Pro Per Homeowner WINS tide-changing case in California Appellate Court 5th District: GULIEX v. PENN
GULIEX v PENNYMAC HOLDINGS LLC Opinion HERE
Our letter was filed August 1 and confirmed.
Hoorays are ringing out in California! We applaud the judiciary of our 5th Circuit Court of Appeals as well as issue a hearty "Hear hear!" for a fellow self-represented homeowner with the gumption to take it up to appeal and not give up!
Another furtherance of remedy and right-thinking building upon 2016's CA State Supreme Court's other vital game-changing ruling on "borrower's standing" in YVANOVA. Here the GULIEX court on appeal found: "(Yvanova, supra, 62 Cal.4th at pp. 929, fn. 4, 937.) Based on Yvanova, the order sustaining the demurrer to the first three causes of action in Borrower's amended complaint cannot be upheld due to an absence of standing. Under Yvanova, Borrower has standing to challenge a foreclosure by an unauthorized entity."
CA Appellate judges also found in GULIEX that the trial court erred in finding a perfected chain of title to PennyMAC: "The court stated Borrower failed to allege sufficient facts to constitute a violation of law, and seemed unable to do so, because the chain of title of PennyMac was perfected. We disagree. As explained below, the facts alleged in the amended complaint and the facts judicially noticeable do not establish an unbroken or perfect chain of title from Borrower to PennyMac."
The Links in PennyMac's Purported Chain of Title
In the court's #2 point on Opinion: "Links' in a chain of title are created by a transfer of an interest in the underlying property from one person or entity to another. An examination of each link in the purported chain of title relied upon by PennyMac reveals that certain links were not established for purposes of the demurrer. Our analysis begins with a description of each link in the purported chain (and each related document, where known), beginning with the husband and wife who sold the residence to Borrower and ending with the trustee's sale to PennyMac. ... Links Three and Four Are Missing from the Chain," concluded the court in victory for homeowner and Plaintiff in Pro Per GULIEX.
In it's #3 point on opinion, the GULIEX Court addressed the question of "tender" and found supporting case law and prudence in keeping with established governing law, that: "Requiring a borrower to tender payment to a party that holds no rights or interests in the loan or deed of trust makes little sense. Consequently, we do not extend the tender requirement that is an element of an irregular foreclosure cause of action to the cause of action for unauthorized foreclosure. As a result, the order sustaining the demurrer cannot be upheld on the ground that Borrower was required to plead tender, or an excuse justifying the failure to tender."
Prejudice is examined, and the court draws a vital distinction between 'irregular foreclosure'and 'unauthorized foreclosure:' "We conclude that elements of a cause of action alleging an irregular foreclosure are different from the elements of a cause of action alleging an unauthorized foreclosure. "`[W]here a plaintiff alleges that the entity lacked authority to foreclose on the property, the foreclosure sale would be void.'" (Glaski, supra, 218 Cal.App.4th at p. 1101.) When the foreclosure sale is void for lack of authority, we conclude the borrower need not plead prejudice as a separate element of the cause of action. First, prejudice seems obvious. (See Sciarratta, supra, 247 Cal.App.4th at p. 565 ["homeowner experiences prejudice or harm when an entity with no interest in the debt forecloses"].)"
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THE DEADLINE was AUGUST 1 to send to the Court our Requests for Publication. HOWEVER below is an excerpt from the docket (not the complete list) showing that letters received late on 08/02/2017 were still noted in the docket! So, let's show support for publication and for the ruling and distinctions these good justices made in the case by writing in!
IMPORTANT: Request for pub letters must have Proof of Service to: 1) atty Stephanie West, 18377 Beach Rd #337, Huntington beach CA 92648-5694, firstname.lastname@example.org. 2) atty Christopher Peterson, 9665 Chesapeake Dr #305, San Diego CA 92123, email@example.com. If we use Truefiling, we can email service to them, with the built in POS in system. [see sample Letter linked above w/ two POS forms, modified for this court.]
A big "Thank You" goes to the Clerks of the 5th Appellate Court who have been scanning many letters for the justices to review. By August 11 they will render their decision whether to publish the case as certified and and hence able to be cited to as binding authority as appropriate and PERSUASIVE AUTHORITY for lower trial courts everywhere. We certainly believe and hope Guliex will be published!
IMPORTANT LESSON for future: Each Request for Publication must have a Proof of Service (POS) and send copies to each of the two Opposing Counsels (OC). NOTE: if you have a Truefiling account set up or can be invited to use another person's Truefiling.com electronic filing method, added on as a "self-represented filer," the court can accept it all electronically including having the option to email both attorneys of OC thru Truefiling. If postal mailing, priority mailing to Court and OC is good to be sure and get tracking. But even First-Class postage gets there!
