SUPERIOR COURT OF CALIFORNIA

COUNTY OF ORANGE
APPELLATE DIVISION

THE BANK OF NEW YORK MELLON Appellate Court Case

No, 30-2017-00942891
Plaintiff and Respondent,

vs. (Superior Court Case

No.30-2016-00861086)
CYNTHIA L. BROWN,

Defendant and Appellant.

The Superior Court of California, County of Orange

The Honorable Timothy Stafford, Judge, Dept. C66

APPELLANT’S OPENING BRIEF

CYNTHIA L. BROWN
P.O. Box 4806
Orange, CA 92863
Tel.(714) 618-2034
Appellant in Pro Per
1
 CERTIFICATE OF INTERESTED PERSONS

Pursuant to California Rules of Court 8.208, the Appellant, certifies

that the following listed persons and entities as described under
Rule 8.208 have a financial or other interest in the outcome of
this case. These representations are made in order that the
judges of this Court may evaluate possible disqualification or
recusal in this appeal.

1. Cynthia L. Brown, Defendant, Appellant

2. The Bank of New York Mellon, Plaintiff-Respondent
3. NDex West, LLC, foreclosing trustee
4. Home Loan Mortgage Corporation, original lender and
beneficiary
5. Fidelity National Title, original trustee
6. California Department of Business Oversight, regulatory
investigation and rulings
7. Mortgage Electronic Systems, Inc. (“MERS”) beneficiary
under Deed of Trust (“DOT”)\
8. Cynthia L. Brown, Caucasian (white) imposter signatory on
purported loan and identity thief

Dated: 03/26/2018 Respectfully submitted,

_______________________
CYNTHIA L. BROWN

2
 TABLE OF CONTENTS

TABLE OF AUTHORITIES 4

INTRODUCTION 8

STATEMENT OF APPEALABILITY 8

STATEMENT OF THE CASE 10

ISSUES PRESENTED 11

STATEMENT OF FACTS 12

ARGUMENT 16

A. Standard of Review 16
B. Introduction 16
C. Inexcusable Abuse of Discretion 18
Court Owes Defendant a Duty 19
Scope of Verification of U.D. Complaint 22
E Is the Complaint Properly Verified Giving the Court
Subject Matter Jurisdiction 22
1. The Standard to Void the Judgment is Met on the
Face of the Complaint 27
2. Information and Belief Provide No Proof of Facts 33
3. Standard is Set Under A.E. Kelliher 34
4. Deficiency of Complaint is on its Face 35
. Compliance With CCP 1161 is a Mandatory
Statutory Prerequisite 37
5. Plaintiff Did Not Prove Duly Perfected Title
Recorded Trustee’s Deed Upon Sale is Not Prima Facie
Evidence of Duly Perfected Title 41
CONCLUSION 42
CERTIFICATION OF COMPLIANCE 43
PROOF OF SERVICE
45
3
 TABLE OF AUTHORITIES

ABCO, LLC v. Eversley (2013) 213 Cal. App. 4th 1092, 1098 14

Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 287-288

31

A.E. Kelliher v. Kelliher (1950) 101 Cal. App. 2d226 .…………34

Bank of New York Mellon v. Preciado

224 Cal.App.4th Supp. 1 (Cal. Super. Ct. 2013) 14, 36

Costa v. Banta (1950) 98 Cal.App.2d 18 6

Franklin v. Nat C. [88 Cal. App. 3d 205 17

Gay v. Torrance, 145 Cal. 144, 151 26

Goldstone Agency, supra, 33 Cal. 2d 62 18

Gutierrez v. Superior Court, 243 Cal. App. 2d 710 20

Hall vs. Chamberlin, (1948) 31 Cal.2d 673, 679-680 9

Herrera v Deutsch (5-31-11 Cal 3rd District) .App.4th 1366 (2011

Higgins v. Coyne, 75 Cal.App.2d pages 74–75 33

Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 37 34 546

Judd v. Superior Court, 60 Cal. App. 3d 38, 432………………. 28

Kessler v. Bridge (1958) 161 Cal.App.2d Supp. 837, 841 … 25, 39

Kellett v. Kellett, 2 Cal. 2d 45, 48 18

4
Kulshrestha v. First Union (2004)33 Cal. 4th 501…………… 12

Mabry v Superior Court of Orange County (4thDist.

June 2, 2010) 185 Cal App/4th 208………………………….. 24

Moore v. Thompson, 138 Cal. 23, 26………………………… 28

Mortgage Guarantee Co. v. Smith,

9 Cal.App.2d 618 [50 P.2d 835] 36

Nineteenth Realty Co. v. Diggs,

134 Cal.App. 278, 289 [25 P.2d 522] …………… 36

Pelegrinelli v. McCloud River etc. Co., 1 Cal. App. 593…….. 17

Price v. Mellon Bank (1989) 213 Cal.App.3d 465, 474………. 14

Schwenke v. J&P SCOTT, INC. (1988) 205 Cal.App.3D

71, 76…………………………………………………………… 31

Star Motor Imports, Inc. v. Superior Court, 88 Cal.

App.3d 201……………………………………………… 25,34

Tracy v. Tracy, 213 Cal. App. 2d 359, 362………………… 26

Toboni v. Pennington Millnery Co 172 Cal. App 2d 47,

p. 52…………………………………………………………. 20,25

U.S. Bank Nat. Assn. v. Ibnez (Mass 2011) N.AE. 2 d 40, 51… 18

Vella v. Hudgins
(1977) 20 C.3d 251, 256, 142 C.R. 414, 572
P.2d 2…………………………………………………………… 36

Mellon Bank, N.A. v. Detelder-Collins, No. APP100000325

(ORANGE Super. Ct. App. Div. Mar. 28, 2012) 36

5
Wood v. Herson 39
(1974) 39 Cal.App.3d 737, 743

FEDERAL CASES

Arbaugh v. Y & H Corp. (2006), 546 U.S. 500, 514 6

Hanson v. Denckla (1958) 357 U.S. 235, 250, 78 S. Ct.

