THANK YOU. GO AHEAD, MR. STOCKING.
24
25 DIRECT EXAMINATION
26 BY MR. STOCKING:
27 Q. MR. HOWELL, ARE YOU A REGISTERED PROCESS SERVER?
28 A. YES.
6 30
1 Q. WERE YOU EMPLOYED BY THE LAW FIRM OF MILES,
2 BAUER, BERGSTROM, AND WINTERS TO SERVE LEGAL PAPERS ON THE
3 PROPERTY AT 644 HILLSVIEW ROAD, EL CAJON, CALIFORNIA,
4 92020?
5 A. YES.
6 Q. I'M HANDING YOU A DOCUMENT ENTITLED NOTICE TO
7 QUIT. DO YOU RECOGNIZE THIS DOCUMENT?
8 A. YES.
9 Q. ATTACHED TO THE NOTICE TO QUIT ARE TWO
10 DOCUMENTS, EACH ENTITLED PROOFS OF SERVICE. DO THESE
11 PROOFS OF SERVICE CORRECTLY REFLECT THE DATE, TIME,
12 LOCATION, AND MANNER OF SERVICE OF THE NOTICE TO QUIT?
13 A. YES.
14 MR. STOCKING: YOUR HONOR, NEXT, PLAINTIFF WOULD
15 LIKE TO INTRODUCE THE NOTICE TO QUIT AND ATTACHED PROOFS
16 OF SERVICE AS PLAINTIFFS EXHIBIT NO. 3, COLLECTIVELY.
17 THE COURT: AGREED.
19 NOTICE TO QUIT AND PROOFS OF SERVICE,
20 WAS MARKED FOR IDENTIFICATION.)
21 MR. STOCKING: I HAVE NO FURTHER QUESTIONS FOR
22 THIS WITNESS, YOUR HONOR.
23 THE COURT: DO YOU HAVE ANY QUESTIONS OF
24 MR. HOWELL, MR. D'ANNA?
25 MR. SALVATORE D'ANNA: NO, YOUR HONOR.
26 THE COURT: ALL RIGHT. THANK YOU.
27 MR. STOCKING?
28 MR. STOCKING: YOUR HONOR, IN CLOSING, PLAINTIFF

7 31
1 WOULD LIKE TO REQUEST THE COURT ENTER A JUDGMENT IN FAVOR
2 OF THE PLAINTIFF FOR POSSESSION OF THE PREMISES AGAINST
3 ALL NAMED DEFENDANTS AND ALL OTHER OCCUPANTS PURSUANT TO
4 C.C.P. 415.46.
5 THE COURT: ALL RIGHT. SO WITH THAT, PLAINTIFF
6 RESTS?
7 MR. STOCKING: YES, YOUR HONOR.
8 THE COURT: ALL RIGHT. MR. D'ANNA, EVIDENCE
9 THAT YOU WISH TO PRESENT BEYOND THE EXHIBITS THAT HAVE
10 ALREADY BEEN RECEIVED?
11 MR. SALVATORE D'ANNA: YES, YOUR HONOR. AS
12 EXHIBIT -- I GUESS IT WOULD BE -- E, THESE ARE NOTES --
13 THE NOTICE OF DEFAULT THAT WAS RECORDED WITH THE COUNTY
14 RECORDER FOR THIS CASE AS WELL AS SEVERAL OTHER CASES AT
15 ALL STAGES THAT COMPLIANCE WITH SECTION 2923.5 OF THE
16 CIVIL CODE WAS ACTUALLY COMPLETED IN THE YEAR 2006. THESE
17 ARE ALL -- I GUESS YOU CAN TAKE JUDICIAL NOTICE ON THESE.
18 THEY'RE ALL COUNTY-RECORDED DOCUMENTS.
19 THE COURT: WELL, THEY'RE RECORDED DOCUMENTS IN
20 CONJUNCTION WITH THE PARCEL OF PROPERTY AT ISSUE HERE?
21 MR. SALVATORE D'ANNA: ONE OF THEM IS, YES. THE
22 REST OF THEM ARE FILED BY THE SAME -- THE SAME PARTIES,
23 BUT ALSO REFLECT THAT THE YEAR 2006 AS IN COMPLIANCE WITH
24 2923.5. JUST TO SHOW A PATTERN OF NONCOMPLIANCE, YOUR
25 HONOR.
26 THE COURT: WELL, I'M FOCUSED UPON YOUR PARCEL,
27 NOT NECESSARILY THE PRACTICE OF PLAINTIFF OR AN ASSOCIATED
28 ENTITY RELATIVE TO OTHER PARCELS. I UNDERSTAND YOUR

8 32
1 CONTENTION THAT YOU DISPUTE THAT FACTUALLY ON OR ABOUT
2 JULY 11TH, 2006, OR DURING THAT TIME FRAME, YOU DISPUTE
3 THAT THERE WAS ANY EFFORT BY THE PLAINTIFF TO NEGOTIATE OR
4 RE-NEGOTIATE THE TERMS OF THE MORTGAGE IN COMPLIANCE WITH
5 CIVIL CODE 2923.5.
6 MR. SALVATORE D'ANNA: CORRECT, YOUR HONOR.
7 DURING 2006, WE WERE NOT IN DEFAULT.
8 THE COURT: ALL RIGHT. AGAIN, I'LL RECEIVE THE
9 DOCUMENTS THAT YOU'VE DESCRIBED, BUT MY FOCUS IS GOING TO
10 BE UPON WHATEVER DOCUMENT OR DOCUMENTS SPECIFICALLY
11 RELATED TO THE PARCEL AT ISSUE HERE.
12 (WHEREUPON, DEFENSE EXHIBIT E, NOTICE OF
13 DEFAULT, WAS MARKED FOR IDENTIFICATION.)
14 (WHEREUPON, DEFENSE EXHIBIT E
15 WAS RECEIVED IN EVIDENCE.)
16 MR. SALVATORE D'ANNA: OKAY. THE NEXT EXHIBIT
17 IS JUST A CERTIFIED LETTER OF NONCOMPLIANCE THAT WAS SENT
18 TO THE PLAINTIFF, ALONG WITH THE RECORDED DOCUMENT THAT
19 WAS RECORDED AT THE SAN DIEGO COUNTY RECORDER'S OFFICE,
20 WHICH WAS THE NOTICE OF ATTACHED OBSERVED INTEREST, WHICH
21 ALSO PUBLISHED THE NONCOMPLIANCE WITH SECTION 2923.5.
22 THE COURT: ALL RIGHT. IT WILL BE SO MARKED AND
23 RECEIVED.
24 (WHEREUPON, DEFENSE EXHIBIT F, CERTIFIED
25 LETTER OF NONCOMPLIANCE, WAS MARKED FOR
26 IDENTIFICATION.)
27 (WHEREUPON, DEFENSE EXHIBIT F

9 33
1 MR. SALVATORE D'ANNA: AS THE NEXT EXHIBIT, THE
2 PLAINTIFF'S RESPONSES TO INTERROGATORIES AND TO PRODUCTION
3 OF DOCUMENTS WHERE THEY CLAIM THAT THEY HAVE NO -- THAT
4 THE CLIENT -- THAT THE DOCUMENTS THAT THEY HAVE THAT SHOWS
5 THEY COMPLIED WITH 2923.5 ARE PRIVILEGED DOCUMENTS, THAT
6 WE DID NOT RECEIVE THEM BECAUSE THEY'RE PRIVILEGED FOR
7 SOME REASON.
8 THE COURT: THAT'S WHOSE CONTENTION?
9 MR. SALVATORE D'ANNA: PLAINTIFF'S CONTENTION IN
10 THEIR RESPONSES TO INTERROGATORIES UNDER THE REQUEST FOR
11 PRODUCTION OF DOCUMENTS.
12 THE COURT: ALL RIGHT. GO AHEAD. THAT EXHIBIT
13 LETTER IS WHAT?
14 MR. SALVATORE D'ANNA: THAT'S G AND H. I HAVE A
15 COVER PAGE, TOO, THAT I WILL SUBMIT.
16 (WHEREUPON, DEFENSE EXHIBIT G,
17 PLAINTIFF'S RESPONSE TO INTERROGATORIES,
18 WAS MARKED FOR IDENTIFICATION.)
19 (WHEREUPON, DEFENSE EXHIBIT H,
20 PLAINTIFF'S RESPONSE FOR PRODUCTION OF
21 DOCUMENTS, WAS MARKED FOR
22 IDENTIFICATION.)
23 (WHEREUPON, DEFENSE EXHIBITS G AND H
24 WERE RECEIVED IN EVIDENCE.)
25 MR. SALVATORE D'ANNA: AND THEN THE LAST ONE IS
26 JUST THE RENTAL RATES FOR -- IN THE AREA FOR 3-BEDROOM
27 HOUSES IN CASE THE JUDGMENT NEEDS TO GO TOWARD WHATEVER
28 THE CURRENT RENTAL RATE IS IN THE AREA.

10 34
1 (WHEREUPON, DEFENSE EXHIBIT I, RENTAL
2 RATES FOR A THREE-BEDROOM, WAS MARKED
3 FOR IDENTIFICATION.)
4 (WHEREUPON, DEFENSE EXHIBIT I
6 THE COURT: ALL RIGHT. GO AHEAD.
7 MR. SALVATORE D'ANNA: AND THE LAST THING, YOUR
8 HONOR, IS THE REQUEST FOR A STATEMENT OF DECISION. IS
9 THAT NECESSARY?
10 THE COURT: NO. AND YOU MAY GET ONE; YOU MAY
11 NOT. I'LL DO WHAT I HAVE TO DO, BUT RIGHT NOW I'M NOT
12 CLEAR AS TO HOW I'M GOING TO ADJUDICATE THIS MATTER OR IN
13 WHAT FORM. SO I'LL --
14 MR. SALVATORE D'ANNA: OKAY.
15 THE COURT: -- I'LL TAKE IT UNDER ADVISEMENT
16 THAT YOU'RE REQUESTING A STATEMENT OF DECISION.
17 MR. SALVATORE D'ANNA: THANK YOU, YOUR HONOR.
18 THE DEFENSE HAS NO OTHER --
19 THE COURT: OKAY. WHEN --
20 I WANT A LITTLE BACKGROUND. HOW LONG DID
21 YOU OWN THIS PROPERTY? WHEN DID YOU PURCHASE IT?
22 MR. SALVATORE D'ANNA: IT WAS PURCHASED IN MAY
23 OF 2005, I BELIEVE.
24 THE COURT: AND IN WHOSE NAME OR NAMES WAS IT
25 RECORDED? YOURS --
26 MR. SALVATORE D'ANNA: UNDER MY BROTHER FRANK
27 D'ANNA'S NAME.
28 THE COURT: UNDER YOUR BROTHER'S NAME?

