+ |l RECORD: Defendant BUAN KHOJASTEH, hereby answers the complaint of WELLS ENDORSED FILED Timothy L, McCandless, Esq. SBN 147715 SEP 12 20H LAW OFEICES OF TIMOTHY L. MCCANDLESS. 20 Main Street, Suite #L SUPERIOR COURT OF CALIFORNIA Martinez, California 94553 ‘oUNTY CF SOHC 9191 Telephone S99 Facsimile ‘Attorney for Defendant(s: Bijan Khojasteh SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SONOMA BALL OF JUSTICE - CIVIL AND SMALL CLAIMS DIVISION WELLS FARGO BANK, NA, Case No: MCV 219067 Phat). DEFENDANTS BIAN KHOJASTEH. ‘ANSWER TO UNLAWFUL DETAINER - COMPLAINT; VERIFICATION, pug RHOHAS TE an DOES 10, UD Complaint Filed: August 26, 2011 inclusive, Defendene(s) | Santa Rosa, California 95404 ‘TO THE COURT, ALL PARTIES HEREIN, AND THEIR ATTORNEYS OF PARGO BANK, N.A. and admits, denies and alleges as follows 1. Defendant admits the allegations of paragraph “1” ofthe Complaint 2, Defendant is without information and bei sulicent Yo permit an answer to the allegations of paragraph "2" ofthe Complain, and accordingly denies said Jo | DEFENDANT'S ANSWER TO UNLAWFUL DETAINER COMPLAINT2 a allegations on lack of information and belief. 3. Defendant is without information and belief sufficient to permit an answer tothe allegations of paragraph Complaint and asordingy denies said allegations on tack of information and belie 4. Defendast denies the allegations of paragraph “4” ofthe Complaint 5, Defendant admits and denies the allegations of paragraph", a flows: Defendant admits thatthe Subject Property has been publicly sold on or about uly 6 2011 and thatthe Plaintiff perfected title in its name as alleged, but denies thatthe recording is valid, most importantly, Del fenies, on information the sale was eld in accordance with California Civil Code Section 2924 et. seq Defendant alleges that this Trustee's Deed resulted from the wrongfully conducted “Trustee Sale of Defendant's Property. Since the underlying sale was unlawful, this ‘Trustee's Deed is INVALID and VOID. 6. Defendant denies the allegation of paragraph “6”, for the same reasons set forth in his response to the Complaint’s paragraph “5”. 7. Defendant denies the allegations of paragraph “?", He denies on lack of information and belief that the constructive service was valid, because the process server did not perform due ditigence in actual service, before commencing attempted constructive service. 8. Defendants admit and deny the allegations of paragraph “8”, as follows: Defendant admits that he is still in possession of the property and continue to occupy the property, but denies thet he need Plaintiff's permission or consent for the seme DEFENDANT'S ANSWER TO UNLAWFUL DETAINER COMPLAINT‘reasons set forth in his response to the Complaint’s paragraph “5”. AFFIRMATIVE DEFENSES “The Complaint fails to state facts sufficient to state a claim against answering, Defendant SECOND AFFIRMATIVE DEFENSE WAIVER ‘The claim being advanced by Plaintiff is barred by virtue of the Plaintiff's acts and/or ot limited to, attempting to enforce a non- omissions that amount o a waiver, ine negotiable promissory note by means o extrajudicial foreclosure sale. ‘This answering Defendant is informed and PlainiifFhas engaged in certain conduct and. conduct is estopped from asserting any claims for damages oF possession of the property agains this answering Defendant. Plains hough under a duty 0d so, as fied and nepected to mitigate its dams} and therefore cannot recover damages against this answering Defendant, whether as alleged or otherwise. a 12 ‘DEFENDANT'S ANSWER TO UNLAWFUL DETAINER COMPLAINTFIFTH AFFIRMATIVE DEFENSE ‘STATUTE OF FRAUDS “The present action is barred by application of the Statute of Frauds because the atleged trustee” that conducted the extrajudicial foreclosure sale of the Defendant's property conducted the sale without its supposed beneficiary having the ownership interes i the alleged promissory note which was executed by Defendant “The present action is barred by application of the applicable statute of limitations 11 |} namely Code of Civil Procedure §318, The Plaintiff has not been seized or possessed the property in question within five years before the commencement of this proceeding, na 1 tue predecessor in interes that has been so seized ot possessed ofthe property in ‘SEVENTH AFFIRMATIVE DEFENSE INCLEAN HANDS ry By virtue of Plaintif’s conduct, Plaintiff is barred from recovery in this proceeding by + lene