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SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SACRAMENTO LIMITED JURISDICTION

ELAINE AND STEPHEN WEEKS 2004 FAMILY TRUST Plaintiff, v.

MOHAMMED S, ABRAHIM, SAMIRA M. ABRAHIM; and DOES 1 through 10, inclusive, Defendants.

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Case No.: 12UD01426 (Unlawful Detainer) NOTICE OF DEMURRER AND DEMURRER TO UNLAWFUL DETAINER COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; AND DECLARATION OF MOHAMMED S. ABRAHIM Filed concurrently with Request for Judicial Notice; [Proposed] Order; and Proof of Service Hearing Date: Time: Dept.: UD Complaint Filed: 02/15/2012 Related Case: 34-2010-00072095

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on __________________________ or as soon thereafter as the matter may be heard in Department 88 of the above-referenced Court, located at 301 Bicentennial Circle, Sacramento California 95826, Defendants

will, and hereby do, demur to Plaintiff ELAINE AND STEPHEN WEEKS 2004

FAMILY TRUST Unlawful Detainer Complaint on the following grounds:


1. Plaintiff ELAINE AND STEPHEN WEEKS 2004 FAMILY TRUST does not

have the legal capacity to sue pursuant to Code of Civil Procedure 430.10(b).

NOTICE OF DEMURRER AND DEMURRER TO UNLAWFUL DETAINER COMPLAINT

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2.

Since Plaintiff lacks standing to commence an unlawful detainer action against

Defendants 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 Code of Civil Procedure 430.10(e). This Demurrer is made pursuant to the provisions of Code Civil Procedure 430.10(b) and 430.10(e), and is based upon this Notice; the attached memorandum of points and authorities; declaration of Mohammed Abrahim -in support thereof; the concurrently-filed request for judicial notice of Defendants Complaint court file; the records, files, and pleadings in this action; and such further evidence and argument the Court may consider at hearing.

Respectfully submitted,

DATED: February 18, 2012

By ______________________________________ Mohammed Abdrahim

NOTICE OF DEMURRER AND DEMURRER TO UNLAWFUL DETAINER COMPLAINT

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TABLE OF CONTENT TABLE OF AUTHORITIES..... MEMORANDUM OF POINTS AND AUTHORITIES... STATEMENT OF FACTS ................................................. SUMMARY OF ARGUMENT... ii 1 1 3

ARGUMENT... 4 I. DEFENDANTS MAY BASE THIS DEMURRER ON THEIR JUDICIALLY-NOTICEABLE WRONGFUL FORECLOSURE COMPLAINT........................................................................... II. THIS GENERAL DEMURRER TO THE COMPLAINT MUST BE SUSTAINED BECAUSE THE PLAINTIFF LACKS THE CAPACITY TO SUE PURSUANT TO CODE OF CIVIL PROCEDURE 430.10(b)......................... III. THIS GENERAL DEMURRER TO THE COMPLAINT MUST BE SUSTAINED BECAUSE THE UD COMPLAINT FAILS TO STATE A CAUSE OF ACTION PURSUANT TO CODE OF CIVIL PROCEDURE 430.10(e)... CONCLUSION.. DECLARATION OF MOHAMMED ABRAHIM IN SUPPORT OF DEFENDANTS DEMURRER TO UNLAWFUL DETAINER COMPLAINT...........................

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[PROPOSED] ORDER Filed Separately REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER Filed Separately PROOF OF SERVICE Filed Separately

TABLE OF CONTENT

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TABLE OF AUTHORITIES

Civil Code 2924 Civil Code 2932.5 Code of Civil Procedure 430.10(b) Code of Civil Procedure 430.10(e) Code of Civil Procedure 430.30 Code of Civil Procedure 430.70 Evidence Code 452 Evidence Code 453

Blank v. Kirwan (1985) 39 Cal.3d 311 Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599 County of Fresno v. Shelton (App. 5 Dist. 1998) 66 Cal.App.4th 996 Parker v. Bowron, (1953) 40 Cal.2d 344 Washington Mutual Bank v. Blechman (2007) 157 Cal.App.4th 662

