-- motion to vacate ud -
TRANSCRIPT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Carlos Aguirre38587 154th Street EastPalmdale, California 93591(661) 414-2866 Cell(661) 367-5252 [email protected] Pro Se
Superior Court of California, County of Los Angeles
North Valley District, Santa Clarita Courthouse - LIMITED CIVIL
WELLS FARGO BANK, NA, Successor by Merger with Wachovia Mortgage, FSB (formerly World Savings Bank, FSB)
Plaintiff,
v.
Carlos Aguirre,
Defendant.
CASE NO: 10U01341
DEFENDANT’S NOTICE AND MOTION TO SET-ASIDEAND VACATE AN UNLAWFUL DETAINER JUDGEMENT AS VOID FOR A FRAUD UPON THE COURT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF CARLOS AGUIRRE.
HEARING DATE:
TIME:
ROOM:
NOTICE AND MOTION
The undersigned Carlos Aguirre (hereinafter,“Defendant”) under penalty of perjury,
whom within his knowledge, information and belief, respectfully submits his:
DEFENDANT’S NOTICE AND MOTION TO SET-ASIDE AND VACATE AN UNLAWFUL
DETAINER JUDGEMENT AS VOID FOR FRAUD UPON THE COURT.
1
DEFENDANT’S NOTICE AND MOTION TO SET-ASIDE AND VACATE AN UNLAWFUL DETAINER JUDGEMENT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Plaintiff is proceeding pro se. Therefore, this Court must construe this claim
liberally and hold it to a less stringent standard than the Court would apply to a
pleading drafted by a lawyer. Please see: Platsky v. Central Intelligence Agency,
953 F.2d 26 (2nd Cir. 1991)---Deciding that:
In order to justify the dismissal of a pro se complaint, it must be " 'beyond
doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.' " Haines v. Kerner, 404 U.S. at 521, 92
S.Ct. at 594 (quoting Conley v. Gibson, 355 U.S. 41 , 45-46, 78 S.Ct. 99,
102, 2 L.Ed.2d 80 (1957)).
DATED: July 13, 2012 Respectfully submitted
By: Carlos Aguirre______________UCC 1-308 Attorney In Pro Se
///
///
///
///
///
///
///
///
2
DEFENDANT’S NOTICE AND MOTION TO SET-ASIDE AND VACATE AN UNLAWFUL DETAINER JUDGEMENT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
///
MEMORANDUM OF POINTS & AUTHORITIESIN SUPPORT OF MOTION TO SET-ASIDE AND VACATE AN
UNLAWFUL DETAINER JUDGEMENT1. The superior court, as a court of record and general jurisdiction, is
presumed to have jurisdiction over a particular cause. It is not necessary to plead
affirmatively the facts showing jurisdiction. (See Schwartz, Inc., v. Burnett
Pharmacy, 112 Cal.App. Supp. 781 [295 P. 508];Ashton v. Heydenfeldt, 124 Cal.
14 [56 P. 624].)
2. Defendant in this case--brings newly discovered evidence.
“The court is authorized to permit production of newly discovered evidence if its nature makes a different judgment probable.” [Ulwelling v. Crown Coach Corp., 1962]
3. Federal Rule of Civil Procedure 17(a)(1) which requires that “[a]n action
must be prosecuted in the name of the real party in interest.” See also, In re
Jacobson , 402 B.R. 359, 365-66 (Bankr.W.D. Wash. 2009); In re Hwang, 396
B.R. 757, 766-67 (Bankr. C.D. Cal. 2008).
Whereas, here, Wells Fargo Bank, NA. was not the real party in interest.
4. Carlos Aguirre, requests that this Honorable Court sets-aside and vacates
this void judgment, CASE # 10U01341[see: Exhibit “B”] due to:
a) Wells Fargo Bank, NA. was not the foreclosing beneficiary [see: Exhibit “A”]
b) Court lacked subject matter jurisdiction over case because the wrong party
initiated the foreclosure.
c) Wells Fargo Bank, NA. perpetrated fraud upon the Court by initiating an
unlawful detainer without right to do so and was not a Real Party in Interest.
d) The purported purchaser [Wells Fargo] is not a Bona Fide purchaser.
e) Title was never perfected due to fraud.
f) Wells Fargo lacked standing to foreclose.
g) The sale was not in compliance with CC §2924.
3
DEFENDANT’S NOTICE AND MOTION TO SET-ASIDE AND VACATE AN UNLAWFUL DETAINER JUDGEMENT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
[“The plaintiff-purchaser need prove only that the sale was in compliance with CC §2924 and that he or she has thereafter duly perfected title. Stephens, Partain & Cunningham v Hollis (1987) 196 CA3d 948, 952, 242 CR 251”].
5. Carlos Aguirre would like the opportunity to have this issue decided with
the court’s assistance.
WHEREFORE, Carlos Aguirre prays that this honorable court
sets-aside and vacates the unlawful detainer judgment as void.
DATED: July 13, 2012 Respectfully submitted
By: Carlos Aguirre______________UCC 1-308 Attorney In Pro Se
4
DEFENDANT’S NOTICE AND MOTION TO SET-ASIDE AND VACATE AN UNLAWFUL DETAINER JUDGEMENT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
DEFENDANT’S NOTICE AND MOTION TO SET-ASIDE AND VACATE AN UNLAWFUL DETAINER JUDGEMENT