1228, 2 L. Ed. 2d 1383…………………………………………. 31

Joyce v. United States of America, 474 F2d 215………………. 7

Kulko v. California Superior Court (1978) 436 U.S. 84, 91,

98 S. Ct. 1690, 56 L. Ed. 2d 132, 141; ………………………….31

U.S. Financial, L.P as trustee v. Michael Mc Litus,

(Decision 8/29/16) San Diego Super. Ct. Division/ Sip
Opinion, 37-2015-0003586 12

6
STATUTES

Code of Civil Procedure §2924 4, 6, 7, 9, 10

CCP 2924h(c)…………………………………………………… 14

California Code of Civil Procedure Section §1161 6

Code of Civil Procedure, section 904.2, subsection 6

CCP 446 9, 20

Civil Code of Procedure §1812.10. 17

Evid. Code Section 403………………………………………… .25

Evid. Code Section 1200 12

7
 INTRODUCTION

On June 30, 2016, The Bank of New York Mellon (“Mellon”)

filed an “unlawful detainer” action [CT 1:57] against Cynthia L.

Brown (“BROWN”) pursuant to Code of Civ. Proc. §1161a.(b)(3)

following a foreclosure. The judgment for the plaintiff relied solely

upon rebutted prima facie evidence alleging perfected title and

claiming a right to possession with a Trustee’s Deed Upon Sale [1

CT:62] .[Reporter’s Transcript (RT 94-118)

STATEMENT OF APPEALABILITY

A final judgment in a limited civil case is appealable to the

appellate division of the superior court. This appeal is from the

summary judgment after the Orange County Superior Court granted

summary judgment to the Plaintiff. [CT 11: 3199] It is authorized by

the Code of Civil Procedure, § 904.2, subd. (a).

.This court is requested to take judicial notice of appellant

cases on the question of subject matter jurisdiction. See Costa v.

Banta (1950) 98 Cal.App.2d 181. The “Costa” court held that

“Although the subject matter jurisdiction of the court was not

8
questioned during the trial, it is well established that questions of

subject matter jurisdiction are never waived and may be raised for the

first time on appeal.”

The court has an obligation to determine subject matter

jurisdiction before making a decision on the merits. In Arbaugh v. Y

& H Corp. (2006), 546 U.S. 500, 514, The “Arbaugh” court held

“Moreover courts, including this Court, have an independent

obligation to determine whether subject matter jurisdiction exists,

even in the absence of a challenge from any party.” Ibid. Here the

trial court did not meet that obligation.

More importantly, it is well established that the court has no

discretion to ignore the lack of jurisdiction. In Joyce v. United States

of America, 474 F2d 215, the “Joyce” court held, “Where there is no

jurisdiction over the subject matter, there is, as well, no discretion to

ignore that lack of jurisdiction.” The court has no jurisdiction to

make a determination on the merits.

This matter of repeated error(s) of law that deprived the

petitioner of her due process rights. There is no subject matter

jurisdiction, and no admissible evidence supports the judgment.

9
 STATEMENT OF THE CASE

This case arises out of an Unlawful Detainer action. [1 CT57]

Unlawful detainer is a narrowly tailored procedure to expeditiously

resolve landlord-tenant disputes. When the dispute is not the

traditional landlord-tenant relationship, the plaintiff must prove that it

has met its burden of having duly perfected title to the property.

The complaint appears deficient on the face of the pleading or

from judicially noticed matter. Hall vs. Chamberlin, (1948) 31 Cal.2d

673, 679-680. The complaint fails to state a cause of action, on its

face, as it is improperly verified by an attorney in violation of that the

C.C.P. 446.

Newly discovered facts show there was no valid foreclosure

and no evidence of duly perfected title. The plaintiff failed to appear

or present a witness with personal knowledge evidence in compliance

with CCP 2924 under CCP 1161.

Blatant identity theft of BROWN is present in the documents

for foreclosure and nullifies the alleged debt. The theft caused

plaintiff to acquire stolen property.

The trial court had no subject matter jurisdiction to make a

10
judgment. Defendant was abused by the trial court when it

underhandedly ignored Plaintiff’s objections and defenses in granting

summary judgment to Mellon. Duly perfected title could never be

proven on a bogus loan to an imposter. The trial court granted a

judgment without subject matter jurisdiction.

ISSUES PRESENTED

This appeal raises the following question: Is there a verified

complaint to give the court subject matter jurisdiction?

If there is affidavit filed with the complaint that is based on

personal information, not information and belief, only then can the

trial court address the merits of the complaint and compliance with

statutory requirements. There was no such affidavit.

On appeal, Appellant presents the following points on review:

1. The court Lacked Subject Matter Jurisdiction

2. The court Lacked a Valid Verified Complaint

3. The court was biased and prejudiced towards Brown.

4. The court failed its duty to provide equal protection.

5. The plaintiff failed to meet its burden of proof and never

appeared.
11
 Only if the trial court had subject matter jurisdiction, could

the court address the merits of the complaint and compliance

with statutory requirements and relevant questions on the

merits in light of later discovered evidence, identity theft and

Desist and Refrain Order from Department of Business

Oversight. This Court should reverse the summary judgment,

because the trial court lacked subject matter jurisdiction to

make any determination on the merits.

STATEMENT OF FACTS

On June 30, 2016, Plaintiff filed a “verified” complaint for

unlawful detainer [1 CT 57] Leslie M. Klott, Esq. executed and

attached insufficient Verification [1CT 62] based on information and

belief that renders the complaint defective. There was no affidavit

confirming why the Plaintiff is unable to verify the complaint.,

On February 27, 2017, the Answer was filed. 4 CT 997.)