11 35
1 MR. SALVATORE D'ANNA: CORRECT.
2 THE COURT: WHAT IS OR WAS YOUR INTEREST IN THE
3 PROPERTY?
4 MR. SALVATORE D'ANNA: WELL, AFTER HE WAS HAVING
5 TROUBLE WITH THE ACTUAL -- MAKING HIS PAYMENTS, I GAVE HIM
6 A LOAN AND RECEIVED A PROMISSORY NOTE ON THE PROPERTY FOR,
7 I BELIEVE IT WAS, $10,000. THIS WAS BEFORE THE
8 FORECLOSURE TOOK PLACE. ALSO, I LIVE ON THE PROPERTY AND
9 PAY RENT TO HIM FOR THE PRIVILEGE OF LIVING THERE.
10 THE COURT: AND WAS THAT NOTE OR ANY OF THE
11 ASSOCIATED AGREEMENTS, WERE THOSE RECORDED?
12 MR. SALVATORE D'ANNA: I'M SORRY?
13 THE COURT: WERE THOSE EVER RECORDED?
14 MR. SALVATORE D'ANNA: THE PROMISSORY NOTE?
15 THE COURT: YES.
16 MR. SALVATORE D'ANNA: NO.
17 THE COURT: SO WHEN DID PAYMENTS FIRST FAIL TO
18 BE MADE IN COMPLIANCE WITH THE TERMS OF THE MORTGAGE ON
19 THE PROPERTY?
20 MR. SALVATORE D'ANNA: THE FIRST PAYMENT THAT
21 WAS MISSED WAS IN JUNE OF 2008.
22 THE COURT: YOU EXECUTED THIS PROMISSORY NOTE --
23 OR, RATHER, YOUR BROTHER EXECUTED THE PROMISSORY NOTE
24 WHEN?
25 MR. SALVATORE D'ANNA: IN, I BELIEVE,
26 FEBRUARY -- JANUARY OR FEBRUARY OF 2008. THESE DOCUMENTS
27 HAVE BEEN SUBMITTED IN THE CIVIL CASE THAT WE FILED ON
28 APRIL 3RD OF THIS YEAR.

12 36
1 THE COURT: ALL RIGHT. I RECOGNIZE THAT. I
2 RECOGNIZE THAT SOME OF MY QUESTIONS MAY FALL OUTSIDE THE
3 AMBIT OF A TYPICAL UNLAWFUL-DETAINER-TYPE ACTION, BUT
4 DEPENDING UPON HOW YOU VIEW IT, THIS IS OR IS NOT A
5 TYPICAL OR ATYPICAL UNLAWFUL DETAINER ACTION.
6 BOTTOM LINE, YOUR CONTENTION IS THAT TITLE
7 TO THE PROPERTY WAS NOT AND HAS NOT BEEN PERFECTED IN
8 COMPLIANCE WITH C.C. 2923.5; IS THAT CORRECT?
9 MR. SALVATORE D'ANNA: YES, YOUR HONOR.
10 THE COURT: ALL RIGHT. WELL, LET ME ASK YOUR
11 BROTHER THEN DIRECTLY THE QUESTION THAT I HAD ASKED YOU,
12 MR. D'ANNA, AND INASMUCH AS YOU SAY THAT A PROMISSORY NOTE
13 WASN'T EXECUTED UNTIL '08, MY QUESTION TO YOUR BROTHER
14 FRANK D'ANNA IS THIS: MR. FRANK D'ANNA, WERE YOU LIVING
15 ON THE PROPERTY IN '06?
16 MR. FRANK D'ANNA: YES.
17 THE COURT: AND YOU HAD PURCHASED IT IN '05?
18 MR. FRANK D'ANNA: YES.
19 THE COURT: AND DID YOU HAVE ANY CONTACTS WITH
20 YOUR LENDER, OR DID YOUR LENDER HAVE ANY CONTACTS WITH
21 YOU, BY ANY FORM OF COMMUNICATION IN 2006 RELATIVE TO
22 MEETING THE TERMS OF THE MORTGAGE AND/OR RE-NEGOTIATING
23 THOSE TERMS?
24 MR. FRANK D'ANNA: NO.
25 THE COURT: WAS THAT, FROM YOUR PERSPECTIVE,
26 EVER AN ISSUE DURING 2006?
27 MR. FRANK D'ANNA: YEAH. WHAT HAPPENED WAS,
28 THEY TOLD ME IF I MISSED THREE PAYMENTS, THEY WOULD

13 37
1 NEGOTIATE WITH ME. I DID MISS THREE PAYMENTS, AND THEY
2 WOULDN'T NEGOTIATE.
3 THE COURT: WHO TOLD YOU THAT?
4 MR. FRANK D'ANNA: IT WAS GREENPOINT MORTGAGE.
5 THAT WAS 2008.
6 THE COURT: I'M TALKING ABOUT 2006. ANYTHING OF
7 THAT SORT TAKE PLACE DURING THAT CALENDAR YEAR?
8 MR. FRANK D'ANNA: OH, YEAH. THERE WAS NO
9 PROBLEMS. I ALWAYS MADE MY PAYMENTS ON TIME AT THAT TIME.
10 THE COURT: WHAT ABOUT 2007?
11 MR. FRANK D'ANNA: ALL MY PAYMENTS WERE ON TIME.
12 THE COURT: WHEN DID YOU FIRST START RUNNING
13 INTO PROBLEMS MAKING PAYMENTS SUCH THAT YOU SOUGHT YOUR
14 BROTHER'S INTERVENTION OR ASSISTANCE?
15 MR. FRANK D'ANNA: IT WAS IN 2008.
16 THE COURT: AND WHAT HAPPENED TO OCCASION THAT?
17 HOW DID THAT COME ABOUT?
18 MR. FRANK D'ANNA: WELL, WHAT HAPPENED WAS I
19 STARTED GETTING BEHIND. AND MY BUSINESS WAS GETTING
20 SLOWER. I HAVE A RESTAURANT BUSINESS. AND MY PAYMENTS
21 WERE REALLY HIGH, AND I JUST COULDN'T MAKE IT, AND SO I
22 NEEDED TO BORROW MONEY.
23 THE COURT: ALL RIGHT. AND THEN YOU STARTED TO
24 FALL BEHIND IN THE PAYMENTS BEGINNING WHAT MONTH?
25 MR. FRANK D'ANNA: IT WAS IN JUNE, AND THE
26 REASON WHY I WENT -- I MEAN, I STARTED BORROWING MONEY TO
27 KEEP MAKING MY PAYMENTS BEFORE THAT. AND THEN I CALLED
28 THE LENDERS, AND THEY SAID, "WELL, WE CAN'T EVEN SPEAK TO

14 38
1 YOU UNLESS YOU FALL THREE MONTHS BEHIND."
2 THE COURT: AND WHEN DID YOU HAVE THAT
3 CONVERSATION?
4 MR. FRANK D'ANNA: IT WAS PROBABLY IN ABOUT -- I
5 THINK IT WAS APRIL OR MAY OF 2008. ACTUALLY -- YEAH,
6 ABOUT APRIL, I THINK IT WAS.
7 THE COURT: DID YOU HAVE ANY FURTHER CONTACTS
8 WITH YOUR LENDER THEREAFTER OR YOUR LENDER WITH YOU
9 OUTSIDE OF THE FORECLOSURE PROCEEDINGS?
10 MR. FRANK D'ANNA: NO.
11 OH, YES. THEY OFFERED ME $5000 TO WALK
12 AWAY.
13 MR. SALVATORE D'ANNA: THAT WAS AFTER THE
14 FORECLOSURE.
15 MR. FRANK D'ANNA: THAT WAS AFTER THE
16 FORECLOSURE.
17 THE COURT: ALL RIGHT. MR. STOCKING, DO YOU
18 HAVE QUESTIONS OF MR. FRANK D'ANNA OR, FOR THAT MATTER,
19 MR. SALVATORE D'ANNA?
20 MR. STOCKING: NO, NOT NECESSARILY. AS FAR AS
21 THE RENTAL VALUE BEING EXCESSIVE, I KNOW THEY SUBMITTED AN
22 EXHIBIT ON THAT. THE RENTAL VALUE IS BASED ON WHAT THE
23 PREVIOUS MORTGAGE PAYMENTS WERE, AND IT TAKES INTO ACCOUNT
24 ANY PENALTIES AND STUFF LIKE THAT. SO THAT'S WHY THAT
25 NUMBER IS WHAT IT IS.
26 AS FAR AS SATISFYING C.C.P. 2923.5, THAT'S
27 ALL PRE-FORECLOSURE ISSUES. AND ONCE WE RECORD THE
28 TRUSTEE'S DEED UPON SALE, IT'S A CERTIFIED DOCUMENT

