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,

Reply Brief Of Appellants

Star: Hills & Alan Gjurovich,
-VS- In Reply To Respondents Brief
Of Martha Compos.
Martha Compos,

Defendant / Respondent.

________________________

Statement Of Significant Facts In The Record

Incorporation By Reference:

Appellants hereby incorporate by reference the contents of their Statement of

Significant Facts In The Record in their Opening Brief On Appeal previously

served and filed in this Case, which is hereby made a part of this Reply Brief.

Appellants further incorporate by reference as if fully set forth herein, their

previously served & filed Request For Judicial Notice & all papers in support

thereof, which is hereby made a part of this Reply Brief. Appellants hereby

incorporate by reference as if fully set forth herein the previous Questions

of Law set forth in their Opening Brief, which are hereby made a part of this

Reply Brief . Appellants have received Respondents Brief. Comes now

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Appellants with their Reply to Respondents Brief as follows:

Standard of Review
We review de novo a dismissal after a demurrer is sustained. Lazar v. Hertz
Corp. (1999) 69 C.A. 4th 1494, 1501, Regardless of the label given to a cause
of action, "[o]ur task is to determine whether the pleaded facts state a cause
of action on any available legal theory." Saunders v. Cariss (1990) 224 C.A.
3d 905, 908,"We give the complaint a reasonable interpretation, reading
it as a whole and its parts in their context.[Citation.] Further, we treat
the demurrer as admitting all material facts properly pleaded, but do
not assume the truth of contentions, deductions[,] or conclusions of law.
"City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865 "[W]e
are not bound by the trial court's analysis" of questions of law and
independently construe statutory law."City of Morgan Hill v. Bay
Area Air Quality Management Dist. (2004) 118 C.A. 4th 861, 870

Appellants Previous Request For Judicial Notice

Appellants hereby Note for the Record that they previously served and filed a

Request for Judicial Notice in support of this Appeal, incorporated herein

previously by reference, which this Court stated in its subsequent Order on that

Request it would defer Ruling on it until it's Ruling on the Merits. Appellants

Note for the Record that Respondents failed to Oppose the said Request For

Judicial Notice, & have failed to even address it in their Respondents Brief.

Therefore this Court should Grant the Request for Judicial Notice & address the

Equitable issues raised therein, & previously raised in the Related Appeal, &

Objections to the Intentional Concealment of the Quit Claim by GMAC Mortgage

LLC to REO PROPERTIES CORPORATION, LLC, & the subsequent Transfer

from REO to Martha Compos, with no Notice to the Trial Court, to the 5th DCA, or

to Appellants herein of any of these purported Transfers of the Title to the Real

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Property at 3018 Linden Avenue, Bakersfield California.

Appellants Reply To Respondents Brief :

I. INTRODUCTION. pages 7-8 of
I
In Their Introduction Respondent Made An Irrelevant
Attack On The Character Of Appellants Alleging this Appeal
Is An Abuse Of The Legal System Without Ever Claiming
Any Prejudice Injury Or Damage To Respondent Martha Compos
& Without Ever Requesting Any Relief From This Court

A
In Absence Of Any Claim By Respondent Compos
Of Any Prejudice, Injury, Or Damage From Any
Alleged Abuse Of Appellants, And In Absence
Of Any Request For Any Relief From The Trial Court
Or From This Court Of Appeal It Is Clear The Attack
Upon Appellants Character & The Filing Of This Appeal
Is For The Purpose Of Libeling & Defaming The
Character & Image Of Appellants Before This Court
To Prejudice The Three Judge Appellate panel Against
Appellants

B
The Attempt By Respondent Compos Through Her Counsel
To Defame The Character Of Appellants By Falsely Claiming
This Appeal Is An Abuse Of The Court System Without Alleging
Prejudice, Injury, or Harm, Or Requesting Relief Is In Itself
An Abuse Of The Court System To Which Appellants herein
Object To In The Most Strenuous Of Terms Possible

Respondent begins her Respondents Brief by immediately attacking the character

of Appellants falsely, & libelously alleging 'This appeal is plaintiffs most recent abuse
of the legal system..... & continues on for over a page with the attack, quoting
from the Trial Courts Minute Order wherein she stated If further motions are filed
in this matter the court will entertain a motion to declare the plaintiffs vexatious

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litigants. Citing C.T. p. 181, minute order. Nowhere does Respondent say that
she, by way of her loquacious counsel of record, Mr. Martin & Mr. Case, ever
filed any Motion with the trial Court to have Plaintiffs Declared Vexatious
Litigants, nor has she ever alleged any Harm, Injury, or Damage in the Trial
Court, or, that she ever moved the Trial Court for any Relief. Nor, does she say
that she has been Injured Harmed or Damaged here in this Court of Appeal,
& once again, she fails to Request this Court of Appeal for any Relief .
Respondent falsely alleges at Line 7-13 of page 7, under Introduction that :

the trial court concluded Plaintiffs bad faith delay tactics

should no longer be tolerated.
Of course this makes entirely no sense as there is nothing being delayed by
the action filed by Plaintiffs, & there is no reference by the Trial court in its
said Order at C.T. page 180-181, of any alleged bad faith delay tactics.
It is exactly this kind of false libelous defamation of character that is in fact
an abuse of the court system, as all Bar Attorneys are strictly forbidden
from making any false representation of fact or Law before any Court or
Judicial Tribunal, in the California Bar Code Rules Of Conduct which is
binding on all licensed Bar Attorneys & they can have their Bar license
suspended as a Violation of their Oath And Duties, as is expressly provided
for under the California Business and Professions Code.
In absence of any such allegations of personal injury, damage, or harm, the
assertions of purported abuse of the legal system are irrelevant, & can
amount to no more than an egregious attempt on the part of Respondent, by
said Counsel, to Defame Appellants Character before this Court, for the
purpose of Prejudicing this Appellate Court & the Appellate Panel,
against Appellants in Order to Deny them a Fair and Impartial
Determination of their Appeal, which, of course, is in itself an Abuse of the
Court System by said Counsel. That being said Appellants state here for the

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Record that the purported 14 Civil Cases listed in the Trial Courts
Minute Order are inaccurate at best, & it is doubtful that any attempted
Case for a Vexatious litigant Order would ever hold up under close
scrutiny. Right off the top, the third Case from the top of the list,
2012-CV-00481, is erroneous as Appellants were not even in Kern County
at that time, in 2012, & did not file any Civil Cases whatsoever in the
year 2012. Likewise the sixth case from the top of the list is again erroneous,
cited as 2000-CV-06136, there could not have been any cases filed in the year
2000 related to any of the matters in question, as the sale of the Home in
question was 8 years later in 2008. Of the Bankruptcy Cases filed, at least
one of them ended in an Order Discharging the debts of Appellant Alan
Gjurovich, & could not be considered in any such list. Further more, the
last Case on the list is the related Appeal, Case F064464 which is still pending
before this Court 5th DCA, which, once again could not be considered in any
such list. That Appeal Most certainly would have been Dismissed by the 5th
DCA long ago, if it was frivolous without any merit, since it has been there
for at least 5 years on a Bankruptcy Stay filed by the Respondents in New York,
which fits the description of intentional delay and stalling, etc. You would
reasonably believe that if GMAC Mortgage LLC & MERS, Et Al, believed that
the Appeal had no Merit they would have brought a Motion immediately before
this Court 5th DCA, to have the Appeal Dismissed as frivolous without any merit,
but, instead, after being served with the Opening Brief in that Case F064464, after
holding the Opening Brief for ten days, presumably reading it, Respondents served
a Notice of Bankruptcy & Automatic Stay on this Court, rather than answer the
Opening Brief. Appellants contend that none of the Cases or Actions taken by them
were taken in any bad faith, for any improper motives, or designs, & any other
conclusions by court, or counsel is totally erroneous. The Right to own & possess
Real Property is one of the most valued Rights, in deed, some say, it is the

