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Federal Home Loan Mortgage Corporation, its assignees and/or successors, Plaintiff, vs.

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Case No. UDVS1102213

Scottie Morrow, and DOES 1-10, inclusive.

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TO THE HONORABLE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on August ______, 2011, at ______________.M. or as soon after that as the matter can be heard, in Department _______ of the above-entitled court, Defendant, Scottie Morrow, (hereinafter referred to as Moving Defendant) will move this Court for an order demurring the Complaint of Plaintiff, Federal Home Loan Mortgage Corporation, its assignees and/or successors (Plaintiff or FHLMC) on the following grounds: The Complaint is uncertain in that it contains contrary and inconsistent allegations which make it impossible to ascertain: 1. Where the property has been sold in accordance with Section 2924 of the Civil Code, under a power of sale contained in a deed of trust executed by such person, or a person under whom such person claims, and the title under the sale has been duly perfected. 2. Where the Unlawful Detainer fails under 430.10(b) the person who filed the pleading does not have the legal capacity to sue. 3. Where the plaintiff has no standing to bring an unlawful detainer action against Defendant as it fails the real party in interest requirement, the pleading does not state facts sufficient to constitute a cause of action on behalf of the proper specific plaintiff pursuant to CCP 430.10(e). 4. Where the pleading is uncertain. As used in this subdivision 430.10(f) uncertain includes ambiguous and unintelligible. 5. This court is an improper venue when title is disputed. [California Benchguide 31.26(8)]. 6. Under CCP 1170, a defendant in an unlawful detainer proceeding may answer or demur. The period for noticing the hearing on a demurrer is not set forth in the unlawful detainer statutes,

Sections 1159 through 1179a. However, Section 1177 provides that all provisions of law contained in Part 2 of the Code of Civil Procedure (the ones applicable to regular civil actions) are otherwise generally applicable to unlawful detainer actions, unless other procedures are specified in the unlawful detainer statutes. Since the unlawful detainer statutes do not provide for the timing of a hearing on a demurrer, the timing for demurrers is governed by CCP 1005, which requires 16 court days of notice of the hearing on the demurrer, plus five calendar days for notice by mailing. This demurrer is properly before the Court and notice is proper. 7. This Demurrer is made pursuant to the provisions of CCP 430.10(b), (e) and 430.10(f), and 1161and Defendant will further move this Court for an order demurring the Complaint of Plaintiff, on file herein. This Demurrer is based upon this Notice and Motion to Demurrer, Memorandum of Points and Authorities in support thereof, the complete court records on file in this action and upon such other further written or oral evidence which may be presented at the time of hearing of this motion.

Dated: July 21, 2011 __________________________________ Scottie Morrow, Defendant in Pro Per

MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF FACTS The party against whom a complaint has been filed may object and demurrer as provided in California Code of Civil Procedure Section 430.30 to the complaint when any grounds for objection appear on the face thereof. California Code of Civil Procedure Section 430.10(f) provides that proper grounds for demur include The pleading is uncertain, as used in this subdivision uncertain includes ambiguous and unintelligible. Plaintiffs Complaint provides that Plaintiff is entitled to possession and is the owner of record of a parcel of real property located at 18737 Lemon Street, Hesperia, CA 92345 (the

Property or Home). Plaintiff claims to own said land by virtue of a foreclosure sale duly held pursuant to the power under the Deed of Trust and Promissory Note executed and delivered by Defendant(s) or their predecessors. (8). Plaintiff asserts that "the property was sold and a corresponding Trustee's Deed was given to Plaintiff, thereby duly perfecting Plaintiff's title to the Property. " (11). Further, "Plaintiff caused the Trustee's Deed Upon Sale to be recorded in the SAN BERNARDINO County Recorder's Office, thereby duly perfecting Plaintiff's title to the Property." 1. Defendant is informed and believes and thereon alleges that Plaintiff has alleged to have become a successor in interest to the Subject Mortgage by virtue of Plaintiffs loan having been made a part of a securitization process wherein certain residential mortgages and the promissory notes based thereon were securitized by aggregating a large number of promissory notes into a mortgage loan pool, then selling security interests in that pool of mortgages to investors by way of items called Secondary Vehicles. 2. The mortgage-backed securities pool was formed under New York Trust laws as a common law trust, which is governed by a Pooling and Servicing Agreement ("PSA"). Said PSA mandates that Defendant's Note and Deed of Trust was required to have been assigned, delivered and conveyed to the trust in 2007, and any transfer past the closing date of that trust is void ab initio. 3. The Assignments of Deed of Trust recorded on behalf of Plaintiff by Quality Loan Service Corp. were fabricated in order to facilitate the wrongful foreclosure and were void with no force and effect. 4. Due to the fraudulent and fabricated assignments, Plaintiff had no beneficial interest in the Deed of Trust recorded against the subject property as defined by California Civil Code 2932.5 and was not conveyed the private right to the power of sale clause.

