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AMIR AFSHARKIAN 4726 Park Granada, Unit 215 Calabasas, CA 91302 DEFENDANT IN PRO PER

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES-VAN NUYS COURTHOUSE

) ) Plaintiff, ) ) vs. ) ) ) AMIR AFSHARKIAN, an individual; All others ) in possession; DOES 1 through 20, inclusive, ) ) ) Defendant, ) ) ) ) ) WELLS FARGO BANK

Case No.: 12B03446

MOTION TO STRIKE OF PLAINTIFFS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

TO THE COURT, ALL PARTIES HEREIN, AND THEIR ATTORNEYS OF RECORD: Defendant, AMIR AFSHARKIAN, (hereinafter Defendant ) hereby files his Motion to Strike the Unlawful Detainer Complaint for skipping the requirements of Code of Civil Procedure section 396(a) and failed to comply with the statutory requirements of California laws. MEMORANDUM OF POINTS AND AUTHORITIES I 1. 2. STATEMENT OF FACTS Plaintiff complaint follows an invalid foreclosure sale of the property owners real property. Defendant is a tenant and resides at the property and has a valid rental lease agreement

between the real party in interest who is the original owner of the property.

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II 3. There is no verified Complaint on file with this Court. See: Memorandum of Points and

Authorities Attorney for Plaintiff, Ruzicka & Wallace LLP/Dess Richardson, is a debt collector and cannot represent a third party. MEMORANDUM OF POINTS AND AUTHORITIES 4. There is no verified Complaint on file with this court, therefore, Plaintiff never pleaded with

standing or sufficiency. Our Supreme Court has said in Silcox v. Lang (1889) 78 Cal. 118, 122: The practice of attorneys verifying for their clients should be discouraged, and to that end, the provisions of the Code should receive a strict construction. Applying such a construction, Code of Civil Procedure 446 does not authorize attorney verifications where absence of the party creates no inability on his part to verify. 5.

DeCamp v. First Kensington Corp. (1978) 83 Cal. App. 3d 268, 275: this mandatory

language is not applicable only when the attorney verification is in bad faith. A leading treatise states: The Courts have construed CCP 446 to permit attorney verification only

where the clients absence from the county makes it impractical or impossible to obtain the clients signature (emphasis mine). If the client can be reached by mail, no such impossibility existsand the attorney verification is not allowed! [DeCamp v. First
Kensington Corp.(1978) 83 Ca. 3d 268, 275, 157 CR 869, 873verification of answer]. Plaintiff has never alleged that the proper party was impossible to reach, especially by mail, and therefore, is barred from such a Verification as has been presented in their Complaint and signed by Dess Richardson as attorney of record. 6.

Weil & Brown, California Practice Guide: Civil Procedure Before Trial(Rutter Group

2010) Ch. 6-b, Par. 6:323: Where Plaintiff cannot show that absence from the county renders Plaintiff unable to verify complaint, a proper party verification is required.

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7.

Plaintiffs attorney has never evidenced before this court a proper verification and is standing

under color of law by claiming it is moving on behalf of a third party. See: Heintz v. Jenkins

(1995) 514 US 291, 299. A debt collector is moving an action on its own behalf and in its
own interest and cannot represent a third party. In a County court, wherein the rights to property are determined, the debt collector, Ruzicka & Wallace, LLP., is moving a legal action in direct violation of Title 15 USCA Ch. 41 part V 1692i(b). A debt collector moved an initial communication to collect a debt (Notice to Vacate, January 4th, 2010). See: Goldman v. F

Cohen 445 F3d 152 (2006).

8. There is no verified Complaint on file with this court, therefore, Plaintiff never pleaded with

standing or sufficiency. Our Supreme Court has said in Silcox v. Lang (1889) 78 Cal. 118, 122: The practice of attorneys verifying for their clients should be discouraged, and to that end, the provisions of the Code should receive a strict construction. Applying such a construction, Code of Civil Procedure 446 does not authorize attorney verifications where absence of the party creates no inability on his part to verify. 9. Since Plaintiff has no valid execution of authority by its false filings at the County and

through its misrepresentations as to whom they represent to this court, the case itself cannot be classified as a Limited Case by statue. Defendant would be harmed in the amount of over $50,000.00 and this amount exceeds the limited jurisdiction of this court. Cal. Code of Civil Procedure 86(a)(1)et. Seq., Cal. Civil Code 1788.15(a) No debt collector shall collect or

attempt to collect a consumer debt by means of judicial proceedings when the debt collector knows that service of process, where essential to jurisdiction over the (alleged) debtor or his property, has not been legally effected.
10. The debt collector, Dess Richardson, has no legal authority to claim it is the legal

representative for a third party. Wilson v. Draper & Goldberg PLLC 443 F.3d 373 (2006). The

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debt collector in this matter is Robert J. Jackson & Assoc., Inc., and has no standing. Therefore, they must be enjoined from any actions in furtherance of dispossessing 4726 Holding Trust of its property. See: State ex rel. State Bar of Wisconsin v. Bonded Collections Inc., 36 Wis. 2d 643

(1967), Carroll v. Wolpoff & Abramson 961 F.2d (1992), and: California Commercial Code 1788.2(b) (definition of debt collector). III
DEFENDANTS HAVE ADEQUATELY PLEADED THE AFFIRMATIVE DEFENSES AND IS WITHIN THE SCOPE OF THE UNLAWFUL DETAINER PROCEEDING 11. A different rule applies in an unlawful detainer action that is brought by the purchaser after a

foreclosure sale. His or her right to obtain possession is based upon the fact that the property has been duly sold by foreclosure proceedings, CC1161a (b) (3) and therefore it is necessary that the plaintiff prove each of the statutory procedures has been complied with as a condition for seeking possession of the property. 12. When the eviction is by a bona fide bidder at the sale the defendant has no defenses to

eviction. However as in this case a beneficiary that is the plaintiff in the unlawful detainer action must prove that it has duly complied with each of the statutory requirements for foreclosure, and the trustor can put these questions in issue in the unlawful detainer proceeding. Miller and Star 3rd 10:220 13. By virtue of the fact that an unlawful detainer involves a forfeiture of the tenant's right to

possession, the courts strictly construe the statutory proceedings which regulate it. Kwok v.

