APPELLATE COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE FIFTH DISTRICT

5th DCA Case # F074613

Star: Hills, Alan Gjurovich Trial Court #: BCV-16100873

Plaintiffs / Appellants Opening Brief Of Appellants

Star: Hills & Alan Gjurovich
-VS-

Martha Beatriz Compos;

Et Al,

Defendants / Respondents
_______________________________

APPEAL FROM CALIFORNIA SUPERIOR COURT

IN AND FOR THE COUNTY OF KERN
From The Final Judgment Of
The HONORABLE JUDGE
Lorna Brumfield

Appellant Alan Gjurovich,

C/O: P. O. Box 1231,
Strathmore, California, [93267]
Appellant Star: Hills
C/O: P. O. Box 1231,
Strathmore, California [93267

1
 COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE FIFTH APPELLATE DISTRICT

Alan Gjurovich & 5th CASE #: F074613

Star: Hills Trial Court Case #: BCV-16100873
Plaintiffs / Appellants,
Opening Brief Of Appellants
Star: Hills & Alan Gjurovich
-VS-

Martha Compos,

Defendant / Respondent.
________________________

Statement Of Appealability

This Appeal is taken from the 9/26/2016 Final Judgment of Judge Lorna Brumfield in

Civil Case #: BCV-16100873, wherein she signed a final Order Dismissing Plaintiffs/

Appellants Verified Complaint, with prejudice, C.T. Pages 184-185; Disposing of all issues

between the Parties.

Statement Of The Case

Star: Hills & Alan Gjurovich called Appellants herein, hereafter called Star & Alan,

Filed a Civil Complaint in Kern County Superior Court, Civil Unlimited Jurisdiction,

on 4/20/16, C.T. P-10-86, Case # BCV-16100873, & have appealed from the Judgment

of Lorna Brumfield of 9/26/2016, in which she issued an Order Dismissing the Verified

Complaint of Star & Alan, with Prejudice, without leave to Amend. Defendant/

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Respondent, hereafter Respondent, filed a Demurrer to the Original Complaint on 6/3/16,

C.T. Page 121-148 & A Request for Judicial Notice in Support of their Demurrer, on 6/3/

16 C.T. Page 93-120. Star & Alan filed a Notice Of & Motion For Immediate Ruling &

Order Declaring 11/08 Sale of Real Property at 3028 Linden Ave., Bakersfield, Ca., &

all Subsequent Actions, Judgments, Orders, Based Thereon, Void Ab Initio In Related

Case & S-1500-CL-237061-KTC at C.T. Page 149-152, & filed an Opposition Memo

to Defendants Demurrer, & in Support of Plaintiffs Motion for Order Declaring 11/08

Sale of Real Property at 3018 Linden Avenue, Bakersfield, California & All Subsequent

Actions, Judgments, Orders, based thereon Void Ab Initio, in Related Case S-1500-CL-

237061-KTC on 6/6/16, at C.T. Page 153-164; Respondent filed a Reply In Support of

Demurrer on 7/7/16 at C.T. Page 165-170; Star & Alan filed a Notice of Non Appearance

In Civil Law And Motion Proceeding on 6/12/16, C.T. Page 171-173. A Minute Order

on Respondents Demurrer & on the Motion to Declare Void of Star & Alan was issued

by the Trial Court on 7/15/16 at C.T. Page 180-183. A subsequent Final Order pursuant

to CRC 3.1312 Dismissing the Case with Prejudice, was signed by the Trial Court, C.T.

page 184-186, finally Disposing the Case. Star & Alan filed their Notice of Appeal on

10/26/16, authorized in California Code Of Civil Procedure Section 904.1 at C.T. Page

190-193. The Clerks Certification of the Record on Appeal is at C.T. Page 194.

Statement Of Significant Facts In The Record

In their Verified Complaint filed in the Trial Court, filed in Kern County Superior

Court Civil Unlimited Jurisdiction, on 4/20/16, C.T. P-10-86, in Case# BCV-16100873,

Star: Hills & Alan Gjurovich, called Appellants herein, hereafter called Star & Alan,

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sued Respondent Martha Beatriz Compos to Quiet the Title on the Real Property located

at 3018 Linden Avenue, Bakersfield, California, pursuant to the provisions set forth in

California Code Of Civil Procedure Sections 760.010 Et Sequiter. Star & Alan Requested

a Judgment Quieting the Title in their favor; each as half owners. Star & Alan further

Requested that the Trial Court issue a Final Judgment that Defendant Martha Beatriz

Compos has no Lawful Claim to Title or Ownership of the said Real Property, & that the

Court order that a re-conveyance of the Title be issued by Martha Beatriz Compos to Star

& Alan, & that the Court issue a Writ of Possession Ordering Martha Compos to Vacate the

Premises within 30 days of Service of the Writ of Possession, or be subject to Removal by

the County Sheriff. C.T. pages 25, 27.

Star & Alan attached 11 Exhibits to their Verified Complaint, of Records to support

their Claim to the Title of the Real Property in Question. C.T. pages 29-86. Throughout

the Verified Civil Complaint, & throughout the Proceedings in the Trial Court Star & Alan

have always maintained that the purported Substitution of Trustee Executed by MERS

via their Employee, was Unauthorized under the Deed of Trust, which means it was a

Breach of the Deed Of Trust, under Paragraph-Article 24 & was therefore Void Ab Initio,

& any & all subsequent Notices issued by that purported Substituted Trustee were Void Ab

Initio, totally Unauthorized under the Deed Of Trust, because the MERS provisions at

C.T. 42 were Expressly Excluded from the Power of Substitution of the Trustee in the

detailed specific Provision set out at C.T. Page 57, which Expressly States , under the

Express sub heading: Substitute Trustee This procedure for substitution of Trustee

shall govern to the exclusion of all other provisions for substitution. which is an express

exclusionary clause expressly excluding all other provisions in the Deed of Trust, to the

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exclusion of all other provisions for substitution; this provision obviously excludes

the use of the general provisions of the Deed Of Trust at C.T. 42 under the heading

Transfer Of Rights In The Property regarding conditional powers of MERS to act on

behalf of the Lender MORTGAGEIT Inc., as all means all other provisions in the

Deed of Trust that may be construed as giving power to another party to execute a

substitution of trustee. In the instant case the Respondent has construed the general

provisions set out in C.T. page 42, under Transfer Of Rights In The Property to be

authorization for MERS to Execute a Substitution of Trustee, though there are no

express provisions stating so under that heading, no mention whatsoever of Substitute

Trustee, & there is another provision that expressly gives authority to the lender at its

option, to the exclusion of all other procedures for substitution. Under the Laws of

Contracts set out in the California Civil Code 1635-1663, these Express words can not be

ignored, or disregarded by the Court, they must be given their intended meaning & effect in

the Deed of Trust. This Express Exclusionary Provision made it clear that no other Parties

named in the Deed of Trust, Except the named Lender, who was MORTGAGEIT INC. C.T.

P-40 under C., had any Power or Right to Execute a Substitution of Trustee. The Deed of

Trust in Question clearly identifies who the Trustee & who the Lender is, at C.T. page

40-41, wherein it clearly states under (C) that Lender is MORTGAGEIT INC., &

Lender is a Corporation Organized and existing under the laws of New York C.T. 40 .

The provision in Article 24 clearly designates the Power of substitution as an option the

Lender may exercise, not a requirement, or a necessity that the Lender must

exercise. To the contrary, the general provisions regarding the powers of MERS at C.T.

page 42, are conditioned on necessity; and requirement although MERS was given the

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right to act for the Lender under the subheading:Transfer Of Rights In The Property at

C.T. Page 42, that right to action, on behalf of the Lender, was a qualified, limited

right, not an unlimited absolute one. It can only be exercised on the condition, that it

became Necessaryto comply with Law or custom (If Necessary To Comply With

Law Or Custom). This is very clear when you read the Express Provisions under

Paragraph 16, at C.T. page 54. This Express Provision Renders the Substitution Provision

of Paragraph 24 as the SoleOption provided to the Lender, and the Lender alone, as

there is no mention of MERS acting as nominee or beneficiary for the Lender in this

express provision, and the very term Option in said Paragraph 24. The term sole

discretion Excludes any other exercise of that option or discretion by anyone else named

in the Deed of Trust, made clear in the last words of Paragraph -Article 24.

After Service of Summons on Defendant Compos, her attorney filed a General

Demurrer Pursuant to Calif. C.C.P. Sect. 430.10 (e) & a Request for Judicial Notice in

support of Demurrer, C.T. pages 93-120 (Judicial Notice) & C.T. page 121-138 (Notice of

Demurrer, Demurrer, & Memorandum in Support of Demurrer, Proof Of Service). The

grounds of the Demurrer were Plaintiffs entire complaint does not allege sufficient facts to

state a cause of action. C.T. page 122, lines 5-6, in the Notice of Demurrer, & at C.T. page

123, lines 1-7, in the Demurrer. In the supporting Memorandum the Defendant argued

1. Plaintiffs Quiet Title Is Barred By The Statute of Limitations, 2. ETS Services Had

Authority To Conduct The Trustee's Sale As The Substitute Trustee, 3. Plaintiffs Quiet

Title Action Fails Because They Have Not Tendered The Debt Or Established Prejudice.

See C.T. page 131-136, Memo. in Support of Demurrer. On 7/6/16 Star & Alan filed a

Notice Of & Motion to Declare the 2008 sale of their home Void, etc., which is found at

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C.T. Page 149-152, & filed Opposition Memo to the Demurrer, & in support of their

Motion to Declare Void, at C.T. Page 153-164. The Trial Court, issued a Minute Order,

at C.T. page 180-182, issuing findings & orders on the Demurrer, & on the Motion to

Declare Void, in which the Court expressly ruled, in reliance on the Court Case of

Robertson v. Superior Court (2001) 90 Cal. App. 4Th 1319, 1328, that the Demurrer is

sustained without leave to amend, because an affirmative defense the statute of limitations

appears on the face of the complaint, and Plaintiffs cannot amend to cure, at C.T. page

180.The Trial Courts Reliance on the Case of Robertson vs Superior Court (2001) 90 Cal.