15 39
1 SELF-AUTHENTICATING, SAYING THAT WE COMPLIED WITH ALL OF
2 THOSE. THESE ISSUES SHOULDN'T BE HANDLED IN AN UNLAWFUL
3 DETAINER. THEY SHOULD BE HANDLED IN A WRONGFUL
4 FORECLOSURE QUIET TITLE ACTION.
5 THE COURT: ALL RIGHT. I UNDERSTAND YOUR
6 POSITION. I'M NOT SAYING THAT I NECESSARILY AGREE WITH
7 IT. FRANKLY, I WANT TO DO A LITTLE MORE RESEARCH.
8 PRESENTLY, IS THERE ANY FURTHER EVIDENCE TO
9 BE OFFERED BY EITHER PARTY IN THE CONTEXT OF THIS UNLAWFUL
10 DETAINER TRIAL?
12 THE COURT: MR. STOCKING?
13 MR. STOCKING: NO.
14 YOUR HONOR, I HAVE A NUMBER OF CERTIFIED
15 DOCUMENTS, BUT THEY'RE ALL PRE-FORECLOSURE DOCUMENTS; SO I
16 DON'T REALLY THINK THEY'RE NECESSARY. I CAN SUBMIT THEM
17 JUST COLLECTIVELY AS EXHIBIT -- PLAINTIFF'S EXHIBIT NO. 4,
18 JUST TO SHOW THAT WE RECORDED ALL THESE DOCUMENTS PRIOR TO
19 THE FORECLOSURE.
20 THE COURT: WHY DON'T YOU DO THAT.
21 MR. STOCKING: OKAY. IT'S GOING TO BE NOTICE OF
22 TRUSTEE SALE, ASSIGNMENT OF THE DEED OF TRUST,
23 SUBSTITUTION OF TRUSTEE; AND THEN THERE'S A COPY OF THE
24 DEED OF TRUST.
25 THE COURT: ALL RIGHT. COLLECTIVELY, THOSE WILL
26 BE PLAINTIFF'S NO. 4.
27 ////
28 ////
16 40
2 NOTICE OF TRUSTEE SALE, ASSIGNMENT OF
3 DEED OF TRUST, SUBSTITUTION OF TRUSTEE,
4 AND DEED OF TRUST WAS MARKED FOR
5 IDENTIFICATION.)
6 (WHEREUPON, PLAINTIFF'S EXHIBIT NO. 4
8 THE COURT: ALL RIGHT. THEN, MR. D'ANNA,
9 SALVATORE OR FRANK D'ANNA, IS THERE ANYTHING FURTHER YOU
10 WISH ME TO KNOW OR HAVE RECEIVED AS PART OF THIS PRESENT
11 TRIAL PROCEEDING?
13 THE COURT: ALL RIGHT. THANK YOU.
14 THEN, GENTLEMEN, THE MATTER WILL BE TAKEN
15 UNDER SUBMISSION. AND AT MY EARLIEST CONVENIENCE, A
16 DECISION WILL BE FORTHCOMING. AND I DON'T INTEND TO LET
17 THIS LANGUISH. SO YOU'LL BE HEARING FROM US IN THE VERY
18 NEAR FUTURE. OKAY? THANK YOU VERY MUCH FOR YOUR
19 COOPERATION.
20 MR. STOCKING: THANK YOU, YOUR HONOR.
21 MR. SALVATORE D'ANNA: THANK YOU, YOUR HONOR.
22 THE COURT: WE'LL BE IN RECESS.
23 (PROCEEDINGS CONCLUDED.)
24 --000--
25
26
27
28
41
1 REPORTER'S CERTIFICATE
3 STATE OF CALIFORNIA)
) SS:
4 COUNTY OF SAN DIEGO)
6 I, CYNTHIA DEPWEG, CERTIFIED SHORTHAND REPORTER,
7 CERTIFICATE NO. 3280, AN OFFICIAL COURT REPORTER OF THE
8 SUPERIOR COURT OF THE COUNTY OF SAN DIEGO, STATE OF
9 CALIFORNIA, DO HEREBY CERTIFY:
10 THAT I REPORTED IN MACHINE SHORTHAND THE
11 PROCEEDINGS HELD IN THE FOREGOING CASE;
12 THAT MY NOTES WERE TRANSCRIBED INTO TYPEWRITING
13 UNDER MY DIRECTION;
14 AND THAT THE FOREGOING AND ATTACHED TRANSCRIPT
15 IS AN UNCERTIFIED ELECTRONIC TRANSMISSION OF THE RECORD OF
16 THE FOREGOING PROCEEDINGS. ONLY A HARD COPY WITH THE
17 REPORTER'S ORIGINAL SIGNATURE PAGE CONSTITUTES A CERTIFIED
18 RECORD OF THE ORAL PROCEEDINGS HAD ON SAID DATE.
19
20 DATED THIS ________DAY OF___________________,
21 200__.
22
23 _____________________________________________
CYNTHIA DEPWEG, CSR NO. 3280, R.P.R., C.R.R.
24 OFFICIAL COURT REPORTER SAN DIEGO SUPERIOR COURT
25
(GOVERNMENT CODE 69954(D): ANY COURT, PARTY, OR PERSON WHO
26 HAS PURCHASED A TRANSCRIPT MAY, WITHOUT PAYING A FURTHER
FEE TO THE REPORTER, REPRODUCE A COPY OR PORTION THEREOF
27 AS AN EXHIBIT PURSUANT TO COURT ORDER OR RULE, OR FOR
INTERNAL USE, BUT SHALL NOT OTHERWISE PROVIDE OR SELL A
28 COPY OR COPIES TO ANY OTHER PARTY OR PERSON.)
42
(;+,%,7&
43

3941 ¾ Kenwood Dr.
3
4
Telephone: (619) 602-6647
5
Fax: (619) 374-2268
6 Email: saldanna@gmail.com
7
8
9 EAST COUNTY DIVISION
10
) Case No.: 37-2009-00033936
11 )
Greenpoint Mortgage Funding, Inc.,
)
12
Plaintiffs, ) REQUEST FOR STATEMENT
) OF DECISION
13 )
vs.
)
14
Frank D’Anna and Salvatore B. D’Anna ) Trial Date: June 24, 2009
)
15 )
Defendants
)
16 )
)
17 )
18
Defendants Frank D’Anna and Salvatore B. D’Anna, who appeared at the trial of the above
19
entitled action, hereby requests that the court issue a statement of decision explaining the factual
20
and legal bases for its decision regarding the following controverted issues:
21
22
1. Whether or not Plaintiff has proven that he/she perfected title to the property which is a
23
requirement to obtain possession.
24
2. Whether Plaintiff has complied with newly enacted Civil Code 2923.5 which is a requirement
25
before the Notice of Default can be recorded.
26
Dated: June 24, 2009
27
28
30
31 By _____________________________ By __________________________
32 Frank D’Anna, Pro Per Salvatore B. D’Anna, Pro Per
REQUEST FOR STATEMENT OF DECISION - 1

44
(;+,%,7'
45

2 3941 ¾ Kenwood Dr.
3 Spring Valley, CA 91977
4 Telephone: (619) 602-6647
5 Fax: (619) 374-2268
Email: saldanna@gmail.com
6
7
8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO
EAST COUNTY DIVISION
9
10
11
12 Greenpoint Mortgage Funding, Inc., ) Case No.: 37-2009-00033936
13 )
Plaintiff, ) DEFENDANT’S TRIAL BRIEF
14 vs. )
15 ) Trial Date: June 24, 2009
Frank D’Anna, Salvatore B. D’Anna )
16 Defendant )
17 )
)
18 )
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1 Table of Contents
2
I. INTRODUCTION .................................................................................................................................... 1
3
4 A. Nature of case ............................................................................................................................ 1
5 B. Factual summary ....................................................................................................................... 1

C. Issues to be decided .................................................................................................................. 3
6
7 II. LEGAL AUTHORITY ......................................................................................................................... 3
8
A. NON COMPLIANCE CALIFORNIA CIVIL CODE 2923.5.................................................. 3
9
B. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS ………... 6
10 C. NON JUDICIAL FORECLOSURE SALE IS VOID, NOT VOIDABLE ….………….….. 11
11 D. Matter of First Impression in the Superior Court ................................................................. 13
12
III. CONCLUSION ................................................................................................................................. 14
13
14 EXHIBIT A ……………………………………………………………………………………………. 16
EXHIBIT B ……………………………………………………………………………………………. 22
15
EXHIBIT C ……………………………………………………………………………………………. 36
16
17
18
19
20
21
22
23
24
25
26
27
i
28
47
1 Table of Authorities
2 Cases
3 Vella v. Hudgins (1977) 20 C3d 251, 255, 142 CR 414, 572 P2d 28 ................................ 1,4
Cheney v. Trauzettel (1937) 9 C2d 158, 159, 69 P2d 832 ................................................ 1,4
4
Kessler v. Bridge (1958, Cal App Dep't Super Ct)
5
161 Cal App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814 ............................... 4
6 Pierson v. Fischer (1955) 131 Cal.App.2d 208 [280 P.2d 491] .................................... 11,12
7 Holland v. Pendleton Mtge. Co. (1943) 61 Cal.App.2d 570 [143 P.2d 493] ..................... 11
Leonard v. Bank of America etc. Assn. (1936) 16 Cal.App.2d 341 [60 P.2d 325] ....... 11,12
8
United Bank & Trust Co. v. Brown (1928) 203 Cal. 359 [264 P. 482], ............................ 11
9
Scott v. Security Title Ins. & Guar. Co. (1937) 9 Cal.2d 606 [72 P.2d 143] ...................... 11
10 Standley v. Knapp (1931) 113 Cal.App. 91 [298 P. 109] .................................................... 11
11 Seccombe v. Roe, supra, 22 Cal.App. 139 ......................................................................... 11
Lancaster Security Inv. Corp. v. Kessler (1958) 159 Cal.App.2d 649 [324 P.2d 634] ... 12
12
Wolfe v. Lipsy (1985) 163 Cal.App.3d 633, 639-640 [209 Cal.Rptr. 801] ...................... 12
13
Sorensen v. Hall (1934) 219 Cal. 680, 682-683 [28 P.2d 667 ......................................... 12
14 Garfinkel v. Superior Court (1978) 21 Cal.3d 268, 279, fn. 16
15 [146 Cal.Rptr. 208, 578 P.2d 925]; ............................................................................... 12
In re GANICE MORGAN-AUSTIN, DARREN AUSTIN, Debtors. GANICE MORGAN-
16
AUSTIN, DARREN AUSTIN, Plaintiff, vs. PATELCO CREDIT UNION, Defendant. . 13
17
Statutes
18
CCP § 1161a .................................................................................................................... 1,3,4
19
Evid Code § 624................................................................................................................ 1,3
20 Civ. Code § 2924 ..................................................................................................... 1,2,8,9,12
21 Civ. Code § 2923.5............................................................................... 2,3,4,5,6,8,10,11,13,14