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most valued Right, set out in the Bill of Unalienable Rights of the United
States Of America, thus being the Case, as the High Court of California has
Ruled in published Case Precedent, the Right must be Protected by the Courts,
& the State Legislature can not pass any Legislation whatsoever, that would
Deny an owner of such Real Property the protected Right under the Bill
Of Rights to fully Defend their Right to that Real Property by raising each
& every possible defense of Fact & Law available under our system of
Jurisprudence, consistent with said Bill Of Rights !!! This would be even
more so amplified in the clear light of the Historical Record that a
purported Unlawful Detainer Action, under the subdivision that
was merely added to the original statute in 1932, that was originally
intended to be used in only the Case of a Renter or Leaser of Real Property,
a Tenant & not an Owner of Title to the Real Property, such as is the
Case here, there would be a Real Question of Law as to the Validity of the added
Subdivision, including a Summary Action, where full scope Defenses of Title by
a Defendant are arbitrarily Denied to any Defendant Claiming they Own Title as
a Defense to the Summary Action, being a Policy directly in conflict with the
Express Ruling by the California Supreme Court that the Legislature can
not pass any statute Denying an owner of Real Property the Right to fully Defend
his Claim to Title, as it would appear on the face of the Historical Record that is
exactly what the Policy has been in Unlawful Detainer' Actions Relating to
Mortgage foreclosure Cases. This is not to mention the fact, that it Appears on
the face of the Historical Record that the presumption of a Perfected Title is
routinely applied by State Superior Courts, without the pre requisite proof required
by the express language of the applicable statute of the previous Perfection of
Title which includes both Equitable & Legal Titles meaning all claims against
the property (equitable Title) have to be settled before the Unlawful Detainer can
be filed, which never happened in this Case; which is precisely why the original

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Attorneys hired by GMAC Mortgage LLC, the Andres Law Firm often seen in
Television Commercials, Dismissed the original UD Action & withdrew as Attorney
of Record, because they had discovered that there was already another Action over
Title filed by Appellants concerning the Real Property in Question, & it had not
been settled, which means there was no Perfected Title, as a matter of California
Law as set forth in several Supreme Court Cases, which GMAC Mortgage LLC,
apparently did not inform their hired Counsel the Andres Law Firm, about.

Appellants Reply To Respondents Brief :

II. SUMMARY OF FACTS AND ARGUMENT Pages 8-15;

II
Respondent Makes A Number Of Mis-Statements & Misrepresentations
Of Facts In The Record Which Should Be Disregarded By The Court
A
Respondent Cites & Relies on Cases That Are Not On Point
& Are Inapplicable Under The Stare Decisis Doctrine
Which Should Be Disregarded By The Court

Respondent erroneously states at page 8 that MERS substituted ETS for Old
Republic as the Trustee prior to foreclosure, & ETS conducted the trustee's sale,
Under the terms of the deed of trust, erroneously citing in footnote 2, Appellants
Verified Complaint Exhibit 6 & 7, & 9, & page 5,6,7, to support this assertion,
which is blatantly wrong, as the record is clear Appellants have consistently
alleged from day one that MERS was not authorized to substitute the Original
Trustee under the general MERS provisions, due to the express exclusionary
provision in Article 24 of the Deed Of Trust; And under the Law of Contracts
the Court can not ignore the express provisions in Article 24, which has never
been directly addressed or opposed by Defendant / Respondent Compos in the
Trial Court, or here in the 5th DCA in Respondents Brief, even though said

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express provisions clearly and unambiguously state:
This procedure for substitution of trustee shall govern
to the exclusion of all other provisions for substitution.

At page 9 Respondent erroneously states the Bankruptcy Courts established

that GMAC acquired title to the Property & timely perfected ownership.
C.T. at 104. The record is clear there was no trial or full litigation on any of
the merits of Appellants Voidness claims in any of the Bankruptcy Courts, they
were all merely summary remand orders, based on the papers filed by GMAC
without any evidentiary hearing evidence or witness testimony, therefore as a
matter of California Law none of the matters alleged to be established by the
Bankruptcy Court are in fact established as any Res Judicata Final
Judgment, as any matter of fact or Law for the purposes of this Appeal or the
Quiet Title action in the Trial Court. Respondent again misrepresents Appellants
Verified Complaint at page 10 of their Brief in the first paragraph, where they
say at C.T. pages 20-23 Plaintiffs merely alleged ETS lacked authorityto
conduct the trustees sale. A Claim of mere lack of authority to conduct the
trustee's sale, if true, would only be a voidable Claim & not the claim of
Void Ab Intio, which is what Plaintiffs actually claimed, as set forth below:

Unlike a voidable transaction, a void one cannot be ratified or validated by the

parties to it even if they so desire. Colby v. Title Ins. and Trust Co., supra, 160 Cal.
at p. 644; Aronoff v. Albanese, supra, 446 N.Y.S.2d at p. 370 .

The record shows at C.T. page 20, line 28 under paragraph 8, C.T. page 21 lines

1-8, what Appellants actually alleged:

Plaintiffs seek determination of Title from the date of the purported Public Sale
of said (C.T. P-20) Real Property of 11/13/2008 by Purported Sale Trustee, ETS
Services LLC,Trustees Deed Upon Sale Kern County Document# 0208183483,
Recorded on 11/26/08, in the Kern County Recorders Office, which Plaintiffs
contend was Void Ab Initio, due to the fact it was a Breach of the Original Terms

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of the Deed of Trust, Recorded on 6/8/07 Kern County Document # 0207122159,
Violating the Express Conditions and Limitations set forth in that document,
which was a binding contractual agreement between Plaintiff Star Hills and
Lender MORTGAGEIT INC..
At page 11 Respondents erroneously allege & argue that the Fraudulent
concealment of the Transfer by GMAC to REO is irrelevant because:

Tolling does not apply where, as here, Plaintiffs knew that they had a Claim for
Title to the property as soon as GMAC completed the foreclosure;

Of course, as pointed out previously in the Opening Brief, it is obvious in the Record,
that Plaintiffs, Appellants herein, filed a timely action over Title, alleging, as here,
that the Substitution of Trustee by MERS was Void Ab Initio, because it Breached
Article 24 of the Deed of Trust, which was binding on GMAC, & that Law suit is
still on Appeal in Related 5th DCA Appeal F064464, which Appellants have
Requested the Appellate Panel in this Appeal to take Judicial Notice of in a
Separate Request served on Respondent & filed with this Court prior to the filing
of the Opening Brief, which Respondent has failed to oppose or even address in
Respondents Brief. It is a matter of Record, that in the ongoing Trial Court Case,
at that time, Kern County Superior Court Case # S-1500-CV-271292-DRL, now
related Appeal Case F064464 in the 5th DCA, the only known party having a claim
on the property at the time of the Void Eviction of Plaintiffs / Appellants herein,
from their home at 3018 Linden Avenue, Bakersfield California, was GMAC
Mortgage LLC, who was timely sued, as is clear in the Record, with 100 Doe
Defendants, who were among other things, any unknown parties claiming an
interest in the Real Property. As also set forth in Appellants Opening Brief,
if it had not been concealed by GMAC Mortgage LLC, REO PROPERTIES
CORPORATION LLC, & Martha Compos, Martha Compos would have been
timely named as a Doe Defendant which, again, Respondents have failed to
address in Respondents Brief, or even dispute or deny. Obviously that fact

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alone makes the concealment of the Secret Quit Claim by GMAC Mort. LLC
Relevant, to the contrary of the false argument of Respondent in Respondents
Brief. The fact that Respondent would have been a Doe in the earlier suit over
Title, that is now on Appeal, should be enough to toll any Statute of Limitations
against her in this Case, by way of Equitable & Collateral Estoppel, as stated
in the Opening Brief. At the time of the Void Eviction the current Occupant
was not a known claimant of Title or in occupation of the Property, so there
would have been no basis known or knowable to Plaintiffs at the time in question
to sue her over Title. Therefore the assertion that any Statute of Limitations
against Martha Compos would have began to run at time of Eviction as alleged
here by Respondent is absurd on its face, because it is irrational & illogical, you
can't sue a party to Quiet Title, before they have claimed Title of the Property !!!
At the time of Eviction niether REO PROPERTIES CORPORATATION, LLC,
or Martha Compos had stepped forward to Claim any ownership interest in the
Real Property at 3018 Linden Avenue, Bakersfield California; Instead they sat
silent hiding in the background allowing GMAC to Front for them, effectively
aiding & abetting GMAC Mortgage LLC in their scheme to deceive & commit
Fraud upon Plaintiffs Alan & Star. And because the Transfer to REO was
concealed it is obvious Plaintiffs had no basis in known fact to sue them over
the Title at the time of Eviction, or, without a doubt they would have sued them
at that time. Star & Alan did not even know of their existence.