App. 4Th 1319, 1328, was misplaced, as it is distinguishable under Stare Decisis Doctrine.

The Trial Courts Ruling Sustaining the Statute of Limitations Argument ignored the

Express allegations & averments of Star & Alan in their Verified Complaint, in the Record

at C.T. page 159, lines 9-28, C.T. page 160 lines 1-4, where Plaintiffs cited the Ruling in the

Case of Rochin vs Johnson (1998) 67 C.A. 4th 1228, 1239 where that court clearly stated that

a Void Judgment is not subject to the statute of limitations, a general rule that applies to all

Void Judgments. Appellants have Requested the 5th DCA to take Judicial Notice of the Trial

Courts Case file in the Unlawful Detainer Case in #: 1500-CL-237061, wherein the Court

Records will show that niether Star or Alan were present at the UD Trial, having requested

an extension of time, to go to the Court of Appeal, which was ignored, so no Real

opportunity to present any defense, witness testimony, or evidence was ever available to

Alan & Star , the UD Trial in # S-1500-CL-237061 was held with Alan &Star, in Absentia.

No true adversarial proceeding ever took place, which precludes application of Res Judicata.

Star & Alan alleged in their Verified Complaint the Doctrines of Res Judicata, Collateral

Estoppel, & the Statute of Limitations do not apply in this Case, due to the intentional

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concealment of the Quit Claim Deed by GMAC Mortgage LLC, REO Properties

Corporation, LLC, & Martha Beatriz Compos, & due to the Voidness of the alleged

substitution of Trustee, & the purported sale of the Home in 2008, by ETS Services LLC, in

Breach of Article 24 of the Trust Deed, which has an Express Exclusionary Clause

that only the Lender Mortgageit Inc. could substitute the original Trustee named in the Deed

of Trust. C.T. page 22, paragraph 9, line 7-28, C.T. page 23, lines 1-28, C.T. page 24, lines 1-

28, C.T. page 25 line 1, which Express provisions must be strictly construed against the

Lender, & in favor of the Borrower, as this Court, 5th DCA stated in Bank of America vs La

Jolla Group II (2005) 129 C.A. 4th 706, at page 712, quoted later in this Brief. The record

shows the Defendant, as well as the Trial Court failed to address the allegations at C.T. page

22 at paragraph 9. line 7, that ETS Services LLC, falsified the Trustees Deed Upon

Sale of 11/13/2008, Recorders Document # 0208183483, Recorded on 11/26/08, wherein

ETS Services falsely stated in the record at C.T. page 78, in the said Trustees Deed Upon

Sale , that ETS Services, LLC as Trustee, was so designated in the Deed of Trust as duly

appointed Trustee. The only Trustee appointed in the Deed Of Trust in Question is found

at C.T. page 41 in the record on Appeal, under (D) wherein it states Old Republic Title

Company. There is no mention of ETS Services LLC any where in the Deed Of Trust.

Defendant & the Trial Court ignored the foregoing allegations in the Verified Complaint, &

further ignored the allegations of Voidness of the purported Transfer by the Fraudulent

Trustees Deed Of Sale by ETS Services LLC at C.T. pages 22, lines 23-28, C.T. page 23, lines

1-26, C.T. page 24, lines 1-28, & C.T. page 25, line 1, wherein Star & Alan alleged Voidness,

Fraudulent Concealment & Transfer, at C.T. page 24, lines 4-12, where Star & Alan alleged

The purported Transfer of the Title by GMAC Mort. LLC, to REO, & purported transfer

8
from REO to Martha B. Compos was intentionally concealed from Plaintiffs herein by all

said parties, to deny Plaintiffs Due Process of Law, & the ability to timely defend their

Rights & Claims to the Title in said Real property Said intentional concealment amounts to

Fraud & all parties named in this action are Equitably &Collaterally Estopped from

asserting any Statute of Limitations in this Action as a defense. Furthermore the Doctrine &

Defense of the Statute of Limitations is not applicable in this Case where all alleged

Transfers of Title to the Real property in question were Void Ab Initio and unenforceable as

a matter of California Law, of no effect whatsoever, as if they never existed. Again the

Defendant & the Trial Court ignored the Express allegations of Star & Alan at C.T. page 24,

lines 13-28, C.T. page 25, line 1, wherein Plaintiffs alleged any Court Judgments, Orders or

Actions based upon the Void Auction/Sale of the Real Property at 3018 Linden Avenue,

Bakersfield are all Void Ab Initio & hereby further allege any Defenses by Defendants of

Res Judicata is inapplicable to this Case due to Plaintiffs Voidness Claims; I.E. 'Res

Judicata' does not apply to Void Judgments. Furthermore the eviction of 12/8/2010 was

Void Ab Initio on Separate Grounds that the purported 'Writ of Possession' that was used

by GMAC MORTGAGE LLC to evict Plaintiffs in the Unlawful Detainer Action in Case

S-1500-CL-237061 was obtained by GMAC MORTGAGE LLC, nine (9) months after they,

GMAC MORTGAGE, LLC Quit Claimed all ownership interest in the property, and they

thereafter evicted movants from their home at 3018 Linden Avenue Bakersfield California

on 12/21/2010, with no Right of Possession, no Title, no ownership of the property,

failing to transfer the Real Party In Interest REO Properties Corporation LLC into the Case

as Plaintiff , which Rendered Said 'Eviction' Void Ab Initio, of no force or effect, &

completely unenforceable under Law.

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 Issues Of Law On Appeal
Questions Of Law Presented:

Appellants hereby present the following Questions of Law to be answered by this

Appellate Court as follows:

1
Was the Trial Courts Order Sustaining Defendants Demurrer Without Leave To Amend
Plaintiffs Verified Complaint & the Subsequent Order Dismissing the Verified Complaint
with Prejudice, an abuse of Discretion & Prejudicial Reversible Error Requiring Reversal
?

Star & Alan contend the answers to question number 1 is yes, requiring reversal.
2
Question Of First Impression

Did the Breach of the Express Provisions of Paragraph-Article 24 of the Deed of Trust
Expressly Authorizing only the Lender to Execute a Substitution of Trustee,at its
option,Governing to the Exclusion of all other Provisions for Substitution Render
the Purported Substitution of Trustee Executed by MERS, & all subsequent purported
actions of the Purported Substituted Trustee, ETS Services LLC, including Notice
of Default, Notice of Election to sell; Notice of Sale; Sale of Home & Property,
Execution of a Purported Trustees Deed upon Sale; Recording of the
Trustees Deed upon sale; Unlawful Detainer Action & Judgment; the
Writ of Possession & Eviction of Appellants herein from their Home
[3018 Linden Avenue Bakersfield California] & Subsequent
Void Ab Initio as a matter of Law ?

Star & Alan contend the answer to this question is yes, requiring reversal.

Request For Published Opinion

In as much as there is no published Appellate Court Opinion on this Question regarding

a Breach of Article 24 of the MERS uniform Mortgage Deed Contract, this is a Question

of first impression. Star & Alan are unaware of any published precedent or opinion on

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this precise Question of Law. Star & Alan therefore request the 5th DCA issue a Published

Opinion on this precise Question of Law.

Question Of First Impression

3
Did The Secret Quit Claim By GMAC Mortgage LLC To REO Properties
Corporation LLC Of All Right And Interest In The Real Property At 3018
Linden Avenue Bakersfield California While The Unlawful Detainer Case
& The Civil Action Over Title Were Still Pending Remove Jurisdiction
From The UD Court To Issue A Writ Of Possession To Evict Star & Alan
From their Home In Absence Of Any Substitution Of the Real Party In
Interest REO Properties Corporation LLC As Plaintiff Rendering
The Eviction Of Star & Alan Void Ab Initio Requiring Return Of
The Property At 3018 Linden To Star & Alan ?

A
Did GMAC Mortgage LLC Lose all Right To Possession To The Real Property
At 3018 Linden Avenue Bakersfield California When It Transferred All
Right & Interest To The Said Real Property on 3/8/2010 At C.T. Page
82-85 Rendering the Purported Writ Of Possession Used To Evict
Star & Alan Void Ab Initio, Requiring Reversal ?

Star & Alan Contend that the answer to this Question is Yes ?

Request For Published Opinion

In as much as there is no published Appellate Court Opinion on this Question regarding

the secret Quit Claim Deed transfer To REO Properties Corporation LLC this is a

Question of first impression. Star & Alan are unaware of any published precedent or

opinion on this precise Question of Law. Star & Alan therefore request the 5th DCA issue a

Published Opinion on this precise Question of Law.

I
The Trial Courts Order Sustaining Defendants Demurrer Without Leave To Amend
Plaintiffs Verified Complaint & The Subsequent Order Dismissing the Verified
Complaint with Prejudice, Was an Abuse of Discretion that Caused a

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 Miscarriage Of Justice Which Is Prejudicial Reversible Error
Requiring Reversal

A
The Trial Court Was Required By Law To Apply The Doctrines
Of Equitable & Collateral Estoppel To The Allegations Of
Intentional Concealment By GMAC Mortgage LLC; Et Al,
Of The Secret Quit Claim Deed Of GMAC Mortgage LLC
Et Al

B
Minimally If A Statute Of Limitations Applied
It Would Have Been Tolled During the 16 months That
There Was No Recording Of A Transfer Of Title Of GMAC
Or REO Properties Inc LLC Which Would Make The
Complaint Filed 4/20/16 Timely within 5 Years Of Eviction
____________________________________________________

Standard Of Review on Demurrer-Abuse Of Discretion

On Appeal from the sustaining of a General Demurrer the Appellate Court

reviews for Abuse of Discretion See California Supreme Court Ruling
In Blank vs Kirwan (1985) 39 Cal. 3d 311, at page 318

It is axiomatic that a demurrer raises no questions of fact and that it assumes the
correctness and truth of the facts alleged in the pleading to which the demurrer is
interposed. On the hearing of a demurrer therefore, the court is bound by the facts as
alleged in the pleading attacked by the demurrer and is not entitled to consider facts
presented to it through the medium of an affidavit. Mackay VS Clark
Rig. Bldg. Co. (1935) 5 C. A. 2d 44, at page 55.

