CASE

NO. F064556

IN THE STATE FIFTH

COURT

OF APPEAL

OF CALIFORNIA DISTRICT

APPELLATE
THOMAS Plaintiff

A. GLASKI, and Appellant,

V,

BANK OF AMERICA, BY MERGER TO "LA MORTGAGE CHASE AND PASS HOME

NATIONAL ASSOCIATION AS SUCCESSOR SALLE BANK N.A. AS TRUSTEE FOR WAMU CERTIFICATES LLC, JPMORGAN RECONVEYANCE and Respondents. SERIES CHASE 2005-AR-17", BANK, N.A.,

THROUGH

FINANCE

CALIFORNIA Defendants

COMPANY,

Appeal Superior

from Court

a Judgment for Fresno

of the County

Hon. Alan M. Simpson, Judge Case No. 09CECG03601

APPELLANT'S Richard L. Antognini L.

REPLY Catarina

BRIEF M. Benitez

(CA Bar No. 075711) LAW OFFICES OF RICHARD ANTOGNINI 819 1 Street Lincoln, Telephone: Facsimile: E-Mail: California (916) (916) 95648-1742 645-7278 290-0539

(CA Bar No. 256518) LAW OFFICES OF CATARINA M. BENITEZ 2014 Fresno, Facsimile: Tulare Street, (559) (559) Suite 93721 472-7337 579-1100 400 California

Telephone:

rlalawyer@vahoo.com Attorneys THOMAS for Plaintiff A. GLASKI and Appellant

TABLE

OF CONTENTS

Page I. INTRODUCTION II. A. B. C. ARGUMENT Respondents' Glaski Statement of Facts Respondents' Assignment is Inaccurate. Power of Deed to Foreclose. of Trust Does Not 1 1 1 3 5

Can Challenge 2008

The December Help

Respondents. Court Should Not Take Judicial Notice of the 2008

D.

The

Assignment. E. Respondents Arguments. F. G. III. Glaski Tender Pleaded Harm and Reliance. 13 15 17 OF WORD COUNT 18 Do Not Understand or Mischaracterize Glaski's 10

is Still Not Required.

CONCLUSION

CERTIFICATE

-i-

TABLE

OF AUTHORITIES Page California Cases m 218 (2011) 11, 12 5 6 3,6 11, 12 _ 231 (2008) _ 1149 (2011) 3,4 8, 10 8 (2003) 13 5 11 4 16 8,10 Assoc., 16 6

/lceves Bardis Curico Evans Garciav. Giraldo Gomes Herrera Joslin Korea Lucich Nguyen Murillo Onofrio

v. U.S. BankNationalAssoc., v. Oates, v, Svanevik, 119 Cal.App.4

192 Cal.App.4 th 1 (2004) 955 (1984)

155 Cal.App.3d

v. City of Berkeley, World Savings, Dept.

38 Cal.4 _ 1 (2006) 183 Cal.App.4 of Corrections, Loans, lnc., _ 1031 (2010) 168 Cal.App.4 192 Cal.App.4

v. California v. Countrywide v. Deutsche v. H.A.S. Supply lns.

Home Bank

National

Trust Co.,

196 Cal.App.4 369 (1986) 29 Cal.4 _ 1134

th 1366 (2011)

Brokerage,

184 Cal.App.3d Martin Corp.,

Co. v. Lockheed

v. City of Oakland, v. Calhoun, v. Fleetwood v. Rice, lnc.

19 Cal.App.4

th 495 (1993)

105 Cal.App.4 Enterprises,

m 428 (2003) lnc, 17 Cal.4 m 985 (1998)

55 Cal.App.4 v. Superior

_ 413 (1997) Court, v. Great 20 Cal.4 m 449 (1999) Western Savings & Loan

StorMedia, United

States

Cold Storage 1214 (1985)

165 Cal.App.3d

-ii-

Federal

Cases

Page 9

Mena (N.D.

v. JP Morgan

Chase

Bank,

N.A., 2012

U.S.Dist.