On June 9, 2017.plaintff filed a motion for summary judgment.

On July 27, 2017, the judgment was filed.

On August 2, 2017, judgment was filed after court granted

summary motion. 11 CT 3199.

12
 On August 4, 2017 Brown filed her motion to set aside and

vacate the void summary judgment hearing set for August 8, 2017.

(designated but omitted from record.)

On August 24 2017 the court heard the significant changes

brought by BROWN including the cease and desist orders by

Department of Business Oversight and new evidence to consider in

the summary judgement.

The Court relies on plaintiff’s unlawful detainer

presumptions and inferences.. There was never a judicial

determination of the subject matter jurisdiction of the Mellon

complaint nor evidentiary hearing on fake fabricated documents,

identity thief and bogus loans. Forged documents filed against

appellant’s title made an illusion that MELLON had obtained an

enforceable interest in the subject property.

The integrity of Mellon’s underlying documents is in question

and is tainted “by fruit of the poisoned tree.” This is tantamount to

receiving stolen property. Appellant became victimized by the UD

system who denied her due process rights to property protection.

13
 The court prejudiced Defendant/Appellant when attempts in

litigation to protect her home property were denied.

The trial court grants judgment on a defective complaint

lacking subject matter jurisdiction and perfected title. See U.S.

Financial, L.P as trustee v. Michael McLitus, (Decision 8/29/16) San

Diego Super. Ct. Division/ Sip Opinion, 37-2015-0003586.

There was no credible evidence to support Mellon’s claims,

based upon false, forged and fabricated documents which are objected

to under the hearsay Evid. Rule § 1200.

The defective verification of the complaint was signed by

attorney Klott for Defendant/Respondent MELLON on

“INFORMATION AND BELIEF”. 1 CT 60 The defective

complaint renders the MELLON judgment void 11 CT 3205.

In Plaintiff’s UD complaint (1CT 57) relied on a Deed of Trust

that listed Cynthia L. Brown as the Borrower, Lender is Home Loan

Mortgage and Fidelity National Title as the original Trustee. (12 CT

3471 207) BROWN was never in escrow and only signed blank

documents which were fabricated into this new forged loan. See

BROWN affidavit, 12 CT 3546-3550.

14
 . The Court made inferences and presumptions but had no

admissible evidence to support the Mellon judgment. Kulshrestha v.

First Union (2004)33 Cal. 4th 501.

The trustee identified in the deed of trust was different from the

trustee that allegedly conducted the foreclosure and subsequently

issued the trustee’s deed upon sale – NDEx WEST, LLC. (12 CT

3586)

When the case came on for hearing on summary judgment

motion, defendant made a proper objection as to the different trustees

and that plaintiff had failed to prove duly perfected title. Defendant

argued that there was no evidence that the successor trustee was a

properly substituted trustee with power of sale to foreclose and

convey the property by virtue of the trustee’s deed. The trial court

entered judgment and the instant appeal followed in a circle of events.

DEFENDANT CONTENTIONS, Defendant appeals plaintiff’s

judgment because BROWN made proper objections that plaintiff

was required to prove 1) duly perfected title and 2) compliance with

Cal. Civ. Code §2924. There was an abuse of discretion because the

trial court failed to adhere to law and statute that precluded plaintiff
15
from judgment when it failed to demonstrate said proof. The ensuing

controversy was created when the trial court failed to follow the law

and denied BROWN due process rights before an impartial trial court

and jury.

The entire Mellon action needs to be set aside and dismissed

based on fatal flaw: lack of subject matter jurisdiction.

ARGUMENT

A STANDARD OF REVIEW. A trial court’s ruling on a

motion for summary judgment in an unlawful detainer action is

reviewed de novo. ABCO, LLC v. Eversley (2013) 213 Cal. App. 4 th

1092, 1098. Orders granting motions for summary judgment are

ordinarily reviewed de novo. Price v. Mellon Bank (1989) 213

Cal.App.3d 465, 474.

Here the subject matter jurisdiction was never established by a

verified complaint based upon personal knowledge, not information

and belief. As a result the Court had no jurisdiction to render a

determination on the merits. Accordingly, the judgment is invalid.

B. Summary of Issues

There is no question of illegal foreclosure sale. The plaintiff

16
even admitted that it failed to meet its burden to prove the trustee had

the power to sell the real property and issue the trustee’s deed upon

sale with its illegible Assignment of the Deed of Trust. (10 CT

2719).

However, subject matter jurisdiction can never be waived.

Plaintiff lacked a valid verified complaint. This appeal is properly

before this court, since the court lacked jurisdiction to make

determination on the merits.

Mellon failed to meet its burden of proof.

Following well established foreclosure law, this Court must

reverse Mellon’s judgment because there was no evidence to prove

duly perfected title as mandated by Code of Civil Procedure § 1161.

The court allowed a trustee’s deed upon sale to be admitted as prima

facie evidence of duly perfected title, contrary to previous holdings in

the appellate division. CCP 2924h(c), Id. Kulshrestha, BNYM v.

Preciado224 Cal.App.4th Supp. 1 (Cal. Super. Ct. 2013) .

C. Inexcusable Abuse of Discretion

.. Defendant’s due process was violated when the court abused

its discretion failing to uphold the laws put in place to avoid such
17
miscarriage of justice. The pivotal point is the lack of subject matter

jurisdiction. Courts have an independent obligation to determine

whether subject matter jurisdiction exists. The trial court acted in

excess of its jurisdiction when it was apparent that the Complaint was

verified on information and belief.

. The court determination relied upon were no longer valid due

to new evidence of discovery of the BROWN identity theft,

California Department of Business Oversight (“DBO”) Cease and

Desist Orders, invalidly executed and/or defective notarizations of

recorded title documents RT 109 ff.