As against a general demurrer it is only necessary that the ultimate facts be alleged.
McCaughey VS Schuette, (1896 ) 117 Cal. 223; Otto R. Frasch VS London and
Lancashire Fire Insurance Co. (1931) 213 Cal. 219 at page 224.

The distinction between conclusions of law and ultimate facts is not at all clear and
involves at most a matter of degree. Estate of Bixler, 194 Cal. 585, 589; see Clark on Code
Pleading 2d ed. 1947 231; Chadbourn, Grossman, Van Alstyne, California Pleading (1961)
812 et seq.; 2 Witkin, California Procedure (1954) 1140.) For example, the courts have
permitted allegations which obviously included conclusions of law and have termed them
"ultimate facts" or "conclusions of fact." See Peninsula etc. Co. v. County of Santa Cruz,
34 Cal. 2d 626, 629; [one is the "owner" of property]; Rannard v. Lockheed Aircraft

12
Corp., 26 Cal. 2d 149, 154 [act was "negligently" done]; May v. [57 Cal. 2d 474] Farrell,
94 C. A. 703, 707; [employee was "acting within the scope of his employment"].) [18] In
permitting allegations to be made in general terms the courts have said that the
particularity of pleading required depends upon the extent to which the defendant in
fairness needs detailed information that can be conveniently provided by the plaintiff, and
that less particularity is required where the defendant may be assumed to possess
knowledge of the facts at least equal, if not superior, to that possessed by the plaintiff.
Rannard v. Lockheed Aircraft, supra, 26 Cal. 2d 149, 154-157; Guilliams v. Hollywood
Hospital, 18 Cal. 2d 97, 101-102; May v. Farrell, supra, 94 C.A. 703, 708.

The California Supreme Court said in Blank v. Kirwan (1985) 39 Cal. 3d 311, at page 318:

In reviewing the sufficiency of a complaint against a general demurrer, we are guided by

long-settled rules. "We treat the demurrer as admitting all material facts properly
pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also
consider matters which may be judicially noticed." Serrano v. Priest (1971) 5 Cal. 3d 584,
591; 41 A.L.R.3d 1187; Further, we give the complaint a reasonable interpretation,
reading it as a whole and its parts in their context. Speegle v. Board of Fire Underwriters
(1946) 29 Cal. 2d 34, 42 When a demurrer is sustained, we determine whether the
complaint states facts sufficient to constitute a cause of action. See Hill v. Miller (1966) 64
Cal. 2d 757, 759; And when it is sustained without leave to amend, we decide whether
there is a reasonable possibility that the defect can be cured by amendment: if it can be,
the trial court has abused its discretion and we reverse; if not, there has been no abuse of
discretion and we affirm. Kilgore v. Younger (1982) 30 Cal. 3d 770, 781; Cooper v. Leslie
Salt Co. (1969) 70 Cal. 2d 627, 636

Standard of Review -Statute Of limitations

Where the relevant facts are not in dispute, the application of the statute of
limitations may be decided as a question of law. (County of Sonoma v. Superior Court
(2010) 190 C.A. 4th 1312, 1322-1323, quoting International Engine Parts, Inc. v. Feddersen
& Co. (1995) 9 Cal.4th 606, 611; accord, William L. Lyon & Associates, Inc. v. Superior
Court (2012) 204 C.A.4th 1294, 1304.) We therefore review the statute of limitations
question de novo and are not bound by the trial courts determination. See William L.
Lyon & Associates, supra, at p. 1304.

Policy Of California Law

The law abhors the forfeiture of the right to a determination of a cause of action on the
merits Nasir VS Sacramento County Off. Of the Dist. Atty (1992) 11 C.A. 4 th 976, 986
Fn. 5. Casey vs Overhead Door Corp. (1999) 74 C.A. 4th 112, at page 122.

13
Fixed policy of law always is to allow a controversy to be tried and determined on the
merits, ... Carl E. Anderson Co. VS Mauck (1958) 158 C.A. 2d 756;

The Law favors trial of an action on its merits...

Reid vs Koeslag (1951) 106 C.A. 2d 729;

California is committed to the rule of liberal construction of pleadings, with a view to

substantial Justice between the parties; Calif. Code. Of Civ. Procedure 452; Simmons vs
County of Kern (1965) 234 C.A. 2d 363, 367; Chavez VS Sargent (1959) 52 Cal. 2d 162.

Appellate Courts Power To Review

An Appellate Court has the power to review any intermediate ruling, proceeding, order or

decision which involves the merits or necessarily affects the judgment or order appealed

from or which substantially affects the rights of a party, including, on any appeal from the

judgment, any order on motion for a new trial, and may affirm, reverse or modify any

judgment or order appealed from and may direct the proper judgment or order to be entered,

and may, if necessary or proper, direct a new trial or further proceedings to be had,

pursuant to the express provisions of Calif. C.C.P. section 906:

[ 906: Upon an appeal pursuant to Section 904.1 or 904.2, the reviewing court may review
the verdict or decision and any intermediate ruling, proceeding, order or decision which
involves the merits or necessarily affects the judgment or order appealed from or which
substantially affects the rights of a party, including, on any appeal from the judgment, any
order on motion for a new trial, and may affirm, reverse or modify any judgment or order
appealed from and may direct the proper judgment or order to be entered, and may, if
necessary or proper, direct a new trial or further proceedings to be had. The respondent, or
party in whose favor the judgment was given, may, without appealing from such judgment,
request the reviewing court to and it may review any of the foregoing matters for the purpose
of determining whether or not the appellant was prejudiced by the error or errors upon
which he relies for reversal or modification of the judgment from which the appeal is taken.
The provisions of this section do not authorize the reviewing court to review any decision or
order from which an appeal might have been taken.]

Based upon this Express Authorization Star & Alan Request this Court for a Complete
Review of their:

Notice of and Motion for Immediate Ruling & Order Declaring 11/2008 Sale of Real

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Property at 3018 Linden Avenue Bakersfield California & all subsequent Actions
Judgments, Orders, Based thereon Void Ab Initio in Related Case & S-1500-CL-237061,
KTC

which was filed on July 6, 2016, found in the Record On Appeal at C.T. page 149-164.

Defendant in the Trial Court in # BCV-16-100873 relied upon the following Cases in their

Demurrer to Star & Alan's Verified Complaint to Quiet Title:

Lona vs Citi Bank N.A. 202 C.A. 4th 89,104 (2011); Moeller vs Lien, 25 Cal. App 4th 822,
831-832 (1994); Ram vs One West Bank FSB 234 C. A. 4th 1, 12-13 (2015); Angel vs Sup.
Ct. 73 C.A. 4Th 691, 700 (1999) Fox vs Ethicon Endo-Surgery, Inc. 35 Cal.4th 797 (2005);
Lona vs Citi Bank N.A. 202 C.A. 4th 89, 104 (2011); Moeller vs Lien, 25 C.A. 4th 822, 831-
832 (1994) ; Ram vs One West Bank FSB 234 C.A. 4th 1, 12-13 (2015); Angel vs Sup. Ct.
73 C.A. 4Th 691, 700 (1999); Fox v. Ethicon Endo-Surgery, Inc. 35 Cal.4th 797 (2005);
Pooshs v. Philip Morris USA, INC. 51 Cal. 4th 788 (2011); Black vs Dept. of Mental
Health (2000) 83 C.A. 4Th 739, 745; Ankoanda vs Walker-Smith, 44 C.A. 4Th 610 (1996);
Moss vs Moss, 20 Cal. 2d 640, 644 (1942) Salazar vs Thomas, 236 C.A. 4 Th 467 (2015);
Costa Serena Owners Coal. vs Costa Serena Archit. Comm. (2009) 175 C.A. 4th 1187;
Engstrom vs Kallins (1996)49 C.A. 4th 773, 781-782 Rosenfeld, vs JP Morgan Chase
Bank, N.A., et al., 732 F. Supp. 2d 952, 964 (2010) Robertson vs Sup. Ct. (Brooks) (2001)
90 Cal. App. 4Th 1319, 1328; Union Carbide Corp. vs Superior Court (1984) 36 Cal. 3d 15,
201; Roy C. Pullen, vs Heyman Brothers, a Corporation, Et Al, 71 C A.2d 444 (1945);

These cases are all distinguishable on the facts & issues of law before those Courts, under

the Doctrine of Stare Decisis, which requires the facts to be the same or similar & the

precise question of law to be before the Court. None of the cases relied on by Respondent

in the trial Court in their Demurrer are on point, & so are inapplicable to this Case. The

language used in any opinion is to be understood in light of the facts and the issue then

before the court. McDowell & Craig vs City of Santa Fe Springs (1960) 54 C. 2d 33; at

page 38, citing the California Supreme Court in the Case of Eatwell vs Beck (1953) 41

Cal. 2d 128, 136. Cases are not authority for propositions not considered . McDowell &

Craig vs City of Santa Fe Springs (1960) 54 C. 2d 33; at page 38, citing itself in People vs

Banks (1959) 53 Cal. 2d 370, 389. As cited earlier in the statement of significant facts,

15
the trial Courts reliance on the case of Robertson vs Superior Court (2001) 90 C.A. 4Th

1319, 1328, in sustaining Respondents Demurrer without leave to amend, in its Minute

Order, found at C.T. page 180 is also misplaced, in that it is distinguishable under the Stare

Decisis Doctrine, & is inapplicable to this Case. The Robertson Case is inapplicable under

the Doctrine of Stare Decisis, because it was an Action brought under Calif. Civil Code

Section 3412 Cancellation of a written instrument, to Declare Void a Quit Claim Deed,

based upon Mental Incompetence, which facts, and issues of Law are distinguishable from

the instant Case, which is an Action to Quiet Title, pursuant to the express provisions of

California Civil Code Sections 760.010; 760.020, 760.040, based upon the prior Breach of

Article 24 of The Original Deed Of Trust which has an Express reservation of the power to

Substitute the Trustee with an Express Exclusionary Clause, Excluding all other provisions

of the Deed of Trust regarding the Substitution of the Original Trustee named in the Deed

Of Trust, which Ipso Facto Excludes the other provisions of the Deed Of Trust regarding

MERS from the subject of Authorization to Substitute another Trustee for the Original

Trustee named in the Deed Of Trust. The issues of fact and law in the two cases are not

related, are not the same or similar, and thus Robertson vs Superior Court (2001) 90 C.A.

