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Defendant, In Pro Per
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ????
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR THE REGISTERED HOLDERS OF MORGAN STANLEY ABS CAPITAL INC. TRUST 2007-HE7 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE7, OCWEN LOAN SERVICING, LLC ITS ATTORNEY IN FACT,Plaintiff(s),
vs.
MICKEYMOUSE,
and DOES 1 through 5, inclusive.
Defendants. / )
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ANSWER TO UNLAWFUL DETAINER WITH AFFIRMATIVE DEFENSES
ANSWER TO UNLAWFUL DETAINER
Defendant, MICKEYMOUSE, (hereinafter referred to as “Defendant” or “MOUSE”) answers DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR THE REGISTERED HOLDERS OF MORGAN STANLEY ABS CAPITAL INC. TRUST 2007-HE7 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE7, OCWEN LOAN SERVICING, LLC ITS ATTORNEY IN FACT’s (“Plaintiff” or “DBNTC”) complaint as follows:
1.Defendant generally denies each statement of the complaint.
2.NEW CENTURY MORTGAGE CORPORATION (“New Century”) made a loan (“Loan”) to MOUSE in October of 2006 secured by his residence located at 125 Main Street, Lynwood, California 90262 (“Property”). MOUSE executed a promissory note (“Note”) to New Century to document the Loan. To secure the Loan, MOUSE executed a four party deed of trust (“DOT”) amongMOUSEas “Borrower”, New Century as “Lender”, CHICAGO TITLE COMPANY as the original Trustee and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (“MERS”), AS NOMINEE and beneficiary.
3.Under the DOT, the Lender’s rights regarding the Loan are pervasive. The Lender is entitled to receive all payments under the Note and to enforce the DOT, including the exclusive right to conduct a non-judicial foreclosure.
4.MERS had none of these rights under the DOT, and is not even mentioned in the Note. MERS is not given any independent authority to enforce the DOT under its terms and MERS’s status as beneficiary under the DOT is only “nominal.”
5.There is no assignment of deed of trust assigning any beneficial interest at all in the note and deed of trust from NEW CENTURY to OCWEN or DEUTSCHE.
6.On April 26, 2010, OCWEN recorded a Notice of Default, claiming that Plaintiff was in default for his monthly obligation under the promissory note and deed of trust that provided security for the loan alleged above. Ocwen had no authority or capacity to declare a default.
7.Per the Los Angeles County Recorder’s Office a Substitution of Trustee executed by SCOTT W. ANDERSON as Assistant Secretary of MERS, recorded on August 26, 2010, appointing WESTERN PROGRESSIVE, LLC as trustee. SCOTT W. ANDERSON is a robo-signer and has already been deemed a liar in court, HSBC Bank USA, N.A. v. Valentin N.Y.Sup.,2008.
8.Due to a lack of assignment of deed of trust, no entity past who was named on the original deed of trust had authority to conduct ANY foreclosure against the property. The complete foreclosure is entirely VOID. The deed of trust expressly reserves the right to the Beneficiary to cause the Trustee to execute written notice of the occurrence of an event of default and of Lenders’ election to cause the Property to be sold. The deed of trust further provides that the Trustee shall give public notice of sale to the persons and in the manner prescribed by applicable law. Theses express provisions of the deed of trust are impossible to comply with amidst the fraud.
9.Foreclosing parties lacked power of sale as of the recording of the Notice of Default on April 26, 2010. Per the deed of trust paragraph 22, only the lender can invoke foreclosure, and the foreclosing parties were not the lender, so the Notice of Default is void and of no force or affect. The power of sale in a non-judicial foreclosure may only be exercised when a valid notice of default has first been recorded. See Cal Civ Code § 2924; see also 5-123 California Real Estate Law & Practice § 123.01. Here, the Notice of Default appears to be void ab initio. Therefore, any foreclosure sale based on a void notice of default is also void. Accordingly, the Plaintiff lacks standing to conduct an unlawful detainer predicated on a void foreclosure sale as a direct result of noncompliance with prerequisites to engage in a foreclosure sale set forth in Cal. Civ. Code § 2924 and the Deed of Trust.
10.Castillo v. Skoba, Vice President of Aurora Loan Services, LLC2010 WL 3986953 (N.D.Cal.,November 30, 2010), the United States District Court in San Diego held (in granting an injunction to halt a foreclosure sale):
“The Court also concludes that Plaintiff is likely to succeed on the merits of his claim thatneither Aurora nor Cal-Western had authority to initiate the foreclosure sale at the time the Notice of Default was entered. Under Cal. Civ.Code § 2924(a)(1), “the trustee, mortgagee, or beneficiary, or any of their authorized agents” are authorized to file a notice of default. Documents do not support a finding that either Cal-Western was the trustee or Aurora was the beneficiary on May 20, 2010 when the Notice of Default was recorded.
