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URGENT! HBOR MUST TAKE ACTION TO PROTECT HOMEOWNERS NOW!!

March 24, 2014

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Question: Will HBOR START working NOW with legislators to get UD ltd jurisdiction CCP procedural codes REVISED NOW!!! THIS IS DESPERATELY NEEDED?

1.) UD limited jurisdiction cases fall under LIMITED JURISDICTION procedural rules see 1161 et seq. AND also CCP 86

Under these LTD JUR procedural rules, judges DO NOT ALLOW challenges to TITLE on UD cases (nor do they allow CROSS-CLAIMS)

This is because UD was/is intended by our legislature to provide a "SUMMARY" procedure for an owner/landlord to get his property back QUICKLY when the tenant is not paying RENT)

2.) Then when homeowner tries to challenge post-UD they are SHUT-OUT due to "res judicata" THIS IS TOTALLY UNFAIR AND VIOLATES DUE PROCESS
YOU CAN NOT HAVE A PROCEDURAL UD SCHEME WHICH PRECLUDES CHALLENGING TITLE ISSUES OR CROSS CLAIMS affording NO WAY TO CHALLENGE Title.

These CODES MUST BE REVISED NOW BY THE LEGISLATURE!!!! what does HBOR intend to do about this BLATANT violation of DUE PROCESS?

SECONDLY, YOU SHOULD BE ADVISING EVERY HOMEOWNER, WHOSE HOME IS FORECLOSED BY THE SERVICER OR BANK, AND servicer or BANK FILES A UD CASE

THEY MUST file a DEMURRER CCP 430 to UD (which is put on calendar on 35 days notice if sent by mail) as there is no privity of contract (BANK IS NOT THEIR LANDLORD!)

THUS CCP 1161 DOES NOT APPLY AND CANNOT APPLY TO THIS HOMEOWNER BECAUSE HE/SHE IS NOT A TENANT, THE BANK IS NOT HIS LANDLORD!!!
YOU CAN NOT USE A CCP PROVISIONAL REMEDY THAT DOES NOT APPLY TO THE PARTY BEING SUED. IT IS THAT SIMPLE!!!!

1161. A tenant of real property, for a term less than life, or the

Executor or administrator of his or her estate heretofore qualified and now acting or hereafter to be qualified and act, is guilty of unlawful detainer:

1. When he or she continues in possession, in person or by subtenant, of the property, or any part thereof, after the expiration of the term for which it is let to him or her;

AT THE SAME THE DEMURRER IS FILED HOMEOWNER SHOULD BE FILING motion to TRANSFER JURISDICTION TO UNLIMITED WHERE CHALLENGES TO TITLE CAN BE HEARD!

CCP 396b
(a) Except as otherwise provided in Section 396a, if an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, demurring, or moving to strike and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of those papers. Upon the hearing of the motion the court shall, if it appears that the action or proceeding was not commenced in the proper court, order the action or proceeding transferred to the proper court.

(b) In its discretion, the court may order the payment to the prevailing party of reasonable expenses and attorney's fees incurred in making or resisting the motion to transfer whether or not that party is otherwise entitled to recover his or her costs of action. In determining whether that order for expenses and fees shall be made, the court shall take into consideration (1) whether an offer to stipulate to change of venue was reasonably made and rejected, and (2) whether the motion or selection of venue was made in good faith given the facts and law the party making the motion or selecting the venue knew or should have known. As between the party and his or her attorney, those expenses and fees shall be the personal liability of the attorney not chargeable to the party. Sanctions shall not be imposed pursuant to this subdivision except on notice contained in a party's papers, or on the court's own noticed motion, and after opportunity to be heard.

(c) The court in a proceeding for dissolution of marriage or legal separation or under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12 of the Family Code) may, prior to the determination of the motion to transfer, consider and determine motions for allowance of temporary spousal support, support of children, and counsel fees and costs, and motions to determine custody of and visitation with children, and may make all necessary and proper orders in connection therewith.

(d) In any case, if an answer is filed, the court may consider opposition to the motion to transfer, if any, and may retain the action in the county where commenced if it appears that the convenience of the witnesses or the ends of justice will thereby be promoted.
(e) If the motion to transfer is denied, the court shall allow the defendant time to move to strike, demur, or otherwise plead if the defendant has not previously filed a response.

See more here.

I argued this two years ago! See attached pleadings for the points & authorities on DEMURRER, MOT STRIKE, MOT QUASH, and MOTION TO TRANSFER.

when Judge Schneider denied these, I filed writ. writ was denied, Judge Schneider voluntarily recused himself (his decisions were so bad) and they transferred him to Fontana to do nothing but small claims cases now, and a few UD cases. Later, when our MSJ was denied, I filed a writ on that also (see attached) which writ was granted. see ruling. we PREVAILED
ultimately but it was uphill battle and still going on....

It is a little different as it is mobile home---not regular home, but concepts is same. YOU CANNOT USE PROVISIONAL UD REMEDIES WHERE THEY DO NOT APPLY TO the PARTY you SUED!

This is exactly what appellate division held. SEE ORDER AND WRIT MANDATE. you cannot serve a 3 or 5 day notice on a party where there is no PRIVITY because you are not her LANDLORD!
nor can you evict a PARTY WHO IS NOT YOUR TENANT! UD is for LANDLORD/TENANT contracts only.

PLUS. Ltd Jurisdiciton CCP 86 is only $10,000. THERE IS NO HOME IN CA WORTH LESS THAN $10,000 In UD landlord PRAYS for possession of property! Obviously if he is PRAYING FOR
POSSESSION OF PROPERTY THE JURISDICITION CAN NOT POSSIBLY BE LEGALLY PERMITTED BY CODE WHERE THE VALUE OF THE PROPERTY EXCEEDS $10,000

Read my arguments and P&A in the MOTION TO TRANSFER!!! actually they did transfer our case to the higher jurisdiction, where title issues could be litigated.

THIS MATTER NEEDS HBOR'S IMMEDIATE ATTENTION

 

------------------------------------
Nancy Duffy McCarron, CBN 164780
Attorney, Real Estate Broker, BBB Arbitrator, CA Notary Public
Certified Forensic Loan Auditor, Property Manager

 

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