4Th 1319, 1328, is not on point here. The Trial Courts Ruling Sustaining the Statute of

Limitations Argument ignored the Express allegations & averments of Star & Alan in their

Verified Complaint, in the Record at C.T. page 159, lines 9-28, C.T. page 160 lines 1-4, where

Plaintiffs cited the Ruling in the Case of Rochin vs Johnson (1998) 67 C.A. 4th 1228, 1239

where that court clearly stated that a Void Judgment is not subject to the statute of

limitations. This is obviously true in the Case of any Void Judgment, Void Order, or Act,

because if it is Void Ab Initio, it never existed from the start, as a matter of Law, & thus no

16
Statute of limitations could ever begin to run, & this is True in any Voidness Case, regardless

the differing facts & Law in the Case. The Trial Court further issued a Ruling on Plaintiffs

Motion for an immediate ruling at C.T. page 181, where the Trial Court Ruled that:

There is no authority that would allow the court to do this without trial. The motion is a
makeshift request for Summary Judgment, but not made under CCP section437c. Defendant
points the above issues out, and argues the motion should be denied, because 1) it was not
properly noticed; and 2) did not comply procedurally with CCP section 437c. Defendant also
point to the fact that the unlawful detainer action was final, and Plaintiffs did not appeal it,
which bars their claim for quiet title. ANALYSIS The only process for seeking judgment
on the merits of a claim when no default has been taken and when the pleadings place the
claims at issue, is governed by Code Of Civil Procedure section 437c. In this case, Plaintiffs
motion seeks an order entering judgment on their quiet title claim, which is the only cause of
action pleaded in the complaint, without to section 437c, or following any of that sections
procedural guidelines. The pleadings in this case reveal that Plaintiffs claims have been
placed at issue, and Plaintiffs moving papers do not point to any admission in the
Defendants answer that would allow the Court to conclude Defendant conceded the
claim. Accordingly the motion is denied. Counsel for defendant to prepare an order
pursuant to CRC 3.1312. Copy of minute order mailed to all parties as stated on the
attached declaration. Minute order notice.

Again, the Trial Court committed Prejudicial Reversible error in this Ruling. The Trial

Court refers to Defendants Answer when the record shows of course, there was never an

Answer to the Complaint by Defendant; only a General Demurrer was filed, which

was Sustained by the Trial Court, making these references by the Trial Court misplaced &

irrelevant. The High Court, has Ruled in more than one published Case that any where

a Void Order or Judgment raises its head any party to the cause, or strangers, can point

out the Voidness in the Record & move for an immediate Declaration by the Court of the

Voidness & once pointed out to the Court, the Court has a Duty to Declare it Void. It is

very clear this means that the non-statutory motion to Declare Void by Star & Alan filed

& served at least 9 days before the hearing on the Demurrer was authorized by the said

Supreme Court Cases, any time means at any time, regardless the statutory Notice

17
requirements, which obviously do not apply to a Void Judgment or Void Order, which as a

matter of Law never existed . The Trial Court mis-characterized the non-statutory Motion

of Star & Alan for an immediate Ruling Declaring the 2008 purported sale of their home

Void Ab Initio. No where in that Motion was there a Request for a Final Judgment on the

Merits. (In this case, Plaintiffs motion seeks an order entering judgment on their quiet

title claim,)(The pleadings in this case reveal that Plaintiffs claims have been placed at

issue, and Plaintiffs moving papers do not point to any admission in the Defendants answer

that would allow the Court to conclude Defendant conceded the claim) For the Case to

be at issue the parties must first complete the Pleading stage and the Discovery stage of the

Case, which of course did not happen in this Case, as the Court sustained the Defendants

Demurrer without any leave to Amend, & Dismissed the Case with Prejudice. It has

been common practice for California Courts to require a party to serve & file an At

issue Memorandum in a Civil Case to obtain an Order setting a Cause for Trial. It is

clear the Trial Courts statements in this Ruling on the Motion to Declare Void, are in

error, as the Case never made it beyond the Pleading stage, & was never at issue for a

Trial by Jury, or a Trial by the Court on the merits. A determination of the contention

& issue of the Voidness of the prior alleged Substitution of Trustee, Notices of ETS Services

LLC, & purported sale of the Home by ETS Services LLC would not be a final Judgment

on any merits of the Case, there is no evidence or testimony to be at issue, all facts are

well settled in the Record, & it is only a matter of answering questions of Law that are

brought before the Trial Court in this Action. There will be no witness testimony and no

evidence presented at any Trial. As far as the argument of Defendant recited by the

Trial Court in its Minute Order that the Unlawful DetainerJudgment was final &

18
the absence of any Appeal bars the Claim for Quiet Title, the California Supreme Court has

affirmatively stated the Opposite, & the Trial Court has once again, Committed Prejudicial

Reversible Error. The high Court has clearly stated that due to the limited & summary

nature of an Unlawful Detainer, full scope issues of Title are not allowed to be litigated,

therefore a prior Unlawful Detainer Judgment is not Res Judicata in a subsequent Action

over Title. The California Supreme Court clearly stated in Cheney vs Trauzettel (1937) 9

Cal. 2d 158, 159, at page 159, that the broad question of Title could not be raised & litigated

by cross-complaint or affirmative defense, citing Arnold vs Krigbaum, 169 Cal. 143, &

Bekins vs Trull, 69 C.A. 40. Because a judgment in Unlawful Detainer usually has very

limited Res Judicata effect, a prior Unlawful Detainer Judgment will not prevent one who

is dispossessed from bringing a subsequent action to resolve questions of Title Cheney vs

Trauzettel, supra, 9 Cal. 2d at page 160. As well, the High Court stated in the Case of Vella

vs Hudgins, 20 Cal. 3d 251 (1977) at page 258:

a judgment in Unlawful Detainer usually has very limited Res Judicata effect and will
not prevent one who is dispossessed from bringing a subsequent action to resolve questions
of Title, also citing Cheney v. Trauzettel, supra, 9 Cal. 2d at p. 160; Byrne v. Baker (1963)
221 C.A. 2d 1, 5-6; Bekins vs Trull (1924) 69 C.A. 40, 45, or to adjudicate other legal and
equitable claims between the parties, Gonzales v. Gem Properties, Inc., supra, 37 C.A. 3d
1029; Union Oil Co. vs Chandler, supra, 4 C.A. 3d 716; Haase v. Lamia (1964) 229 C.A.
2d 654, 658; Patapoff vs Reliable Escrow Service Corp. (1962) 201 C.A. 2d 484; cf.
Staudigl vs Harper (1946) 76 C.A. 2d 439, 449;

Further, the High Court in Vella vs Hudgins (1977) 20 Cal. 3d 251, stated they were of the

opinion that section 1161a does not require a defendant to litigate, in a summary action

within the statutory time constraints 1167, 1179a, a complex fraud claim involving
activities not directly related to the technical regularity of the trustee's sale. See Vella vs

Hudgins (1977) 20 Cal. 3d 251, at page 258.

19
Appellants have Requested the 5th DCA to take Judicial Notice of the Trial Courts Case

file in the Unlawful Detainer Case in #: 1500-CL-237061, wherein the Court Records will

show that niether Star or Alan were present at the UD Trial, having requested an extension

of time, to go to the Court of Appeal, which was denied/ ignored, therefore no Real

opportunity to present any defense, witness testimony, or evidence was ever available to

Alan & Star in the Unlawful Detainer Case # S-1500-CL-237061, the Summary Trial was

held with alleged Defendants Alan & Star, in Absentia. No true adversarial proceeding

ever took place, which precludes application of the Doctrine of Res Judicata.