The Court breached its duty of Public Trust when it refused to

inspect the records because it has a continuous duty to inspect the

record as a matter of law. The Mellon Complaint remains unverified

by a Real Party in Interest that has any personal knowledge of the

00allegations. [CT Vol 4” 874- 908, 810-933] . Lack of jurisdiction

renters other issues moot. BROWN reserves the right to address

other issues that may arise in the reply brief and/or special briefing

that may be directed by the appeal court.

THE COURT OWES DEFENDANT A DUTY

18
 The Judge owes Defendant a duty to inspect the court record

and if the court finds that the court lacks subject matter jurisdiction,

must note the deficiencies of the case and dismiss it.

The Court’s duty and obligation requires dismissal of

Plaintiff’s complaint for reason of Lack of a Valid Complaint that is

properly verified.

Proper verification of a complaint is undisputed requirement.

]California Civil Code of Procedure §1812.10. (c) states”

“(c) In any action subject to this section, concurrently with the

filing of the complaint, the plaintiff shall file an affidavit stating facts
showing that the action has been commenced in a superior court and
court location described in this section as a proper place for the trial
of the action. Those facts may be stated in a verified complaint and
shall not be stated on information or belief. When that affidavit is
filed with the complaint, a copy thereof shall be served with the
summons. If a plaintiff fails to file the affidavit or state facts in a
verified complaint required by this section, no further proceedings
may occur, but the court shall, upon its own motion or upon motion of
any party, dismiss the action without prejudice.”

HOW THE TRIAL COURT FAILED TO ESTABLISH

SUBJECT MATTER JURISDICTION

AUTHORITY: INFORMATION AND BELIEF PROVIDE NO

PROOF OF THE FACTS STATED

A ruling "of the court is to be based upon facts which may be

19
presented to it, and not upon the belief of the affiant." (Pelegrinelli v.

McCloud River etc. Co., 1 Cal. App. 593, 597 [82 P. 695].) Such

allegations on "information and belief" furnish "'no proof of the facts

stated . ...'" (Franklin v. Nat C. [88 Cal. App. 3d 205] Goldstone

Agency, 33 Cal. 2d 628, 631 Cal. 2d 628, 631; Kellett v. Kellett, 2

Cal. 2d 45, 48 [39 P.2d 203].)

Did the attorney who filed a Summons and Complaint for

Mellon and verifies the complaint for and on behalf of Mellon step

into the shoes of Mellon who never made a court appearance?

Can the court assume Subject Matter Jurisdiction when all

evidence submitted to the court by attorneys falls under the hearsay

rule? Herrera v Deutsch (5-31-11 Cal 3rd District) .App.4th 1366

(2011) 127 Cal.Rptr.3d 362, 11 Cal. Daily Op. Serv. 8030, 2011

Daily Journal D.A.R. 96311378 [bank and the trustee failed to

establish they were current beneficiary and trustee respectively and

therefore failed to show they had authority to conduct the foreclosure

sale.” U.S. Bank Nat. Assn. v. Ibnez (Mass 2011) N.AE. 2 d 40, 51.

There is no evidence that the foreclosing party is a valid

assignee of the original lender with illegible filed document. The

20
principle that only the entity currently entitled to enforce a debt may

foreclose on the mortgage or deed of trust securing that debt is not,

controversial. It is a straight forward application of well-established

commercial and real property law.

In order to foreclose on a deed of trust, one has to have the

right to enforce the debt that the mortgage secured. This appeal is a

shameful record of denial of due process rights, forgery, false

documents filed with the state Court and the County Recorder’s

office, Mellon’s lack of standing, Mellon’s lack of capacity, and the

state court accepting hearsay documents without investigation or

review.

First, the Mellon complaint [1CT 57] and attached

verification must be examined. Did the lower court have subject

matter jurisdiction due to an “attorney verification” based on

“information and belief.” 1 CT 60: 10-11

The trial court did not have jurisdiction to proceed to the merits

on the information and belief verification of the unlawful detainer

complaint. (1 CT 60) Further no evidence supports the void

judgment including the lack of subject matter jurisdiction, defective

21
verification, lack of first-hand knowledge of declarants, testifying

plaintiff attorneys, and lack of any admissible evidence to support its

rulings.

SCOPE OF VERIFICATION OF U.D.COMPLAINT.

Where the verification, or affidavit, is to be "used as evidence" of

facts, “Section 446 [Code Civ. Proc.] does not apply." (Toboni v.

Pennington Millnery Co., 172 Cal. App 2d 47, p. 52. At Heard Note

[4] Matters alleged on "information and belief" do "not serve to

establish the facts ... because an affidavit which is to be used as

evidence must be positive, direct and not based upon hearsay."

(Gutierrez v. Superior Court, 243 Cal. App. 2d 710, 725 [52 Cal.

Rptr. 592].), and that there’s no affidavit or declaration in support

thereof which states if called upon, any person or persons would

competently testify on personal knowledge, thereby establishing any

of its material allegations.

The trial court ignored case law requiring personal

knowledge and seems to infer that Mellon was not required to show

up to satisfy the cause of action even with the preliminary facts.

E IS THE COMPLAINT PROPERLY VERIFIED

22
GIVING THE UNLAWFUL DETAINER COURT SUBJECT

MATTER JURISDICTION?

CCP § 1166(a)(1) requires that an unlawful detainer complaint

be verified. The verification must substantially comply with CCP §

446(a) which subjects a person verifying a complaint to perjury

prosecution if material statements are false, and provides that”[ a

pleading is verified by the attorney, or any other person except one of

the parties, he or she shall set forth In the affidavit the reasons why it

is not made by the of the parties.” [CCP § 446(a).

Recent California appeal cases have set that standard higher.