No Claims Of Latches, Intentional Delay

Or Lack Of Due Diligence By Respondent

It should be noted by this Court that at no time in the Trial Court & at no time

in this Court has Respondent ever alleged Latches or Lack of Due Diligence in

Discovering the Intentional Concealment, nor have they ever alleged any facts

in their possession that establish that there was any Intentional delay, or stalling,

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or lack of Due Diligence in Discovering the Intentional Concealment, although

Respondent makes the general allegation that Plaintiffs knew they had a

Claim for Title to the property as soon as GMAC completed the foreclosure,

they offer no factual proof in the Record of how that applies to Martha Compos

who was not an occupant of the house nor the purported purchaser at the sale

at the time of eviction, & was not claiming to be owner of Title to the Real

Property in Question, as far as Plaintiffs or the Superior Court were aware

at that time. Moreover, Respondent makes the nonsensical argument at page

11, again misrepresenting Plaintiffs Claim as trustee lacked authority

instead of Breach of Deed Of TrustVoid Ab initio, that the claim was
available more than five years before they filed the present complaint even
though they know, if they applied due diligence in this Case, that Claim was
made in the prior Action & it is on Appeal in this Court, 5th DCA, F064464.
Then, they say at the top of the next page, 12,Plaintiffs alleged ignorance of
the identity of REO or Ms. Compos did not toll the statute citing a Case that is
excluded under the Stare Decisis Doctrine & does not Apply to this Case, Fox vs
Ethicon Endo-Surgery, Inc. 35 Cal. 4th at 807. Of Course, Appellants never
alleged mere ignorance as an excuse in this Case. They averred, in a Verified
Complaint, that GMAC Mortgage LLC, REO PROPERTIES CORPORATION,
LLC, & Martha Compos Intentionally Concealed the Facts that GMAC
Mortgage LLC Secretly Quit Claimed their alleged Title to the Real Property at
the time there was still Litigation on going over the Title, in the Superior Court
of Kern County, in Kern County Superior Court Case S-1500-CV-271292, to
REO PROPERTIES CORPORATION, LLC, but they did not Substitute REO into
the Case as Real Party In Interest, which they were Required to do. They then
proceeded to obtain a Writ Of Possession from the Kern County Superior Court

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when they had no Title to the Property, much less a Perfected Title as is
required to even file the Unlawful Detainer in the First place, & thus had no
Right Of Possession, rendering the Writ Of Possession Void Ab Initio. After the
Void Writ of Possession was filed & Plaintiffs were forced out of the home, &
after REO purported to Transfer by a Grant Deed, purported Title of the property,
to Martha Compos, without informing the Court or Plaintiffs, Compos moved into
the home, but she too failed to inform anyone in the Court or Plaintiffs she now
claimed Title to the Property. Based on this chain of intentional concealment
Plaintiffs alleged all parties were Equitably and Collaterally Estopped from
Claiming the Statute of Limitations as any Defense in the Case, etc. among other
things. Furthermore it makes no sense that Respondents argue the intentional
concealment of the Quit Claim is irrelevant, when it is obviously Relevant to the
Claim in the Verified Complaint that because of the Secret Quit Claim of all Title
& Interest in the Property by GMAC Mortgage LLC they had no Right to
Possession of the Real Property at the time they Obtained the Writ Of Possession,
& therefore had no Right to Evict Plaintiffs, rendering the Writ Of Possession Void
Ab Initio, & the Eviction of Plaintiffs Void Ab Intio, which Verified allegations are
no where directly addressed by Respondent either in the Trial Court, or in their
Respondents Brief in this Court, 5th DCA ! Thereafter, under D of page 12-13
Respondents Argue that the Trial Courts Dismissal should be upheld on the
Alternative Grounds that Plaintiffs fail to State a Claim, stating that if the
Statute of Limitations was Tolled, the Trial Courts Dismissal should still be
upheld because Plaintiffs Claims fail on the Merits, repeating the four propositions
that they stated in the Trial Court that: (1) MERS had authority to substitute the
trustee under the Deed of Trust, (2) The Substituted trustee had authority to
conduct the trustee's sale; (3) GMAC established its title to the Property when it
obtained an unlawful detainer judgment against plaintiffs (page 12) and at page
13: (4) Plaintiffs Quiet Title Claims fail because they have not tendered the debt;

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citing footnotes 4,5,6, at bottom of page 12: 4. Civil code 2934a (1)(A); 5. Ram v.
One West Bank, FSB, 234 Cal. App. 4Th 1, 12-13 (2015) a case that is excluded
under Stare Decisis Doctrine, & does not apply to this Case; 6. Orcilla v. Big Sur,
Inc., 244 Cal. App. 4Th 982, 1010 (2016), a case that is excluded under Stare
Decisis Doctrine, & does not apply to this Case; (bottom of page 12) & footnote 7.
at the bottom of the next page, 13, FPCI RE-HAB 01 v. E & G Investments, Ltd.,
207 Cal. App. 3d 1018, 1021 (1989) a Case that is excluded under Stare Decisis
Doctrine, & does not apply to this Case; Respondents go on to repeat the same
arguments previously made in the Trial Court, at pages 12-15, not even providing
one single Case that is on point, just as they did in the Trial Court, I.E: None of
the Cases relied on raised any issue of a Breach of Express Provision of the Deed
Of Trust Article-Paragraph 24, rendering the substitution of the Named Trustee
Void Ab Intio of no effect & unenforceable under Law, Rendering all subsequent
Acts & Actions of the purported Substituted Trustee, also Void Ab Initio, of no
effect under Law, what soever, totally unenforceable under the Law. At page
13-14, under heading: 1.MERS had authority to substitute ETS as trustee,
& ETS had authority to conduct the trustee's sale Respondents misrepresent
the Law under California Civil Code Section 2934a as being an across the
board, & unlimited in scope Grant to MERS to Substitute the Trustee in any
case at any time, at will, taking the language out of it's whole context, & in so
doing they distort & misconstrue its true meaning. Respondents never mention
that California Civil Code Section 2934a (a)(1)(A) is time limited & conditional,
& neglect to mention the established fact that Courts have Ruled in published
Opinions, that the parties can waive the provisions of Civil Code 2934a & the
parties can make a different agreement for substitution of the Trustee, which
is also clearly indicated in the language Omitted by Respondents, where it
expressly states may be substituted ....as follows in the underlined portions:
(a)(1) The trustee under a trust deed upon real property or an estate for years
therein given to secure an obligation to pay money and conferring no other duties
upon the trustee than those which are incidental to the exercise of the power of

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sale therein conferred, may be substituted by the recording in the county in
which the property is located of a substitution executed and acknowledged by:
(A) all of the beneficiaries under the trust deed, or their successors in
interest, and the substitution shall be effective notwithstanding any contrary
provision in any trust deed executed on or after January 1, 1968 ;
(emphasis added by Appellants).