LEXIS

128585

Cal. Sept. 7, 2012) California Statutes 13 4,13 4, 13 4,13 4, 13

Civil Civil Civil

Code Code Code

section section section section section

1572 1708 1710 2924

(3)

Civil Code Penal Code

(a) (1)

470 (<t)

-iii-

I. When respondents Appellant's documents arguments, you read examine the

INTRODUCTION the Respondents' Brief, the Brief, Second rest on you have to wonder Complaint, if or

Opening Their the

Amended

Appendix. were before

arguments trial court,

misstatements

of what

misunderstandings law. they does

of appellant's

and misinterpretations improperly they failed

of California rely

Respondents the trail court when have

on a document That document

did not present not rescue

to

demurred. to refute

them.

Respondents the power tender pleaded rule

appellant's that

arguments alleged

that he can attack harm, and that the has

of a lender does not

to foreclose, apply. of action

he has Thomas

Appellant

A. Glaski

("Glaski")

valid

causes

in his Second his case. ARGUMENT

Amended

Complaint

("SAC")

and he should

be allowed

to pursue II.

A.

Respondents' make

Statement much of which for (the

of Facts a

is Inaccurate. December assigned Mortgage or "the Glaski's Pass 8, 2008 loan to Through Trust").

Respondents "Assignment "LaSalle Certificates (Respondents' Court Glaski's is that of Deed Bank N.A.

purported

of Trust," as trustee Trust

allegedly WaMu "Trust" What document (or

Services-AR17 Brief, they at pages did not Amended

investment

3, 10, 13.) on this

respondents when

did not tell the they demurred Request to for

rely

Second

Complaint 1

"SAC").

Their

Judicial Notice in Supportof their demurrerto the SAC askedthe trial court to take notice of only two documents--a letter from the Office of Thrift Supervision, and the Purchaseand Assumption Agreement betweenthe FDIC, asreceiverfor WashingtonMutual, andJ.P.Morgan Chase Bank. (2 AA 000301 to 000303). Respondentsdid not requestthat the trial court takejudicial notice of the December8, 2009 Assignmentof Deedof Trust. (Ibid.) Respondents'demurrerto the SAC did not rely on the December8, 2008 Assignmentand did not mention the Assignment. (2 AA 000287to 000000298.) The trial court did not rely on respondents'Request for Judicial Notice in ruling on the demurrer to the SAC. (2 AA 000410to 000412,) Respondentsalso misconstrue the SAC. Respondents argue that Glaski made what they call a "self-serving" allegation that Brignac's signatureon the JuneMarch 20, 2009Notice of Trustee'sSaleandJune15, 2009 Assignment of Deed of Trust was forged. (Respondent'sBrief, at page 8.) They call this allegation "conclusionary" and say the trial court did not needto acceptit as true when ruling on the demurrerto the SAC. (Respondents' Brief, at pages6, 8.) Glaski did more than just allege the Brignac signaturewas forged. The SAC attached as exhibits several documents Brignac supposedly signedin other foreclosurecases. (SeeExhibits 6-13to the SAC, at 1 AA 000247to 000276.) For example,exhibit 6 wasa Notice of Trustee'sSale 2

for property owned by Jose and Anna Carrisales in Santa Barbara, California. (1 AA 000247 to 000248.) Brignac allegedly signed this

document. (1 AA 000248.) Yet, her signaturediffered significantly from her signatureson the Glaski Notice of Trustee'sSaleandthe June15,2009 Assignmentof Deed of Trust. (Compare1 AA 000248with 1 AA 000238 and 1 AA 000242.) Exhibit 7 was a Notice of Trnstee's Salefor property Ismael and EsperanzaVieyra owned in SantaMaria, California. (1 AA 000252to 1 AA 000253.) Again, Brignac supposedlysigned this document,but her signaturedid not matchthe signatureson the Glaski documents.(Compare 1 AA 000253with 1 AA 000238and 1 AA 000242.). Glaski's SAC did more than allegethat the Brignac signatureswere forged. He provided examplesof the forgery. Becausehe pleadedmore thanjust a "conclusionary" allegation,the trial court wasrequiredto accept this chargeastrue when it ruled on the demurrerto the SAC.
of Berkeley, reviewing B. 38 Cal.4 th 1, 6 (2006). ruling. Challenge that Ibid. Respondents' Gomes precludes Brief, permits 3 Power to Foreclose. Home Loan, Inc., their points if This Court must do Evans the v. City same in

