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ROUTH CRABTREE OLSEN, P.S. EDWARD T WEBER, ESQUIRE, #194963 SHAHED SHAHANDEH, ESQUIRE, # 249668 ROSEMARY NGUYEN, E SQUIRE, # 265322 1241 E. Dyer Road, Suite 250 Santa Ana, California 92705 Telephone (714) 277-4888 Facsimile (714) 277-4899 File No.: 24629 Attorneys for Plaintiff SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN DIEGO EAST COUNTY REGIONAL CENTER FEDERAL NATIONAL MORTGAGE ) No. 37-2012-00034472-CL-UD-EC ASSOCIATION, its assignees and/or successors in ) interest, )) MOTION IN LIMINE TO PRECLUDE ) DEFENDANTS FROM RAISING PLAINTIFF, ) ISSUES RELATING TO TITLE ) AND/OR THE FORECLOSURE v. ) PROCESS; MEMORANDUM OF ) POINTS AND AUTHORITIES; DOUGLAS D. BRUNELLE, RENEE C. ) [PROPOSED] ORDER BRUNELLE and Does 1-50, inclusive, ) )) JURY TRIAL DEFENDANTS. ) 11, 2012 Date: Time: 8:30 am j Dept.: E- 14 ) ) ) ) TO ALL INTERESTED PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN: PLEASE TAKE NOTICE that Plaintiff FEDERAL NATIONAL MORTGAGE ASSOCATION (hereinafter "Plaintiff') hereby submits the following Motion in Limine to preclude Defendants, DOUGLAS D. BRUNELLE and RENEE C. BRUNELL (hereafter "Defendants") from presenting, discussing, arguing any and all documentary and/or oral testimony
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regarding the issues of title and/or wrongful foreclosure. This motion in limine is based on this Notice, the attached Memorandum of Points and Authorities, on the papers and documents herein on file and on such other oral and documentary evidence that may be presented at the hearing on this motion. DATED: July il , 2012 Respectfully submitted, ROUTH CRABTREE OLSEN, P.S. Attorneys for Plaintiff B

MOTION IN LIMINE TO PRECLUDE DEFENDANT FROM RAISING ISSEUS RELATING TO TITLE AND/OR THE FORECLOSURE PROCESS

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MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF FACTS This is a post foreclosure unlawful detainer action brought pursuant to Code of Civil Procedure 1161a. On or about November 14, 2005, Defendant, DOUGLAS D. BRUNELLE, signed a Deed of Trust encumbering the subject property located at 8535 PARADISE VALLEY ROAD UNIT

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29, SPRING VALLEY, CA 91977 ("Property") that included a power of sale clause that provided for the foreclosure of the Property. On April 20, 2012, Federal National Mortgage Association, the foreclosing beneficiary under the Deed of Trust by virtue of a Corporate Assignment of Deed of Trust, acquired the Property at a trustee's sale that was held in accordance with California Civil Code ("CCC") 2924. On May 8, 2012 the Trustee's Deed Upon Sale was recorded. Subsequently, on May 15, 2012, Defendant, RENEE C. BRUNELLE was personally served and DOUGLAS D. BRUNELL was sub-served with a three day Notice to Vacate. On May 24, 2012, after the Defendants refused to deliver up possession of the Property to Plaintiff Plaintiff filed a Complaint for Unlawful Detainer initiating the instant action against Defendant. Defendants' answer attempts to raise some defenses which exceed the scope of an unlawful detainer proceeding because they relate to title issues and the validity of the foreclosure sale. Defendants claim that 1) Trustee had no Deed of Trust to Sell, 2) foreclosure sale of the Property was not duly conducted in accordance with applicable law, 3) Plaintiff is not a real party in interest, and 4) Deed of Trust is defective on its face. As will be shown below all of these defenses should be precluded because issues relating to title cannot be litigated in an unlawful detainer action and therefore the defenses should not be allowed in this action.
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II. CALIFORNIA RULE OF COURT 3.1112(D) AND LOCAL RULES OF COURT ALLOW FOR THE FILING OF A MOTION IN LIMINE TO PRECLUDE EVIDENCE California Rule of Court 3.1112 allows for the use of a Motion in Limine to exclude evidence that is not relevant and/or would cause unnecessary delay and may be unduly prejudicial or futile. The usual purpose of motion in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party. (Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 669, 56, Cal.Rptr,2d 803 (Kelly).) Thus, in limine motions are designated to facilitate the management of a case, generally deciding difficult evidentiary issues in advance of trial. "The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party. A typical order in limine excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to the excluded matters during trial. (3 Witkins, Cal.Evidence [(3d. ed.1986)], supra, 2011 at p. 1969.) "The advantage of such motions is to avoid the obviously futile attempt to unring the bell in the event a motion to strike is granted in the proceedings before the jury." (Hyatt v. Sierra Boat Co. (1978) 79 CaLApp.3d. 325, 337 [145 Cal.Rptr.47]) (Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659. 669, 56 Cal.Rptr.2d 803) III. LAW AND ARGUMENT A. An Unlawful Detainer Action is Summary in Proceeding and Limited In
Scope to the Issue of Possession of the Property Only.