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TABLE OF AUTHORITIES

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MEMORANDUM OF POINTS AND AUTHORITIES

STATEMENT OF FACTS Plaintiffs Complaint provides that Defendants, as trustors, conveyed the subject property at 3412 May Fair drive, Sacramento, CA 95864 (the Property or Home) to a Trustee by a Deed of Trust executed and recorded in the Sacramento County Recorders Office on July 26, 2005 (Deed of Trust) to secure payment of said trustors Promissory Note. See, Plaintiffs Complaint, 4(A). Thereafter, as alleged by Plaintiff, the Trustee of said Deed of Trust sold and conveyed title to the Property to Plaintiff, ELAINE AND STEPHEN WEEKS 2004 FAMILY TRUST, pursuant to the foreclosure and sale of the [Property], under the power of sale contained in the Deed of Trust and in compliance with Civil Code 2924. Plaintiffs Complaint 4(B). On February 9, 2012, Plaintiff caused to be served a written 3/90-Day Notice stating that Plaintiff had purchased the Property and demanded that all persons vacate the premises. On February 22, 2011, Defendants filed an action for wrongful foreclosure in Sacramento Superior Court, Unlimited Jurisdiction, Case No. 34-2010-00072095, naming California Reconveyance and CHASE as one of the defendants (Defendants Wrongful Foreclosure Complaint or Defendants Complaint or Defendants First Complaint); attached to the concurrently-filed Request for Judicial Notice as Exhibit A). Concurrently with this Demurrer, and in support thereof, Defendants request this Court to take judicial notice of Defendants Wrongful Foreclosure Complaint pursuant to Evidence Code 452 and 453 and Code of Civil Procedure 430.30 and 430.70. Defendants Complaint includes claims for setting aside the Trustee Sale, canceling the Trustees Deed, Quiet title, and declaratory and injunctive relief, while alleging, inter alia, the following: 1) On or about July 26, 2005 Defendants entered into a written agreement with

Washington Mutual Bank. for the financing of Defendants loan for the purchase of their Home. Defendants for valuable consideration, as borrowers, made, executed, and

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS DEMURRER TO UNLAWFUL DETAINER COMPLAINT

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delivered to Washington Mutual Bank. a written promissory note in the total amount of $264,000.00. 2) To secure payment of the principle sum and interest as provided in the Note and as part of the same transaction, Defendants, as trustors, executed and delivered to Mortgage Electronic Registration Systems, Inc. (MERS) as beneficiary, a Deed of Trust dated September 14, 2006 (the Deed of Trust), by the terms of which Plaintiffs, as trustors, conveyed to California Reconvenyance, as trustee, the Property. The Deed of Trust was recorded on September 19, 2006. 3) On or about January 10, 2010, MERS assigned all beneficial interests under the Deed of Trust to California Reconvenyance Company (CRC) (hereinafter referred to as the Assignment of Deed of Trust). Although executed in Jan 2010, the Assignment of Deed of Trust was recorded only later, on August 26, 2010. 4) On or about Jan 12, 2010, Defendants CRC caused to be recorded a Notice of Default and Election to Sell on Defendants Property. Although CRC claimed to be either the duly appointed Trustee, the substitute Trustee or acting as agent for Beneficiary under [the Deed of Trust], no such indication is to be found in the Official Records in the Office of the Recorder of Sacramento County, California. 5) On or about June 18, 2010, Defendants received a Notice of Trustee Sale from CRC stating that a Trustee Sale of the Property is set to take place on July 8, 2010. 6) On January 11, 2012, CRC conducted a Trustee Sale of the Property. The Property was purportedly sold to Elaine and Stephen Weeks 2004 Family Trust., allegedly or presumably, under the power of sale contained in the aforementioned Deed of Trust. The Trustees Deed Upon Sale of the Property was recorded on January 26, 2012. 7) In their Wrongful Foreclosure Action, Defendants allege, inter alia, violations of California law and Federal executive orders in improperly holding the sale of Defendants Home and in wrongfully executing, delivering, and recording Trustees Deed on the Property, as set forth below.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS DEMURRER TO UNLAWFUL DETAINER COMPLAINT

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On January 11, 2012, concurrently with Plaintiffs filing of their Complaint or immediately thereafter, Elaine and Stephen Weeks 2004 Family Trust, the purported purchaser of the Property in a Trustee Sale, filed this Unlawful Detainer action (UD Complaint) against Defendants. On or about February 15, 2012, Defendants were served with Plaintiffs UD Complaint.