The term may used by the California Legislature in the above cited statutory

provision, under (a) (1) is defined in Blacks Law Dictionary, 5th Edition, 1979,

at page 883, in appropriate part :

In construction of statutes and presumably also in construction of federal

rules word may as opposed to shall is indicative of discretion or choice
between two or more alternatives, but context in which word appears must
be controlling factor.
The same word may is defined in Blacks Law Dictionary, 4th Edition 1968,
at page 1131, in appropriate part as:
Auxiliary verb qualifying the meaning of another verb by expressing ability,
competency, liberty, permission, possibility, probability or contingency.

As is clear by the foregoing, the provisions of Calif. Civil Code Section 2934a

(a)(1)(A) are not Mandatory, but are only an option, or alternative.

As a matter of course, Respondents have ignored & excluded the express

provisions under subdivision (A) that expressly states:

notwithstanding any contrary provision in any trust deed executed on or

after January 1, 1968

Which of course is taking the statute out of its intended context, ignoring the whole

intent & meaning of all the words enacted by the State Legislature, which is not

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allowed in Contract Law, & in the Cardinal Rules of Statutory Construction &

Interpretation, As the California Supreme Court has stated many times:

It is a settled rule of statutory interpretation that courts must avoid rendering

particular terms meaningless or mere surplusage. See, e.g., City of San Jose v.
Superior Court, 5 Cal. 4th 47, 55 (1993) In using two quite different terms
. ...We ordinarily reject interpretations that render particular terms of a
statute mere surplusage, instead giving every word some significance
In re Marriage of Duffy, 91 Cal. App. 4Th 923, 939 (2001).

According to BLOOMBERG at: https://www.bloomberg.com/, on the World Wide

Web:

M.E.R.S., Mortgage Electronic Registration Systems (MERS), is a national

electronic registry system that tracks the change in servicing rights and beneficial
ownership interests in residential mortgage loans, and :

is owned and operated by MERSCORP Holdings, Inc.

Bloomberg", further expressly states that MERSCORP Holdings, Inc.

& their subsidiary, MERS were founded in the year 1995.

On their web site, https://www.mersinc.org/about-us/our-business

MERSCORP Holdings, Inc. states under Our Business, that :

MERSCORP Holdings, Inc. is a privately held corporation that owns and

manages the MERS System and all other MERS products.

Based upon all the foregoing information, it is clear that the California

Legislature did not have MERS in mind when they enacted the statutory

provisions of Civil Code Section 2934a & the foregoing language under (A)

all of the beneficiaries under the trust deed, or their successors

in interest,...

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because it speaks of trust Deeds after 1968, and the MERS system did

not even exist until 1995.

It is further clear that the express language used by the Legislature in (A)

all of the beneficiaries, obviously contemplates & anticipates two, or more,

as the usage of the express term all means plural, not a single Beneficiary,

by themselves, excluding other interested parties who benefited under the

agreement. If it was intended to be a single individual Beneficiary it would be

stated as the Beneficiary. This is clear when we read the definition of the

term all in Blacks Law Dictionary, 5th Edition 1979, at page 68 where it

states under all:

Means the whole of used with a singular noun or pronoun, and referring to
amount, quantity, extent, duration, quality or degree,the whole number of or
sum of-- used collectively, with a plural noun or pronoun expressing an aggregate.
Every member of individual component of each one of used with a plural noun.
All refers rather to the aggregate under which the individuals are subsumed,
than to the individuals themselves

The term aggregate is defined at page 60 in appropriate part as:

Composed of several, consisting of many persons united together,

a combined whole.

The term Beneficiary is defined at page 142 of the same edition, as:

One who benefits from the act of another. Blacks Law Dictionary 4th

Edition, 1968, defines Beneficiary at page 199 as :

One for whose benefit a trust is created; one receiving benefit or

advantage, or one who is in receipt of benefits, profits, or advantage.

It is further made clear that the State Legislature had more than one

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beneficiary in mind when you look at subdivision (B) which follows (A)

where it expressly states:

(B) the holders of more than 50 percent of the record beneficial interest of
a series of notes secured by the same real property or of undivided interests
in a note secured by real property equivalent to a series transaction, exclusive
of any notes or interests of a licensed real estate broker that is the issuer or
servicer of the notes or interests or of any affiliate of that licensed real
estate broker.
the holders is again, obviously plural not singular , not contemplating a

single Beneficiary, but minimally, more than one.

The question is why would the legislature clearly use plural terms in both of

the related subdivisions if only a single Beneficiary was necessary to execute a

a substitution of Trustee ?

By the express definitions of Beneficiary cited prior in Blacks Law Dictionary

it is clear that any party who benefits from a contract, IE a Trust Deed is a

Beneficiary of that contract or Trust Deed. So by the very nature of contracts

both parties, or all parties to a contract or Trust Deed are Beneficiaries

which means the Lender and the trustor are both the beneficiaries of the Deed

of Trust. It is very clear that the terms All Beneficiaries enacted by the

legislature well before the creation of MERS in 1995, may well have been referring

to both the Lender and the trustor which would have been Mortgageit Inc,

& Star Hills, not MERS. This becomes very clear when you read the ruling of

the Court in the Case of : Pacific States Savings and Loan Company, vs North

American Bond and Mortgage Company a Corporation (1940) 37 C.A. 2d 307,

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309-311, at page 310-311, which follows:

If we regard substance rather than form, it would seem that the anomalous role of
the so-called trustee under a deed of trust is more nearly the role of a " common
agent of both parties" and not that of a "trustee at all in a technical sense".

If he be treated as a mere agent, his powers are clearly revocable under familiar
rules of agency (Civ. Code, sec. 2356), but whether he be treated as a mere agent
or as a trustee with the limited powers conferred by the deed of trust, we are of the
opinion that he possesses no powers and no interest which are beyond the reach
of the parties creating the same, or of the successors in interest of such parties.

In other words, we are of the view that the principal parties to the transaction,
to wit, the trustor and the lender, or the successors of said parties, may by
appropriate joint action revoke the trust entirely leaving the title to the property
in the trustor or his successor free of any trust or encumbrance; that they may by
appropriate joint action convey title to a third person free of any trust or
encumbrance; and that they may by appropriate joint action substitute a
new trustee in the place of the original trustee named in the deed of trust.

This view merely accords to said principal parties the same measure of
control over the transaction as have the principal parties under a mortgage
containing a power of sale. There seems to be no sound reason, as between
the principal parties and the trustee, to deny to the principal parties that
same measure of control.

The Court in the Case of Jones VS First American Title Ins. Co. (2003) 107 C.A.
4th 381, Ruled at page 390:

A case is not authority for propositions not considered. Contra Costa Water Dist.
VS Bar-C Properties (1992) 5 C.A. 4th 652, 660.Here the trial court expressed
concern that noncompliance with section 2934a amounts to a waiver which would
violate public policy. We would be reluctant to apply reformation where the result
would be tantamount to a waiver of a statutory right in violation of public policy.
There is, however, no such concern here.

Any public purpose attendant to section 2934a would not be compromised by

allowing waiver in this context. It is well settled that parties to a deed of trust
may agree to a form of substitution of trustee other than that provided in

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Section 2934a. See Pacific S. & L. Co. VS N. American etc. Co. (1940) 37
C.A.2d 307, 309-311

[3] Moreover, no statute expressly prohibits the waiver of section 2934a.

Tellingly, the Legislature has enacted a statute enumerating the statutory
provisions incident to foreclosure that are not subject to waiver. (? 2953.)
Section 2934a is not included. Following the maxim of statutory construction,
expressio unius est exclusio alterius, or " 'the expression of one thing is the
exclusion of another' "People v. Anzalone (1999) 19 Cal. 4th 1074,1078, quoting
Black's Law Dict. (6th ed. 1990) p. 581, col. 1), we conclude that if the Legislature
had intended section 2934a to be nonwaivable, it would have included it in section
2953, which prohibits the waiver of rights under sections 2924, 2924b, and 2924c
and Code of Civil Procedure sections 580a and 726. (See Strang v. Cabrol (1984)
37 Cal.3d 720, 725 [209 Cal.Rptr. 347, 691 P.2d 1013] ["[A]n express exclusion
from the operation of a statute indicates the Legislature intended no other
exceptions are to be implied". Jones VS First Amer. Title Ins. Co. (2003) 107
C.A. 4th 381, at page 390.