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As this court is well aware the primary purpose of the unlawful detainer action is to afford the landlord with an expeditious remedy for the recovery of possession. (Gray v. Whitmore (9171) 17 Cal. App. 3 rd 1, 17-19). Due to the summary nature of an unlawful proceeding and the shorter time periods involved to get to trial the issues to be litigated in this type of action is very narrow in scope. Thus the only issues that may be litigated in an unlawful detainer action are those that go
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to the right of possession of the subject property. (Vassey v. California Dance Co., Inc. (1977) 70 Cal. App. 3rd 742, 746-747; Glendale Federal Bank v. Hadden (1999) 73 Cal. App. 4 th 1150). While Defendants can file an answer, the Defendants cannot file a cross-complaint (Knowles v. Robinson, (1963) 60 C2d 620, 626-627). In recognition of these general principals our courts have narrowed which affirmative defense can be pled in an action for unlawful detainer to those affirmative defenses directly relevant to the issue of tenant's right to retain possession of the subject property. (Barela v. Superior Court (Valdlez) (1981) 30 Cal. 3 rd 244, 249, see approved Judicial Counsel Form "Answer-Unlawful Detainer Actions." Thus any affirmative defenses unrelated to the issue of possession is disallowed. (E.S. Bills, Inc. vs. Tzucanow (1985) 38 Cal. 3 rd 824, 830; Green vs. Superior (1984) 38 Cal. 2 nd 616, 632-633).
B. It is Well Settled That the Broad Question of Tile of an Underlying Loan Dispute Cannot be Raised in an Action in Unlawful Detainer.

The elements of an unlawful detainer action based upon the sale of real property at a trustee's sale are set forth in CCP 1161a, which provides in relevant part: (b) In any of the following cases, a person who holds over and continues in possession of . . . real property after a three-day written notice to quit the property has been served upon the person, or if there is a subtenant in actual occupation of the premises, also upon such subtenant, as described in Section 1162, may be recovered there from as prescribed in this chapter: *** (3) Where the property has been sold in accordance with Section 2924 of the Civil Code, under a power of sale contained in the a deed of trust executed by such a person, or a person under whom such person claims, and the title under the sale has been duly perfected. Thus, Plaintiff is entitled to judgment upon establishing that Property was sold in
accordance with Civil Code Section 2924 and that the requisite three-day notice to quit to

Defendant was served as described in C.C.P section 1162. Our courts have held that matters affecting the validity of the trust deed or the primary
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obligation itself, or other basic defects in Plaintiff's title are not properly raised in the unlawful detainer action. (See Old National Financial Services, Inc. vs. Seibert (1987) 194 Cal. App. 3rd 460; Chaney v. Trauzettel (1937) 9 Cal. 2 nd 158, 160). Furthermore, if the recitals that are set forth on the face of the trustee's deed upon sale comply with the statutory requirements of Civil Code Section 2924 et. seq., the trustee's deed upon sale is conclusively presumed valid as to a bona fide purchaser for value. (See Civil Code Section 2924 et. seq.) In Cheney v. Trauzettel, the court found that: The Trial court properly held that the summary proceeding in unlawful detainer where the right to possession alone was involved, the broad question of title could not be raised and litigated by cross-complaint or affirmative defenses.... It is true that where the purchaser at a trustee's sale proceeds under 1161a of the Code of Civil Procedure, he must provide his acquisition of title by purchase at the sale; but it is only to this limited extent, as provided by statute, that the title may be litigated in such a proceeding... 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 nor are they concluded by the judgment. The affirmative defenses raised by Defendants in their answer that 1) Trustee had no Deed of Trust to Sell, 2) foreclosure sale of the Property was not duly conducted in accordance with applicable law, 3) Plaintiff is not a real party in interest, and 4) Deed of Trust is defective on its face are outside the scope of which title may be litigated in an unlawful detainer action. Furthermore, these allegations are baseless and irrelevant within the context of an unlawful detainer action. /// /// ///
MOTION IN LIMINE TO PRECLUDE DEFENDANT FROM RAISING ISSEUS RELATING TO TITLE AND/OR THE FORECLOSURE PROCESS