doctrine of unclean hands. ‘EIGHTH AFFIRMATIVE DEFENSE a PLAINTIFE’S LACK OF STANDING “The Plaintiff does not have standing to sue, because the Plaintiff's standing is based upon a false tile, which results from an invalid Trustee's Deed upon Sale, which in turn 25 || resulted from enforcement of a promissory note that was not negotiable pursuant to California} 2€ || Commercial Code §3203 et seq, The Defendant in a Section 1161a unlawful detainer is on ‘DEFENDANT'S ANSWER TO UNLAWFUL DETAINER COMPLAINTwas duly perfected. (Crummst , Whitshead (1968) 2 purchase at such sale and the defendant may raise objections on that phase of the isue of tle, (Cheney v, Trauzette (1937) 9 Cal.24 158, 159-160] NINTH AFFIRMATIVE DEFENSE PLAINTIFF LACKS TITLE ‘The Unlawful Detainer Complaint filed by WELLS FARGO BANK, NA. states that te Plaintiff obtained the right to possession by a Trustee's sale and that title was perfected and recorded on July 6, 2011 [UD Complaint, paragraph “5"]. A purchaser of the property as described inthe statute, who starts an Unlaveful Detainer proceeding to eviet an cocupant in ust show that he or she acquired the property at a regularly conducted sale and fected” the ttle [CCP § 11612; Vella v. Hudgins (1977) 20 572 P2d 28 |. To this limited extent, as provided by the statute, tt lawful Detainer proceeding [Cheney v. Trouzettel (1937) 9 C2d I CCP § 1161 in general states: Title is“duly perfected” when all steps have been taken to make it perfect, thats, © sa DEFENDANT'S ANSWER TO UNLAWFUL DETAINER COMPLAINTconvey to purchaser that which he has purchased, valid and good beyond all reasonable doubt Keiser v. Bridge (1958, Cal App Dep't Super 1958 Cal App LEXIS 1814. The purpose of CC holding ove after a notice to quits fo make clear hat one acquiring ownership of eal property throvgh foreclosure can evict by a summary procedure. The policy behind the statue is to provide a summary method of ouster where an oocupant holds over possession after sale the property. Gross v. Superior Court (1985, Cal App Ist Dist) 71 Cal App 34265, 217 cal Rper284, 1985 Cal App LEXIS 2408 “Tile as not been perfected in Plaintiff since the il tothe Property was not conveyed so Plant under the power of sale contained inthe Deed of Trust anor was not conveyed in compliance with California Civil Code Section 2924. sitle “TENTH AFFIRMATIVE DEFENSE (NOTICE TO VACATE IS INVALID) “This answering Defendant alleges that the notice to vacate is invalid because itis based upon an invalid non-judicial foreclosure sale, which was conducted in violation of California Civil Code §2924 et sq ‘This answering Defendant alleges thatthe promissory note which was executed by Defendant was not validly assumed and that any subsequent holder of said note was not & holder in due course. po DEFENDANT'S ANSWER TO UNLAWFUL DETAINER COMPLAINT” llaction for posession pursuant fo California Code of Civil Procedure seq ‘BOURTEENTH AFFIRMATIVE DEFENSE yLATION OF BUSI Hi I SECTION 17200 TWELFTH ABDIRMATIVE DETESSE, LAC “T MATTER JURISDICTION ‘As an Eleventh Affirmative Defense, Defendant alloges that the above-captioned case was improperly brought in the Limited Jurisdiction court, because the proceeding necessarily involves an issue of ttle to property whase value isin excess of $25,000. “TEENTH AFFIRMATIVE DEFENSE “This answering Defendant alleges thatthe non-juical foreclosure executed against Defendants property i void due to violations of Civil Code Section 2924 sq, inluding ut not ited to the fet thatthe trustee was not a holerin due cours, did aot have the power of sale, the promissory note was no recorded wien it was assigned and te Loan was | paid-off tothe foreclosing party. The Plaintiff did not comply with §2923. 14 §2923.6 of the Civil Code therefore the sale conducted there under was VOID as a matter of law. Plaintiff cannot prove that the non-judicial foreclosure which occurred, strictly complied with the tenets of California Civil Code §§2923 5 and 2924 in order to maintain an California Business & Professions Code Section 17200 et seq., prohibits acts of unfair competition, which means and includes any “fraudulent business actor practice." and deceive” and is “fraudulent” within the meaning of Section 17200. scribed above, Plaintiff's and all named entities in Defendant's answet to the Unlawful Detainer complaint, acts and practices are likely to decerve, constituting a a DEFENDANT'S ANSHER TO UNLAWFUL