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What did Judge mean by 'trial briefs' for a motion hearing?


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Scenario in Sacramento CA:  Lost an unlawful detainer trial (5 months of refusal to hear ANY issue of limited title, standing, or irregular trustee sale), put in a Quiet Title action just before that, then put in 3 ex parte hearings to stay the execution of the writ of possession.  2 no's, and today a yes!  Hearing is set for end of the month to hear out the guts of the motion to stay.

 

Judge and I and lawyer on the phone talked for a bit, then judge granted the stay, and set the hearing.  He told me to file the moving papers tomorrow (which I took to mean I should file the ex parte motion to Stay slightly reworked as a new motion for the hearing at the end of the month). 

 

 

He also said, "I expect to see some interesting trial briefs".  Which I didn't do a good job asking about. 

 

1.  Is not 'trial brief' the brief one brings to the trial?  This isn't a trial, it's a hearing.  Is that normal for a judge to ask for a trial brief for a hearing?

 

2.  Could he have been referring to the motion, opposition and reply as 'interesting trial briefs'?  That makes sense but I don't think he was referring to that.

 

3.  Sacramento county uses a tentative ruling system.  So if he makes a tentative ruling the day before the schedule hearing, when should he be given a trial brief??

 

4.  Additionally, what's the functional difference between a motion and a trial brief?  I'm looking at examples online and they seem to be pretty much the same thing....

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Why....does that rule make it sound like it's all about appeals and appellant?    Briefs aren't just used for appeals...

 

I'll wear my gal's underwear if that would make a difference.  The black ones, me thinks.

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In all seriousness, you will have to brief this and there is a lot that goes into the briefs you have to show that there is binding precedent to make the court give this ruling you want. He just called it a trial brief because he wants to see thorough argument about this.

 

so you may have to tune up those arguments with some quotes from the cases you are going to cite.

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Scenario in Sacramento CA:  Lost an unlawful detainer trial (5 months of refusal to hear ANY issue of limited title, standing, or irregular trustee sale), put in a Quiet Title action just before that, then put in 3 ex parte hearings to stay the execution of the writ of possession.  2 no's, and today a yes!  Hearing is set for end of the month to hear out the guts of the motion to stay.

 

Judge and I and lawyer on the phone talked for a bit, then judge granted the stay, and set the hearing.  He told me to file the moving papers tomorrow (which I took to mean I should file the ex parte motion to Stay slightly reworked as a new motion for the hearing at the end of the month). 

 

 

He also said, "I expect to see some interesting trial briefs".  Which I didn't do a good job asking about. 

 

1.  Is not 'trial brief' the brief one brings to the trial?  This isn't a trial, it's a hearing.  Is that normal for a judge to ask for a trial brief for a hearing?

 

2.  Could he have been referring to the motion, opposition and reply as 'interesting trial briefs'?  That makes sense but I don't think he was referring to that.

 

3.  Sacramento county uses a tentative ruling system.  So if he makes a tentative ruling the day before the schedule hearing, when should he be given a trial brief??

 

4.  Additionally, what's the functional difference between a motion and a trial brief?  I'm looking at examples online and they seem to be pretty much the same thing....

Number 2 is the correct assumption.  maybe PM me the motion and lets see what good caselaw can go towards him granting the motion to quiet title.

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Thanks Seadragon.

 

I just PM'd the Motion to Stay Execution of the Writ of Possession.  The Quiet Title complaint is on the GF's laptop, will get that to you in the morning.

 

Thanks for taking a look, I appreciate it.  Granted, it's due filed and served the 15th (as per the order of the ex parte hearing on the 14th) so don't know what can be changed on it in what time.  But they'll oppose and I'll get to reply.

 

 

And to clarify, you think I don't need to do a separate trial brief? And I should add in more case law to the Motion?  (Is what I gathered from your two different posts).

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He will need to make an affidavit denying the foreclosure is legal to go with the brief.

Wear your power skivvies as Hot Wheels recommends.

 

 

Format should look like

1.Table of Contents....................................................1pg

2.Summary of Argument.............................................1pg

3.Facts Relevant to Defendants Motion or Brief..........1pg

4.Argument...................................................................2pgs

things you could argue about here

A.The borrower must receive a twenty (20) day notice before any foreclosure sale,

B.Foreclosure sales must take place on any business day between the hours of 9AM and 5PM.

C.Notice of default must be recorded.

D.Deed of trust and security agreement

E.Mortgage Must be filed to prove evidence of debt

F. This Borrower contests the action in court

5.Conclusion

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He will need to make an affidavit denying the foreclosure is legal to go with the brief.

Wear your power skivvies as Hot Wheels recommends.

 

 

Format should look like

1.Table of Contents....................................................1pg

2.Summary of Argument.............................................1pg

3.Facts Relevant to Defendants Motion or Brief..........1pg

4.Argument...................................................................2pgs

things you could argue about here

A.The borrower must receive a twenty (20) day notice before any foreclosure sale,

B.Foreclosure sales must take place on any business day between the hours of 9AM and 5PM.

C.Notice of default must be recorded.

D.Deed of trust and security agreement

E.Mortgage Must be filed to prove evidence of debt

F. This Borrower contests the action in court

5.Conclusion

 

The judge asked me if with my Quitclaim Deed included taking over the mortgage/debt.   I didnt know the answer so said "the quitclaim gives me all rights title and interest, and if the mortgage comes with that that's fine"  What I didn't say was 'Upon information and belief I assert that the debt has been satisfied, due to credit swaps and selling the securitized note, etc)

 

I'm sure the judge will ask at the hearing something like "the debt hasn't been paid and I don't want you getting a free house"  to which my reply will be something like "I see no evidence that the mortgage has not been satisfied, I have evidence that the mortgage has been satisfied, and the other side has yet to prove that their claim to possession nor their right to bring this case."

 

Some of those facts should go in the affidavit, me thinks.

 

----

 

The argument in 2 pages?  Hmm.

A.  Bank of America was not the beneficiary and thus had no authority to assign a trustee to implement the trustee's sale.

B.  Recontrust is a wholly owned subsidiary of Bank of America, thus not a neutral 3rd party as required by law.

C.  The Assignment of Deed of Trust is void as James Kurcherka signed as Vice President of  8 different banks (with the same notary) in the span of a year. That notary, after investigation, appears to be non-existant, and no log book can be found (thus no notarization).

D.  The Substitution of Trustee is void Due to A and B.  Additionally, the SOT was not notarized.

E.  Thus the trustee's sale is irregular and therefor void.

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You've probably exhausted/gone through these options, but I thought I'd mention just in case:

 

Have you looked at calif. civil code section 2923.5? If you have taken out your mortgage in a specific period (2003-2007, I think, but please double-check) and the lender didn't send you a pre-foreclosure letter stating you have 14 days to schedule a meeting with a HUD counselor (right before they recorded the NOD), you can contest the foreclosure sale on those grounds.

 

Also, when a NOD was recorded, was the declaration that supported NOD signed under penalty of perjury? Have you checked at the county recorder's office. If the declaration was not signed under penalty of perjury, that can void a foreclosure sale, too.

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