the trial court's Glaski Can contend 1149

Respondents 192 power Cal.App.4 _

v. Countrywide Glaski at pages a plaintiff from 7-9.)

(2011),

challenging As Glaski

to foreclose.

(Respondents' brief, Gomes

out in his opening

to attack

a foreclosure

he canidentify "a specific

initiated 192 Glaski showed by the correct th at

factual party." (italics

bas& for alleging Gomes added); basis"

the foreclosure Home

was not Inc., 27-28. that

v. Countrywide Opening because

Loans,

Cal.App.4 identified

1156

Brief,

at pages

a "specific

factual

he alleged before (Opening

facts

that his loan had and Notice

not been of Trustee's

transferred Sale were

to the Trust issued.

the Notice Brief, at

of Default page

28; 1 AA 000196.) According to Respondents, of a party the idea that rests Code a homeowner can never effect et seq.

challenge of

the power

to foreclosure statutes, 7-9.) Civil

on the preemptive sections reading 2924 of those

California's

foreclosure Brief, language sections (d), which statute 17

(Respondents' reveals Civil section say that no Code 470 one

at pages expressly 1708 bars overrides and

A close other

statutes like Code to

preempting 1710, which

California fraud,

statutes, or Penal any

prohibit

forgery. another 992

California statute.

law rejects Cf Murillo must

attempt

v. Fleetwood apply the Ibid. be able to fraud

Enterprises, statutes, If challenge that

Cal.4 t_ 985, statutes, can

(1998).

Courts

the forgery a plaintiff

and the foreclosure show fraud the or

statues he

together. should

forgery,

a foreclosure. ordering (a) (1).

Even

foreclosure have the

statutes power

themselves Civil

require Code when

a party 2924

a foreclosure A challenge

to do so. party's

section

to a foreclosing

authority,

basedon a specific factual allegation, doesnot contradict the foreclosure statutes;it upholdsthem. C. The December 2008 Assignment
Not According Assignment (Respondents' Glaski's investment (Ibid.) Deed of Help to Deed Respondents. respondents, of Trust 10-13.) J.P. the alleged December destroys Glaski's purports 8, 2008 case. of Deed of Trust Does

allegedly

brief,

at pages from

This Assignment Morgan Chase Bank initiated

to transfer to the

of Trust (Ibid.) the

("Chase") the

Trust. Because

That of

Trust, Trust

in turn, was

foreclosure. argue

Deed

properly (Ibid.)

transferred,

Respondents,

the Trust

had the power present they did Deed AA

to foreclose. this argument not contend of Trust to and

Respondents they demurred

did not SAC,

to the trial that

court.

When 2008 had to of in

to the transferred

the December therefore 000287

Assignment the power

Glaski's (2

the Trust 2 AA

to

foreclose. They 2008

000301 ask the trial (Ibid.)

000303;

000000298). the December

did not even Assignment. notice

court Now,

to take judicial they ask this

notice Court,

effect,

to judicially

the Assignment

and apply arguments Lucich

it to bar Glaski's not presented of Oakland,

SAC. to the 19

It is an old rule trial court cannot th 494, be 498

of appellate raised (1993); cannot on

law that appeal.

v. City

Cal.App.4 (2004).

Bardis raise

v. Oates,

119 Cal.App.4

th 1, 13, fn. 6

A defendant

a defense

on appeal

that he did not assert

before the trial court.