SUMMARY OF ARGUMENT In their UD Complaint, Plaintiff explicitly held itself as an entity qualified to commence this Unlawful Detainer action against Defendants. Plaintiffs Complaint 1. However, it appears on the face of the UD Complaint and Defendants Complaint, which is judicially-noticeable by this Court, that: Plaintiff Elaine and Stephen Weeks 2004 Family Trust 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 and/or was not conveyed in compliance with Civil Code 2924; Plaintiff Elaine and Stephen Weeks 2004 Family Trust 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 Procedure1 430.10(b) and 430.10(e). Therefore, Defendants Demurrer must be sustained without leave to amend and Plaintiffs Complaint dismissed.

ARGUMENT I DEFENDANTS MAY BASE THIS DEMURRER ON THEIR JUDICIALLYNOTICEABLE WRONGFUL FORECLOSURE COMPLAINT CCP 430.10 provides in pertinent part:

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS DEMURRER TO UNLAWFUL DETAINER COMPLAINT

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The party against whom a complaint or cross-complaint has been filed may object, by demurrer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (b) The person who filed the pleading does not have the legal capacity to sue (emphasis added). In turn, CCP 430.30(a) states: When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading (emphasis added). A demurrer may challenge the legal sufficiency of an opponent's pleading based on defects that appear on the face of the pleading under attack and/or from matters outside the pleading that are judicially noticeable. See, Blank v. Kirwan (1985) 39 Cal.3d 311, 318; County of Fresno v. Shelton (App. 5 Dist. 1998) 66 Cal.App.4th 996, 1008-1009, as modified. Concurrently with their Demurrer, Defendants are filing a Request for Judicial Notice of said Wrongful Foreclosure Complaint pursuant to Evidence Code 452 and 453. Under CCP 430.30, Defendants may base their Demurrer on the judicially-noticed Wrongful Foreclosure Complaint court file. II THIS GENERAL DEMURRER TO THE COMPLAINT MUST BE SUSTAINED BECAUSE THE PLAINTIFF LACKS THE CAPACITY TO SUE PURSUANT TO CODE OF CIVIL PROCEDURE 430.10(b) Plaintiff Elaine and Stephen Weeks 2004 Family Trust filed this UD Complaint on or about Feb 15, 2012, concurrently with or immediately after Defendants filed their Wrongful Foreclosure Complaint naming CRC as defendant. Defendants Complaint alleges the following: CRC had no legal capacity to commence, execute, or cause to be executed a Trustee Sale. As a result of the Office of Thrift Supervisions March 19, 2009 Order, which appointed the FDIC as the receiver for MERS, MERS became an inactive institution and no longer in existence on January 26, 2012. MERS, a defunct corporation, had no authority and legal capacity to initiate a trustee sale as of January 26, 2012. The only one who had such authority was the receiver, FDIC;