These facts are entirely relevant, because as stated in the Statute, 2934a (A), and as

is the Case here, this is a deedof Trust Executed after January 1, 1968 .

And there is a contrary provision in Article-paragraph 24, of the Deed Of

Trust in Question. Under Article-Paragraph 24 of the Deed of Trust, at C.T. page 57

under the heading Substitute Trustee it expressly provides the following:

Lender at its option, may from time to time appoint a successor trustee to any trustee
appointed hereunder by an instrument executed and acknowledged by Lender and
recorded in the office of the recorder of the county in which the property is located.
The instrument shall contain the name of the original Lender, Trustee, and Borrower,
the book and page where this Security Instrument is recorded and the name and
address of the successor Trustee. Without conveyance of the Property, the successor
Trustee shall succeed to all the title, powers and duties conferred upon the Trustee
herein and by Applicable Law. This procedure for substitution of Trustee shall
govern to the exclusion of all other provisions for substitution.

Obviously the terms Lender at its option ..... is a contrary provision in a

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Trust Deed, after January 1, 1968. The actual SUBSTITUTION OF TRUSTEE
document Executed by CINDY SANDOVALASSISTANT SECRETARY of
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. found at

C.T. Page 97, clearly states in the upper left hand corner of the document that the
recording was requested by: FIRST AMERICAN TITLE INSURANCE & ETS
Services, LLC, 2255 North Ontario Street, Suit 400, Burbank, California 91504

-3120 (818) 260-1600. It does not indicate anywhere on the document

that the Lender MORTGAGEIT INC. was Requesting the Recordation or

that the Substitution and Recordation were being Executed on behalf of the Lender,

not does it use the language at page 2 of the Deed Of Trust, C.T. page 41, under

(E) MERS ...... is acting soley as a nominee for Lender and Lenders

successors and assigns. Nor does it use the language found at page 3 of the Trust

Deed, under TRANSFER OF RIGHTS IN THE PROPERTY, where it says

.. MERS, solely as nominee for Lender and Lender's successors and assigns

The document only states that:

WHEREAS, the undersigned desires to substitute a new Trustee under said Deed of
trust in place and instead of said original Trustee, or Successor trustee, thereunder,
in the manner in said Deed of Trust provided, Now, THEREFORE, the undersigned
desires to substitute ETS SERVICES, LLC, as Trustee under said Deed of Trust.
Dated 6/11/2008.
The foregoing appears clear on the Record that the 'Substitution Of Trustee'
Document RECORDED BY ETS SERVICES LLC was clearly in Breach of The
Express Terms of Deed of Trust being executed by CINDY SANDOVAL an Employee
of MERS, who merely desired to substitute the Trustee, nothing more, no required
Necessity on behalf of the Lender Mortgageit Inc, as expressly required in the Trust
Deed at page 3 under TRANSFER RIGHTS IN THE PROPERTY C.T. page 42.
Even more so when you consider that it is clear in the language under Article 24

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of the Trust Deed pointed out prior, that the parties had a separate agreement for the
procedure for Substitution of the Original Trustee which was that the Lender Mortgageit
Inc., could do so at its Option, which is a different standard than the powers of MERS
at page 3 of the Deed, which are all predicated upon the case where it becomes
Necessary under Law or Custom to do so, not at its option. Clearly Cindy
Sandoval & MERS acted as if they could do it at their Option, without the
Lenders say so whatsoever, and without the agreement of the other Beneficiary to
the Trust Deed, the Trustor Star: Hills.

The meaning and intent of the California Legislature in Civil Code Section 2934a
(A) becomes crystal clear when you read the published Court Cases of :

Pacific S. & L. Co. v. N. American etc. Co. (1940) 37 C.A.2d 307, 309-311, and

Jones v. first American Title Ins. Co. 107 C. A. 4th 381 (2003) at page 390.
It is well settled that parties to a deed of trust may agree to a form of substitution
of trustee other than that provided in section 2934a. See Pacific S. & L. Co. v. N.
American etc. Co. (1940) 37 C.A.2d 307, 309-311.It is well settled that Parties
to a deed of trust may agree to a form of substitution of trustee other than that
provided in section 2934a. Jones v. First American Title Ins. Co. 107 C.A.
4th 381 (2003).

The rights and powers of trustees in nonjudicial foreclosure proceedings are "strictly
limited and defined by the contract of the parties and the statutes." I.E. Associates v.
Safeco Title Ins. Co.(1985) 39 Cal.3d 281, 287 McClatchey v. Rudd (1966) 239 C.A.2d
605, 608;

The duties of a foreclosure trustee are strictly defined by the deed and the relevant
statutes. Our high court has cited "persuasive policy reasons which militate against a
judicial expansion of those duties" I.E. Associates v. Safeco Title Ins. Co. (1985) 39
Cal.3d 281, 288;

This Court, 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:

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 [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 foregoing is why it was customary tradition previous to the enactment of

Civil Code Section 2934a for both Beneficiaries under the agreement the

Lender and the Trustor to sign any substitution of Trustee, so that there

would be no issue, question, or complaint about who had the authority

and power to do the foreclosure sale on the property. This is made clear in

the Case of Pacific S. & L. Co. v. N. American etc. Co. (1940) 37 C.A.2d 307,

309-311, quoted herein prior.

There is no Express Power of Sale Granted to ETS SERVICES LLC or any of its

Officers & Employees, in the Trust Deed, as Required by this Court in the Case

of Bank of America v. La Jolla Group ii (2005) 129 C. A. 4th 706, at page 712.

but only to the named Trustee, OLD REPUBLIC TITLE COMPANY C.T page 41,

under (D), page 3 of the Trust Deed, where it plainly says in appropriate part:

Borrower irrevocably grants and conveys to Trustee, in trust, with power of sale,
the following described property located in the COUNTY of KERN
[description omitted] Parcel ID Number 123-330-06-00 which currently has the
address of 3018 LINDEN AVENUE BAKERSFIELD California 93305

It is inconceivable to Appellants how a unilateral, arbitrary, purported

Substitution of Trustee Executed by a mere Employee of MERS, who is not

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even an Officer of the Corporation, who expressly admits in writing on the

document itself, that she was executing the document because MERS desired

to substitute ETS SERVICE, LLC as Trustee under said Deed of Trust, clearly

in Breach of the Express Terms of the Trust Deed, can Ipso facto, by the very

fact of it, magically & instantly undo what was in the same Trust Deed expressly

stated to be an Irrevocable Grant of the Property with power of Sale to the

Named Trustee OLD REPUBLIC TITLE COMPANY !!!

Nor is there any Express Grant of Power in the Deed Of Trust to MERS to

substitute the Trustee in the Deed Of Trust, in fact there is no mention whatsoever

in the provisions regarding the status and powers of MERS even mentioning

the power or duty or right to substitute the Trustee in any of the express provisions

applicable to MERS, whatsoever. It is clear, & Appellants here contend that the

reason Substitution of Trustee is not even mentioned in the Express provisions

regarding MERS at C.T. page 42, under TRANSFER OF RIGHTS IN THE

PROPERTY, is that there was already a Trustee named in the Document

who had the Power of Sale, so a Substitution of Trustee was not necessary or

required in the Powers & Duties of MERS set out in the Deed Of Trust, as

Nominee or Agent for the Lender & Principal Beneficiary Mortgageit Inc.,

as the powers were expressly limited and qualified in the Deed Of Trust, set

out at C.T. page 42, under TRANSFER OF RIGHTS IN THE PROPERTY

where it expressly states:

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 The beneficiary of this Security Instrument is MERS solely as nominee
for the Lander and Lenders successors and assigns and the successors and assigns of
MERS. This Security Instrument secures to Lender: (i) the repayment of the loan,
and all renewals, extensions and modifications of the Note; and (ii) the performance
of borrowers covenants and agreements under this Security Instrument and the Note.
For this purpose, Borrower Irrevocably grants and conveys to Trustee, in trust,
with power of sale, the following described property..