DETAINER COMPLAINTis ongoing and continues to this date as fully ae orth above, Plint ft has engaged in deceptive business practices with spect to morigage loan servicing, assignments of notes. and deeds of ust, orslosure of residential properties. n this case specifically, the onset of the lending contrac down tothe foreclosure and preceding Unlawful Detainer, The foregoing acts and practices 7 |Vnave caused substantial harm to California consumers. . AFF! \TIV] "ENSE : a AA ” ‘Defendant hereby reserves all defenses unknown at the time of filing this response, " an 2 ect ante aera Dta stipulate to a Commissioner. ] WHEREFORE, answering Defendant prays ” 4. Tha Pain ake nothing; That Plitif be denied possession ofthe subject property: Fora determination tht Plait tei invalid, due to an improper proces of foreclosure by the Trustee; 4. Fora determination that Plaintif's title is invalid, de ta lack of valid mnership of the note and related trast deed from the original ending beneficiary; and ©. For costs. 2 "DEFENDANT'S ANSWER TO UNLAWFUL DETAINER COMPLAINTRespectfully submitted, DATED: September 30, 2011 MCCANDLESS fothy L. McCandless, Esa. ‘Attomey for Defendant(s): Bijan Khojasteh eu "DEFENDANT'S ANSWER TO UNLAWFUL DETAINER COMPLAINTVERIFICATION |. TIMOTHY L. MCCANDLESS, am an atomey a iw admitted to practice before > Fa courts ofthe State of Califormia and have my office in Contra Cosia County, California, “and amsnybr eDefedet nasi nal ose fe Dent « |Jis unsble to make the verification because she is absent from said County and fo that reason affant makes this verification on the Defendant's behalf; that I have read the foregoing, document and know its contents. I am informed and believe and on that ground allege that so |] mates stated herein ace tue a Executed: September 30%, 2011, et Mariner, California I dectare under penalty of perjury that under the laws of the Staie of California thatthe Foregoing is true and correct “ DATED: September 30, 2011 LL "Tumothy L. McCandless, Esq post DEFENDANT'S ANSWER TO UNLAWFUL DETAINER COMPLAINTPROOF OF SERVICE, 1, Bernie Kimmerle dectare of the United States and I am employed in the County ofRiverside, fam over the age of 18 years and not a party to this action; my business gency Ranch Road, Riverside, CA 92504. , 2011, I served the foregoing document(s) described: DEFENDANT'S BIAN KHOJASTEH ANSWER TO UNLAWFUL DETAINER COMPLAINT; VERIFICATION; PROOF OF SERVICE Which were served upon: Attorneys for Paintff(s: WELLS FARGO BANK, N.A- evin A. Haris, Bs, ROSALES & HARRIS. BY UNITED STATES MAIL. Toced the documents in a sealed envelope or package addressed 10 the person(s) above, deposited the sealed envelope withthe United States Postal Service, with the postage efor collection and mailing, following our ordinary business liar with this business's practice for collecting and processing, responence for mailing. On the same day that correspondence is placed for collestion hailing, tis deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid |] BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED. pood the documents in a sealed envelope or pockage addressed to the person(s) above. I deposited these papers wth the United States Postal Service, in a sealed envelope with wee DEFENDANT'S ANSWER TO UNLAWFUL DETAINER COMPLAINT+ | posage folly prepaid. Tam a resident of or employed in the county where the notice was mailed {used certified mail and requested a return receipt. | ] BY FAX TRANSMISSION. Based on an agreement of the parties to accept service by fax transmission, + |] documents to the person(s) a the fx numbers listed above. No error was: machine that | Used. A copy of the record ofthe fax transmission, which I printed out, is attached, [x ] BY OVERNIGHT DELIVERY. I deposited such envelope for collection and delivery by __ FEDERAL EXPRESS Se ON TRAC UPS with delivery fees paid or provided for in sccordance with iar” with the firm’s practice of collection and ny ___ FEDERAL EXPRESS__ON TRAC ordinary business practioes, Iam rocessing packages for over _UPS zy are deposited with a facility regulary maintained by __ FEDERAL EXPRESS TON TRAC UPS for receipt on the same day in the ordinary course of business {declare under penalty of perjury under the laws ofthe State of California thatthe above is true and correct [Executed on September 30", 2011 at Riverside, California, kp ‘Bernie Kimmerle DEFENDANT'S ANSWER TO UNLAW? COMPLAINT