Code of Civil Procedure § 1166(a) that in order to bring a summary

unlawful detainer action for possession after a foreclosure that the

plaintiff must have both perfected the sale and the title. Where the

judicial system does not make a critical analysis of the law, it is not

doing its duty. Judges fail their duty, so as a result the system fails.

Where there is no outside enforcement of the law and

protection of due process rights, the defendants play games and

disregard the truth under the guise of generally accepted and

23
concealed business practices. The basic transfers and assignments of

petitioner’s loan are never examined in a judiciary determination. The

DBO Cease and Desist orders [RT 109], the doctored fabricated loan

document hold the undisclosed details that are held in secret by the

“bankers”. Therefore the bank can never fail even if passing on

stolen homeowner property.

Fraudulent claims may be attacked by common law action

defense of statute of limitations. BROWN did not discover the full

nature of the terms of the trust deed until her home was foreclosed

upon. Plaintiff was the victim of identity theft, mortgage industry

fraud and Mortgage Back Securities Fraud that destroyed the

mortgagee asset with non-existent robo-signed transfers and an

unidentified investor owner of the note.

The illusion of legality is the key to the defendants’ success in

this mortgage scheme. However, plaintiff did not follow the law to

obtain subject matter jurisdiction in order to make a determination of

a judgment. Thus defendant because a victim of the judicial system.

The court did not allow the determination of the critical issues
24
faced by the plaintiff and the illegality of the foreclosure sale. The

presumption of the trustee’s deed upon sale was rebuttable. Then the

burden is on the plaintiff to prove that it has “duly perfected title.”

At no time did the plaintiff or anyone on its behalf appear in

this matter to testify to the facts. There was no verification of the

complaint by any admissible evidence in this matter. Thus the

unlawful detainer court never had subject matter jurisdiction in order

to render a judgment.

California was overwhelmed with foreclosures with the

legislature passed SB1137 in 2008 enacting Cal. Civil Code §2923.5

which requires lenders to meet and confer with borrowers before

recording a Notice of Default (“NOD”). The statute also prescribes a

declaration on the NOD that shows compliance with §2923.5. Banks

skirt the declaration requirement, or attach unsigned statements

alleging compliance or attach pseudo-declarations signed by robo-

signers who had no personal knowledge of the facts [Systematic

Perjury]–all of which happened in this case as BROWN had protected

status under the Homeowner’s Bill of Rights and as victim of identity

25
theft forgery of her name both by a third party and use of her

signature on blank documents . [RT 67]

The Court of Appeal in Mabry v Superior Court of Orange

County (4thDist. June 2, 2010) 185 Cal App/4th 208 found that a

borrower has a private right of action under § 2923.5 and is not

required to tender the full amount of the mortgage before filing suit,

sine that would defeat the purpose of the statute. The statute adds a

procedural step in the foreclosure process, but since that statute is not

substantive, it is not preempted by federal law.

However, the Mabry court found that the declaration required

by § 2923.5 does not have to be signed under penalty of perjury. It

has been investigated and discovered that Employees assigned to

handling foreclosures signed affidavits without first personally

reviewing the contents of borrower’s loan files. Thus borrowers

suffered the foreclosure of their homes based on affidavits which the

defendants had not confirmed to be accurate. Is there some

disagreement over the interpretation of C.C.§ 2923.5. Does Cal.

Civil Code § 2923.5 require a declaration under penalty of perjury

based on personal knowledge in order to begin foreclosure?

26
 1. THE STANDARD TO VOID THE JUDGMENT IS

MET IN THIS CASE ON THE FACE OF THE PLEADINGS.

Because The Unlawful Detainer Complaint Is Not Verified Under

The Laws Of California Court Of Appeals.

LEGAL AUTHORITY. The California Court of Appeals in

Star Motor Imports, Inc. v. Superior Court, 88 Cal.App.3d 201, has

already decided that a Complaint made on information and belief is

hearsay. Such allegations on “information and belief” furnish ‘no

proof of the facts stated therein.’ (See Star Motor, Inc. v. Superior

Court ibid.

The unlawful detainer court must compel compliance with the

case law that establishes the authority for where the verification, or

affidavit, is to be “used as evidence” of facts, “Section 446 [Code

Civ. Proc.] does not apply.” (Toboni v. Pennington Millnery Co.,

supra, p. 52.) [4] Matters alleged on “information and belief” do “not

… establish the facts … because an affidavit which is to be used as

evidence must ….not [be] based upon hearsay.” (Gutierrez v.

Superior Court, 243 Cal.App.2d 710, 725 [52 Cal.Rptr. 592].)

Under California Evidence Code §403, the plaintiff has the

27
burden of proof of providing evidence sufficient to meet its

preliminary fact. The evidence is inadmissible unless the court finds

evidence sufficient to meet Plaintiff’s preliminary fact. Id.

Kulstrestha.

The Complaint for Unlawful Detainer on file herein fails as it is

unverified by a Real Party In Interest with firsthand or personal

knowledge of the subject matter contained in the complaint. See Star

Motor Imports, Inc. v. Superior Court, 88 Cal.App.3d 201.

[1c] An affidavit based on “information and belief” is hearsay

and must be disregarded (Franklin v. Nat C. Goldstone Agency, 33

Cal. 2d 628, 631 [204 P.2d 37]; Moore v. Thompson, 138 Cal. 23, 26

[70 P. 930]; Judd v. Superior Court, 60 Cal. App. 3d 38, 43 [131 Cal

Rptr. 246]; Tracy v. Tracy, 213 Cal. App. 2d 359, 362 [28 Cal.Rptr.

815]), and it is “unavailing for any purpose” whatsoever (Gay v.

Torrance, 145 Cal. 144, 151 [76 P. 717]

Defendant challenges the verification of the Mellon complaint

by Leslie Klotz , Esq. executed on June 29, 2016 (1CT 60: 10-11) ,

who has no personal knowledge of the subject matter before the court

and cannot competently testify as a witness. 1 CT 60:9-10.