Civ. Code § 2924.8 .............................................................................................................. 11
22
23
Other Authorities
24
55 American Jurisprudence Second .................................................................................. 11
25
26
27
ii
28
48
1 I. INTRODUCTION
2
A. Nature of case.
3
At issue is the right of possession to the property located at 644 Hillsview Rd. El Cajon, CA
4
92020 after a non judicial foreclosure sale under CCP § 1161a. A qualified exception to the rule
5
that title cannot be tried in an unlawful detainer proceeding [see Evid Code § 624; 5.45[1][c]] is
6
contained in CCP § 1161a. By extending the summary eviction remedy beyond the conventional
7
landlord-tenant relationship to include purchasers of the occupied property, the statute provides
8
9 for a narrow and sharply focused examination of title. A purchaser of the property as described
10 in the statute, who starts an unlawful detainer proceeding to evict an occupant in possession,
11 must show that he or she acquired the property at a regularly conducted sale and thereafter "duly
12 perfected" the title [CCP § 1161a; Vella v. Hudgins (1977) 20 C3d 251, 255, 142 CR 414, 572
13 P2d 28 ]. To this limited extent, as provided by the statute, title may be litigated in the unlawful
14 detainer proceeding [ Cheney v. Trauzettel (1937) 9 C2d 158, 159, 69 P2d 832 ].
15
16
B. Factual summary.
17 The evidence at trial will establish the following facts which are dispositive of the issues
18 to be decided:
19
1. In July 2008, the Governor of California signed into law SB 1137, intended to ameliorate
20
the deleterious effects on the state economy and local economies and the California
21
housing market resulting from the foreclosures of residential properties in unprecedented
22
numbers resulting from subprime lending practices.n1 In SB 1137, the Legislature found
23
and declared (1) that residential property foreclosures increased sevenfold from 2006 to
24
2007; (2) that more than 84,375 properties were lost to foreclosure in California in 2007;
25
and (3) that 254,824 loans went into default, the first step in the foreclosure process.
26
2. SB 1137 modified the foreclosure process to require mortgagees, beneficiaries, or
27
authorized agents to provide notice to borrowers and explore options that could avoid
28
foreclosure.
29
3. Effective September 6, 2008, a mortgagee, trustee, beneficiary, or authorized agent may
30
not file a notice of default pursuant to Civ. Code § 2924 until 30 days after the
31
mortgagee, beneficiary, or authorized agent has contacted the borrower in person or by
32
Defendant’s Trial Brief -1

49
1 telephone in order to assess the borrower's financial situation and explore options for the
2 borrower to avoid foreclosure.
3 4. A notice of default filed pursuant to Civ. Code § 2924 must include a declaration from
4 the mortgagee, beneficiary, or authorized agent that it has contacted the borrower, tried
5 with due diligence to contact the borrower, or the borrower has surrendered the property
6 to the mortgagee, trustee, beneficiary, or authorized agent.
7 5. On October 16, 2008 Plaintiff had a Notice of Default recorded in the San Diego County
8 Recorder’s Office which is attached to this Trial Brief as Exhibit A and made a part
9 hereof.
10 6. The Declaration of compliance with newly enacted Civil Code 2923.5 was attached to the
11 Notice of Default and stated that the Plaintiff contacted Defendant on July 11, 2006 to
12 discuss his financial situation to avoid foreclosure which is a false statement.
13 7. On February 2, 2009 Defendant had a Notice of Intention to Preserve Interest in Real
14 Property recorded in the San Diego County Recorder’s Office due to Plaintiff’s non
15 compliance with Civil Code 2923.5.
16 8. On February 6, 2009 Defendant sent a Notice of Non Compliance which included a copy
17 of the recorded Notice of Intention to Preserve Interest recorded on February 2, 2009 to
18 all parties involved in this matter including two Certified Letters to Plaintiff and two
19 Certified Letters as well as a fax to the Trustee conducting the non judicial foreclosure
20 sale. A copy of the recorded notice from the San Diego County Recorder’s Office is
21 included with the Certified Letter of Non Compliance attached hereto as Exhibit B and
22 made a part hereof.
23 9. All parties sent Notice of Non Compliance ignored it and proceeded to sell Defendant’s
24 property on February 25, 2009 where Plaintiff purchased the property with a credit bid of
25 $204,750.00.
26 10. On or about March 17, 2009 Defendant was contacted by someone named Jake May who
27 informed Defendant that he represented the bank that now owned the property and was
28 authorized to offer to Defendant close to $5,000 in exchange for the keys to the house.
29 11. Defendants informed Jake May that they have been trying to either receive consideration
30 for a loan modification or to purchase the property outright from Plaintiff’s with the
31 assistance of Defendant’s parents who own several properties throughout San Diego
32 County.

50
1 12. Jake May insisted that an unlawful detainer action had already been filed and that if
2 Defendants vacated the premises, he would make sure that they had the first right to
3 purchase the property before it was put on the market. He stated that Defendant would
4 be back in his home in about 3 weeks.
5 13. On March 17, 2009 Jake May faxed a copy of the Move Out Agreement which was
6 between Defendant and Countrywide Home Loan Servicing, LP and not Plaintiff
7 Greenpoint Mortgage Funding Inc. The contract stated that Countrywide had purchased
8 the home at 644 Hillsview Rd at the non judicial foreclosure sale and was now the owner
9 and had already commenced eviction proceedings against Defendant. The move out
10 agreement as well as all correspondence between Defendant and Jake May are attached
11 hereto as Exhibit C and made a part hereof.
12 14. Defendants refused to sign the contract and filed a lawsuit against Greenpoint,
13 Countrywide, MERS, and Old Republic on April 3, 2009.
14 15. Plaintiff’s filed this Unlawful Detainer lawsuit on April 23, 2009.
15 C. Issues to be decided.
16
1. Whether Plaintiff duly perfected title to Defendant’s home after the non
17 judicial foreclosure sale.
18 2. Whether Plaintiff could have perfected title to Defendant’s home without
compliance with Civil Code 2923.5.
19 3. Whether the Recorded Notice of Intention to Preserve Interest in Real
20 Property due to non compliance with Civil Code 2923.5 which attaches to any
sale of the property is proof that Plaintiff could not have perfected title.
21
22 II. LEGAL AUTHORITY
23
24 A. NON COMPLIANCE CALIFORNIA CIVIL CODE 2923.5
25
26 A qualified exception to the rule that title cannot be tried in an unlawful detainer
27 proceeding [see Evid Code § 624; 5.45[1][c]] is contained in CCP § 1161a. By extending the
28 summary eviction remedy beyond the conventional landlord-tenant relationship to include

29 purchasers of the occupied property, the statute provides for a narrow and sharply focused
30 examination of title. A purchaser of the property as described in the statute, who starts an
31 unlawful detainer proceeding to evict an occupant in possession, must show that he or she
32 acquired the property at a regularly conducted sale and thereafter "duly perfected" the title [CCP

51
1 § 1161a; Vella v. Hudgins (1977) 20 C3d 251, 255, 142 CR 414, 572 P2d 28 ]. To this limited
2 extent, as provided by the statute, title may be litigated in the unlawful detainer proceeding [
3 Cheney v. Trauzettel (1937) 9 C2d 158, 159, 69 P2d 832 ].
4
5 Under CCP § 1161, in general; Words and Phrases Term "duly" implies that all of those
6 elements necessary to valid sale exist. Kessler v. Bridge (1958, Cal App Dep't Super Ct) 161 Cal
7 App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814. Title that is "duly perfected"
8 includes good record title, but is not limited to good record title. Kessler v. Bridge (1958, Cal
9 App Dep't Super Ct) 161 Cal App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814. Title is
10 "duly perfected" when all steps have been taken to make it perfect, that is, to convey to purchaser
11 that which he has purchased, valid and good beyond all reasonable doubt. Kessler v. Bridge
12 (1958, Cal App Dep't Super Ct) 161 Cal App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS
13 1814.
14 Defendant sent notice on February 6, 2009 to Greenpoint and to all others involved with
15
his loan informing them of their non compliance with Civil Code Section 2923.5. Not only did
16
17 Defendant give all of them written notice by certified mail, Defendant had no other remedy at his
18 disposal other than also having Plaintiff’s non compliance recorded in the San Diego County
19
Recorder’s Office. The first page of the notice shows that it was addressed and sent by Certified
20
21 Mail to 8 separate addresses including Plaintiff and the substituted Trustee who also received it
22
by fax. The notice states in relevant parts:
23
24 Re: NOTICE OF NON COMPLIANCE CALIFORNIA CIVIL CODE § 2923.5
25
26 Dear All:
27
28 Notice is once again given that the LENDERS AND OR TRUSTEES LISTED
29 ABOVE has not complied with California civil code 2923.5. As such all notices of
30 default and or trustee sales and such other recordings and actions are void as a
31 matter of law….
32