Judicial Notice-Incorporation By Reference

Appellants herein, hereafter Star & Alan have served & filed a Separate Request for

Judicial Notice & a Memorandum of Points & authorities in support thereof, along with

a proposed Order, & a Request for an Alternative Order by the 5th DCA in Support of

this Appeal & Opening Brief Pursuant to California Evidence Code Section 450-453, 459,

& California Rules of Court Rule 8.252. Star & Alan hereby incorporate the contents of

the said Separate Request For Judicial Notice & supporting Documents, herein as if fully

set forth, by reference, which is hereby made a part of this Opening Brief on Appeal.
__________________________________________________________________________

In their verified Complaint before the trial Court Star & Alan asserted the doctrines

of Equitable & Collateral Estoppel against any claims of the Defense of the statute of

limitations in the Case at & further asserted the prior Voidness of the alleged transfers

of Title made the statute of limitations inapplicable, at C.T. page 24, paragraph 10, lines

2-12, & further asserted at C.T. page 24, paragraph 11, lines 14-28, & C.T. page 25 line

1, the same Voidness made any claims of Res Judicata inapplicable. The Demurrer by

20
Respondent in the Trial Court & Ruling by the Trial Court were based on the claim of

the expiration of the Statute of Limitations, which totally ignored the allegations of

Intentional Concealment & Fraud & the pleading of the Doctrines of Equitable &

Collateral Estoppel in the Verified Complaint filed by Star & Alan. Under the facts

alleged in the Complaint of Fraud & Concealment the Trial Court should have overruled

the Demurrer, because the Court is bound by the factual allegations in the Complaint on

Demurrer as recited here in this Brief. Based upon those allegations & based upon the

allegations of when the cause of action was discovered by Star & Alan, which discovery

date was stated in the verified complaint at C.T. page 24, in paragraph 10, lines 2-3,

which date was April of 2015, which also should have tolled the running of any Statute of

limitations making the filing of the complaint on April 20, 2016, around one year later

timely. As set forth in the supporting Request for Judicial Notice served & Filed with the

5th DCA & in the document filed with the 5th DCA in the other related Appeal F064464

which was attached as Exhibit # 2 to the Request for Judicial Notice, Titled:

NOTICE OF FRAUD PERPETRATED ON THE 5TH DCA & IN THREE OTHER

COURT CASES BY RESPONDENTS GMAC Mortgage LLC, ETS SERVICES LLC
& THEIR COUNSEL OF RECORD, Etc.
The secret Quit Claim by GMAC Mortgage LLC was first reported to this Appellate

Court 5th DCA in this Document filed in the 5th DCA on 7/17/2015, around 3 months

after the discovery of the Fraud. The 5th DCA deferred any Ruling or Action on the

Request for Relief until After the proceedings in the New York Bankruptcy Action filed

by GMAC Mortgage LLC & ETS Services LLC. Star & Alan have heard nothing further

from the 5th DCA on their Request for Equitable Relief in # F064464 due to said Fraud.

Appellants decided they had no other choice but to file a Quiet Title Action against the

21
current occupant of the Home Martha Compos. If the Court tolls the statute till time of

discovery alleged in the complaint the complaint is timely, if the Court tolls the statute

of limitations minimally during the time there was nothing recorded for 16 months the

complaint is timely. If the Court applies the Doctrines of Equitable & Collateral Estoppel

due to the intentional concealment & Fraud in keeping the Quit Claim Deed secret for

16 months the complaint is timely.

"The venerable doctrine of equitable estoppel or estoppel in pais, ... rests firmly upon a
foundation of conscience and fair dealing, ..." City [69 Cal. App. 3d 679] of Long Beach v.
Mansell (1970) 3 Cal. 3d 462, 488 "Generally speaking, four elements must be present in
order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be
apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so
act that the party asserting the estoppel had a right to believe it was so intended; (3) the
other party must be ignorant of the true state of facts; and (4) he must rely upon the
conduct to his injury." Driscoll v. City of Los Angeles (1967) 67 Cal. 2d 297, 305.

It is clear that GMAC Mortgage LLC proceeded in the Trial Court, & later on appeal of

the Case in 5th DCA Appeal Case #: F064464, as if they still were claiming ownership of

Title after they had secretly Quit Claimed all Right and Interest in the Real Property at

3018 Linden Avenue, to REO Properties Corporation LLC, they intended Star & Alan to

rely on the false presumption they still claimed a Right & Interest to the Title of the Real

Property in Question. Star & Alan contend that this behavior; intentional concealment &

deception by conduct amounted to Extrinsic Fraud, as it was outside the Court Action &

without permission or knowledge of the Court or parties, & detrimentally affected the

Rights of Star & Alan to Due Process of Law & a fair hearing on all claims to Title to

22
the Property at 3018 Linden.

Fraud based on suppression of facts

The tort of concealment is simply another species of fraud or deceit. See Civ. Code, 1710,
subd. (3) fraud includes the suppression of a fact, by one who is bound to disclose it, or who
gives information of other facts which are likely to mislead for want of communication of
that fact]; Lovejoy v. AT & T Corp. (2004) 119 C.A. 4th 151, 158.) The elements of an
action for fraud and deceit based on concealment are: (1) the defendant must have
concealed or suppressed a material fact, (2) the defendant must have been under a duty to
disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or
suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been
unaware of the fact and would not have acted as he did if he had known of the concealed or
suppressed fact, and (5) as a result of the concealment or suppression of the fact, the
plaintiff must have sustained damage. Marketing West, Inc. v. Sanyo Fisher (USA) Corp.
(1992) 6 C.A. 4th 603, 612613 Marketing West. Thus, the elements of fraud and deceit
based on concealment are the same as for intentional fraud, with the additional requirement
that the plaintiff allege that the defendant concealed or suppressed a material fact in a
situation in which the defendant was under a duty to disclose that material fact.

In transactions which do not involve fiduciary or confidential relations, a cause of action

for non-disclosure of material facts may arise in at least three instances: (1) the defendant
makes representations but does not disclose facts which materially qualify the facts
disclosed, or which render his disclosure likely to mislead; (2) the facts are known or
accessible only to defendant, and defendant knows they are not known to or reasonably
discoverable by the plaintiff; [or] (3) the defendant actively conceals discovery from the
plaintiff. Fns. omitted. Marketing West, supra, 6 C.A. 4th at p. 613, quoting Warner Constr.
Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294.

Fraud By Conduct:
In addition, the trial court failed to consider that a cause of action based in fraud may
arise from conduct that is designed to mislead, and not only from verbal or written
statements. See ThriftyTel, Inc. v. Bezenek (1996) 46 C.A. 4th 1559, 1567 A
misrepresentation need not be oral; it may be implied by conduct.; Universal ByProducts,
Inc. v. City of Modesto (1974) 43 C.A. 3d 145, 151 A misrepresentation need not be express
but may be implied by or inferred from the circumstances..

It is clear that the Intentional Concealment of the secret Quit Claim Deed purporting to

Transfer Title by GMAC MORT. LLC to REO, was Fraud by conduct as set forth above,

if it was a lawful transfer GMAC MORTGAGE LLC would have informed the trial court

23
and the parties Star & Alan.

Extrinsic Fraud

Next, Appellant contends that the judgment is void because it was obtained by extrinsic
fraud. A motion to set aside a judgment may be brought at any time despite a statutory time
bar where a party is able to establish that default was obtained through extrinsic fraud. In
re Marriage of Melton (1994) 28 C.A. 4th 931, 937.

Extrinsic fraud occurs when a party is deprived of the opportunity to present a claim or
defense to the court as a result of being kept in ignorance or in some other manner being
fraudulently prevented by the opposing party from fully participating in the proceeding.
County of San Diego v. Gorham (2010) 186 C.A. 4th 1215, 1228-1229 Gotham .
In re Margarita D. (1999) 72 C.A. 4th 1288, 1295.

It is clear that Star & Alan were deprived of the Opportunity to litigate their Claim of

Title earlier against REO, & present occupant Martha Compos due to the intentional

Concealment of the Quit Claim by GMAC to REO, & then from REO to Compos. GMAC

Mortgage LLC never informed any Court, the UD or Civil Unlimited Court in the

related Civil Action, nor the 5th DCA thereafter in the Appeal that they had transferred

all Right and title to REO & REO had transferred it to Compos. Star & Alan

reasonably Relied on the fact there was an ongoing Appeal & they had the Right to be

informed during litigation over the Title of any purported new Transfers of Title of the Real

Property in litigation, they had a right to rely on Counsel for GMAC Mortgage LLC being

an Officer of the Court having a Duty to inform the Court of any changes affecting

Jurisdiction or the Courts Action in the Case, which of course was suppressed & concealed

by GMAC Mortgage LLC & their Counsel. Based on all the foregoing it is very clear in the

Record this Court should find the Trial Court committed Prejudicial Reversible Error

resulting in a Gross Miscarriage of Justice, wrongly depriving Star & Alan of

Due Process of Law & an impartial determination of their Claims to Title of the Real

24
Property at 3018 Linden Avenue, which now requires Reversal of the Courts Orde

sustaining Defendants Demurrer without Leave to Amend, & Dismissing the Case with

Prejudice, with directions to Vacate those Orders & enter another Order overruling

Defendants Demurrer, & Granting the Motion to Declare Void, etc.

There Was No Tender Requirement

Dimock vs Emerald Properties (2000) 81 C.A. 4th 868; 876

As stated in the Opposition to the Demurrer in the trial Court at C.T. page 160 under

III A , & in the Body at C.T. 163-164, as in the Dimock case where there was no power to

Convey the property, the Deed upon sale was a complete Nullity with no force or effect as

opposed to one which may be set aside but only through the intervention of equity,

because the ETS Service LLC had no Power to convey the Deed as purported sales

Trustee there was no tender requirement. See Dimock supra, (2000) 81 C.A. 4 th 868, 876.

Again contrary to arguments of Respondent in their reply that Dimock does not apply

because the factual situation is not exactly the same, when talking about a Void rather

than Voidable it does not matter if the facts are identical because a thing or an act that

is Void never existed, & under any circumstances there is no Tender requirement if it is

Void. In Absence of the required Express Agreement in the Deed Of Trust with the

Trustor, Star, ETS, Services LLC & MERS, had no Power to proceed as they did with

the Substitution & Sale.