Reposting LivingLies post HERE. "California Court attempting to Bury Decision!!! Don’t allow Guliex v. PennyMac to go unpublished! Act Today! We need all HOMEOWNERS and FORECLOSURE ATTORNEYS NATIONWIDE to HELP get this case published! And follow-up posting from LivingLies HERE.. Scrolling to bottom an update on docketed Requests for Publication is posted in Comments.
[ Proof of Service with 630 Request for Publication letters in EACH box being mailed to both opposing counsel attorneys for PennyMac. Pictured is tireless volunteer Dawn Burt of Mountain View CA's homeowners group LifeSavers Concepts Association. Mission accomplished!]
SAMPLE LETTER FOLLOWS (copied from Neil Garfield's blog post on Living Lies) - Late entries to the Court can't be officially filed but apparently if received, it will get docketed as late. Its encouraged to add a paragraph or so of your personal experience if impacted by foreclosure or how this case applies to your case or circumstances!
Fifth District Court of Appeal Request for Publication, Case No. F073142 Attn: Honorable Brad Hill, Presiding Justice 2424 Ventura Street Fresno, CA 93721
Subject: Request for Publication
Guliex v PennyMac Holdings LLC
Court of Appeal No F073142 filed July 12, 2017
Opinion cited as 2017 Cal App Unpub Lexis 4742
REQUEST FOR PUBLICATION OF OPINION
Dear Justices of the Fifth Appellate District of the California Court of Appeal,
Pursuant to California Rules of Court (“CRC”), Rule 8.1120(a) et seq., I am writing to respectfully and timely request certification for publication of the Court’s entire Opinion, or in the alternative, partial publication of Parts I. et seq. and II.B., for the case captioned above.
My interest in this request relates to the engineered attacks upon home ownership by unauthorized intermediaries engaged in self-help that is California’s non-judicial foreclosure process; and the application, interpretation, clarification and addressing of the facts in this instant case by the Appellate Court and its distinguishing other holdings involving legal issues of continuing public interest as well as clarification of certain specifics related to this field of litigation as the Opinion(s) may apply to other cases more readily once published.
The Opinion meets the standard for publication as authorized by CRC, Rule 8.1105(c) which provides that an opinion of a Court of Appeal or a superior court appellate division-whether it affirms or reverses a trial court order or judgment-should be certified for publication in the Official Reports if the opinion:
(1) Establishes a new rule of law;
(2) Applies an existing rule of law to a set of facts significantly different from those stated in published opinions;
(3) Modifies, explains, or criticizes with reasons given, an existing rule of law;
(4) Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule;
(5) Addresses or creates an apparent conflict in the law;
(6) Involves a legal issue of continuing public interest;
(7) Makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law;
(8) Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or
(9) Is accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law.
I contend the Court’s well-reasoned Opinion contained therein accordingly satisfy sub-sections 1, 2, 3, 4, 5, 6, and 8 as referenced above more specifically related to Sections I. sub-sections B, C, and D.
Section I.B. The Opinion clarifies that a homeowner “…has standing to challenge a foreclosure by an unauthorized entity.” Further, the Opinion clarifies that although a superior court may take judicial notice of documents that have been publicly recorded at a county recorder’s office, the “disputed or disputable” factual content of recorded documents is inadmissible hearsay. This meets the standard for publication per CRC, Rules 8.1105(c)(2, 3, 5, 6 and 8).
Section I.C. The Opinion establishes a new rule on the analysis of a chain-of-title as reflected documents publicly recorded at a county recorder’s office; as well as the analysis of each link in the chain-of-title as to whether a document can establish an unbroken or perfect link in the chain. The Opinion further clarifies that a plaintiff must allege facts that show the defendant who invoked the power of sale was not the true beneficiary. This meets the standard for publication per CRC, Rules 8.1105(c)(1, 2, 4, 6 and 8).
Section I. D. The Opinion establishes a new rule by distinguishing the two illegal types of wrongful foreclosures: procedural irregularities v. unauthorized foreclosure. This is an important opinion for these cases not previously popularized by other opinions clarifying the question of whether and/or when a homeowner must allege tender and/or prejudice. This meets the standard for publication per CRC, Rules 8.1105(c)(1, 2, 4, 5, 6 and 8).
Based on the foregoing, I respectfully request this Honorable Court publish the above referenced Opinion.
Partial docket list showing late-received requests are at least noted on the docket!