52
1
2 I have in good faith attempted to mediate the loan and the true beneficiary has
3 refused to negotiate in good faith. They have not complied with the provisions in
4 which they were to meet with me in person or by telephone in order to assess the
5 borrower’s financial situation and explore options for the borrower to avoid
6 foreclosure. During the initial contact, the mortgagee, Beneficiary, or authorized
7 agent shall advise the borrower that he or she has the right to request a
8 subsequent meeting and, if requested, the mortgagee, beneficiary, or authorized
9 agent shall schedule the meeting to occur within 14 days. The assessment of the
10 borrower’s financial situation and discussion of options may occur during the
11 first contact, or at the subsequent meeting scheduled for that purpose.
12
13 I am unhappy to find that out of the numerous entities involved in this matter, not
14 one has even attempted to comply with California Civil Code 2923.5….
15
16 For the reasons stated above, the attached Notice of Intention to Preserve Interest
17 in Property was recorded with the San Diego County Recorder on February 2,
18 2009. My decision to record and thereby preserve my interest came only after
19 several months of my repeated attempts to negotiate with an undisclosed
20 beneficiary. Your continuing lack of cooperation left me no choice but to turn this
21 matter over to the county recorder office for future resolution by putting the world
22 on notice of my continued interest in my property.
23
24 If we had met as required by California Civil Code § 2923.5 the property would
25 have reflected a value of approximately $200,000. I am willing to pay an interest
26 rate of 6.25 % and I will be able to make monthly payments of $1,246.00. The
27 principal balance of my loan should be reduced the present market value of
28 $200,000. As an alternative, I am willing to pay an interest rate of 1.75% and am
29 able to make monthly payments of $1,246.00 with the principal balance of my
30 loan remaining at $352,000.
31
32

53
1 Please be advised that you are all on Notice that if you continue to pursue the sale
2 of my property by recording the date it is to be sold, you will do so knowing that
3 any subsequent buyer will take title with Notice of my interest in my property due
4 to your intentional tortuous violations of the law and you will be held liable for
5 the consequences of your actions.
6
7 I write this letter with the hope that out of the ever growing list of entities involved, one of
8 you will discuss this matter further and give it the attention it deserves. Please call me at
9 619-602-6647 and/or send a fax to 619-374-2268.
10
11
Plaintiff , and including the Trustee who was served this notice twice by Certified Mail
12
13 and once by Fax, cannot say that they were unaware of their non compliance with California
14 Civil Code § 2923.5. Compliance with Civil Code § 2923.5 is a prerequisite to the entire non
15
judicial foreclosure process and the Notice of Default cannot be recorded until it has been met. It
16
17 is not only improbable, but impossible that Defendant complied with section 2923.5 on July 11,
18 2006 as stated in the Notice of Default. In Addition, Defendant was supposed to be given a
19
subsequent meeting and information on how to contact a HUD Hope representative for
20
21 assistance which never occurred. The requirements of 2923.5 are state below.
22
B. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
23
SECTION 1. The Legislature finds and declares all of the following:
24
(a) California is facing an unprecedented threat to its state economy and local economies because of
25
skyrocketing residential property foreclosure rates in California. Residential property foreclosures
26
increased sevenfold from 2006 to 2007. In 2007, more than 84,375 properties were lost to foreclosure in
27
California, and 254,824 loans went into default, the first step in the foreclosure process.
28
29
(b) High foreclosure rates have adversely affected property values in California, and will have even
30
greater adverse consequences as foreclosure rates continue to rise. According to statistics released by the
31
HOPE NOW Alliance, the number of completed California foreclosure sales in 2007 increased almost
32
threefold from 1,902 in the first quarter to 5,574 in the fourth quarter of that year. Those same statistics

54
1 report that 10,556 foreclosure sales, almost double the number for the prior quarter, were completed just
2 in the month of January 2008. More foreclosures mean less money for schools, public safety, and other
3 key services.
4
5 (c) Under specified circumstances, mortgage lenders and servicers are authorized under their pooling
6 and servicing agreements to modify mortgage loans when the modification is in the best interest of
7 investors. Generally, that modification may be deemed to be in the best interest of investors when the net
8 present value of the income stream of the modified loan is greater than the amount that would be
9 recovered
10 through the disposition of the real property security through a foreclosure sale.
11
12 (d) It is essential to the economic health of California for the state to ameliorate the deleterious effects on
13 the state economy and local economies and the California housing market that will result from the
14 continued foreclosures of residential properties in unprecedented numbers by modifying the foreclosure
15 process to require mortgagees, beneficiaries, or authorized agents to contact borrowers and explore
16 options that could avoid foreclosure. These changes in accessing the state's foreclosure process are
17 essential to ensure that the process does not exacerbate the current crisis by adding more foreclosures to
18 the glut of foreclosed properties already on the market when a foreclosure could have been avoided.
19 Those additional foreclosures will further destabilize the housing market with significant, corresponding
20 deleterious effects on the local and state economy.
21
22 (e) According to a survey released by the Federal Home Loan Mortgage Corporation (Freddie Mac) on
23 January 31, 2008, 57 percent of the nation's late-paying borrowers do not know their lenders may offer
24 alternatives to help them avoid foreclosure.
25
26 (f) As reflected in recent government and industry-led efforts to help troubled borrowers, the mortgage
27 foreclosure crisis impacts borrowers not only in nontraditional loans, but also many borrowers in
28 conventional loans.
29 (g) This act is necessary to avoid unnecessary foreclosures of residential properties and thereby provide
30 stability to California's statewide and regional economies and housing market by requiring early contact
31 and communications between mortgagees, beneficiaries, or authorized agents and specified borrowers to
32

55
1 explore options that could avoid foreclosure and by facilitating the modification or restructuring of loans
2 in appropriate circumstances.
3
4 SEC. 2. Section 2923.5 is added to the Civil Code, to read:
5 2923.5. (a) (1) A mortgagee, trustee, beneficiary, or authorized agent may not file a notice of default
6 pursuant to Section 2924 until 30 days after contact is made as required by paragraph (2) or 30 days
7 after satisfying the due diligence requirements as described in subdivision (g).
8
9 (2) A mortgagee, beneficiary, or authorized agent shall contact the borrower in person or by telephone in
10 order to assess the borrower's financial situation and explore options for the borrower to avoid
11 foreclosure. During the initial contact, the mortgagee, beneficiary, or authorized agent shall advise the
12 borrower that he or she has the right to request a subsequent meeting and, if requested, the mortgagee,
13 beneficiary, or authorized agent shall schedule the meeting to occur within 14 days. The assessment of
14 the borrower's financial situation and discussion of options may occur during the first contact, or at the
15 subsequent meeting scheduled for that purpose. In either case, the borrower shall be provided the toll-
16 free telephone number made available by the United States Department of Housing and Urban
17 Development (HUD) to find a HUD-certified housing counseling agency. Any meeting may occur
18 telephonically.
19
20 (b) A notice of default filed pursuant to Section 2924 shall include a declaration from the mortgagee,
21 beneficiary, or authorized agent that it has contacted the borrower, tried with due diligence to contact the
22 borrower as required by this section, or the borrower has surrendered the property to the mortgagee,
23 trustee, beneficiary, or authorized agent.
24 (c) If a mortgagee, trustee, beneficiary, or authorized agent had already filed the notice of default prior to
25 the enactment of this section and did not subsequently file a notice of rescission, then the mortgagee,
26 trustee, beneficiary, or authorized agent shall, as part of the notice of sale filed pursuant to Section 2924f,
27 include a declaration that either:
28
29 (1) States that the borrower was contacted to assess the borrower' s financial situation and to explore
30 options for the borrower to avoid foreclosure.
31 (2) Lists the efforts made, if any, to contact the borrower in the event no contact was made.
32

56
1 (d) A mortgagee's, beneficiaries, or authorized agent's loss mitigation personnel may participate by
2 telephone during any contact required by this section.
3 (e) For purposes of this section, a "borrower" shall include a mortgagor or trustor.
4 (f) A borrower may designate a HUD-certified housing counseling agency, attorney, or other advisor to
5 discuss with the mortgagee, beneficiary, or authorized agent, on the borrower's behalf, options for the
6 borrower to avoid foreclosure. That contact made at the direction of the borrower shall satisfy the
7 contact requirements of paragraph (2) of subdivision (a). Any loan modification or workout plan offered
8 at the meeting by the mortgagee, beneficiary, or authorized agent is subject to approval by the borrower.
9 (g) A notice of default may be filed pursuant to Section 2924 when a mortgagee, beneficiary, or
10 authorized agent has not contacted a borrower as required by paragraph (2) of subdivision (a) provided
11 that the failure to contact the borrower occurred despite the due diligence of the mortgagee, beneficiary,
12 or authorized agent. For purposes of this section, "due diligence" shall require and mean all of the
13 following:
14
15 (1) A mortgagee, beneficiary, or authorized agent shall first attempt to contact a borrower by sending a
16 first-class letter that includes the toll-free telephone number made available by HUD to find a HUD-
17 certified housing counseling agency.
18
19 (2) (A) after the letter has been sent, the mortgagee, beneficiary, or authorized agent shall attempt to
20 contact the borrower by telephone at least three times at different hours and on different days. Telephone
21 calls shall be made to the primary telephone number on file.
22 (B) A mortgagee, beneficiary, or authorized agent may attempt to contact a borrower using an automated
23 system to dial borrowers, provided that, if the telephone call is answered, the call is connected to a live
24 representative of the mortgagee, beneficiary, or authorized agent.
25 (C) A mortgagee, beneficiary, or authorized agent satisfies the telephone contact requirements of this
26 paragraph if it determines, after attempting contact pursuant to this paragraph, that the borrower's
27 primary telephone number and secondary telephone number or numbers on file, if any, have been
28 disconnected.
29 (3) If the borrower does not respond within two weeks after the telephone call requirements of paragraph
30 (2) have been satisfied, the mortgagee, beneficiary, or authorized agent shall then send a certified letter,
31 with return receipt requested.
32