California Civil Code Section 1656 expressly states:

1656.

All things that in law or usage are considered as incidental to a contract,

or as necessary to carry it into effect, are implied therefrom, unless some
of them are expressly mentioned therein, when all other things of the same
class are deemed to be excluded.

If the foregoing principal under Civil Code Section 1656 is applied to the Trust

Deed, it is clear that the court can not assume that the Power to Substitute the

Trustee is included by implication in the general powers of MERS stated at page

3 of the Trust Deed, as being necessary to carry its contract into effect, when

the power of substitution is expressly reserved elsewhere in the Trust Deed not

as any necessity, but as a mere Option, solely to the Lender, at its Option

in Article Paragraph 24.

California Civil Code Section 1654 expressly states:

1654.

In cases of uncertainty not removed by the preceding rules, the

language of a contract should be interpreted most strongly
against the party who caused the uncertainty to exist.

Based on the foregoing Principal of Law since the Trust Deed is created by
MERS, for Lenders, etc., any uncertainty in the language of the Trust Deed must be

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interpreted most strongly against MERS, Et Al.

A "nominee" is a person or entity designated to act for another in a limited role

in effect, an agent. Born v. Koop (1962) 200 C.A. 2d 519, 528; Cisco v. Van Lew
(1943) 60 C.A. 2d 575, 583-584

According to the foregoing MERS had only a limited role, not unilateral arbitrary

power and right to substitute the trustee because it desired to do so !!!

The extent of MERS's authority as a nominee was defined by its agency agreement
with the lender, and whether MERS had the authority...... must be determined
by reference to that agreement. See, e.g., van't Rood v. County of Santa Clara
(2003) 113 C.A 4th 539, 571

Agency typically arises by express agreement; Anderson v. Badger (1948) 84 C.A.2d

736, 743; existence and extent of agent's duties are determined by the agreement
between agent and principal; Civ. Code, 2315 agent has such authority as principal
confers upon agent.

Moreover, no statute expressly prohibits the waiver of section 2934a. Tellingly, the
Legislature has enacted a statute enumerating the statutory provisions incident to
foreclosure that are not subject to waiver.(Section 2953) Section 2934a is not
included.

Following the maxim of statutory construction, expressio unius est exclusio

alterius, or"'the expression of one thing is the exclusion of another'" People v.
Anzalone (1999) 19 Cal.4th 1074, 1078, quoting Black's Law Dict. (6th ed. 1990)
p. 581, col. 1, we conclude that if the Legislature had intended section 2934a to be
nonwaivable, it would have included it in section 2953, which prohibits the waiver
of rights under sections 2924, 2924b, and 2924c and Code of Civil Procedure
sections 580a and 726. See Strang v. Cabrol (1984) 37 Cal.3d 720, 725
"[A]n express exclusion from the operation of a statute indicates the Legislature
intended no other exceptions are to be implied".

We review issues of statutory interpretation under a de novo standard. Heavenly

Valley v. El Dorado County Bd. of Equalization (2000) 84 C.A. 4th 1323, 1334; We
look first at the statutory language, and if it is clear and unambiguous, we apply it
according to its terms. (People v. Jones (1993) 5 Cal. 4th 1142 , 1146.
Any contract must be construed as a whole, with the various individual
provisions interpreted together so as to give effect to all, if reasonably possible or
practicable. (Civ. Code, 1641; Code Civ. Proc., 1858; 1 Witkin, Summary of
Cal. Law (9th ed. 1987) Contracts, 686, pp. 619-620.) Courts must interpret

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contractual language in a manner which gives force and effect to every provision,
and not in a way which renders some clauses nugatory, inoperative or meaningless.
New York Life Ins. Co. v. Hollender (1951) 38 Cal. 2d 73, 81-82;Titan Corp. v.
Aetna Casualty & Surety Co. (1994)22 C.A. 4th 457, 473-474.
The interpretation of a written instrument, even though it involves what might
properly be called questions of fact see Thayer, Preliminary Treatise on Evidence,
pp. 202-204, is essentially a judicial function to be exercised according to the
generally accepted canons of interpretation so that the purposes of the instrument
may be given effect. See Civ. Code, 1635-1661; Code Civ. Proc., 1856-1866.

Respondents Statute Of Limitations Arguments

Respondent repeats the same Statute of Limitations arguments as she did in the

Trial Court, never directly addressing the specific facts & law cited by Appellants

on the subject of intentional concealment of the secret Quit Claim Deed by GMAC

Mortgage LLC, & the doctrines of Equitable & Collateral Estoppel, which were

cited by Appellants in the Opening Brief at page 22 after the 8th line from the

top of the page:

"The venerable doctrine of equitable estoppel or estoppel in pais, . rests firmly

upon a foundation of conscience and fair dealing,."City 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.

As cited prior in Appellants Opening Brief this Court consider the intentional

concealment of the secret Quit Claim Deed of GMAC Mortgage LLC, which

amounted to Fraud on the Superior Court & on Plaintiffs Star & Alan, which

can only be remedied by the Application of Equitable & Collateral Estoppel.

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If a statute of limitations applied to the Quiet Title Action of Appellants

the Court would have to apply the Calif. C.C.P. Section 338, due to Fraud &

Intentional Concealment allegations, & the necessity to either toll the statute or

apply Equitable & Collateral Estoppel, which Courts have Ruled, due to the

discovery provision therein does not begin to run until the Fraud is discovered.

This means the Court would be required to toll the statute until April of 2015 when

the Fraud was discovered by Plaintiffs, as is set forth in the Verified Complaint.

This would of course render the Complaint timely filed as required by Law,

because the Verified Complaint was filed within the three years of Discovery of

the intentional concealment and Fraud.

"[T]he applicable statute of limitations is determined by the substance or

gravamen of the action rather than the form of the pleading." Giffin v. United
Transportation Union (1987) 190 C. A. 3d 1359, 1362 [action against labor
union labelled breach of contract held governed by three-year statute for
liability created by statute]; accord Guess, Inc. v. Superior Court (1986)
176 C. A. 3d 473, 478 ; Edwards v. Fresno Community Hosp. (1974) 38 C.A.
3d 702, 704 ; Day v. Greene (1963) 59 Cal. 2d 404, 411;

It is immediately clear that a three-year limitations period applies to any

cause of action, however designated, founded upon a fraudulent conspiracy
between the trustee and beneficiaries to deprive the Hatches of the best price
for their property at the trustee sale. Section 338, subdivision (d) provides for a
three-year statute for "[a]n action for relief on the ground of fraud or mistake."
This statute applies to any action for conspiracy based upon fraud. Filice v.
Boccardo (1962) 210 C.A. 2d 843. 846; Moreover, the section is comprehensive
and applies "if fraud or mistake is the basis of the legal injury (the 'ground' of
the action) ... regardless of whether the complaint seeks legal or equitable relief
or pleads a cause of action in tort or contract." (3 Witkin, Cal. Procedure (3d ed.
1985) Actions, 448, p. 480; acrd. Douglas v. Douglas (1951) 103 C.A. 2d 29, 32

Although the statute does not begin to run until discovery of the facts
constituting the fraud 338, subd. (d), or, in the case of an ongoing conspiracy

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to defraud, when the last overt act pursuant to the conspiracy has been completed
Wyatt v. Union Mortgage Co. (1979) 24 Cal. 3d 773, 786-787

III
RESPONDENTS BRIEF III-VII

Respondent Repeats The Same Arguments & Cites The Same Cases As
She Did In Her Summary of Argument & In The
Demurrer in The Trial Court

A
Respondent Fails to Directly Address or Oppose Several Points
Of Law and Claims In Appellants Opening Brief As they
Did in Their Demurrer In The Trial Court

B
This Court Should Conclude Respondent Has Conceded All
those Points Of Law and Claims Which She Ignored In The Trial
Court & In This Court 5th DCA & Rule Accordingly
____________________________________________________

Appellants Reply To Respondents Brief :

III. FACTS. Pages 15-20 ;

Appellants repeat by reference pages 3-9 Statement Of Significant Facts In

The Record which is made a part of this reply herein.