Cal.App.3d party 955,

Bardis

v. Oates, It is unfair

supra;

Curico

v. Svanevik,

155

960 (1984).

to the trial court Giraldo

and the opposing Dept. of

to allow

a change

of theory

on appeal.

v. California

Corrections, The respondents, demurrer judicial be raised

168 Cal.App.4 December a complete to the SAC and

th 231, 251 (2008). is a new Yet, did not they request theory did not the and, argue trial according to

8 Assignment defense. they

it in their court take

that

notice

of the Assignment.

Because

it is a new

argument,

it cannot

now and it should the December

be ignored. 8 Assignment Trust required that proves all loans after nothing. The SAC to it it

Further, alleged that the

investment Date." If the loan was

be transferred

by a "Closing was The invalid "Closing and

transfer

occurred

the "Closing (1 AA

Date," 000187.)

the

was

not property 21, 2005. to

of the Trust.

Date" 2008

December

(1 AA 000188.) transfer the Glaski

Even loan, The

if the the trial

December transfer court Evans title power

Assignment late and

attempted the Trust never as true

came had

too

held when

title to the loan. it ruled on the

to accept

this

allegation

demurrer.

v. City of Berkeley, even under the

38 Cal.4 th at 6. Because 2008 Assignment,

the Trust the Trust

did not acquire never had the

December

to foreclose. The December of Trust 2008 Assignment, as trust. noted, purports to transfer The June 15,

Glaski's

Deed

to the investment 6

(RB 000078.)

2009 Assignment, which came after the foreclosure on Glaski's home, purports to do the samething--transfer the Deed to the investmentTrust. (RB 000078; 1 AA 000238.) Why did this transferneedto be donetwice? If the first transfer in December 2008 was proper, the investmentTrust already had acquiredthe Glaski Deed of Trust. It did not need a second transfer in June 2009. The only thing that changedbetween December 2008and June2009 was the nameof the trusteefor the investmentTrust-Bank of America insteadof LaSalle Bank. (CompareRB 000078with 1 AA 000238). The investmentTrust remainedthe same. The fact that a secondtransfer becamenecessaryin June2009 suggested that Chasedid not think the December2008transferwasvalid andhadto beredone. In addition, Chasewas the transferring party in both the December 2008 and June 2009 Assignments. If the December 2008 Assignment transferredthe Glaski Deed of Trust to the investmentTrust, Chasedid not have the power to do the June2009 transfer becauseit no longer hadtitle. The fact that it did the 2009 transfer implies the December2008 transfer wasnot effective andhadto doneover.
D. The Court Should Not Take Judicial Notice of the 2008

Assignment. The notice. December 2008 Assignment did not ask is not a proper the trial court subject for judicial notice

First,

respondents

to take judicial

of the Assignment and they have not filed a formal requestfor judicial noticewith this Court. Second,"' [t]aking judicial notice of a documentis not the sameas acceptingthe truth of its contentsor acceptinga particularinterpretationof its meaning.' While courts take judicial notice of public records,they do not take notice of the truth of mattersstatedtherein."
Bank Joslin judicial National v. H.A.S. notice Trust Ins. Co., 196 Cal.App.4 th 1366, 369, Herrera v. Deutsche quoting "When proper

1375

(2011),

Brokerage,

184 Cal.App.3d . . . the

374 (1986). and

is taken

of a document

truthfulness Inc.

interpretation Court,

of the document 457,

are disputable."

StorMedia,

v. Superior

20 Cal.4 th 449, What respondents of

fn. 9 (1999). are asking stated Deed this Court December to do is take judicial 2008 notice

of the Chase

truth

matters Glaski's proper

in the of Trust

Assignment--that Trust. Yet, the

transferred and and

to the investment of this Assignment read together,

"truthfulness The Glaski 2008

interpretation" when

are disputable. no sense, as

2009 above.