57
1 (4) The mortgagee, beneficiary, or authorized agent shall provide a means for the borrower to contact it
2 in a timely manner, including a toll-free telephone number that will provide access to a live
3 representative during business hours.
4 (5) The mortgagee, beneficiary, or authorized agent has posted a prominent link on the homepage of its
5 Internet Web site, if any, to the following information:
6 (A) Options that may be available to borrowers who are unable to afford their mortgage payments and
7 who wish to avoid foreclosure, and instructions to borrowers advising them on steps to take to explore
8 those options.
9 (B) A list of financial documents borrowers should collect and be prepared to present to the mortgagee,
10 beneficiary, or authorized agent when discussing options for avoiding foreclosure.
11 (C) A toll-free telephone number for borrowers who wish to discuss options for avoiding foreclosure with
12 their mortgagee, beneficiary, or authorized agent.
13 (D) The toll-free telephone number made available by HUD to find a HUD-certified housing counseling
14 agency.
15 (h) Subdivisions (a), (c), and (g) shall not apply if any of the following occurs:
16
17 (1) The borrower has surrendered the property as evidenced by either a letter confirming the surrender
18 or delivery of the keys to the property to the mortgagee, trustee, beneficiary, or authorized agent.
19 (2) The borrower has contracted with an organization, person, or entity whose primary business is
20 advising people who have decided to leave their homes on how to extend the foreclosure process and
21 avoid their contractual obligations to mortgagees or beneficiaries.
22 (3) The borrower has filed for bankruptcy, and the proceedings have not been finalized.
23
24 (i) This section shall apply only to loans made from January 1, 2003, to December 31, 2007, inclusive
25 that are secured by residential real property and are for owner-occupied residences. For purposes of this
26 subdivision, "owner-occupied" means that the residence is the principal residence of the borrower.
27 (j) This section shall remain in effect only until January 1, 2013, and as of that date is repealed, unless a
28 later enacted statute, that is enacted before January 1, 2013, deletes or extends that date.
29
30 In order to stabilize and protect the state and local economies and housing market at the
31 earliest possible time, it is necessary for this act to take effect immediately. However, the
32 provisions of Section 2 of this act, which adds Section 2923.5 to the Civil Code, and Section 4 of
Defendant’s Trial Brief - 10

58
1 this act, which adds Section 2924.8 to the Civil Code, shall become operative 60 days after the
2 effective date of this act. The Act was signed and became effective July 8, 2008 and Section
3 2923.5 did not become operative until September 6, 2008.
4
5 C. NON JUDICIAL FORECLOSURE SALE IS VOID, NOT VOIDABLE
6
The general rule in the United States on voidness or voidability of sale is set out in 55
7
8 American Jurisprudence Second: "[Defects] and irregularities in a sale under a power render it
9 merely voidable and not void . . . . However, substantially defective sales have been held void
10 where the defect lay in a particular as to which the statutory provision was regarded as
11 mandatory . . . ." (55 Am.Jur.2d, Mortgages, § 746, p. 673.) "A sale under a power in a
12 mortgage without reasonable notice will be set aside." (Id., § 775, p. 691.)
13 Research as to the circumstances in which California courts have determined sales under a
14 deed of trust to be either void or voidable for notice defects, we have found no case which
15 presents our precise factual pattern. No case draws a bright line between a major and a minor
16 notice defect so as to dictate a certain result. A full range of notice defects is alleged in both
17 lines of cases, from no notice of any kind of the ultimate sale date ( Pierson v. Fischer (1955)
18 131 Cal.App.2d 208 [280 P.2d 491], "voidable"; Holland v. Pendleton Mtge. Co. (1943) 61
19 Cal.App.2d 570 [143 P.2d 493], "void") to inadequate posting on the property to be sold (
20 Leonard v. Bank of America etc. Assn. (1936) 16 Cal.App.2d 341 [60 P.2d 325], "voidable";
21 United Bank & Trust Co. v. Brown (1928) 203 Cal. 359 [264 P. 482], "void").
22
Although the extent of the defect is not determinative, what seems to be determinative is the
23
existence and effect of a conclusive presumption of regularity of the sale. A deed of trust, which
24
binds the trustor, may direct the trustee to include in the deed to the property recitals that notice
25
was given as required under the deed of trust and state that such recitals shall be conclusive proof
26
of the truthfulness and regularity thereof.
27
28 Where there has been a notice defect and no conclusive presumption language in the deed,
29 the sale has been held void. ( Scott v. Security Title Ins. & Guar. Co. (1937) 9 Cal.2d 606 [72
30 P.2d 143]; United Bank & Trust Co. v. Brown, supra, 203 Cal. 359; Standley v. Knapp (1931)
31 113 Cal.App. 91 [298 P. 109]; Seccombe v. Roe, supra, 22 Cal.App. 139.)
32

59
1 Where there has been a notice defect and conclusive presumption language in the deed,
2 courts have characterized the sales as "voidable." (Lancaster Security Inv. Corp. v. Kessler
3 (1958) 159 Cal.App.2d 649 [324 P.2d 634]; Pierson v. Fischer, supra, 131 Cal.App.2d 208;
4 Mack v. Golino, supra, 95 Cal.App.2d 731; Leonard v. Bank of America etc. Assn., supra, 16
5 Cal.App.2d 341.) The trustor wishing to set aside a "voidable" sale must prove to the trial court
6 that the conclusive presumption language does not apply to the sale either because there are
7 grounds for equitable relief, such as fraud related to the provision, or because the conclusive
8 presumption does not apply to the buyer, often on the basis that the buyer is not a bona fide
9 purchaser for value. The trustor may then attempt to prove defective notice. ( Wolfe v. Lipsy
10 (1985) 163 Cal.App.3d 633, 639-640 [209 Cal.Rptr. 801]; Lancaster Security Inv. Corp. v.
11 Kessler, supra, 159 Cal.App.2d 649, 655.)1
12 In the case at hand, the deed of trust, which binds the trustor, directs the trustee to include in
13 the deed to the property recitals that notice was given as required under the deed of trust and
14
state that such recitals shall be conclusive proof of the truthfulness and regularity thereof. The
15
Trustee Deed upon Sale includes the following recitals:
16
17
This conveyance is made pursuant to the powers conferred upon Trustee by that
18 certain Deed of Trust dated 05/05/2005 and executed by FRANK D'ANNA, A MARRIED
19 MAN, as Trustor, and Recorded on 05/09/05 AS DOC#2005-0391304 of official records
of San Diego County, California, and after fulfillment of the conditions specified in said
20
Deed of Trust authorizing this conveyance.
21
Default occurred as set forth in a Notice of Default and Election to Sell which was
22 recorded in the Office of the Recorder of said County, and such default still existed at the
23 time of sale.
24 All requirements of law regarding the mailing of copies of notices or the

publication of a copy of the Notice of Default or the personal delivery of the copy of the
25 Notice of Default and the posting and publication of copies of the Notice of a Sale have
26 been complied with. EMPHASIS ADDED.
27
28 1
Many notice defect cases do not even address the question of whether the sale was void or voidable. In
29 these cases the trustor was precluded from challenging the sale by conclusive presumption language as to the
regularity of notice in the executed and delivered deed. ( Sorensen v. Hall (1934) 219 Cal. 680, 682-683 [28
30 P.2d 667]; Pierson v. Fischer, supra, 131 Cal.App.2d 208, 217; but see Garfinkel v. Superior Court (1978)
21 Cal.3d 268, 279, fn. 16 [146 Cal.Rptr. 208, 578 P.2d 925]; and see also Civ. Code, § 2924, which
31 provides that notice recitals in deeds shall constitute prima facie evidence of compliance and conclusive
32 evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice.)

60
1 The Trustee recital above is not conclusive proof of Compliance with Civil Code Section
2 2923.5 which is not mentioned in the above recital. The above recital is only conclusive
3 evidence that mailing, posting, and publication of Notices were done as required by law. It does
4 not state that the Declaration required by Civil Code 2923.5 was attached to the Notice of
5 Default as required by law or that the requirements of Civil Code 2923.5 were made as required
6 and since no such recital was made, the foreclosure is completely void, not voidable which
7 relieves Defendant of the requirement to do equity before the Sale will be set aside because
8 no valid sale ever took place to set aside as it was void ab initio.
9 D. Matter of First Impression in the Superior Court
10
This case is a matter of first impression in the Superior Court and no appellate decisions
11
have been decided on the consequences of non compliance with Civil Code 2923.5. The
12
Legislature was quite clear when they enacted the statute and specifically made compliance with
13
Civil Code 2923.5 a requirement before the Notice of Default could be recorded. The only case
14
that has been decided involving Civil Code 2923.5 is from the Bankruptcy Court [In re GANICE
15
MORGAN-AUSTIN, DARREN AUSTIN, Debtors. GANICE MORGAN-AUSTIN, DARREN AUSTIN, Plaintiff, vs.
16
PATELCO CREDIT UNION, Defendant.] decided on February 14, 2009. The decision states the
17
following:
18
Because of the national epidemic of foreclosures on home mortgages, in July
19 2008, the California legislature enacted emergency legislation, requiring lenders
20 to attempt to negotiate workout agreements on loan defaults before commencing
or continuing foreclosure proceedings. See Cal. Civ. Code §§ 2923.5, 2923.6,
21 2924.8, and 2929.3. The legislation was effective immediately. The legislation did
22 not require lenders such as Patelco, who had already recorded notices of default,
to re-record those notices after attempting to negotiate.
23
However, it did require such lenders, who had not yet recorded notices of sale, to
24 attempt to negotiate before recording a notice of sale. There is no dispute that
25 Patelco made no attempt to negotiate with the Debtors before recording Notice of
Sale on January 14, 2009.
26
27 Patelco contends that the legislation exempted them from any obligation to
negotiate with the Debtors before recording a Notice of Sale because the Debtors
28 were at that time still debtors in a bankruptcy case. The specific provision upon
29 which they rely is Cal. Civ. Code § 2923.5(h)(3) which states as follows: (h)
Subdivisions (a), (c), and (g) shall not apply if any of the following occurs:
30 ....
31 ....
(3) The borrower has filed for bankruptcy, and the proceedings have not been
32
finalized.