28
 Thus in this case at bar, the Complaint remains unverified by a

Real Party In Interest that has any personal knowledge of the

allegations. There was no witness with personal knowledge to testify

for Mellon as to its legal standing. The entire complaint falls under

the hearsay rule § 1200 et.al.

The trial court did not identify on the record the grounds on

which it had subject matter jurisdiction to make a decision on the

merits. Yet the Court granted the plaintiff’s summary Judgment, and

denied Motions to set aside the default judgment to determine

jurisdiction and hold an evidentiary hearing on the issues or dismiss

the case.

The trial court did not admit on the record any evidence to

support that both the sale and the title were perfected as required by

CCP §1161 a. ,

Absent a sale in accordance with Section 2924 of the Civil

Code and a prove up of a duly perfected title prior to the issuance of

the notice, a post-foreclosure purchaser cannot avail itself of a

summary unlawful detainer eviction proceeding. U.S. Financial L.P.

As Trustee v. Michael McLitus (8/29/2016) San Diego Super. Ct.

29
App. Decision Slip Opinion 37-2015-00035881.

Title is duly perfected when all steps have been taken to make

it perfect, i.e., to convey to the purchaser that which he has

purchased, valid and good beyond all reasonable doubt…, which

includes good record title…, but is not limited to good record title, as

between the parties to the transaction. The term ‘duly’ implies that all

of those elements necessary to a valid sale exist, else there would not

be a sale at all. Kessler v. Bridge (1958) 161 Cal.App.2d Supp. 837,

841.

The Court followed the lead of Mellon counsel unquestioning

to accept their fake, fabricated documents and continue to make its

inferences and presumptions in violation of the law for reasons that

are only understood by the isolated judicial servants and judiciary that

is isolated from ‘main stream reality’ in the cocoon of black robes.

(12 CT 3411’ 13 CT 3865 ff)

The law should be firmly rooted in the protection from the

fraud of fake, fraudulent documents that seem to grant ownership but

do not comply with the rudiments of the law. It truly is

uncomprehensive to the man on the street, why the court does not
30
follow the law. The defects in the use of the notary signature .and

fabricated documents was not admissible mistake. The failure to

require subject matter jurisdiction is a flagrant flaw that renders the

Mellon judgment void.

Based on the facts and law before this court, defendant’s due

process rights were violated and a VOID judgment and writ of

possession were wrongfully issued and must be vacated due to lack of

subject matter jurisdiction and violation of the law and the case must

be dismissed. A judgment based on incorrect or erroneous legal

basis, which is inconsistent or not supported by the facts, must be set

aside or vacated in the interest of justice and fairness to follow the

law.

California courts have the right and obligation to deter

fraudulent claims from proceeding in court by dismissing an entire

action with prejudice. The court has a duty to investigate when a

plaintiff lies about matters which go to the heart of the claim, or

where fabrications undermine the integrity of the entire action.

The court has the inherent authority, in the exercise of its sound

judicial discretion, to dismiss an action where the plaintiff has

31
perpetrated a fraud on the court, and where the misconducts of other

party(s) has affected the entire proceeding based on illegal forgery

and misuse of BROWN’S signature on the initial Deed of Trust.

Contrary to the Supreme Law of the Land and in direct violation of

the guaranteed Rights of Cynthia L. Brown, Mellon has acted

unlawfully and in bad faith by proceeding with a fraudulent claim

before this court with no supporting evidence.

Here, the court has major jurisdictional problems concerning

this summary proceedings. Subject matter jurisdiction is never

waived.

The Complaint filed in this matter is unverified and the

alleged facts stated therein are hearsay. Attached to the Complaint is

a Verification page signed by attorney Klott on information and

belief. ( 1 CT 60: 10-11):

“I am the attorney for The Bank of New York Mellon

….Plaintiff in this action.
Plaintiff is absent from the County of Orange, where my office
are located and I make this verification for and on behalf Plaintiff for
that reason.
I have read the pleading and I am informed and believe the
matters contained herein are true and on that ground allege the
matters stated are true, and on that ground allege that the matters
stated in it are true.
32
 Executed on June 29, 2016.”
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.”
[Signed by attorney Leslie M. Klott, Esq.]

There is overwhelming case law that says that an attorney has

to file an affidavit specifically describing the inability of the client to

sign the verification, and the verification that Leslie M. Klott, Esq.

filed is not sufficient as a matter of law.

Lack of jurisdiction in its strict sense means an entire absence

of power to hear or determine a case, an absence of authority over the

subject matter [Abelleira v. District Court of Appeal (1941) 17 Cal.2d

280, 287-288, 109 P.2d 942; Schwenke v. J&P SCOTT, INC. (1988)

205 Cal.App.3D 71, 76, 252 Cal. Rptr. 91].

The judgment of a court lacking jurisdiction over the subject

matter is void [see Kulko v. California Superior Court (1978) 436

U.S. 84, 91, 98 S. Ct. 1690, 56 L. Ed. 2d 132, 141; Hanson v.

Denckla (1958) 357 U.S. 235, 250, 78 S. Ct. 1228, 2 L. Ed. 2d 1383;

County of Ventura v. Tillett (1982) 133 Cal.App.3d 105, 110, 183

Cal. Rptr. 741, cert. denied, 460 U.S. 1051 (1983) (disapproved on

another point in County of Orange v. Soto (1984) 35 Cal.3d 483, 492

33
n.4, 198 Cal. Rptr. 779, 674 P.2d 750)].

2. INFORMATION AND BELIEF PROVIDE NO

PROOF OF THE FACTS STATED. Again the law is specific as

noted above and repeated as follows:

“A ruling of the court is to be based upon facts which may be

presented to it, and not upon the belief of the affiant.” (Pelegrinelli v.