5. Plaintiff violated California Civil Code 2924 and has not complied with the Deed of Trust. Defendants Deed of Trust, paragraph 22, mandates that only the Lender can invoke the power of sale to conduct non-judicial foreclosure. FHLMC was not the beneficiary with power of sale to conduct foreclosure. FHLMC has blatantly failed to comply with California law and the Deed of Trust. A non-judicial foreclosure under the power-of-sale in a deed of trust or mortgage must be conducted in strict compliance with its provisions and applicable statutory law. The trustee, Quality Loan Service, had no power of sale from the alleged beneficiarys lack of power of sale, accordingly. A trustees powers and rights are limited to those set forth in the deed of trust and laws applicable thereto. (See, e.g., Fleisher v. Continental Auxiliary Co., (1963) 215 Cal.App.2d 136, 139, 30 Cal.Rptr. 137; Woodworth v. Redwood Empire Sav. & Loan Assn., (1971) 22 Cal.App.3d 347, 366, 99 Cal.Rptr. 373.). Plaintiff has violated CC 2924 having conducted a void foreclosure by failing to adhere to the Deed of Trust provisions allowing a non-judicial foreclosure, and Plaintiff is not a party to the Deed of Trust to which CC 2924 could apply. 6. Plaintiff was not a foreclosing beneficiary to Defendants Deed of Trust as declared in the Trustees Deed Upon Sale recorded April 18, 2011 in the San Bernardino County Recorders Office. Due to their lack of standing as beneficiary of the Note and Deed of Trust, they could not purchase the subject property by credit bid. The Trustees Sale is void, the Notice of Default is void and Plaintiff has no standing to evict Defendant from his home. 7. A recent California decision, In re: Salazar, Salazar v. U.S. Bank as Trustee, 10-17456-MMB has confirmed that Salazar retained equitable title due to the invalid and void foreclosure sale, due to the alleged foreclosing beneficiary having failed to comply with the Deed of Trust and CC 2932.5. This issue is identical to that of Defendants and entitles Defendant to save his home.

II. STATEMENT OF LAW The recitation that FHLMC is the owner of the subject property is hearsay and is disputed and the court cannot take judicial notice of it because the information derives from the invalid Trustee's Deed Upon Sale, which is a recorded document, and does not prove to be factual. Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App. 3d 369, 374.) While courts take judicial notice of public records, they do not take notice of the truth of the matters stated therein. (Love v. Wolf (1964) 226 Cal. App. 2d 378, 403.) In Herrera v. Deutsche Cal Appeals 3rd District C065630, summary judgment was erroneously entered in Defendants favor due to inadmissible hearsay, which consisted of the court erroneously taking the recorded documents as fact and a declaration of which lacked competent fact firsthand knowledge. The recitation that JP Morgan Chase Bank is the successor in interest to Long Beach Mortgage Company through Washington Mutual is hearsay. Defendant offered no evidence to establish that JP Morgan Chase Bank had the beneficial interest under the 2003 Deed of Trust to assign to the Bank. The truthfulness of the contents of the Assignment of Deed of Trust remains subject to dispute (Stormedia, supra 20 Cal. 4th at p. 457, fn 9) and Plaintiffs dispute the truthfulness of the contents of all of the recorded documents. In sum, the judge erroneously took contents of the recorded documents as truth.

Judicial notice did not establish that the Bank was the beneficiary or that CRC was the trustee under the 2003 Deed of Trust. Defendants failed to establish facts justifying judgment in [their] favor. (Bono, supra, 103 Cal.App 4th at p. 1432).