II
When They Issued The Purported SUBSTITUTION OF TRUSTEE On 6/11/08
MERS Breached The Express Provisions of Paragraph-Article 24 of the Deed of Trust
Expressly Authorizing only the Lender to Execute a Substitution of
Trustee,at its optionGoverning to the Exclusion of all other Provisions

25
 for Substitution

The Breach Of the Deed Of Trust By MERS Rendered the Purported

Substitution of Trustee by MERS, & all subsequent purported actions
of the Purported Substituted Trustee, ETS Services LLC, including
Notice of Default, Notice of Election to sell; Notice of Sale; Sale of
Home & Property, Execution of A Purported Trustees Deed upon
Sale; Recording of the Trustees Deed upon sale Unlawful
Detainer Action & Judgment; the Writ of Possession &
Eviction of Appellants herein from their Home At
3018 Linden Ave Bakersfield Calif. & All Subsequent
Purported Transfers Of The Title Void Ab Initio
as a matter of Law

The Voidness Requires Reversal With Directions To The Trial Court

To Vacate Its Ruling & Order Sustaining Respondents Demurrer &
& Denying Appellants Motion To Declare Void & Enter Another
Ruling & Order Overruling Respondents Demurrer & Granting
Appellants Motion & Thereafter Grant The Appropriate Relief
Requested In The Verified Complaint Returning Possession
& Title Of The Real Property At 3018 Linden Ave To
Appellants Star & Alan
________________________________________________________

The Law Of Voids

The party procuring a judgment against another without due process of law, or by
fraud, takes it at his peril, .."citing at page 731 the California Supreme Court Ruling in
the Case of Lapham v. Campbell, 61 Cal. 296 at page 300. Thereafter at page 732 the
same Appellate Court stated:

Likewise in Forbes v. Hyde, 31 Cal. 342, 347 oftentimes quoted by the Supreme Court it
is said: "A judgment absolutely void upon its face may be attacked anywhere, directly or
collaterally, whenever it presents itself, either by parties or strangers. It is simply a
nullity, and can be neither the basis nor evidence of any right whatever.

Whether the want of jurisdiction appears on the face of the judgment or is shown by
evidence aliunde, in either case the judgment is for all purposes a nullity--past, present

26
and future. Cf. Hill v. City Cab etc. Co.,79 Cal. 188 "Nothing can be acquired or lost by
it; it neither bestows nor extinguishes any right ... It neither binds nor bars anyone. All
acts performed under it and all claims flowing out of it are void ...No action upon the part
of the plaintiff, no inaction upon the part of the defendant, no resulting equity in the
hands of third persons, no power residing in any legislative or other department of the
government, can invest it with any of the elements of power or of vitality." 1 Freeman on
Judgments, 5th ed., 322, pp. 643-644. It is not amiss here to add that while the
phrase "void judgment" is convenient, it is a contradiction in terms. If a Judgment is
Void it is not a Judgment.

A judgment is void on its face if the court which rendered the judgment lacked

personal or subject matter jurisdiction or exceeded its jurisdiction in granting relief

which the court had no power to grant. Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d

489, 493 Jones v. World Life Research Institute (1976) 60 Cal.App. 3d 836, 840-848 If the

judgment is void, it is subject to collateral attack. (Craft v. Craft (1957) 49 Cal.2d 189, 192

One method of such an attack is a subsequent motion to vacate or set aside the judgment

as void. (Code Civ. Proc., 473.) The motion may be filed at any time after judgment.

(Security Pac. Nat. Bank v. Lyon (1980) 105 Cal.App.3d Supp. 8, 13 citing Hayashi v.

Lorenz (1954) 42 Cal.2d 848, 851 ; see also Craft v. Craft, supra, 49 Cal.2d at p. 192.) [1b]

The order denying or granting the motion is a special order made after entry of

judgment, and it may be directly attacked on appeal under Code of Civil Procedure

section 904.1, subdivision (b). Winslow v. Harold G. Ferguson Corp. (1944) 25 Cal.2d 274,

282 714; see also Eveleth v. American Brass & Iron Foundry (1962) 203 Cal.App.2d 41, 44

The reason for allowing the appeal is that an order giving effect to a void judgment is also

void and is subject to attack. (Security Pac. Nat. Bank v. Lyon, supra, 105 Cal.App.3d at

p. 13.) Thus, when an appellant attacks an order on the ground that it gives effect to a

27
judgment that is void for lack of jurisdiction [133 Cal.App.3d 111] by the trial court, the

general rule prohibiting appeal does not apply. It is a special order, and it may be

appealed if the underlying judgment was appealable. (Code Civ. Proc., 904.1, subd. (b).)

As discussed above, the amended judgment was void and of no effect. Plaintiff's failure to

file a cross-appeal from the amended judgment, thus in a sense allowing it to become

final, plainly does not give the amended judgment preclusive effect. fn. 6 The amended

judgment is a nullity, and can have no such effect. In addition, the trial court's

subsequent order denying plaintiff's motion to vacate the amended judgment, in that it

gives effect to a void judgment, is itself void. (County of Ventura v. Tillett, supra, 133

Cal.App.3d at p. 110.) While defendants are correct in stating that the order denying the

motion to vacate was itself appealable, plaintiff's failure to appeal from it, thus allowing it

to become final, makes no difference. A "final" but void order can have no preclusive

effect." 'A void judgment [or order] is, in legal effect, no judgment. By it no rights are

divested. From it no rights can be obtained. Being worthless in itself, all proceedings

founded upon it are equally worthless. It neither binds nor bars any one.' " Bennett v.

Wilson (1898) 122 Cal. 509, 513-514. We conclude that the trial court erred in

sustaining defendants' demurrer on the basis of res judicata. In sustaining plaintiff's

demurrer without leave to amend, the trial court in the present action agreed with

defendants' contention that the statute of limitations governing actions for fraud served to

bar the plaintiff's action. Code Civ. Proc., 338, subd. (d).) Based on the above authorities

which hold that a judgment void on its face may be attacked at any time, we conclude that

this was an erroneous basis on which to sustain defendants' demurrer .

28
"[I]ndependent of section 473 of the Code of Civil Procedure, the right exists to have a
void judgment vacated and set aside upon motion of the aggrieved party." Ross v.
Murphy, supra, "113 C.A. 2d at p. 455 , 145 C.A. 4th 1136.
Appellant cites no authority that the Santa Barbara Superior Court lacked jurisdiction to
determine whether the default judgment was void. This was and is a valid defense to the
enforcement of the Alameda County judgment. See Bank of Italy v. E. N. Cadenasso
(1929) 206 Cal. 436, 437-438 void judgment may be attacked anywhere, directly or
indirectly Rochin v. Pat Johnson Manufacturing Co. (1998) 67 C.A. 4th 1228, 1240 a
void judgment ""is, in legal effect, no judgment." We only hold that in an action to
enforce a judgment rendered in county #1, a superior court in county #2 may rule that the
county #1 judgment is void as a defense to enforcement in county #2.

ETS Services LLC, Breached Article 24 of the Trust Deed, which has an Express

Exclusionary Clause that only the Lender Mortgageit Inc. could substitute the original

Trustee named in the Deed of Trust. C.T. page 22, paragraph 9, line 7-28, C.T. page 23,

lines 1-28, C.T. page 24, lines 1-28, C.T. page 25 line 1. Which Express provisions must be

strictly construed against the Lender, & in favor of the Borrower, as this Court, 5 th DCA

stated in Bank of America vs La Jolla Group II (2005) 129 C.A. 4th 706, at page 712;

[3].. A power of sale in a Deed of Trust is a creature of contract, arising from the
parties' agreement.The power of sale only exists if it is expressly granted by the trustor
[which was Star Hills] in the security documents."; 4 Miller & Starr, Cal. Real Estate (3d
ed. 2003) 10:123, p. 381.The statutory scheme governing nonjudicial foreclosures does
not expand the beneficiary's sale remedy beyond the parties' agreement, but instead
provides additional protection to the trustor: "Statutory provisions regarding the exercise
of the power of sale provide substantive rights to the trustor and limit the power of sale
for the protection of the trustor." Ibid.

Voidness Of Acts In Violation Of A Controlling Statute

The Law in California regarding Voidness of Acts not in compliance with a Controlling
Statute is clear & has been well settled for a century or more.

It has been held repeatedly, and recently, that where a statute requires a
court to exercise its jurisdiction in a particular manner, follow a particular
procedure, or subject to certain limitations, an act beyond those limits is in

29
 excess of its jurisdiction. See Tabor v. Superior Court, 28 Cal.2d 505 ; Lord v.
Superior Court, 27 Cal.2d 855

As stated by our Supreme Court in the case of: Abelleira v. District Court of Appeal, 17

Cal. 2d 280; S. F. No. 16357. In Bank. February 7, 1941, at page: 288:

But in its ordinary usage the phrase "lack of jurisdiction" is not limited to
these fundamental situations. For the purpose of determining the right to
review by certiorari, restraint by prohibition, or dismissal of an action, a
much broader meaning is recognized. Here it may be applied to a case where,
though the court has jurisdiction over the subject matter and the parties in
the fundamental sense, it has no "jurisdiction" (or power) to act except in a
particular manner, or to give certain kinds of relief, or to act without the
occurrence of certain procedural prerequisites.
[2] A judgment is void on its face if the court which rendered the judgment
lacked personal or subject matter jurisdiction or exceeded its jurisdiction in
granting relief which the court had no power to grant. Becker v. S.P.V.
Construction Co. (1980) 27 Cal.3d 489, 493; If the judgment is void, it is
subject to collateral attack. (Craft v. Craft (1957) 49 Cal.2d 189, 192

Chapter IV, title III, part III, of the Code of Civil Procedure (secs. 1159-
1179a) is commonly referred to as our Unlawful Detainer Act.132 Cal.523,
534 The proceeding is entirely statutory. (15 Cal. Jur. 849; 36 C.J. 616.) [1]
Since special proceedings are created and authorized by statute, the
jurisdiction over any special proceeding is limited by the terms and conditions
of the statute under which it was authorized. Lay v. Superior Court, 11 Cal.
App. 558, 560 .)