McCloud River etc. Co., 1 Cal. App 593, 597 [82 P. 695]).) Such

allegations on “information and belief” furnish ‘no proof of the facts

stated…” (Franklin v. Nat C. [88 Cal. App. 3d 205] Goldstone

Agency, supra, 33 Cal. 2d 628, 631 Cal. 2d 628, 631; Kellett v.

Kellett, 2 Cal. 2d 45, 48 [39 P.2d 203].)

3. STANDARD IS SET UNDER A. E.

KELLIHER, Respondent, v. BESSIE L. KELLIHER, Appellant.

A question of fact was thereby presented and it therefore was error for

the trial court to grant plaintiff's motion for summary judgment. See

Higgins v. Coyne, 75 Cal.App.2d pages 74–75, 170 P.2d 25 Applying

the rule as stated in the Coyne case to the situation presented herein,

it becomes apparent the affidavits of plaintiff are insufficient. The

record shows that his action was instituted under the provisions of
34
Section 1161a, Subdivision 4, of the Code of Civil Procedure, which

provides that a person in possession of real property may be removed

“Where the property has been duly sold by him, or a person under

whom he claims, and the title under the sale has been duly perfected.”

4. DEFICIENCY OF COMPLAINT IS ON ITS

FACE. On its face an examination of Leslie Klott’s verification

affidavit has disclosed no averment of fact relative to a sale of the

premises by foreclosure as alleged in this complaint. The affidavit is

insufficient as that matter was not within plaintiff’s counsel’s

personal knowledge and she could not give competent testimony

thereon. Gardenswartz v. Equitable Life Assur. Soc.(1937) 23

Cal.App 2d Supp. 750.

It is reiterated that where the verification, or affidavit, is to be

"used as evidence" of facts, " Section 446 [Code Civ. Proc.] does not

apply." (Toboni v. Pennington Millnery Co., supra, p. 52.) At Heard

Note [4] Matters alleged on "information and belief" do "not serve to

establish the facts ... because an affidavit which is to be used as

evidence must be positive, direct and not based upon hearsay."

(Gutierrez v. Superior Court, 243 Cal. App. 2d 710, 725 [52 Cal.
35
Rptr. 592].), and that there’s no affidavit or declaration in support

thereof which states if called upon, any person or persons would

competently testify on personal knowledge, thereby establishing any

of its material allegations. The plaintiff’s motion for summary

judgment cannot justify the fraudulent summary judgment without

any evidence to support it. [8 CT 2352-2372]

JUDICIAL NOTICE OF ADMISSIBILITY OF

EVIDENCE

“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 matters stated

therein. (Love v. Wolf (1964) 226 Cal.App.2d 378, 403.) “When

judicial notice is taken of a document, …the truthfulness and proper

interpretation of the document are disputable.” (StorMedia, Inc. v.

Superior Court (1999) 20 Cal.4th 449, 457, fn. 9 (StorMedia).)

This court must take judicial notice of Star Motor Imports, Inc.

V. Superior Court (1979), 88 Cal. App. 3d, 201, citing Judd v.

36
Superior Court (1976), 60 Cal. App. 3d, 38 for the issue of affidavits

or declarations made upon information and belief. The “Judd” court

cites the following decisions that all hold that affidavits or

declarations made upon information and belief as to the facts

purporting to be stated therein are hearsay and must be disregarded.

Franklin v. Nat C. Goldstone Agency (1949), 33 Cal. 2d, 628, 631,

Sheard v. Superior Court (1974), 40 Cal.App.3d, 207, 212 and

Gutierrez v. Superior Court (1966), 243 Cal. App. 2d, 710,725.

This court must look beyond biased inferences and

presumptions that are clearly invalid on their face and lack

evidentiary supporting foundation under California law. Judicial

notice of a trustee’s deed upon sale is insufficient evidence.

Without a proper verified complaint and a competent witness

who can testify to the allegations in the complaint, the unlawful

detainer court lacks subject matter jurisdiction. . The state court judge

erred in granting a summary judgment to the appellant BROWN’s

complaint .because the complaint is defectively verified.

Compliance With CCP §1161 is a Mandatory Prerequisite .

In an action for unlawful detainer, section 1161a therefore

37
necessarily requires proof that the property was "duly sold in

accordance with Section 2924 of the Civil Code," and that "the title

under the sale has been duly perfected." Under such unlawful

detainer statutes it has been held that title, to the extent required by

section 1161a, "not only may, but must, be tried in such actions if the

provisions of the statutes extending the remedy beyond the cases [55

Cal.App.2d 921] where the conventional relation of landlord and

tenant exists are not to be judicially nullified." (Nineteenth Realty Co.

v. Diggs, 134 Cal. App. 278, 289 [25 P.2d 522]; Mortgage Guarantee

Co. v. Smith, 9 Cal.App.2d 618 [50 P.2d 835].)

A plaintiff in an unlawful detainer action under Code of Civil

Procedure section 1161a who has purchased property at a trustee's

sale and seeks to evict the occupant in possession "must show that he

acquired the property at a regularly conducted sale and thereafter

`duly perfected' his title. ([former] § 1161a, subd. 3.)" (Vella v.

Hudgins (1977) 20 Cal.3d 251, 255 (Vella).) Thus, " Here, there is

no evidence of duly perfected title.

In Bank of New York Mellon v. Preciado, 224 Cal.App.4th

Supp. 1 ( 2013) (Preciado), the Appellate Division held that the

38
plaintiff did not present any evidence that ReconTrust, the trustee that

conducted the foreclosure, had any authority to foreclose.

ReconTrust was not the original trustee on the deed of trust. The

trial court erroneously stated, “They have a deed showing that they

own the property, and that’s all they need to do.” The trial court erred

when it found that the trustee’s deed upon sale was sufficient proof

that Bank acquired the property at a regularly conducted sale and

thereafter “duly perfected” its title. The TDUS was recorded 49 days

after foreclosure sale on 11/02/2016. 12 CT 3353.