Assignments,

make

shows Third,

the December Deed of Trust, Chase been

2008

assignment disputable that

assumes point.

that At

Chase least

had one

title court

to the hearing Mutual

Glaski a case home

another found

against loans had

the deeds

of trust called Chase

on Washington "WaMu Bank, Asset 2012

transferred Mena

to an entity Morgan

Acceptance

Corporation."

v. J.P. 8

U.S.Dist. LEXIS 128585,at *3 (N.D. Cal. Sept.7, 2012.) The samething may have happenedherebecause,as the Mena
were common The could to the with Washington this Mutual loans. for respondents 2008 acquired FDIC. of the only is that Chase court noted, such transfers

problem Glaski's

possibility of Trust

creates

transfer Deed. and

Deed

in December Chase with the

only if it had title title under its

According Assumption 7-10.)

to respondents, Agreement" Even shows a generous that Chase

"Purchase Brief,

(Respondents' "Purchase the assets and of does

at pages

reading acquired

Assumption Washington not mention If the Mutual "Purchase acquire allegation do so. Fourth, defeats the Bank

Agreement" Mutual "WaMu Glaski Bank. Asset Deed

(RB 000037 Acceptance of Trust 25, 2008,

and 000045.) Corporation."

The Agreement

was when

not

the

property

of Washington signed did make the SAC the not this to

on September Assumption loan

the FDIC (RB

and Chase Chase can

and

Agreement" under case the

000037), Glaski leave

Glaski

Agreement.

based

on the Mena

and he asks

to amend

for this claim,

Court

to find take this

that

the

December notice

2008

Assignment and to all

Glaski's

it must Only assets, Chase

judicial

of the gave

"Purchase title

Assumption Washington Without

Agreement." Mutual

Agreement including

Chase Glaski's

supposedly could

mortgage. Trust,

title to the loan,

not transfer 9

it to the investment

as it purported to do with the December2008 Assignment. Giving Chase title in December 20089 requires the Court to accept the truth of the statements madein the "PurchaseandAssumptionAgreement,"which it is not allowed to do when considering a request for judicial notice.
StorMedia, Deutsche Inc. Bank Fifth, purports section v. Superior National Court, 20 Cal.4 th at 457, th at fn. 9; Herrera v.

Trust Co., and

196 Cal.App.4 is open assets which no idea the proper

1375. Although in section in sections apply. it 3.1, 3.5, A that on the

the Purchase

Agreement Mutual

to dispute. to Chase

to transfer 3.1 mentions

all Washington several

exceptions, We have is not issue

are if those

found

3.6 and 4.8. request dispute. merits. E. for

(RB 000045.) judicial notice of that

exceptions for and

vehicle

handling a trial

Resolution

requires

discovery

Respondents Glaski's

Do

Not

Understand

or

Mischaracterize

Arguments. fail to understand or mischaracterize "does not allege many of Glaski's

Respondents arguments. at issue provisions those 9.) They were not

contend recorded

that Glaski or served Code...

that the documents with the applicable in

in accordance

of California documents

Civil was

or that the information (Respondent's

contained Brief,

recorded The point 2009

not accurate." charge

at page Sale and because

of the forgery Assignment,

is that the Notice documents,

of Trustee are false

the June

key

foreclosure

10

the Brignac signatureis forged. (1 AA 000189to 1 AA 000190.) The SAC allegesin the SecondCauseof Action for Fraud that the Notice of Default and the Notice of Trustee'sSale are invalid because they falsely represent that the foreclosing entity has the power to foreclose. (1 AA 000190to 1 AA 000192.) The same allegations undermine respondents'attemptsto invoke
Nguyen v. Calhoun, 105 Cal.App.4 cannot th 428 (2003). sue to undo Nguyen, they when say, stands he alleges at page

for the rule defects 15.)

that a plaintiff or "dehors shown alleging and the

a foreclosure (Respondents' the

"outside" But, as by Sale

the foreclosure." Glaski the 2009 attacks

Brief,

above, that June are

foreclosure on forged falsely the

documents Notice that of the that

themselves, Trustee's foreclosure respondents Because "outside"

Brignac

signatures are they

Assignment because

and

documents have these

fraudulent to foreclose. the

represent

the power charges

(1 AA 000189

to 1 AA they

000192.) are not

attack

foreclosure

documents,

or "dehors Respondents'

the foreclosure." interpretation of Nguyen hold rely See, Aceves Garcia 11 also does not accurately state

California or undo during Cal.App.4 Cal.App.4

law.