THIS GENERAL DEMURRER TO THE COMPLAINT MUST BE SUSTAINED BECAUSE THE PLAINTIFF LACKS THE CAPACITY TO SUE PURSUANT TO CCP 430.10(b) Plaintiff Federal Home Loan Mortgage Corporation filed this UD Complaint. The foreclosing parties conducted an unlawful foreclosure sale and delivered defective title to Defendants property by filing false and invalid documents against the property which facially appeared to effectuate clear title to foreclose. The trustee that foreclosed did not have power of sale as required by the deed of trust and California law. The entities alleging beneficial interest in the note and deed of trust did not have beneficial interest as required by the deed of trust and California law. No one had authority to foreclose and conduct the unlawful trustees sale. FHLMC and their agents failed to comply with or misrepresented their compliance with the requirements under Civil Code 2924 as they were not authorized to conduct a Trustees Sale and unlawfully issued a Notice of Default and Election to Sell, a prerequisite thereto. Since the underlying sale was unlawful, the Trustees Deed Upon Sale delivered to FHLMC is invalid and void and cannot be utilized as prima facie evidence for eviction. A plaintiff lacks standing to sue if it is not a real party in interest. See, e.g., Washington Mutual Bank v. Blechman

(2007) 157 Cal.App.4th 662, 669 [citing Color-Vue, Inc., v. Abrams (1996) 44 Cal.App.4th 1599, 1604]. Plaintiffs lack of legal standing is pertinent to the question whether Plaintiffs UD Complaint sufficiently states a cause of action. Plaintiff is clouding Defendants title, there is no valid title vested in Plaintiff to give the standing to move an unlawful detainer action. There is a difference between the capacity to sue, which is the right to come into court, and the standing to sue, which is the right to relief in court (see Color-Vue, Inc. v. Abrams, id), in the instant case Plaintiff also lacks the capacity to sue as the title is subject to any deficiencies in the underlying Trustees Sale, due to the fact that fraud vitiates a contract. Defendant is unaware of any California law that allows the recording of false documents to facilitate an invalid foreclosure and subsequently transfer title by way of an invalid trustees deed upon sale, falsely recite compliance with California Civil Code 2924 and move for an unlawful detainer action. Therefore, Plaintiff falls squarely within the objectionable grounds stated in CCP 430.10(b). Accordingly, Plaintiffs Complaint cannot stand and must be dismissed. Plaintiff is Not Entitled to Leave To Amend Defendant relies on language in Payne v. United California Bank 23 Cal. App 3d 850 [100 Cal.Rptr. 672] and contends that the general rule of liberality in permitting amendment of pleadings is not available where the originally named Plaintiff lacks standing to sue. A. THE STANDARD FOR SUSTAINING A DEMURRER. In considering a demurrer, a court treats the demurrer as admitting all material facts properly pleaded, but no contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court also considers matters which may be judicially noticed. (Id.)

In sustaining a demurrer, the court determines whether the complaint states facts sufficient to constitute a cause of action. (Id.) Plaintiff contends that concluding that the Trustee's Deed Upon Sale is evidence that Plaintiff is the owner of the property is a conclusion of fact or law. While it is true that a demurrer should not be sustained without leave to amend if there is a reasonable possibility that a defect in the complaint can be cured by amendment, the burden is on the plaintiff to show in what manner he can amend the complaint and how that amendment will grant the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

III. ARGUMENT In the UD Complaint, Plaintiff explicitly held itself as an entity qualified to commence this Unlawful Detainer action against Defendant. However, it appears on the face of the UD Complaint, which is judicially noticeable to this Court, that: Plaintiff is not a real party in interest; Title has not been perfected in Plaintiff since the title to the Property was not conveyed to Plaintiff under the power of sale contained in the Deed of Trust, was not conveyed in compliance with Civil Code 2924, there are fatal irregularities in the sale, and ultimately fraudulent conveyance effectuated by a string of false documents placed to record in the San Bernardino County Recorders Office. Plaintiff lacks capacity and standing to sue, and, Plaintiffs Complaint fails to state facts sufficient to constitute cause of action on behalf of the proper specific plaintiff, pursuant to Code of Civil Procedure 430.10(b) and 430.10(e) and (f). Therefore, Defendants Demurrer must be sustained without leave to amend and Plaintiffs Complaint dismissed in its entirety.