61
1
It is undisputed that the Debtors' bankruptcy case was still pending at the time
2
Patelco recorded the Notice of
3 Sale. The Debtors contend that the exemption did not apply because the
4 bankruptcy case had been finalized as to Patelco. Patelco had obtained relief
from the automatic stay and had never filed a proof of claim in the case.
5 Patelco contends that the phrase is clear and exempts it from compliance unless
6 the bankruptcy case has been dismissed.
7 There is some appeal to the Debtors' argument. The exemption may have been
8 created in recognition of the difficulty created by the automatic stay with respect
communications between creditors and debtors. Once the automatic stay has been
9 vacated, the Debtors contend, the exemption no longer serves any purpose. On
10 the other hand, Patelco argues instead that the exemption reflects the legislature's
recognition that the bankruptcy process provides an adequate opportunity for
11
negotiation.
12
13 The Court has no way to determine the legislature's intent in this regard. It can
only construe the statutory language as it would be commonly understood. Doing
14 so, the Court finds Patelco's construction of the language more plausible.
15 Therefore, the Court concludes that Patelco did not violate Cal. Civ. Code §
2924.8 when it recorded the Notice of Sale without first attempting to negotiate
16 with the Debtors.
17
18
III. CONCLUSION
19 Plaintiff is not entitled to possession of the property because Plaintiff can not prove that
20 they duly perfected title without first proving that they complied with Civil Code Section 2923.5
which is a prerequisite to the recording of the Notice of Default which makes the entire non
21 judicial foreclosure void an initio.
22
24
25 Dated: June 24, 2009
26
27
By:____________________ By: ________________________
28
Frank D’Anna, Pro Per Salvatore B. D’Anna, Pro Per
29
30
31
32

62
1 VERIFICATION
2
I, Frank D’Anna, declare that I am the defendant in the above entitled action; I have read
3
the foregoing trial brief and know the contents thereof. The same is true of my own
4 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
5 laws of the State of California that the foregoing is true and correct.
6
7 Dated: June 24, 2009
8
9 By: __________________
Frank D’Anna, Pro Per
10
11
12 VERIFICATION
13
I, Salvatore B. D’Anna, declare that I am the defendant in the above entitled action; I have
14
read the foregoing trial brief and know the contents thereof. The same is true of my own
15 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
16 laws of the State of California that the foregoing is true and correct.
17
18 Dated: June 24, 2009
19
20 By: _____________________
21
22
23
24
25
26
27
28
29
30
31
32

63
EXHIBIT A
64
65
66
67
68
69
EXHIBIT B
70
BY SALVATORE B. D’ANNA, ATTORNEY-IN-FACT FOR
FRANK D’ANNA
FACSIMILE TRANSMITTAL SHEET
TO: FROM:
Debbie Jackson Frank D’Anna

COMPANY: DATE:
Old Republic Title Company - 2/6/2009

Trustee Services Division
FAX NUMBER: TOTAL NO. OF PAGES, INCLUDING COVER:
925-798-3283 6
PHONE NUMBER: SENDER’S FAX NUMBER:
925-363-2239 619-374-2268
RE: TRUSTEE SALE NO. 08-16402
X URGENT  FOR REVIEW  PLEASE COMMENT  PLEASE REPLY  PLEASE RECYCLE
NOTES/COMMENTS:
See attached
71
Salvatore B. D’Anna, Attorney-in-fact SENT VIA CERTIFIED MAIL
For Frank D’Anna, Principal
3941 ¾ Kenwood Dr.
Property Address
644 Hillsview Rd
El Cajon, CA 92020
February 6, 2009
Countrywide Home Loans Servicing LP

Customer Service Correspondence, SV3-14B
Purported Loan# 22150300
P.O. BOX 1140
Simi Valley, CA 93062-1140
Old Republic Title Company - Trustee Services Division

c/o Debbie Jackson
1000 Burnett Avenue, Suite 400
Concord, CA 94520
Old Republic National Title Insurance Company

Purported New Trustee For Loan # 0086769734
500 City Parkway West, Suite 200
Orange, CA 92868-2913
Marin Conveyancing Corporation

Purported Trustee For Loan # 0086769734
275 Broadhollow Rd.
Melville, NY 11747
Marin Conveyancing Corporation

Purported Trustee For Loan # 0086769734
2730 GATEWAY OAKS DR STE 100
SACRAMENTO, CA 95833
Greenpoint Mortgage
Purported Servicer
P.O. Box 84013
Columbus, GA 31908-4013
Greenpoint Mortgage Funding, Inc

Purported Lender
100 Wood Hollow Dr.
Novato, CA 94945
Mortgage Electronic Registration Systems, Inc.

Purported Beneficiary
P.O. Box 2026
Flint, MI 48501-2026
1 of 3
72
Re: NOTICE OF NON COMPLIANCE CALIFORNIA CIVIL CODE § 2923.5
Dear All:
Notice is once again given that the LENDERS AND OR TRUSTEES LISTED ABOVE has not
complied with California civil code 2923.5. As such all notices of default and or trustee sales and
such other recordings and actions are void as a matter of law.
In California, a Lender is allowed to foreclose on real property without a judicial process, but
only if they follow the strict statutory requirements. Nonjudicial foreclosure is deemed to be a
harsh remedy subject to careful scrutiny by the courts [see System Inv. Corp. v. Union Bank
(1971) 21 Cal. App. 3d 137, 153, 98 Cal. Rptr. 735] , which is why a private sale must strictly
comply with the terms of the power-of-sale provision [ Hill v. Gibraltar Sav. & Loan Assn.
(1967) 254 Cal. App. 2d 241, 243, 62 Cal. Rptr. 188] and any applicable statutory requirements [
Whitman v. Transtate Title Co. (1985) 165 Cal. App. 3d 312, 322, 211 Cal. Rptr. 582] . The
trustee also has a duty to conduct the sale fairly and openly, with diligence, discretion, and
integrity, so as to protect the rights of all interested persons and obtain a reasonable price [
System Inv. Corp. v. Union Bank (1971) 21 Cal. App. 3d 137, 153, 98 Cal. Rptr. 735 ; Hill v.
Gibraltar Sav. & Loan Assn. (1967) 254 Cal. App. 2d 241, 243, 62 Cal. Rptr. 188]. However, all
aspects of the nonjudicial foreclosure process including civil code 2923.5 are also regulated in
detail by a comprehensive statutory scheme [see Civ. Code § 2920 et seq.] that is designed to
protect the trustor against unreasonable forfeiture [ Garfinkle v. Superior Court of Contra Costa
County (1978) 21 Cal. 3d 268, 278, 146 Cal. Rptr. 208, 578 P.2d 925].
I have in good faith attempted to mediate the loan and the true beneficiary has refused to
negotiate in good faith. They have not complied with the provisions in which they were to
meet with me in person or by telephone in order to assess the borrower’s financial situation
and explore options for the borrower to avoid foreclosure. During the initial contact, the
mortgagee, Beneficiary, or authorized agent shall advise the borrower that he or she has the
right to request a subsequent meeting and, if requested, the mortgagee, beneficiary, or
authorized agent shall schedule the meeting to occur within 14 days. The assessment of the
borrower’s financial situation and discussion of options may occur during the first contact,
or at the subsequent meeting scheduled for that purpose.
I am unhappy to find that out of the numerous entities involved in this matter, not one has even
attempted to comply with California Civil Code 2923.5. Proof of this can be found at the
website of Old Republic, the now supposed Trustee of the Deed of Trust and in particular, a
document titled “RevisedDeclarationDefaultIndividual.pdf” which is required to be submitted
before they will initiate a foreclosure. The document as described by the title was recently
revised in December 2008 and yet fails to ask for the Civil Code 2923.5 required
information. One could conclude that the Civil Code 2923.5 information on any Old Republic
recorded document does not reflect the actual knowledge of compliance and/or that the
information is produced out of thin air!!
For the reasons stated above, the attached Notice of Intention To Preserve Interest in Property
was recorded with the San Diego County Recorder on February 2, 2009. My decision to record
and thereby preserve my interest came only after several months of my repeated attempts to
negotiate with an undisclosed beneficiary. Your continuing lack of cooperation left me no choice
but to turn this matter over to the county recorder office for future resolution by putting the world
on notice of my continued interest in my property.
2 of 3
73
If we had met as required by California Civil Code § 2923.5 the property would have reflected a
value of approximately $200,000. I am willing to pay an interest rate of 6.25 % and I will be able
to make monthly payments of $1,246.00. The principal balance of my loan should be reduced the
present market value of $200,000. As an alternative, I am willing to pay an interest rate of 1.75%
and am able to make monthly payments of $1,246.00 with the principal balance of my loan
remaining at $352,000.
Please be advised that you are all on Notice that if you continue to pursue the sale of my
property by recording the date it is to be sold, you will do so knowing that any subsequent
buyer will take title with Notice of my interest in my property due to your intentional
tortuous violations of the law and you will be held liable for the consequences of your
actions.
I write this letter with the hope that out of the ever growing list of entities involved, one of you will
discuss this matter further and give it the attention it deserves. Please call me at 619-602-6647 and/or
send a fax to 619-374-2268.
Sincerely,
_________________________________
Frank D’Anna
by Salvatore B. D’Anna, attorney-in-fact.
3 of 3
74
75
76
Date Produced: 02/16/2009
POSTEDIGITAL LLC
The following is the delivery information for Certified Mail™ item number 7114 7336 1554
4319 1814. Our records indicate that this item was delivered on 02/13/2009 at 11:43 a.m. in
MELVILLE, NY, 11747. The scanned image of the recipient information is provided below.
Signature of Recipient:
Address of Recipient:
Thank you for selecting the Postal Service for your mailing needs. If you require additional
assistance, please contact your local post office or Postal Service representitive.
Sincerely,
United States Postal Service
The customer reference number shown below is not validated or endorsed by the United
States Postal Service. It is solely for customer use.
Customer Reference Number: 40586632-42512053-0