The Preciado case is compelling because 1) it does not conflict

with any other appellate decision in the district, and 2) the decision

was well-reasoned and heavily weighed the statute’s compliance with

fortitude as thorough analysis and compelling logic were utilized.

Here, plaintiff and the trial court relied on none of the prescribed

statutory means to arrive at the judgment, directly on point with

Preciado’s basis for reversal. Thus, it follows that the presumption

which is the sole basis of the trial court’s findings and judgment

never came into play.

5. Plaintiff Did Not Prove Duly Perfected Title

39
 It is an undisputed fact that the trustee named in the deed of

trust (Fidelity National Title) is different from that trustee (NDEx

West, LLC) that caused to sell the property and issued the trustee’s

deed upon sale. [1 CT 62] Defendant raised this issue at trial by virtue

of her answer. Motions including the motions to vacate the judgment

and the Declarations of CYNTHIA L. BROWN [12 CT 3443]. Under

law and statute, the trial court was then required to demand plaintiff

to prove, among other things, that the sale was done in compliance

with California statutory requirements.

There is no preponderance of evidence in the record that the

sale of the property was conducted in compliance with Civil Code

§2924. In order to prove compliance with section 2924, the plaintiff

must necessarily prove the sale was conducted by a properly installed

trustee. Unless and until the Plaintiff has duly perfected title, an

unlawful detainer action for possession is not yet ripe for

determination. (Stonehouse Homes v. City of Sierra Madre (2008)

167 Cal.App.4th 531, 540-541.)

Title is duly perfected when all steps have been taken to make

it perfect. The term ‘duly’ implies that all of those elements necessary
40
to a valid sale exist, else there would not be a sale at all. (Kessler v.

Bridge (1958) 161 Cal.App.2d Supp. 837, 841

Here, the trustee’s deed upon sale indicates the property was

sold by NDEx West LLC as trustee. However, the deed of trust

identifies Fidelity National Title Company as the trustee. Plaintiff did

not provide any evidence to establish NDEx West, LLC’s authority to

conduct the trustee’s sale.

Plaintiff was not entitled to judgment on merits nor to enforce

any writ of execution.

A Recorded Trustee’s Deed Upon Sale is Not Prima Facie

Evidence of Duly Perfected Title

Mellon’s summary judgment motion argued that the trustee’s

deed upon sale was prima facie evidence of duly perfected title,

contrary to the trial court’s contention. Notably, unlawful detainer

judgment was reversed in Mellon Bank, N.A. v. Detelder-Collins, No.

APP100000325 (ORANGE Super. Ct. App. Div. Mar. 28, 2012)

because the plaintiff failed to provide substitution of trustee to show

that the trustee had authority to conduct the sale. It is axiomatic that

the trial court had a duty to BROWN especially in light of the

41
attending circumstances. (Wood v. Herson (1974) 39 Cal.App.3d

737, 743.)

Therefore, the court abused its discretion and erred when it

found that the trustee’s deed upon sale was sufficient to establish duly

perfected title when established law actually dictates that the trustee’s

deed upon sale is not prima facie evidence of such.

More compellingly the newly discovered evidence of forgery

of BROWN signatures is overwhelming evidence of forgery in her

deeds of trust. As imposters and forgery nullifies the transactions, the

deeds of trust were invalid . [RT 59-65] This is a violation of due

process of the law.

CONCLUSION

Without a proper verified complaint and a competent witness

who can testify, to the allegations in the complaint, the court lacked

subject matter jurisdiction. Therefore, the trial court summary

judgment is void ( 11 CT 3199; 1 CT 57 - 60:10-11]

Based on the foregoing legal and factual analysis, the matter

42
must be dismissed as a matter of law based on defective verification

and lack of subject matter jurisdiction

Dated: March 28, 2018 Respectfully Submitted,

___________________________

CYNTHIA L. BROWN
Defendant/Appellant in Pro Per

CERTIFICATION OF COMPLIANCE

Appellants in Pro Per certify in accordance with California

Rules of Court, rule 8.204(c) that this brief contains 6581 words as

calculated by the Microsoft Word software in which it was written.

I certify under penalty of perjury under the laws of the State of

California that the foregoing is true and correct.

Executed at Orange, California, this 28h day of March, 2018.

___________________________
CYNTHIA L. BROWN
Defendant / Appellant in Pro Per

43
 PROOF OF SERVICE

I am over 18 years of age and not a party to this action. I am a

resident of the county where the mailing described herein took place.
My address is 19142Beach Blvd. , Huntington Beach CA 92648.

On March 28. 2018, I sent from Orange, California, the

following documents:

APPELLANTS’ OPENING BRIEF

I served the document by enclosing copies in envelopes and

depositing the sealed envelopes with United Postal Service in one of

its regularly maintained drop-boxes, prior to the last pick-up from that

box on the day of deposit, using United Postal Service with delivery

charges fully prepaid in the ordinary course of business. The

envelopes were addressed and sent as follows: SEE SERVICE

LIST ATTACHED.

I declare under penalty of perjury under the laws of the State of

California that the foregoing is true and correct.
Executed on March 28, 2018, at Orange, California
______________________________

Declarant Sheri Moody

44
 SERVICE LIST:

Appellant Division
Superior Court of California
County of Orange
700 Civic Center Drive West
Santa Ana CA 92701 [Hand delivery] Original filed, plus 3 copies

Superior Court of California, Orange County

Hon. Judge Timothy J. Stafford, Dept C66
700 Civic Center Drive West
Santa Ana, CA 92701 Via U.S. Mail

THE RYAN FIRM

30 Corporate Park Suite
21860 Burbank Blvd., Suite 310
Irvine, CA 92606 Via U.S. Mail

45