Numerous when

cases they

that homeowners on misrepresentations e.g., Garcia Bank

can sue to prevent lenders Savings, Assoc., or make 183 192 their

a foreclosure the foreclosure th 1031 _ 218

process. and In

v. World National the

(2010), (2011).

v. U.S. and

Aceves,

lenders

representativesmade oral or written statements to homeowners that foreclosureswould be postponedif the homeownerscompliedwith certain lender requests. The misrepresentationscame outside the foreclosure documentsand, under respondents'interpretationof California law, were "dehorsthe foreclosure." Yet, the Garcia
cases that to proceed. you can sue outside These to two opinions, undo a among and Aceves others, even courts stand if you allowed the

for the principle are relying on

foreclosure documents.

irregularities

the foreclosure then

Respondents of action insist for violation waived brief

mischaracterize

Glaski's Competition

arguments Law

on his

cause They

of the Unfair any right

(or "UCL"). of this claim

Glaski

to appeal

the dismissal Court's 17.)

because

his opening Cause

did not "address (Respondents'

the Trial Brief,

ruling

as to the Ninth respondents on those the trial

of Action." pages

at page Brief.

Perhaps

did not read pages court why erred The why These and pages Glaski

40 and 41 of the Opening a claim for violation

Glaski

argued and why

he pleaded in sustaining Opening pleaded

of the UCL

the demurrer also refers and

to that cause the Court back

of action. to earlier Brief, arguments on

Brief harm

reliance. was

(Opening harmed

at pages

40-41.) conduct Brief, at

arguments

establish

that Glaski

by respondents' (Opening

demonstrate 30-31,

he has standing 40-41.)

to sue under

the UCL.

12

Next, respondentssay that Glaski's UCL causeof action doesnot plead "facts demonstratingthat the practice violates an underlying law." (Respondents' Brief, at page 18.) The OpeningBrief, however,pointedout how the SAC alleged violations of at least five California statutes--Civil Code sections 1572 (3), 1709, 1710, and 2924 (a) (1), and Penal Code section470 (d). (OpeningBrief, atpage40.) Respondents arguethat Glaski "doesnot allege.., any.., factsthat would entitle him to relief that is actually recoverableunder the UCL. (Respondents'Brief, at page 18.) Again, one must wonder if respondents have read the SAC. The SAC asksthe trial court to issueseveralorders, including an order cancelling the trustee'ssaleof Glaski's home,vacating the foreclosuresale,andcancelingthe Notice of Default,the Assignmentof Deed of Trust, and the Notice of Trustee's Sale. (1 AA 000203.) These orders,in effect, amountto an injunction, because they requirerespondents to take affirmative stepsto undo the foreclosuresale. An injunction is one form of relief underthe UCL.
29 Cal.4 th 1134, F. 1144 (2003). Pleaded devote committed at pages Brief, Harm a good forgery 8-10.) at pages 13 and Reliance. portion of their brief to the argument Glaski. Korea Supply Co. v. Lockheed Martin Corp.,

Glaski

Respondents that, even (Respondents' was harmed. if they

and fraud, The Opening

they did not harm Brief shows

Brief, (Opening

how Glaski

30-31

and 39-40.)