C. The Property has Been Sold in Accordance with Civil Code 2924 Under a Power of Sale Contained in the Deed of Trust and Plaintiff has Right of Ownership and Right to Possession of the Property Pursuant to the Trustee's Deed Upon Sale. A non-judicial foreclosure sale is presumed to have been conducted regularly and fairly; one attacking the sale must overcome this common law presumption "by pleading and proving an improper procedure and the resulting prejudice." (Emphasis Added.) Moreover, pursuant to the California Civil Code 2924, if the Trustee's Deed Upon Sale contains a recital that all default and sale notices have been given, the notice requirements are statutorily presumed to have been satisfied, which presumption is conclusive as to a bona fide purchaser at the foreclosure sale. (Garfinkle vs. Superior Court (1978) 21 Ca1.3d 268, 279.) Section 2924 provides in pertinent part: A recital in the deed executed pursuant to the power of sale of compliance with 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 notice of default or the personal delivery of the copy of the notice of default or the posting of the copies of notice of sale or publication of a copy thereof shall constitute prima facie evidence of compliance with these requirements and conclusive evidence in favor bona fide purchasers and encumbrances for value and without notice . (emphasis added) In absence of a bona fide purchaser, the recitals are prima facie evidence of the facts that they allege to be true. (Civil C. 2924; (Wolf vs. Lipsy (1985) 163 Cal. App.3d. 633; Beach v. Reinholtz (1956) 138 Cal. App. 2d. 719.)) Further by express provision in a deed of trust, recitals in a Trustee's Deed Upon Sale may be furnished as proof of the regularity of the sale, and no further evidence is necessary to establish the title and right to possession of the purchaser. (Sorensen vs. Hall (1934) 1 Cal.App.2d 406, 36 P2d 1102.) The Deed of Trust in the within action contains such provision. (Deed of Trust para 22). Additionally, a trustee sale is deemed perfected as of 8 a.m. on the actual date of sale if the trustee's deed is recorded within 15 calendar days after the sale, or as of the date of the recording if the trustees deed is not recorded within 15 days from the date of sale. (Civil Code 2924h(c)). A successful challenge to the Trustee's Sale requires evidence of a failure to comply with
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the procedural requirements for the foreclosure sale that cause prejudice to the person attaching the sale." (4 Miller and Starr, Supra 10.210, at p. 640) The presumption must prevail when the record lacks substantial evidence of a prejudicial procedural irregularity. (Stevens v. Plumas Eureka Annex MM. Co., (1935) 2 Ca1.2d 493, 497, 41 P.2d.927.) Thus, the trustor or the person attacking the sale cannot overcome this presumption without evidence of both (1) an improper procedural irregularity and (2) resulting prejudice. (4 Miller and Starr, supra 10.211) Plaintiff will submit as evidence a certified copy of the Trustees Deed Upon Sale ("TDUS") in favor of Plaintiff. The TDUS reflects that it was recorded against the Property and that it contains the following recital: "All requirement of law regarding the mailing of the copies of notices or the publication of the Notice of Breach and Election to Sell or the personal deliver of the copy of the Notice of Breach and Election to Sell and the posting and publication of copies of the Notice of Sale have been complied with." The TDUS alone constitutes prima facie evidence that Plaintiff purchased flBroi2e1:13fitt. the Trustee's Sale conducted in compliance with Civil Code 2924 et seq. and that title has been duly perfected in Plaintiff. Likewise, Plaintiff will submit certified copies of the Notice of Default and Notice of Sale as well as other pertinent recorded instruments that relate to the Trustee's Sale. Certified copes of the recorded documents are self-authenticating. (Evidence Code 1530 & 1600). Plaintiff will furnish this Court with a certified copy of the TDUS at the time of the hearing to substantiate to the court that Plaintiff can and will meet its burden of proving that it purchased the property at the Trustee's Sale in compliance with Civil Code 2924 et. seq. and that title has been duly perfected. /I/ ///