Appellants Reply To Respondents Brief :

IV. STANDARD OF REVIEW Pages 20-21 ;

Appellants repeat by reference pages 12-15 Standard Of Review on

Demurrer-Abuse of Discretion, of their Opening Brief, which is made a
part of this reply herein.

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Appellants Reply To Respondents Brief :

V. PLAINTIFFS QUIET TITLE ACTION IS BARRED BY THE

STATUTE OF LIMITAIONS Pages 21-29:

Appellants repeat by reference pages 12-20 starting from I at page 12, to the
first 10 lines from the top of page 20, & pages 20-25 of their Opening Brief,
beginning with the subheading Judicial Notice-Incorporation By Reference
11 lines from the top of page 20, to the first 6 lines of page 25. Again Respondent
ignores the Request for Judicial Notice which she failed to oppose, or even
mention, which this Court should Grant, and issue Equitable Relief regarding
the Intentional Concealment and its ramifications on Plaintiffs Due Process
Rights as set forth in the supporting documents and in the Opening Brief
regarding denial of the Right to Amend the Complaint in the Trial Court with
Martha Compos as a Defendant in the prior Action over the Title, S-1500-CV
-271292 -DRL, which is now 5th DCA Case # F064464, on a 5+ year Bankruptcy
Stay filed in New York by GMAC Mortgageit LLC, ETS Services LLC, et al.
Justice delayed is Justice Denied.

Appellants Reply To Respondents Brief :

VI. ETS HAD AUTHORITY TO CONDUCT THE TRUSTEES SALE

AS THE SUBSTITUTE TRUSTEE Pages 29-32;

Appellants repeat by reference pages 26-37 of their Opening Brief, from

II page 26 page 37 first 4 lines from top of the page. Appellants further
repeat by reference pages 7-26 of this Reply Brief from II at page 7, to
line 13 of page 26, from the top of the page. It is clear the parties had an

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alternative agreement outside of Civil Code Section 2934a under Article 24
of the Trust Deed which MERS & ETS Services Breached Requiring the
Court to reverse the Judgment sustaining the Demurrer & direct the trial
Court to Grant the Motion to Declare Void.

Appellants Reply To Respondents Brief :

VII. PLAINTIFFS QUIET TITLE ACTION FAILS BECAUSE THEY
HAVE NOT TENDERED THE DEBT OR ESTABLISHED PREJUDICE

Respondents Tender Argument

Appellants repeat by reference page 25 of their Opening Brief under the heading
There Was No Tender Requirement Dimock VS Emerald Properties (2000)
81 C.A. 4th 868; 876 .

Additionally, there is a general equitable exception that "tender may not be

required where it would be inequitable to do so." Sacchi v. Mortg. Electr.
Registration Sys., Inc., 2011 WL 2533029, at *10 (C.D. Cal. June 24, 2011)
citing Onofrio v. Rice, 55 C.A. 4th 413, 424, (Cal. Ct. App.1997).
Furthermore, tender is not required when the trustor does not rely on equity
to attack the deed, such as, where the trustee's deed is void on its face. Lona, 202
C.A. 4th at 113, 134 ; see also Dimock v. Emerald Props. LLC, 81 C. A. 4th 868,
878, 97 (Cal. Ct. App.2000) (sale under the deed of trust by a former trustee
was facially void, and therefore tender was not required to sustain a cause of
action).
Respondents Prejudice Argument
The Claim no prejudice has been established by Respondent is without any
merit. It is long settled that the loss of Real Property is prejudicial on its face
if it was adverse against the free will of the owner of the Property. The record
is clear Appellants were forced out of their home at 3018 Linden Avenue
Bakersfield California against their free will, without any Due Process of Law
as the ousting party had no Right to Possession at the time, and obtained the

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Writ of Possession by Fraud after secretly Quit Claiming all Right and Interest
in the Property, in the middle of litigation over the Title, to avoid a Judgment
for Damages, as they later filed a Bankruptcy to further escape Judgment for
Damages, rather than answer Appellants Opening Brief on Appeal which they
were served with before they filed a Notice of Bankruptcy on this Court
around 5 years or more ago, this is considered Fraud on its face in numerous
Court Rulings. Appellants have been denied the ability to seek damages from
the Fraud because GMAC Et Al are hiding behind the Bankruptcy Court to
avoid being sued for the damages they caused Appellants, which is blatant
Denial of Due Process of law. Appellants have not sued for money damages
in this Case, only for return of the property.

In deciding the limited question on review, we are concerned only with prejudice in the
sense of an injury sufficiently concrete and personal to provide standing, not with prejudice
as a possible element of the wrongful foreclosure tort. (See fn. 4, ante.) As it relates to
standing, we disagree with defendants' analysis of prejudice from an illegal foreclosure. A
foreclosed-upon borrower clearly meets the general standard for standing to sue by showing
an invasion of his or her legally protected interests (Angelucci v. Century Supper Club
(2007) 41 Cal.4th 160, 175 the borrower has lost ownership to the home in an allegedly
illegal trustee's sale. (See Culhane, supra, 708 F.3d at p. 289 [foreclosed-upon borrower has
sufficient personal stake in action against foreclosing entity to meet federal standing
requirement].) Moreover, the bank or other entity that ordered the foreclosure would not
have done so absent the allegedly void assignment. Thus "[t]he identified harm the
foreclosure can be traced directly to [the foreclosing entity's] exercise of the authority
purportedly delegated by the assignment." (Culhane, at p. 290.)

(7) It is no mere "procedural nicety," from a contractual point of view, to insist that only
those with authority to foreclose on a borrower be permitted to do so. (Levitin, The Paper
Chase: Securitization, Foreclosure, and the Uncertainty of Mortgage Title, supra, 63 Duke
L.J. at p. 650.) "Such a view fundamentally misunderstands the mortgage contract. The
mortgage contract is not simply an agreement that the home may be sold upon a default on
the loan. Instead, it is an agreement that if the homeowner defaults on the loan, the
mortgagee may sell the property pursuant to the requisite legal procedure." (Ibid., italics
added & omitted.)

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The logic of defendants' no-prejudice argument implies that anyone, even a stranger to the
debt, could declare a default and order a trustee's sale and the borrower would be left
with no recourse because, after all, he or she owed the debt to someone, though not to the
foreclosing entity. This would be an "odd result" indeed. (Reinagel, supra, 735 F.3d at p.
225.) As a district court observed in rejecting the no-prejudice argument, "[b]anks are
neither private attorneys general nor bounty hunters, armed with a roving commission to
seek out defaulting homeowners and take away their homes in satisfaction of some other
bank's deed of trust." Miller v. Homecomings Financial, LLC (S.D.Tex. 2012) 881 F.
Supp.2d 825, 832.)

Appellants Reply To Respondents Brief :

IV
Respondents Silence & Non Response To Plaintiffs /Appellants Points & Issues
Of Law In the Trial Court & In the 5th DCA On Appeal Should be taken By
This Court As Concession To The Points Not Addressed Or Opposed By
Respondent In The Trial Court & In This Court In Their Respondent Brief
A
This Court Should Rule Accordingly
& Issue The Appropriate Relief
---------------------------------------------------------------------------------------
Respondent has remained silent in Respondents Opening Brief on several main points
and issues of Law Raised and contended by Appellants in Appellants Opening Brief,
which silence speaks volumes, in that they ignored the same points & issues of
settled fact & Law in the Official Record in Plaintiffs Verified Complaint in the
Trial Court in Case # BCV-16100873. By sitting Silent in the Trial Court & sitting
Silent here in this Appeal Court they have waived any Opposition or Right to argue
any Opposition in any Subsequent Oral argument before this Court on any of those
points & issues.