What concealment the plaintiff Glaski forged Trust? foreclosure correct Restarting to pursue keep have

respondents case. have done The done had key

miss

is that

this,

above

all, case

is

fraudulent would would were Deed restart of the of the

question

in a concealment revealed the

is what What

had the

defendants

the truth? Brignac

respondents Trust

disclosed

signatures

and that the Glaski process

investment would have

did not have that

title to Glaski's respondents in the

demanded a new Notice

by issuing Respondents

of Default had given

name

beneficiary.

would would

have have time

no choice Glaski

but to agree. time, time and months

the foreclosure a loan

process

more

modification If nothing else,

or perhaps Glaski

to file

for bankruptcy

his home.

would

have

had a few more harm. was

to stay in his home. Respondents and 10.) would But, have lost

The loss of that opportunity fall back on the argument

is sufficient that Glaski

in default at pages purpose 8of

his home

anyway. in default

(Respondents' lose their home.

Brief, The

not all homeowners relief programs and

mortgage keep their

loan could a

modifications have fact applied that factual has

is to help for not those been or

homeowners programs. proven. make A

homes. argument is not the

Glaski

Respondents' demurrer assumptions.

assumes place to

resolve

disputes

factual

14

G.

Tender

is Still Not Required. repeat his loan their balance demurrer before argument he could that sue. Glaski (Respondents' rule is little was

Respondents required Brief, more to tender at pages than

14-16.)

Respondents' of cases favoring

discussion tender.

of the tender (1bid.) those the They

a recitation exceptions

do not address apply has to no

the multiple Glaski. exceptions. rule Brief, in detail

to the tender

rule and how believe

exceptions tender rule

(Ibid,) (Ibid.)

Respondents Glaski's

apparently Opening Brief excuse

analyzes him from

the exceptions tendering.

to the (Opening

and explains 32-33.) pleaded and

why

they

at pages Glaski

several wrongful

causes foreclosure.

of action (1 AA

for

damages

in his

SAC,

including and tender 1 AA rule

fraud 000194 bars

000189

to 1 AA

000192, why the this

to 1 AA a claim

000196.).

Respondents and they

do not explain

for damages Brief,

cite no case that supports

proposition. What exceptions equitable tender. hundred figure

(Respondents' happens and relief Tender thousand bars

at pages are for In

14-16.) correct that the tender rule has no for allege several six in of

if respondents any claim

wrongful few

foreclosure, plaintiffs can must mortgages

whether ever raise

or damages? means dollars in most before

reality, that suit,

cases filing

a plaintiff as most

involve

debts.

If a plaintiff

has that kind of money, make his payments. 15

he is not in foreclosure The practical effect

the first place,

as he can easily

respondents'tenderposition is that they are entitled to immunity from any wrongs they commit in the foreclosureprocess. Because a plaintiff cannot tender,defendantscan never be suedunder any theory, equitableor legal. Lendersandservicerscan commit fraud andforgery andbe immune. This result is a distortion of California law and cannotbe true. The tender rule is a principle of equity and should not be applied when it is inequitableto do so.
Court should decline Onofrio to enforce v. Rice, the 55 Cal.App.4 tender rule th 413,424 (1997). This

when

it amounts

to a grant

of immunity. Ultimately, party Great (1985). equity. charged that seeks the tender equity Savings who rule must rule first comes from the equitable United States principle Cold 1214, hardly when that a v.

do equity. Assoc.,

Storage 1224-1225.

Western

& Loan has

165 Cal.App.3d fraud shield and forgery respondents

A defendant The them tender

committed not

has done Glaski has

should

with fraud

and forgery.

16

IH.
For GLASKI reversed. Dated: January 17, 2013 these additional

CONCLUSION

reasons, that

plaintiff the

and

appellant of the

THOMAS trial court

A. be

respectfully

requests

judgment

LAW

OFFICES

OF

CATAR1NA

M. BENITEZ

By: Catarina Attorneys M. Benitez for Plaintiff and

Appellant Thomas A. Glaski

17

CERTIFICATE Calif. The Word Dated: 2007 text word in this Rules brief

OF WORD Rule

COUNT (c) (1). as counted the brief. by the

of Court, consists program

8.204

of 3,809

words,

processing 17, 2013

used to generate

January

LAW OFFICES OF CATARINA M. BENITEZ

By: Catarina Attorneys M. Benitez for Plaintiff and

Appellant Thomas A. Glaski

18