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS DEMURRER TO UNLAWFUL DETAINER COMPLAINT

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Since MERS was unauthorized to conduct a trustee sale, its purported agents, CRC were unauthorized to do so as well; Also, CRC issued an unauthorized Notice of Default and Election to Sell as CRC did so before the Assignment of Deed was duly acknowledged and recorded, as required by Civil Code 2932.5; CRC was never dully appointed as a substitute Trustee and nonetheless acted as such; CRC thus failed to comply with or misrepresented their compliance with the requirements under Civil Code 2924 as they were not authorized to conduct a Trustee 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 Elaine and Stephen Weeks 2004 Family Trust is invalid and void. Further, Elaine and Stephen Weeks 2004 Family Trust is still subject to any deficiencies in the underlying Trustee Sale because Elaine and Stephen Weeks 2004 Family Trust is not a bona fide purchaser, as it was already the beneficial owner of the underlying obligation, whatever that might be and as such, did not exchange any consideration for the so called Trustees Deed; Elaine and Stephen Weeks 2004 Family Trust did not acquire any interest in the property through a sale; did not pay fair consideration or for that matter did not pay any consideration; was not a bona fide purchaser; had, at all times, notice both actual and constructive of defects in the underlying Note, Deed of Trust and the defects on the on the face of the documents recorded in the public records; More specifically, Elaine and Stephen Weeks 2004 Family Trust had constructive notice of the defects alleged by Defendants because the chain of title of the Property in the Official Records in the office of the Recorder of San Mateo County, California clearly shows that a Notice of Default was recorded before Power of Sale ever vested in CRC, i.e. before the Assignment of Deed of Trust was duly acknowledged and recorded (Civil Code 2932.5). Further, Elaine and Stephen Weeks 2004 Family Trust cannot be said to qualify as a bona fide purchaser without notice since CRC serves as a Servicer of CHASE, which may indicate that the transfer of the Property from CHASE to Elaine and Stephen Weeks 2004 Family Trust was part of a well

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS DEMURRER TO UNLAWFUL DETAINER COMPLAINT

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calculated scheme between CRC and Elaine and Stephen Weeks 2004 Family Trust to sanitize the Note.. In light of the foregoing in Defendants Complaint and attachments thereto, which are judicially-noticeable, it appears title to the Property was not conveyed to Plaintiff under the power of sale contained in the Deed of Trust and/or was not conveyed in compliance with Civil Code 2924. Thus, title has not been perfected in Plaintiff and Plaintiff is not a real party in interest. A plaintiff lacks standing to sue if it not is 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, see infra. 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 Elaine and Stephen Weeks 2004 Family Trust also lacks the capacity to sue as Elaine and Stephen Weeks 2004 Family Trust is subject to any deficiencies in the underlying Trustee Sale and its alleged-predecessor in interest, CRC, which similarly lacks such legal capacity. Therefore, Plaintiff falls squarely within the objectionable grounds stated in CCP 430.10(b). Accordingly, Plaintiffs Complaint cannot stand and must be dismissed. III THIS GENERAL DEMURRER TO THE COMPLAINT MUST BE SUSTAINED BECAUSE THE UD COMPLAINT ALSO FAILS TO STATE A CAUSE OF ACTION PURSUANT TO CODE OF CIVIL PROCEDURE 430.10(e) CCP 430.10 provides in pertinent part: The party against whom a complaint or cross-complaint has been filed may object, by demurrer to the pleading on any one or more of the following grounds: (e) The pleading does not state facts sufficient to constitute a cause of action (emphasis added). A general demurrer should be sustained if a party is not the proper party to bring suit. See Parker v. Bowron, (1953) 40 Cal.2d 344, 350-351.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS DEMURRER TO UNLAWFUL DETAINER COMPLAINT

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Here, the pleading does not meet the cause of action requirement because plaintiff lacks standing to sue, as Plaintiff is not a real party in interest (see, supra). This is also why Plaintiffs ability to state a claim is stymied. Therefore, the Court cannot move forward with the merits of the case and Defendants Demurrer should be sustained without leave to amend. // // // // // // // // // CONCLUSION FOR THE FOREGOING REASONS, Defendants respectfully request that this Court sustain Defendants Demurrer without leave to amend.

18 19 Respectfully submitted, 20 21 22 23 24 25 26 27 28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS DEMURRER TO UNLAWFUL DETAINER COMPLAINT

Dated: February 18, 2012

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DECLARATION OF MOHAMMED ABRAHIM IN SUPPORT OF DEFENDANTS DEMURRER TO UNLAWFUL DETAINER COMPLAINT

I, Mohammed Abrahim, hereby declare the following:

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. Defendants filed an action for wrongful foreclosure in Sacramento Superior Court,

Unlimited Jurisdiction, on February 22, 2011 alleging, inter alia, violations of California law and Federal executive orders in improperly holding the sale of Defendants Home and in wrongfully executing, delivering, and recording Trustees Deed on Defendants Property. 3. On February 16, 2012, the purchaser of the Property in the Trustee Sale, Elaine and

Stephen Weeks 2004 Family Trust, filed an Unlawful Detainer action against Plaintiffs in Sacramento Superior Court, Limited Jurisdiction.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 19, 2012 at Sacramento, California.