77
POSTEDIGITAL LLC
COLUMBUS, GA, 31908. The scanned image of the recipient information is provided below.
Sincerely,

78
POSTEDIGITAL LLC
SACRAMENTO, CA, 95814. The scanned image of the recipient information is provided
below.
Sincerely,

79
POSTEDIGITAL LLC
LARKSPUR, CA, 94939. The scanned image of the recipient information is provided below.
Sincerely,

80
POSTEDIGITAL LLC
OCALA, FL, 34478. The scanned image of the recipient information is provided below.
Sincerely,

81
POSTEDIGITAL LLC
SIMI VALLEY, CA, 93062. The scanned image of the recipient information is provided below.
Sincerely,

82
POSTEDIGITAL LLC
CONCORD, CA, 94520. The scanned image of the recipient information is provided below.
Sincerely,

83
EXHIBIT C
84
Salvatore B. D’Anna, Attorney-In-Fact SENT VIA EFAX

3941 ¾ Kenwood Dr.
V: (619) 602-6647
F: (619) 374-2268
Property Address
644 Hillsview Rd
El Cajon, CA 92020
March 17, 2009
The Jake May Team

Jake May
2335 8th Street
Encinitas, CA 92024
Countrywide Home Loans

Loan # 22150300
400 Countrywide Way
Simi Valley, CA 93065
Re: Offer to Vacate and First Right to Re-Purchase Property
Dear Jake May:
Per our discussion yesterday regarding your offer to pay $5,000 in exchange for vacating
the property voluntarily and our right to repurchase the property at 644 Hillsview Rd
before it goes on the market, I have attached a copy of the recorded Power of Attorney
from my brother Frank D’Anna.
As a preliminary matter, your statement that the Unlawful Detainer has already been filed
with the court is erroneous since no 3 day notice has been given which is a prerequisite to
filing the unlawful detainer petition. I am very familiar with the eviction process because
our family owns numerous rental properties including single family homes, apartments,
and commercial centers.
Here’s the promised summary of where we are on the issues we discussed. If you
disagree with anything I’ve written, let me know in writing by sending a fax to
619-374-2268 as soon as possible. Otherwise, I’ll move ahead based on these
assumptions.
85
Jake May
March 17, 2009
Page 2
Payment to vacate in lieu of eviction.
1. You have offered to pay Frank D’Anna a lump sum payment of $5,000 to
voluntarily vacate the premises rather than filing an unlawful detainer.
2. Frank D’Anna will have 30 days to vacate the premises.
3. You will spend approximately 3-4 weeks preparing the premises for liquidation.
4. The property will then be offered to our family for purchase before it is offered to
anyone else and before it is put on the open market for others to purchase.
5. You estimate the property will be listed at a price close to $180,000.
6. You will notify us of the purchase price as soon as it is determined conclusively

so that we may have the funds available as soon as the property becomes
available.
7. We will have the financing required to make the purchase on hand when you
inform us that the property is ready to be sold and before you offer it to anyone
else.
As you are aware, we would rather not vacate the premises, but proceed directly to a
purchase of the property as soon as a sale price can be determined. In order for the
unlawful detainer procedure to apply in foreclosure cases, the Plaintiff must show that
they have perfected title. In this case, the Notice of Intent to Preserve Interest recorded
on February 2, 2009 put any buyer on notice of our claim to the property. It also shows
non-compliance with the foreclosure statutes which is a requirement to perfect title and
initiate the unlawful detainer.
That being said, Frank D’Anna will vacate his home based on your request and assertions
mentioned above that we will be given the opportunity to repurchase the home. By
vacating the premises, Frank D’Anna is in no way relinquishing his current rights to
either the loan modification or to purchase back his own home. He reserves his right to
file a lawsuit based on those claims and all others deemed appropriate should it become
necessary.
Sincerely,
_________________________________
Frank D’Anna
2
86
87
88
89
90
91
92
Salvatore B. D’Anna, Attorney-In-Fact SENT VIA EFAX

3941 ¾ Kenwood Dr.
V: (619) 602-6647
F: (619) 374-2268
Property Address
644 Hillsview Rd
El Cajon, CA 92020
March 17, 2009
The Jake May Team

Jake May
2335 8th Street
Encinitas, CA 92024
Countrywide Home Loans

Loan # 22150300
400 Countrywide Way
Simi Valley, CA 93065
Re: MOVE OUT AGREEMENT
Dear Jake May:
This is to inform you that we cannot accept the terms as written in the Move Out
Agreement you recently faxed over to us. In particular, we will not and cannot agree
with Sections 7, 8, and 10.
SECTION 7
While this section states that we will not be locked out or removed from the property at
any time before the Move Out Date, it nevertheless allows Countrywide to start and/or
continue the eviction process before the Move Out Date. Such a clause would inhibit our
rights in the court by not being able to present a defense to the action.
SECTION 8
In this section, we are giving up any and all claims that we may have or may continue to
have against Countrywide or any other entity involved in any way with the subject
property. Basically, once the agreement is signed, we have no right moving forward to
any claim ever.
93
Jake May
March 17, 2009
Page 2
SECTION 10
This section states that we are voluntarily signing this agreement and have not received
any inducements or promises other than what is in the agreement. It also says that we
have had the opportunity to have the document reviewed by an attorney before signing it.
Both statements would be false if we signed this agreement because we have been
inducted into this agreement and have clearly stated our reasoning including the not
vacating the premises and requesting to purchase the property immediately.
Since I will assume that these three provisions will not be removed by Countrywide, we
hereby refuse to accept the terms mentioned above and reject the Move Out Agreement
as written.
Sincerely,
_________________________________
Frank D’Anna

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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO

San Diego SuperiorCourt East County Division

Greenpoint Mortgage Funding, Inc.

Real Party in Interest

After Entry of Judgement Without Statement of Decision

9 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO

11 Greenpoint Mortgage Funding Inc. ) Case No. 37-2009-00033936

1. PETITION FOR WRIT OF MANDAMUS, P. 1

2. MEMORANDUM IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS, P. 8

3. EXHIBIT A- ENVELOPE, MINUTE ORDER, NOTICE OF JUDGEMENT, MAILING, P. 16-20

4. EXHIBIT B- REPORTER’S TRANSCRIPT P. 21-41

5. EXHIBIT C- WRITTEN REQUEST FOR STATEMENT OF DECISION SUBMITTED AT TRIAL, P. 42-43

6. EXHIBIT D- DEFENDANT’S TRIAL BRIEF, P. 44-93

1. TRIAL BRIEF EXHIBIT A- NOTICE OF DEFAULT, P. 63-68

APPENDIX TO THE PETITION FOR WRIT OF MANDAMUS

1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WRIT OF

Memorandum of Points and Authorities ISO Writ of Mandate

Memorandum of Points and Authorities ISO Writ of Mandate

Memorandum of Points and Authorities ISO Writ of Mandate

Memorandum of Points and Authorities ISO Writ of Mandate

Memorandum of Points and Authorities ISO Writ of Mandate

32 access to the contents of any such determination.

Memorandum of Points and Authorities ISO Writ of Mandate

Memorandum of Points and Authorities ISO Writ of Mandate

Memorandum of Points and Authorities ISO Writ of Mandate

ESAOPAl SiS77 IIll"Il,IlI,IIlI",Il'IlIIl,1l1l1l'1l1,1 ,111ll 111 111 111 11 11 11

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO

SHORT TITLE: Greenpoint Mortgage Funding Inc vs. D'Anna

Clerk of the Court, by: Y Brennan , Deputy

Date: 07/06/2009 Time: 10:00:00 AM Dept: E-12

Judicial Officer Presiding: Judge Allan J. Preckel

BailifflCourt Attendant: R. Desorosiers

Case Init. Date: 04/22/2009

Case Category: Civil - Limited Case Type: Unlawful Detainer - Residential

Event Type: Unlawful Detainer Court Trial

Greenpoint Mortgage Funding Inc is present as Plaintiff

Date: 07/06/2009 MINUTE ORDER Page: 1

Dept: E-12 Calendar No.:

MAILING ADDRESS; 250 East Main Street

CITY AND Z:PCCDE; EI Cajon,CA 92020

8q;.,\>:~ ~,":' \.':=' ::ast C:::ur'ty

~ --.;:, ~,~- == 3'"'38;":':"": \fc:i;!sge =:... ... _"-;: '-­

SHORT TITLE: Greenpoint Mortgage Funding Inc vs. D'Anna

You and each of you will please take notice:

re:JUest them returned.

CLERK OF THE SUPERIOR COURT

Date: 071'. 8/2009 By: y~

2 IN AND FOR THE COUNTY OF SAN DIEGO

4 DEPARTMENT E-12 HON. ALLAN J. PRECKEL, JUDGE

13 REPORTER'S TRANSCRIPT OF PROCEEDINGS

14 JUNE 24, 2009

2 JUNE 24, 2009

3 GREENPOINT MORTGAGE VS. D'ANNA, CASE NO. 2009 000 33936

4 PLAINTIFF'S EXHIBITS PAGE

6 2 TRUSTEE'S DEED UPON SALE . . . 3

7 3 NOTICE TO QUIT AND PROOFS . . . 6

13 DEFENSE EXHIBITS PAGE

14 A 3/17/09 FAX TO MR. MAY . . . . 4

15 B MR. MAY'S RESPONSE TO . . . . . 4

23 I RENTAL RATES FOR A . . . . . .10

2 JUNE 24, 2009

3 GREENPOINT MORTGAGE VS. D'ANNA, CASE NO. 2009 000 33936

5 PLAINTIFF'S EXHIBITS PAGE

11 DEFENSE EXHIBITS PAGE

~ --.;:, ~,~- == 3'"'38;":':"": \fc:i;!sge =:... ... _"-;: '-