It is clear by the facts in the record MERS had no power in the Deed Of Trust by

express agreement with the Trustor, Star , as Required by this Court in its Ruling

in Bank of America vs La Jolla Group II (2005) 129 C.A. 4th 706, at page 712; And ETS

Services LLC, falsified its purported Deed upon Sale, falsely claiming it was the appointed

Trustee in the Deed Of Trust, & GMAC Mortgage LLC had no Right of Possession at the

time of issuance of the Writ Of Possession by the Court, used to Evict Star & Alan, which

means they had no Right to Remove Star & Alan under the Unlawful Detainer Statute

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CCP 1161 which requires a perfected title, when they had no title at all

Plain Clear Language Doctrine

Under Civil Code Section 1654, any uncertainty must be interpreted against the party

who caused it. since MERS, et al , created the document, any uncertainty must be

interpreted against them & respondent herein.

The California Supreme Court Ruled in the Case of: Tanner V Title Ins.&
Trust CO .20 C. 2d 814, at Page 824:

In the absence of fraud or mistake, the intention of the parties as expressed in the
agreement is controlling, and courts are not empowered under the guise of
construction or explanation to depart from the plain meaning of the writing and
insert a term or limitation not found therein. Nrant v California Dairies, Inc., 4 Cal. 2d
128; Adams V. Cook, 15 Cal. 2d 352.True, courts have frequently considered implied
covenants as being within a contract, but such covenants are justified only when
they are not inconsistent with some express term of the contract and, in absence of
such implied terms, the contract could not be effectively performed. Williston on
Contracts, vol. 5, 1293; Jones v. Interstate Oil Corp.,115 C.A. 302. Tanner v Title Ins.&
Trust Co. 20 C. 2d 814, supra, at Page 824.

The trial court's approach violates basic principles of contract interpretation. We

interpret contracts as a whole, with each clause lending meaning to the others. Producers
Dairy Delivery Co. v. Sentry Ins. Co., supra, 41 Cal. 3d 90, 3916. Importantly, we should
interpret contractual language in a manner which gives force and effect to every
clause rather than to one which renders clauses nugatory. New York Life Ins. Co. v.
Hollender (1951) 38 Cal. 2d 73, 81-82,

However, language in a contract must be construed in the context of the instrument

as a whole, and in the circumstances of that case, and cannot be found to be
ambiguous in the abstract. Herzog v. National American Ins. Co. (1970) 2 Cal. 3d 192,
198-199, fn. 5.
The foregoing makes it clear that the purported Substitution of Trustee Executed by

said Beneficiary MERS was not in compliance with any General language under the

DEED OF TRUST, C.T. page 42 , under TRANSFER OF RIGHTS IN THE

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PROPERTY which Expressly states a Conditional Power to MERS, only IF NECESSARY

TO COMPLY WITH LAW OR CUSTOM.

It is clear by the foregoing that the authorized Substitution in Article / Paragraph 24 (1) is

merely optional, & (2) not a Mandatory Requirement under the Law, where it says

Maybe substituted; Further (3) The clear plain meaning of the words at the end of

the Section clearly Exclude the effectiveness of any such substitution, where there is a

provision in a Deed of Trust to the Contrary, after January 1, 1968, which clearly is

directed to Article 24 of the instant Deed of Trust, Executed well after 1968, in 2008

which is a contrary provision, reserving the Right to substitute the Trustee to the

Lender, at its option, which procedure for substitution of trustee shall govern to the

exclusion of all other provisions for substitution. Under Article-Paragraph 24 of the

Trust Deed it is clear that the Parties agreed to Appoint the Power of Substitution to

the Lender, MORTGAGEIT, INC. As is clear by Article Paragraph 24 of the Trust

Deed, & by the Express Provisions of California Civil Code Section 2934a, the Act of

Substitution of a Trustee is only an Option, a mere Convenience of the Lender,

subject to the agreement of the Parties to the trust deed, not a Mandatory Duty

Required by Law or by the Provisions of the Deed of Trust itself, which is the

purported Contract between the Parties to the Trust Deed. It is clear in the plain

Language that the authorized Substitution (1) is merely optional, & (2) not a

Mandatory Requirement under the Law, where it says May be substituted; Further

(3) The clear plain meaning of the words at the end of the Section clearly Exclude

the effectiveness of any such substitution, where there is a provision in a Deed of

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Trust to the Contrary, after January 1, 1968, which clearly is directed to Article 24

of the instant Deed of Trust, Executed well after 1968, in 2008 which is a contrary

provision, reserving the Right to substitute the Trustee to the Lender, at its option,

which procedure for substitution of trustee shall govern to The exclusion of all other

provisions for substitution. rendering the Purported Substitution of MERS in this Case

VOID, as the Clear Plain Language of the Trust Deed in this Case under Paragraph

24, & under page 2-3, under Transfer of Rights in the Property, general provisions

regarding the Rights of MERS in the Case of Necessityto comply with law or custom,

MERS (as nominee for Lender and Lender's successors and assigns), has the right:..The

5th District Court of Appeal in the case of: BANK OF AMERICA V. LA JOLLA GROUP

II (2005) 129 Cal. App. 4th 706, Ruled at page 712 that:

[3].. A power of sale in a deed of trust is a creature of contract, arising from the
parties' agreement. "The power of sale only exists if it is expressly granted by the trustor in
the security documents." (4 Miller & Starr, Cal. Real Estate (3d ed. 2003) 10:123, p. 381.)
The statutory scheme governing nonjudicial foreclosures does not expand the
beneficiary's sale remedy beyond the parties' agreement, but instead provides additional
protection to the trustor: "Statutory provisions regarding the exercise of the power of sale
provide substantive rights to the trustor and limit the power of sale for the protection of
the trustor." Ibid.

The Courts Denial of the Motion ignores the Clear Plain Language of Express Provisions

of the Deed of Trust, in Violation of the Clear Plain LanguageDoctrine, as Paragraph

16 of the Trust Deed Expressly states at the very end, under (C) that 16. Governing
Law; Severability; Rules of Construction.(c) the word "may"gives sole discretion without

any obligation to take any action.The Term Sole is Defined by Blacks Law Dictionary

at page 1248 as follows:

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Single; Individual; separate; the opposite of joint; as a sole tenant. Comprising only
one person; the opposite of aggregate; as a sole corporation. Without another or
others.

This definition of the word Sole expressly applied in Paragraph 16 (c) makes it clear

that May in Paragraph 24 can only mean one Person the Lender, not two, Lender

or MERS. In absence of any Mandatory Requirement in State or Federal Law

Requiring that the Lender Execute a Substitution of Trustee as a condition of

Executing a Mortgage Foreclosure, & in absence of an Express agreement between the

Parties to the Trust Deed in the instrument itself, requiring the Lender to Execute a

Substitution of Trustee as a Condition of Executing a Mortgage Foreclosure on the Note, it

is crystal clear in the Record that the Court can not Rely upon the General Provisions on

page 2 of the Deed which (1) do not list the Power of Substitution of Trustee, & (2)

Clearly conditions any exercise of any Right referred to therein upon the specific

circumstance it is NECESSARY TO COMPLY WITH LAW OR CUSTOM, in such

case, & only then, can MERS (as nominee for Lender and Lenders successors and

assigns).... take action. The Courts said Ruling is Void & Vacant of any finding that

Execution of a Substitution of Trustee, is a Necessary Requirement of Law or

custom in order to Institute foreclosure proceedings There was no statement by MERS

in the purported Substitution of Trustee Doc. Recorded in the Kern County Recorders

Office, which this Court is Required to take Mandatory Judicial Notice of Under

California Evidence Code Sect. 450-459, that it was Necessary as a Matter of Law or Custom

for the Beneficiary of the Trust Deed to Execute a Substitution of Trustee, rather it only

merely stated that the undersigned desired to Substitute the Trustee in the Deed of Trust.

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This is in clear contrast to the express provisions of Article 24 stating:

This procedure shall govern to the exclusion of all other

provisions for substitution;

This exclusionary provision is an express reservation of the power of substitution in

any case to the lender & only the lender named in the deed of trust; it is clear by

the express language that no one else named in the deed of trust may execute a

substitution of the original trustee named in the deed of trust; any other

interpretation renders that language surplusage because paragraph article 24 is the

only place in the whole deed of trust where there is any mention of the act & power of

substitution of the trustee, & for the Trial Court or any Court to read a Right or

Power of Substitution into that Section when the term is not found there, & when

there is an Express provision for Substitution in another part of the contract in

Paragraph 24, giving sole discretion to the named Lender alone, is not only a Violation

of the Clear Plain Language Doctrine, but a Violation of California Law under Calif. C.