______________________ Declarant

PROPOSED ORDER

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SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SACRAMENTO LIMITED JURISDICTION

ELAINE AND STEPHEN WEEKS 2004 FAMILY TRUST Plaintiff, v.

MOHAMMED S, ABRAHIM, SAMIRA M. ABRAHIM; and DOES 1 through 10, inclusive, Defendants.

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Case No.: 12UD01426 [PROPOSED] ORDER

Date: Time: Dept: Complaint Filed: 02/15/2012 Related Case: 34-2010-00072095(Unlimited)

TO ALL PARTIES AND THEIR COUNSELS OF RECORD: IT IS HEREBY ORDERED THAT: Defendants Demurrer to the Unlawful Detainer Complaint is hereby sustained without leave to amend. IT IS FURTHER ORDERED THAT: _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________

DATE: _________________________

__________________________________ Judge of the Superior Court

PROPOSED ORDER

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PROPOSED ORDER

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SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SACRAMENTO LIMITED JURISDICTION

ELAINE AND STEPHEN WEEKS 2004 FAMILY TRUST Plaintiff, v.

MOHAMMED S, ABRAHIM, SAMIRA M. ABRAHIM; and DOES 1 through 10, inclusive, Defendants.

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Case No.: 12UD01426 (Unlawful Detainer) PROOF OF SERVICE OF DEFENDANTS NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF MOHAMMED ABRAHIM ; [PROPOSED] ORDER; REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS DEMURRER TO UNLAWFUL DETAINER COMPLAINT; AND EXHIBIT A Hearing Date: Time:. Dept.: UD Complaint Filed: 2/15/2012 Related Case: 34-2010-00072096

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [X] [X] [ ]

PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SACRAMENTO I am employed in the County of Sacramento, State of California. I am over the age of 18 and not a party to the within action. My business address is 9091 Devon Crest, Elk Grove, Sacramento, CA 95624 On Feb 20, 2012, I served the following document described as DEFENDANTS NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF MOHAMMED ABRAHIM ; [PROPOSED] ORDER; REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS DEMURRER TO UNLAWFUL DETAINER COMPLAINT; AND EXHIBIT A on all interested parties in this action by placing [X] a true copy [ ] the original thereof enclosed in sealed envelopes addressed as follows: SEE ATTACHED SERVICE LIST (BY FACSIMILE) The facsimile machine I used complied with Rule 2003(3) and no error was reported by the machine. Pursuant to Rule 2008(e)(4), I caused the machine to print a record of the transaction. (BY MAIL, 1013a, 2015.5 C.C.P.)

[ ] I deposited such envelope in the mail at Sacramento, California. The envelope was mailed with postage thereon fully prepaid. [ ] I am readily familiar with the firms practice for collection and processing correspondence for mailing. Under that practice, this document will be deposited with the U.S. Postal Service on this date with postage thereon fully prepaid at Sacramento, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [ ] (BY PERSONAL SERVICE) I caused the foregoing envelope to be delivered by hand to the addressee on the attached Service List.

[ ] (BY FEDERAL EXPRESS ) I caused the foregoing envelope to be delivered by xxxx FEDEX (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (FEDERAL) I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on Feb 19, 2012, Sacramento California. _______________________________

[ ]

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SERVICE LIST

Attorney(s) for Plaintiff, ELAINE AND STEPHEN WEEKS 2004 FAMILY TRUST SID M ROSENBERG & LINK AN ASSOCIATION OF PROFESSIONAL LAW CORPORATION 725 30TH STREET STE 107 SACRAMENTO, CA 95816

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