A. PLAINTIFFS COMPLAINT FAILS TO STATE A CAUSE OF ACTION 1. CCP 430.10(d). There is a defect or misjoinder of parties. Plaintiffs complaint is defective for not including the real party in interest pursuant to CCP 367. Also, CCP 389 provides that if Plaintiff knows the names of other persons with an interest, it must bring them into this action. Those names are known in the securitization trust that may or may not be serviced by Plaintiff, which also proves Plaintiff is not the real party, and by the real party not being named, Plaintiff is in violation of CCP 389. 2. CCP 430.10(e). The pleading does not state facts sufficient to constitute a cause of action. Plaintiffs complaint in its entirety fails to state a cause of action because there is no legal sufficiency if it is not the proper plaintiff or real party in interest. The Complaint appears deficient on the face of the pleading. Hall vs. Chamberlin (1948) 31 Cal.2d 673, 679-680. Therefore, the complaint is not cognizable and it is impossible to amend the complaint or to construe it in any manner to correct this deficiency. 3. CCP 430.10(f). The pleading is uncertain. As used in this subdivision, "uncertain" includes ambiguous and unintelligible. The complaint is so uncertain and unintelligible that Defendant cannot reasonably respond; i.e., she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against her [because Plaintiff is not the real party in interest]. Khoury v. Malys of Calif., Inc. (1993) 14 Cal.App.4th 612, 616, (citing text).



No landlord/tenant relationship exists between

Plaintiff and Defendant. The existence of

a landlord/tenant relationship is a condition precedent to an unlawful detainer action, and it must be stated in the complaint. Fredericken v. McCosker (1956) 143CA 2d 114, 299 P2d 908. The complaint must allege (1) the existence of a lease or rental agreement (oral or written) and (2) that the tenant entered into possession under it, no longer has the right to possession, and yet remains in possession. Plaintiff clearly states there is no relationship between the Plaintiff and Defendant. 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 Superior Court (1980) 108 CA3d 141, 145146, 166 CR 306 (eviction of homeowners following foreclosure raises due process issues and must be heard in superior court). Per the Administrative Office of the Courts California Judges Benchguides Benchguide 31 Landlord-Tenant Litigation: Unlawful Detainer [Revised 2011] the Plaintiff has brought this action in an unsuitable forum and this action must be heard in an unlimited civil court, not an unlawful (civil limited) court due to the nature of the disputed events.


If the unlawful detainer is based on default of fulfilling a covenant, the complaint must allege that tenant breached that covenant. The complaint states no breach of covenant. In fact the complaint fails to state a real cause of action. Defendant has not failed to complete any covenant with the Plaintiff. D. PLAINTIFF CANNOT BENEFIT FROM RECORDING OF FALSE DOCUMENTS Generes v. Justice Court, 106 Cal. App. 3d 678, 165 Cal. Rptr. 222 (3rd Dist. 1980); People v. Baender, 68 Cal. App. 49, 228 P. 536 (1st Dist. 1924): knowingly recording spurious documents for the record with intent to defraud. Every person who files a false or forged document with the County Recorder that affects title to, or places an encumbrance on, or places an interest secured by a mortgage or deed of trust on, real property.with knowledge that the document is false or forged is punishable by statute (Cal. Penal Code 115.5 (a)(b)(c)(d)). The word knowingly in the statute does not import intent, but merely refers to knowledge of the essential facts. In the case of a deed, the crime is complete when the deed has been prepared so that upon its face it will have the effect of defrauding one who acts upon it as genuine. FHLMC claims to have acquired the property from entities that have knowingly filed documents within the Riverside County Recorders Office that are unquestionably false and patently misleading to those relying on them as being true and correct, thus damaging Defendant by the invalid trustees deed upon sale that was directed by FHLMC and their agents that are clouding Defendants title. The entire foreclosure proceeding is a baseless, invalid monstrosity and shall be the foundation for Defendants superior action in Unlimited Civil Division of Superior Court. This is not a standard