Bergren, (1982) 130 Cal.App.3d 596, 600,181 Cal.Rptr. 795. The failure of plaintiff to perform a
condition precedent, to wit, failure to give defendant notice and a reasonable period to cure a breach of the terms and conditions, cancels the performance of defendant, until the condition precedent is performed according to the terms of the Deed of Trust. 14. In the absence of proof that plaintiff timely performed the condition precedent giving

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defendant a chance to cure his breach of the terms of the rental lease agreement and conditions of, plaintiff cannot proceed with the present action. The plaintiff is a stranger who is not in privity with the tenant, and he must prove that he is authorized by the statute to prosecute an unlawful detainer proceeding pursuant to a properly conducted foreclosure sale. Therefore, the tenant can raise the limited defense that the foreclosure sale is invalid because it was not processed in compliance with the statutes regarding foreclosures, and the plaintiff has the burden of proof that the foreclosure statutes were satisfied by performance of all of the notices and procedures required. 15. Such irregularities should constitute sufficient grounds to set aside the entire non-judicial

foreclosure process. Therefore, the affirmative defenses raised in Defendants answer to the Unlawful Detainer proceeding belong in the correct pleading. IV Plaintiff has not complied with Title VII-Protecting Tenants at Foreclosure Act 2009. On

16.

May 20, 2009, President Obama signed the Helping Families Save Their Homes Act of 2009, Public Law 111-22. Included in the public law is the Protecting Tenants at Foreclosure Act (Division A, Title VII), which provides protections for tenants, including tenants in housing subsidized by Section 8 of the United States Housing Act of 1937, who are living in homes subject to foreclosure. 1. Section 702. Effects of Foreclosure on Preexisting Tenancy. a.) In general- In the case of any foreclosure on a federally-related mortgage loan or on any other dwelling or residential real property after the date of enactment of this title, any immediate successor in interest in such property pursuant to the foreclosure shall assume such interest subject to- (2) the right of any bona fide tenant, as of the date of such notice of foreclosure(A) Under any bona fide lease entered into before the notice of foreclosure to occupy the premises until the end of the remaining term of the lease, except that a successor in interest may terminate the term of the lease effective on the date of sale of the unit to a purchaser who will occupy the unit as a primary
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residence, subject to the receipt by the tenant of the 90 day notice under paragraph (1); Under the Protecting Tenants at Foreclosure Act: (B) All tenants must receive a 90-day notice before being evicted as the result of a foreclosure. (C) With some exceptions, the law requires that in the event of foreclosure, existing leases for renters are honored to the end of the term of their lease. (D) The stated exceptions are for tenants without a lease, tenants with a lease terminable at will under state law, or where the owner acquiring the property will occupy it as a primary residence. In these cases, the tenants must receive a minimum of 90 days notice to vacate the property. (E) This law does not affect the requirements of any state or local law that provides longer time periods or other additional protections for tenants. (F) The new law does not require any agency to issue implementing regulations; these protections apply to foreclosures after May 20, 2009. (G) FDIC examiners will monitor and enforce compliance with the requirements of this law in the same manner as other consumer protection laws and regulations under State law, subject to receipt by the tenant of the 90 day notice under subsection (1). 17. Plaintiffs notice is defective, the owner of the property is 4726 Park Granada #215 Holding

Trust who has filed for protection of the property under the bankruptcy code, prior to sale of the property and therefore the deed of trust is void and invalid. V 18. The complaint is premature because tenant would like to continue out his lease agreement

and have not been contacted to do so. Under the Federal Protecting Tenants at Foreclosure Act 2009.

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VI 19. Without a valid offer to continue the terms of the rental lease agreement and failure of

Plaintiff to comply with Title VII-Protecting Tenants at Foreclosure Act 2009. Plaintiff has no cause of action. VII CONCLUSION For the reasons stated above, Plaintiffs Motion to Strike must be denied in its entirety. To the extent that this Court does grant any portion of the Motion to Strike, Defendants respectfully requests that this Court grant it leave to amend to conform their pleadings to the law.

Dated: June 29, 2012

Respectfully submitted,

_________________________________ AMIR AFSHARKIAN

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VERIFICATION I, AMIR AFSHARKIAN, am the Defendant in the above-entitled action. I have read the foregoing summons and know the contents thereof. The same is true of my own knowledge, except as to those matters which are therein alleged on information and belief, and as to those matters, I believe to be true. I declare that I am a tenant residing on the property and have not been contacted to continue out my rental lease agreement by the Plaintiff although the plaintiff is aware the property is in possession of a tenant. I have attached a copy of my rental lease agreement and elect to continue out my rental lease. Plaintiff has failed to comply with Title VII-Protecting Tenants at Foreclosure Act 2009. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Dated: June 29, 2012 _______________________________ AMIR AFSHARKIAN

DEFENDENTS MOTION TO STRIKE