Professional Documents
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BRENT M. PERUCCA
Defendant
CASE NO :
REQUEST FOR DISCOVERY CONFERENCE LC 090841
Briefly describe the nature of the discovery dispute, including the facts and legal arguments at issue:
Court Instruction:
At the 02/25/10 hearing, Defendant’s Counsel informed the Court of his intent to file completed Motions to
Compel RFA’s, RFP’s, and all Form Interrogatories after the hearing (and no later than 02/26/10). The Court,
based on its standing Order, gave instruction that Counsel was directed to not file the motions, rather to file this
Request for Discovery Conference. The Court will reserve the issue of sanctions and indicated the motion to
compel cut-off will not apply during any dispute resolution process.
Statement of Law:
According to statute, there is no power of sale (foreclosure) unless the trustee strictly complies with the
procedures set forth in Civil Code (“CC”) §2923.5 and §§2924 et. seq. These statutory duties include, but are
not limited to, the duty to communicate/attempt to communicate with the Trustor re options to avoid foreclosure
[making any logs, diaries, or communications between HomeEq, the mortgage servicing company and Attorney
in Fact for Plaintiff, and Mr. Perucca, the Defendant, centrally relevant and discoverable]. In the absence of
communication, the trustee must send a certified letter, return receipt requested to the trustor at his last known
address. As set forth by CC §2924b(b)(1), within 10 business days following the recordation of the Notice of
Default, the trustee is required to mail by registered or certified mail a copy of the Notice of Default with the
recording date shown thereon. As set forth by CC §2924b(b)(2), at least 20 days before the date of sale, send by
registered or certified mail, a copy of the Notice of Sale. The Notice of Sale must describe the property by
giving its street address (See §2924f(b)(1). CC §2924(f) sets forth the publication requirements of the Notice of
Sale which includes publishing the Notice in a paper of general circulation. CC §2924b(e) sets forth the
This request must be served on opposing counsel in the same manner as the request is filed with the clerk. Any opposition must be filed within 2 business days
of receipt of request and served on opposing counsel in the same manner as the opposition is filed with the clerk. (The content of this document must be
limited to this 2 page form and must be prepared in 12 point type.
CSC01
Rev. 2/10
Case Name: U.S. BANK v. PERUCCA Case No: LC 090841
requirement for the execution and retention of affidavit, which requires it to identify the Notice mailed, showing
the name and business address of that person, that he/she is over the age of 18, the date of deposit in the mail, the
name and address of the trustor to whom sent, and that the envelope was sealed, deposited with postage fully
prepaid. Other laws are also relevant such as the Federal HAMP Act, however, the above must be strictly
complied with and is appropriate for the first round of Discovery.
Discovery Propounded:
In order to overcome the presumption of compliance with the above Code sections, Defendant propounded
RFA’s, RFP’s and Form Interrogatories. Defendant received bad faith boilerplate objections to all the Discovery
with no factual responses to RFAs and unverified hybrid responses (objections mixed with statements) to the
other Discovery propounded. Plaintiff indicated Verifications would follow, but none did. Defendant never
received a return call and was eventually forced to draft a well researched and detailed 9 page meet and confer
letter dated January 15, 2010, articulating the relevancy of the Discovery requests to the statutory compliance. Mr.
Endres failed to respond to the letter, but Defense did eventually speak with “Eric” who identified himself as a
Law Clerk. Eric faxed some added documents to Defense, but still no Verifications. Eric discussed the
documents produced but advised that he was leaving the office and he could not meet and confer. These
documents raised additional issues of lack of compliance with both the Discovery requests and compliance with
CC §2923.5 and §§2924 et. seq., which was then addressed in a second meet and confer letter dated February 1,
2010. This second meet and confer letter also stated there had not been any substantial response to the first letter
and that it not only still applied but needed to be responded to. Despite this second letter’s repeated request for a
meet and confer it has never been responded to in any way, forcing the Defendant to draft the motions to compel
in order to comply with the Code of Civil Procedure.
TODD A. PORTER,
Attorney for Defendant, BRENT M. PERUCCA
This request must be served on opposing counsel in the same manner as the request is filed with the clerk. Any opposition must be filed within 3 court days of
receipt of request and served on opposing counsel in the same manner as the opposition is filed with the clerk. (The content of this document must be limited
to this 2 page form and must be prepared in 12 point type.
CSC01
Rev. 2/10
1 Proof of Service
State of California, County of San Luis Obispo
2
I am employed in the County of San Luis Obispo, State of California. I am over the age of 18
3 and am not a party to the within action, my business address is 1052 Main Street, Suite #D, Morro Bay,
California 93442.
4
On March 1, 2010, I served the foregoing document(s) described as:
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REQUEST FOR DISCOVERY CONFERNECE
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on the interested parties in this action:
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X By Mail. I am readily familiar with my employer’s business practice for collection and
8 processing of correspondence for mailing with the United States Postal Service. Following ordinary
business practice, I served the above-described document(s) on all interested parties named below, by
9 placing at my place of business, the sealed envelope(s) for collection and mailing with the United States
Postal Service that same day in the ordinary course of business, addressed as follows:
10
David R. Endres, Esq.
11 THE ENDRES LAW FIRM, APC
2121 2ND Street, Suite #C105
12 Davis, California 95618
13 By Certified Mail to:
14 By personally delivering copies to the person served. Person served:
15 I delivered such envelope by hand to the offices of the addressee pursuant to Code of Civil
Procedure Section 1011. Please see address above.
16
X By facsimile. By sending a copy of said document by facsimile machine for instantaneous
17 transmittal via telephone line to the offices of the addresses listed above using the following telephone
number(s):
18 David R. Endres, Esq., at (530) 750-3366
19
I declare under penalty of perjury under the laws of the State of California that the above is true
20 and correct.
21 Executed on March 1, 2010, at Morro Bay, California.
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23 TODD A. PORTER
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U S B A N K V. P E R U C C A
SLO C o. Superior Court, Case #LC 090841
D e f en d an t’ s M o t io n t o C o m p el R F A -1-