On a document dated May 17, 2010, MERS substituted Cal-Western as a trustee under the deed of trust. If Cal-Western had been trustee at this time, it would have had authority to conduct the foreclosure process. See Cal. Civ.Code § 2924(a)(1). However, this document was notarized on June 7, 2010, (id.), and thus it appears likely that Plaintiff can succeed on a claim that the substitution occurred no earlier than June 7. Similarly, on June 8, 2010, MERS, the beneficiary under the deed of trust,executed an assignment of its beneficial interest to Aurora, with a backdated effective date of May 18, 2010. Based on the face of this document, Plaintiff is likely to prevail on a claim that Aurora did not have authority to record the Notice of Default on May 20, 2010. See Ohlendorf v. Am. Home Mortg. Servicing, No. CIV. S-09-2081, 2010 U.S. Dist. LEXIS 31098 (E.D.Cal. Mar. 30, 2010) (recipient of backdated assignment may not have had authority to record Notice of Default). Castillo v. Skoba is a controlling case here, due to the fact that the foreclosing trustee was not the trustee with power of sale as of the recording of the Notice of Default and the fact that securitization research proves that the purported foreclosing beneficiary was not the true lender/beneficiary of the Deed of Trust with power of sale to invoke non-judicial foreclosure.
11.Finally, Plaintiff and the Court must be reminded that Cal. Civ. Code 2924 is not triggered until compliance with the power of sale provisions mandated by the Deed of Trust has been met. Strangers to the transaction and controlling loan documents cannot record spurious documents against the property in the county recorder's office and then oppressively declare that they have complied with Cal. Civ. Code 2924, therefore the foreclosure is invalid.
12.In the case of a transaction predicated on a void instrument California law is settled. The Court in This sentiment was clearly echoed in 6 Angels, Inc. v. Stuart-Wright Mortgage, Inc. (2001) 85 Cal.App.4th 1279 at 1286 where the court stated: “It is the general rule that courts have power to vacate a foreclosure sale where there has been fraud in the procurement of the foreclosure decree or where the sale has been improperly, unfairly or unlawfully conducted, or is tainted by fraud, or where there has been such a mistake that to allow it to stand would be inequitable to purchaser and parties.”
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
The complaint and each of its causes of action fail to state facts sufficient toconstitute a cause or
causes of action because:
DBNTC and their agents failed to comply with or misrepresented their compliance with the requirements under Civil Code §2924
SECOND AFFIRMATIVE DEFENSE
Plaintiff lacks duly perfected title to the property.
THIRD AFFIRMATIVE DEFENSE
Plaintiff’s trustee’s sale was invalid, MOUSEhas an interest in the Property which vitiates the Unlawful Detainer proceeding.
FOURTH AFFIRMATIVE DEFENSE
This Court is an unsuitable forum to try complicated ownership issues:
California Judge’s Benchguide: §31.26
(8) Title is at issue. The litigation is between a plaintiff-lender and a defendant-homeowner, rather than between landlord and tenant, and title is at issue. Mehr v Superior Court (1983) 139 CA3d 1044, 1049, 189 CR 138 (because of summary nature of unlawful detainer proceedings, it is unsuitable forum to try complicated ownership issues); Asuncion v SuperiorCourt (1980) 108 CA3d 141, 145–146, 166 CR 306 (eviction of homeowners following foreclosure raises due process issues and must be heard in superior court).
FIFTH AFFIRMATIVE DEFENSE
Lack of Standing/Real Parties in Interest.
Plaintiff was not the Lender with the right to enforce the Deed of Trust.
SIXTH AFFIRMATIVE DEFENSE
Willful Misconduct
SEVENTH AFFIRMATIVE DEFENSE
Misjoinder of Parties.
EIGHTH AFFIRMATIVE DEFENSE
Unclean Hands. California Civil Code §3517.
NINTH AFFIRMATIVE DEFENSE
Fraud.
TENTH AFFIRMATIVE DEFENSE
Unconscionability.
ELEVENTH AFFIRMATIVE DEFENSE
The complaint and each of its causes of action are barred by the failure of
plaintiff to comply with all conditions precedent.
RELIEF REQUESTED
DEFENDANT REQUESTS that Plaintiff take nothing requested in the complaint.
Date: May 27, 2011______
MICKEYMOUSE
VERIFICATION
I am the defendant in this proceeding and have read this answer. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date: May 27, 2011
______
MICKEYMOUSE
PROOF OF SERVICE
I am over the age of 18 and not a party to this action.
I am a resident of or employed in the county where the mailing occurred; my business/residence address is:
______
On May 27, 2011 I served the foregoing document(s) described as:
ANSWER TO UNLAWFUL DETAINER WITH AFFIRMATIVE DEFENSES
to the following parties:
JERKOFF AND ASSOCIATES
177 BEACH BLVD SUITE 10
HUNTINGTON BEACH, CA 92648
By U.S. Mail I deposited such envelope in the mail at ______, California
with postage thereon fully prepaid.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
DATED: ______
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ANSWER TO UNLAWFUL DETAINER