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Defendant / Respondent remained silent on the following matters in the trial Court in
their Demurrer to Plaintiffs Verified Complaint, and in their subsequent Respondents
Brief here in the 5th DCA:

1. As also set forth in Appellants Opening Brief, if not for concealment of the
Secret Quit Claim Deed by GMAC MORTGAGE LLC, REO PROPERTIES
CORPORATION LLC, & Defendant, Respondent Martha Compos, Martha
Compos would have been timely named as a Doe Defendant, which,
Respondents have failed to address in Respondents Brief, or even dispute or
deny. Respondent only argued the intentional concealment of the Quit Claim
is irrelevant.

2. Respondent failed to address Appellants Claim of Equitable &

Collateral Estoppel on the factual Merits, or on the Law, merely claiming it
is irrelevant based on their Statute of limitations arguments that make no
sense when compared to the factual allegations of intentional concealment
in the Verified Complaint.

3. Respondents used avoidance of the meritorious issues of Fact & Law

regarding clear Fraud by Concealment of GMAC Mortgage LLC & REO
PROPERTIES CORPORATION LLC, by saying it is irrelevant, with no
on point Case Law authority that squares with the factual allegations in
the Verified Complaint, When it is obviously Relevant to the Claim of
Equitable & Collateral Estoppel of Plaintiffs in the Verified Complaint,
& is also relevant to the allegations in the Verified Complaint that because
of the Secret Quit Claim of all Title & Interest in the Property by GMAC
Mortgage LLC, GMAC Mortgage LLC had no Right to Possession
of the Real Property at the time they Obtained the Writ Of Possession, &

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therefore had no Right to Evict Plaintiffs, rendering the Writ Of Possession
Void Ab Initio, & the Eviction of Plaintiffs Void Ab Intio, which Verified
allegations are no where addressed by Respondent either in the Trial Court,
or in their Respondents Brief in this Court, 5th DCA !

4. The Respondent failed to address the Request For Judicial Notice served on
them and filed in the 5th DCA prior to the Filing of Appellants Opening Brief
and failed to oppose the Request, & failed to mention it in their Respondents
Brief. This Court should Grant the Request for Judicial Notice & Issue the
Appropriate Relief. The Court should take Judicial Notice of The fact at C.T.
page 97 in the Record on Appeal in this Case, that the language in the
SUBSTITUTION OF TRUSTEE executed by a CINDY SANDOVAL,
ASSISTANT SECRETARY FOR MERS nowhere states that MERS was
acting as the Nominee or the Agent for the Lender / Beneficiary named
in the original Deed of Trust, which was Mortgageit Inc., it merely states that
the undersigned, [CINDY SANDOVAL] desires to substitute a new
trustee & further states the undersigned [CINDY SANDOVAL,
ASSISTANT SECRETARY] desires to substitute ETS SERVICES, LLC,
as Trustee under said Deed of Trust. There is no statement whatsoever that
MERS is acting as Nominee or as Agent for the Original Beneficiary
in the Original Deed Of Trust, because the Beneficiary Mortgageit Inc., desired
to do so, because it was necessaryunder Law or custom to do so. This language
clearly indicates that the undersigned, a mere ASSISTANT SECRETARY
not even an Officer of MERS, but a mere employee, merely, personally desired
to execute a substitution of the trustee, not because the Original Beneficiary
desired to do so, because it was necessary, and essential to do so, in order to
foreclose under the terms of the Deed Of Trust.

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*There are many more points Respondents failed to address however computer problems
and the closing deadline has prevented Appellants from listing them here. The failure
of Respondent to address the express issues of Law raised by Appellants in their Opening
Brief can be taken by this Court to mean Respondent has conceded the correctness of the
points and issues of Law raised by Appellants in their Opening Brief.

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 Trust Deed, which expressly Excluded any general

provisions that might be interpreted to give a power to Substitute the Trustee.

The purported Substitution of Trustee was not made as Nominee For the

Lender, or as Agent for Lender, but stated the undersigned, a mere

employee of MERS, Desired to Substitute the Trustee, there was no

Requirement or Necessity of Law, which was a Breach of the Trust Deed

limiting the Powers of MERS to act only if Necessary to comply with Law or

Custom as Nominee for Lender. 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

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

Ab Initio, including the issuance of 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 Sale of

Star & Alan's home Void Ab Initio & All Subsequent Actions, Judgments, based

thereon Void Abinitio in Related Case S-1500-CL-237061-KTC. This Court

should also issue a further Order allowing Application to this Court in the

future if necessary to Enforce its Judgment. This Court should also find

that Eviction of Star & Alan was Void Abinitio, on separate grounds that

due to the Secret Quit Claim Deed by GMAC Mortgage LLC, of all Right

and Interest in the Title to the Real Property at 3018 Linden Bakersfield

California, some nine months prior to the issuance of the Writ of Possession,

the Writ of possession was rendered Void Ab Initio with no force or effect

under Law, & rendering the Eviction of Star & Alan also Void Ab Intio,

of no force or effect, & unenforceable under Law, which requires reversal

of the Trial Court with directions to enter Judgment for Plaintiffs including

Reconveyance of the property to Star and Alan one half ownership each.

Otherwise the Record is very Clear that the Court committed Reversible

Prejudicial Error when it Sustained the Demurrer of the Defendants without

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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.

This Court should Grant the unopposed Request For Judicial Notice & issue

Appropriate Relief from the Fraud perpetrated by GMAC MORTGAGE LLC,

Et Al. The Court should Reverse the Final Judgment of the Trial Court For all

the facts & Reasons cited in the Opposition to the Demurrer. The Court must

now Reverse the Judgment of Dismissal, then it must Direct the Court to

Vacate its Judgment & allow them to Proceed on their Complaint in the

Trial Court, with leave to amend the complaint for damages for Fraud,

and to name Doe Defendants.

Star & Alan respectfully Request this Court to do just that.

On this day, the-11th -day-of-the-Ninth-month-Two-Thousand-seventeen ,

_______________________ _______________________
Star: Hills Alan Gjurovich
Appellant Appellant

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 CERTIFICATE OF WORD COUNT

The foregoing brief contains 12, 074 words, excluding tables .

In preparing this certificate, I have relied on the word count generated by the word

count program in the Libre office Writer program in the computer

DATED: 9/11 / 2017.

_______________________
Alan Gjurovich

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 Proof Of Service

I the undersigned hereby Declare under penalty of perjury under the laws of the State of

California that I served the here attached Document described as:

Appellants Reply Brief On Appeal in Case # F074613 on the persons named below

at the addresses to follow:

RESPONDENT Martha Beatriz Compos C/O : Counsel of Record :

THOMAS H. CASE, HENNELLY & GROSSFELD LLP,
4640 Admiralty Way suite 850, Marina Del Rey,
Ca. 90292. 1 copy

Trial Court Judge Lorna Brumfield, C/O:

Clerk Of Kern County Superior Court,
1415 Truxtun Avenue, Bakersfield California,
93301-4172, 1 copy

Clerk Of The California Supreme Court,

350 McAllister Street,
Room 1295, San Francisco, Ca. 94102-4797, 4 copies

Said service was on the date of 9/11/17 by US First Class Mail, with the
Documents placed and sealed in an envelope with the Postage therefore fully
prepaid by me.

I am over the age of eighteen years, and not a party to this Action. My business
address is P.O. Box 8323, Porterville, California, 93258

Executed by my hand on this day, the 11th day of September, 2017, in the State
of California, County of Tulare,

_______________________
Courtney Gillespie

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