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D. Plaintiff's Title Cannot be Challenged Unless the Former Trustor Tenders The Full Amount of the Debt

As a condition precedent to challenge the validity of a trustee's sale in an unlawful detainer proceeding, the former trustor must pay or tender the payment of all amounts owed on the debt that was secured by the Deed of Trust. As a prerequisite to challenging a foreclosure sale, a borrower must, in good faith and with the ability to pay, make an unconditional tender of the secured debt. Napue v. Gor-Mey West, Inc. (1985) 175 Cal.App.3d 608, 620-621; Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578-580; Karlsen v. American Say. & Loan Assoc, (1971) 15 Cal.App.3d 112, 117. A complaint that attacks the validity of a foreclosure sale but does not allege a proper tender fails to state a cause of action. Karlsen, supra, 15 Cal.App.3d. at p. 117 [judgment on the pleadings]; MCA, Inc. v. Universal Diversified Enterprises Corp. (1972) 27 Cal.App.3d 170, 179 [summary judgment]. In the unlawful detainer case, MCA, Inc. v, Universal Diversified Enterprises Corporation (1972) 27 Cal.App.3d 170, 173, the plaintiff purchased real property at a trustee's sale which was held pursuant to the power of sale in a deed of trust. The defendant refused to vacate the premises, and plaintiff filed an unlawful detainer action to recover possession and monetary

16 damages. Id. at 173-174. The Court of Appeal affirmed a summary judgment for unlawful 17 detainer granted to the purchaser of real property at a trustee's sale against the former trustor. It 18 held that the defendant's attack on plaintiffs title failed to raise a triable issue of fact "because we 19 do not find in the record any offer on the part of [defendant] to pay the full amount of the debt for 20 21 22 23 24 25 26 27 28 which the property was given as security." Id. at 176. As a result, the defendant was precluded from raising issues as to the validity of the trustee's sale or other objections to the plaintiff's title. Id. at 177. The Court held that the defendant trustor's assertion of noncompliance with the procedure for the trustee's sale, as set forth in Civil Code sections 2924 et. seq. did not raise triable issues of fact, because the defendant had not tendered the full amount of the debt for which the property was given as security. Id. Specifically, the court held: "[D]efendant's assertions of plaintiffs non-compliance with Civil Code
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section 2924 did not raise a triable issue 'because we do not find in the record any offer on the part of [defendant] to pay the full amount of the debt for which the property was given as security. Some disposition on the part of [defendant] to do equity by tendering the amount of the debt due is a prerequisite to a demand for judgment canceling the trustee's sale. Py v. Plietner, 70 Cal.App.2d 576, 582, and cases cited. See also Shimpones v. Strickney, 219 Cal. 637, 649, Crummer v. Whitehead, 230 Cal.App.2d at 268-269; Humbolt Savings & Loan Soc. V. March, 136 Cal. 321." Further, in Crummer v. Whitehead (1964) 230 Cal.App.2d 264, the Court of Appeal made it clear that in an unlawful detainer action brought pursuant to Code of Civil Procedure section 1161 a, where a defendant is entitled to dispute the validity of the trustee's sale, it is a prerequisite to a trustor's demand for relief and attack on the title that he must have tendered the full amount of the debt due. See also, Abdullah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1109 (debtor must allege tender of amount of beneficiary's secured indebtedness in order to maintain any cause of action for irregularity in the sale procedure). In the instant case, the Defendants have not offered to tender the full amount of the debt and therefore cannot dispute the validity of Plaintiff's title. V. CONCLUSION. Based on the foregoing, Plaintiff respectfully requests that this Court grant Plaintiffs motion in limine to preclude Defendants from asserting any affirmative defense regarding the validity of the sale, title or foreclosure process; or, in the alternative, to limit affirmative defenses raised by Defendants to the procedural validity of the foreclosure sale only. Dated: July ti , 2012 Respectfully submitted, ROUTH CRABTREE OLSEN, P.S. Attorneys for Plaintiff By: Shahed Shahandeh, Esq.

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