C. Sect. 1656 NECESSARY INCIDENTS IMPLIED; because as that Section says,

Some of them are expressly mentioned somewhere else in the Document , in Article-

Paragraph 24 Substitution of Trustee which is not mentioned anywhere else in the

Deed of Trust;

& Violates the Rule of Interpretation that the Court must render meaning to every word

written. Not to do so would render the words in Paragraph 24 Meaningless & Useless

Surplusage, & Misrepresent the True intent of the parties to the Deed of Trust. In

California Civ. Code Sect. 1654, any uncertainty must be interpreted against the party

35
who caused it, MERS Et Al who created the document. There is no doubt under the law

that the Trial Court Committed Prejudicial Reversible Error, requiring the Appellate

Court to Reverse with a Finding that the Trial Court Erred in denying the Motion to

Declare the Substitution of Trustee by MERS, The Sale By ETS Services LLC, & the

Unlawful Detainer Judgment Void Ab Initio, with Directions to Vacate the Order

denying the Motion, & to enter an Order Granting the Motion, & Vacating the Ruling

on the Demurrer, & final Order dismissing the Case with Prejudice, entering another Order

overruling the Demurrer. The Trial Court in an Unlawful Detainer Action is a Court of

Limited Jurisdiction under Calif. C.C.P. Sect. 85 & 86 (a)(4) & is strictly bound by the

express requirements, preconditions & limitations in a controlling & authorizing

statute ,C.C.P. Section 1161a (b)(3); which express Statutory Mandates Require that the

Plaintiff claiming Title under that enactment 1161a(b)(3) must duly perfect its

claimed title, before he brings suit under 1161;

III

The Secret Quit Claim By GMAC Mortgage LLC To REO Properties

Corporation LLC Of All Right And Interest In The Real Property At 3018
Linden Avenue Bakersfield California While The Unlawful Detainer Case
& The Civil Action Over Title Were Still Pending Removed Jurisdiction
From The UD Court To Issue A Writ Of Possession To Evict Star & Alan
From their Home In Absence Of Any Substitution Of the Real Party In
Interest REO Properties Corporation LLC As Plaintiff

The Lack Of Jurisdiction To Grant Relief To GMAC Mortgage LLC

By Writ Of Possessions Rendered The Eviction Of Star & Alan
Void Ab Initio Requiring Return Of The Property
At 3018 Linden To Star & Alan

36
 B
Did GMAC Mortgage LLC Lose all Right To Possession To The Real Property
At 3018 Linden Avenue Bakersfield California When It Transferred All
Right & Interest To The Said Real Property on 3/8/2010 At C.T. Page
82-85 Rendering the Purported Writ Of Possession Used To Evict
Star & Alan Void Ab Initio, Requiring Reversal ?

Star & Alan alleged in their Verified Complaint the Doctrines of Res Judicata,

Collateral Estoppel, & the Statute of Limitations do not apply in this Case, due to the

intentional concealment of the Quit Claim Deed by GMAC Mortgage LLC, REO

Properties Corporation, LLC, & Martha Beatriz Compos.

In this Case the facts of the intentional concealment of the Quit Claim Deed Transfer by

GMAC Mortgage LLC, Reo Properties Corporation LLC, & Martha Beatriz Compos,

prevented Plaintiffs Star & Alan from filing a timely action against the new purported

owners while the litigation over Title was still on going in the Trial Court, requiring

Equitable & Collateral Estoppel to be applied. Failing to apply the applicable

Law to these well plead facts in the Verified Complaint resulted in Prejudicial Judicial

Error and a gross miscarriage of Justice requiring reversal on Appeal, since GMAC

Mortgage LLC was no longer the purported owner of the property at the time of issuance

of the Writ of Possession they had no right to possession of the property and had no right

to evict Star & Alan, and they were no longer the Real Party in interest, as required by

Calif. CCP 367, which mandates that:

Every action must be prosecuted in the name of the real party in interest, except as
otherwise provided by statute.

REO Properties Corporation LLC was the Real Party In interest at the time of the

eviction by Writ of Possession of Star & Alan, & GMAC Mortgage LLC, no longer having

37
any claim to a Right to the Title, lost any Right under the UD Statues to obtain Possession

by the UD Action through issuance of the Courts Writ Of Possession. This means that the

Trial Court lost Jurisdiction to issue the Writ of Possession ordering the eviction of Star &

Alan, at the moment the Plaintiff before them in the UD Case transferred by Quit Claim

Deed all right and interest in the Title to another party not named in the Action. This is

obviously true because the operating statute under UD Actions requires, as a jurisdictional

pre-requisite to filing a UD Action that the plaintiff filing the UD Action be in possession of

a Perfected Title after sale, & the Defendants & action must be maintained by the Real

Party In Interest which at that point became REO Properties Corporation LLC, who was

never substituted in as Plaintiff upon transfer of the the purported Title by GMAC Mortgage

LLC. REO subsequently went out of business, as did GMAC Mortgage LLC. In the absence

of any substitution of the Real Party In Interest REO, Star & Alan are entitled to return of

possession of the premises immediately and forthwith.

As stated by our Supreme Court in the case of: Abelleira v. District Court of Appeal,

17 Cal. 2d 280; S. F. No. 16357. In Bank. February 7, 1941, at page: 288:

But in its ordinary usage the phrase "lack of jurisdiction" is not limited to these
fundamental situations. For the purpose of determining the right to review by certiorari,
restraint by prohibition, or dismissal of an action, a much broader meaning is recognized.
Here it may be applied to a case where, though the court has jurisdiction over the subject
matter and the parties in the fundamental sense, it has no "jurisdiction"(or power) to act
except in a particular manner, or to give certain kinds of relief, or to act without the
occurrence of certain procedural prerequisites.
[2] A judgment is void on its face if the court which rendered the judgment lacked
personal or subject matter jurisdiction or exceeded its jurisdiction in granting relief
which the court had no power to grant. (Becker v. S.P.V. Construction Co. (1980) 27
Cal.3d 489, 493; Jones v. World Life Research Institute (1976) 60 Cal.App.3d 836, 840-848
If the judgment is void, it is subject to collateral attack. (Craft v. Craft (1957) 49 Cal.2d
189, 192

38
It seems clear that a Plaintiff in an Unlawful Detainer who transfers all Right and interest

in the Title of the Real property that is the subject of the litigation, without any notice to

the UD Court or to the adverse parties in the Action forfeits any right to Possession & has

no Right whatsoever to the issuance of a Writ Of Possession from the Court with which to

Evict the occupants who are claiming title and ownership of the same property in the

ongoing litigation, because such a UD Plaintiff no longer has any Title to the Real

Property he can have no Right to possession, thus no right to evict the occupants claiming

ownership in the litigation. Only the new purported owners REO Properties Corporation

LLC would have had a viable claim to possession after the time of the Quit Claim by

GMAC Mortgage LLC, but they were never substituted in as the Real Party In Interest

and new Plaintiff in place of GMAC Mortgage LLC. Both companies are now out of

business & have no Claim to the property at 3018 Linden Avenue, Bakersfield, California.

Statutory Requirements For Removing Occupants From Real Property in An

Unlawful Detainer Action Under Calif. CCP 1161a(b)

(3) California CCP Code Section 1161a(b)(3) Mandates:

In any of the following cases, a person who holds over and continues in
possession of ..real property after a three-day written notice to quit the property
has been served upon the person,.. may be removed therefrom as prescribed in this
chapter: (3) Where the property has been sold in accordance with Section 2924 of the
Civil Code, under a power of sale contained in a deed of trust executed by such
person,..and the title under the sale has been duly perfected.

There is clearly a pre-requisite of owning a Perfected Title to the Real Property

in Question under (3) before you have the right to remove the occupants from

the premises.

39
It is then obvious if the Plaintiff in an Unlawful Detainer Action under CCP 1161a

(b)(3) Transfers all his Rights & Interests to Title in the Real Property in question,

he has willingly given up his right to have the occupants removed as he no longer has any

Right to possession, he is no longer the owner of any Title, much less a Perfected Title.

CONCLUSION

Based upon all the foregoing it is clear that the Substitution of Trustee was not authorized

under the Deed of Trust because it was Executed by MERS not the Lender

MORTGAGEIT INC, who was Expressly given the Power to Substitute the Trustee

named in the Deed of Trust, with an Express Exclusionary Clause excluding any other

Provision for Substitution within the four corners of the Deed of Trust which explicitly

Excluded any general provisions that might be interpreted to give a power to Substitute

the Trustee. The Breach of the Express Provisions of the Deed of Trust in Article

Paragraph 24 rendered the Substitution of Trustee Recorded by MERS Void Ab Initio, &

no power or authority was passed to ETS SERVICES LLC to take any action whatsoever

under the Deed of Trust which rendered all their Actions as a purported Trustee under

the Deed Void Ab Initio, including the issuance of all Notices of Default, Sale, Etc., & the

Trustees Deed upon Sale Recorded by GMAC MORTGAGE LLC, & this further

Rendered the UD Action filed by GMAC MORTGAG LLC the UD JUDGMENT, THE

Writ of Possession & Eviction Of Star & Alan Void Ab Initio Requiring this Court to

Reverse the Judgment of the Trial Court with directions to Vacate the Judgment & enter

an Order Granting the Motion to Declare the UD Judgment Void, with further directions

40
to Order a Reconveyance of the Property at 3018 Linden Avenue, Bakersfield, California

& its return to Star & Alan, & this Court should also issue a further Order allowing

Application to this Court in the future if necessary to Enforce its Judgment. Otherwise

the Record is very Clear that the Court committed Reversible Prejudicial Error when it

Sustained the Demurrer of the Defendants without leave to Amend, & Dismissed the

Complaint with Prejudice, as the Secret Quit Claim by GMAC Mortgage LLC without

the Knowledge or permission of the Trial Court or Parties while litigation over the Title

was ongoing amounted to Intentional Concealment & Extrinsic Fraud triggering the

Doctrines of Equitable & Collateral Estoppel regarding any Statute of Limitations. The

High Courts rulings on the limited Res Judicata Effect of Unlawful Detainers precludes

application of the Doctrine of Res Judicata, or Collateral Estoppel in this Case. The

Writ of Possession was Obtained by Fraud by GMAC Mortgage LLC who had no

Right or Claim to title at the time it was issued, which means they had no Right to

Possession, & thus the Writ must be Declared Void Ab Intio, & Possession of the Real

Property & Home of Star & Alan returned to them immediately and forthwith, &

a re-conveyance Ordered by the Court returning Title to Star & Alan. For all the facts

& Reasons cited in the Opposition to the Demurrer the Court must now Reverse the

Judgment of Dismissal , & if the Court does not find for Star & Alan on the Voidness

issues, then it must Direct the Court to Vacate its Judgment & allow them to Proceed on

their Complaint in the Trial Court. Star & Alan respectfully Request this Court to do just

that.

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On this day, the- Twenty-sixth -day-of-the-Seventh-month-Two-Thousand-seventeen ,

___________________ ____________________
Star: Hills Alan Gjurovich
Appellant Appellant

42