Unlawful Detainer proceeding. Defendant is not aware of any California law that allows fraudulent documents to facilitate theft of property, followed by an unlawful detainer proceeding. California Civil Code 3517: No one can take advantage of his own wrong. The wrongful conveyance of SCOTTIE MORROWs property is a direct result of FHLMCs scheme to defraud him. Defendant did not have a loan with FHLMC. The Deed of Trust was executed with COUNTRYWIDE HOME LOANS, INC. DBA AMERICAS WHOLESALE LENDER as Lender and valid assignments and endorsements of the Note per the provisions in the PSA were not delivered, conveyed or recorded to FHLMC accordingly. FHLMC has/had no interest in Defendants Note, Deed of Trust or title. FHLMC has caused to record void instruments in order to facilitate a non-judicial foreclosure which would appear valid to the court, however it is defective and void and has merely clouded Defendants title, and they have no legal title to the property as a result, accordingly. In the case of a transaction predicated on a void instrument California law is settled. The Court in Trout v. Trout (1934), 220 Cal. 652 at 656 made as much plain Numerous authorities have established the rule that an instrument wholly void, such as an undelivered deed, a forged instrument, or a deed in blank, cannot be made the foundation of a good title, even under the equitable doctrine of bona fide purchase. 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.

IV. CONCLUSION The extent, to which a plaintiff's title may be a triable issue in an action brought pursuant to Code of Civil Procedure section 1161a, subdivision 3 was discussed by the California Supreme Court in Cheney v. Trauzettel, 9 Cal. 2d 158, 160 [69 P.2d 832]: "In our opinion the plaintiff need only prove a sale in compliance with the statute [Civ. Code, 2924] and deed of trust, followed by purchase at such sale, and the defendant may raise objections only on that phase of the issue of title." (See also, Crummer v. Whitehead, 230 Cal. App. 2d 264 , 268 [40 Cal.Rptr. 826]; Kartheiser v. Superior Court, 174 Cal. App. 2d 617, 620 [345 P.2d 135]; and Bliss v. Security-First Nat. Bank, 81 Cal. App. 2d 50, 58-59 [183 P.2d 312].) "Irrespective of the merits of [other] defenses raised by the answer, the alleged equitable grounds of attack on plaintiff's title have no place in the present summary proceeding, for if such issues are permissible, the proceeding entirely loses its summary character. ... Matters affecting the validity of the trust deed or primary obligation itself, or other basic defects in the plaintiff's title, are neither properly raised in this summary proceeding for possession [Code Civ. Proc., 1161a, subd. 3], nor are they concluded by the judgment." (Cheney v. Trauzettel, supra, at p. 160; see also, Higgins v. Coyne,75 Cal. App. 2d 69, 73 [170 P.2d 25]; Seidell v. Anglo-California Trust Co., 55 Cal. App.

2d 913, 921 [132 P.2d 12]; Delpy v. Ono, 22 Cal. App. 2d 301, 303 [70 P.2d 960]; Cf. Union Oil Co. v. Chandler, 4 Cal. App. 3d 716, 721 [84 Cal.Rptr. 756]. Plaintiff cannot come to Court with clean hands. At this time it is impossible for any party to prove it has standing unless it fabricates evidence. Defendant is not aware of any California law that allows fraudulent documents to facilitate theft of property, followed by an unlawful detainer proceeding. FOR THE FOREGOING REASONS, Defendant respectfully requests that this Court sustain Defendants Demurrer without leave to amend. Respectfully submitted this 21st day of July, 2011.

________________________________ SCOTTIE MORROW


I, SCOTTIE MORROW, hereby declare the following: 1. I am the Defendant in this matter. I have personal knowledge of the facts contained in this declaration and if called as a witness, I could and would testify competently to these matters under oath. 2. I mailed a Dispute Letter/Request for Validation to McCarthy & Holthus on or about April 12, 2011. I have received no response to that request. Plaintiff, by and through counsel, has violated California Rosenthal Act and Fair Debt Collection Practices Act and cannot file the instant action until the debt has been validated. 3. I have superior title and interest in the property and have an inferior claim against Plaintiff due to the fraudulent conveyance and failure to comply with my Deed of Trust which mandates the provisions of non-judicial foreclosure. 4. Per the Administrative Office of the Courts Landlord-Tenant Litigaton: Unlawful Detainer CALIFORNIA JUDGES BENCHGUIDES Benchguide 31 specifically at 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 It is an unsuitable forum to try complicated ownership issues, and I believe and therefore allege that the Unlawful Detainer Limited Civil Division is an unsuitable forum for this action and the Court must move this action to Unlimited Civil for proper venue. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 21, 2011 at Hesperia, California.

_____________________________________ SCOTTIE MORROW, Declarant


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 July 21, 2011 I served the foregoing document(s) described as:


to the following parties:


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: ______________ _________________________________________